Criminal Law in Hong Kong

CRIMINAL
LAW
IN
HONG
KONG
M I C HA E L
JAC K S O N
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CRIMINAL LAW
IN HONG KONG
Michael Jackson
Hong Kong University Press

14/F Hing Wai Centre
7 Tin Wan Praya Road
Aberdeen
Hong Kong
www.hkupress.org
Hong Kong University Press 2003

First published 2003
Reprinted 2006, 2007, 2009, 2011
ISBN 978-962-209-558-8
All rights reserved. No portion of this publication may be

reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopy, recording,
or any information storage or retrieval system, without
prior permission in writing from the publisher.
British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.
10
Cover designed by Lea & Ink Design

Printed and bound by Liang Yu Printing Factory Ltd., Hong Kong, China
Contents
Preface
ix
Table of Cases
xi
Table of Legislation
PART I
1
INTRODUCTION
Crime and Criminalization
xlv
1
3
Introduction 3 The Concept of Crime 7 Why

Criminalize? 12 Crime and Punishment 17
2
The Criminal Law of Hong Kong

Introduction 25 Sources of Hong Kongs Criminal Law 26
Foundations of Hong Kongs Criminal Justice System 34
Classifying Offences 47 Hong Kongs Courts of Criminal
Jurisdiction 50 Criminal Jurisdiction 56
25
vi
CONTENTS
PART II
3
THE GENERAL STRUCTURE OF CRIMINAL LIABILITY 61
The Elements of Offences: Actus Reus
63
Introduction 63 Actus Reus 67 Causation 87

Concurrence/Coincidence of Actus Reus and Mens Rea 100
4
Mens Rea
109
Introduction 109 Determining the Mens Rea of an

Offence 114 Meaning of Specific States of Mind:
Intention 117 Knowledge 136 Recklessness 138
Transferred Malice 161 Mistake 164
5
Negligence and Strict Liability

Introduction 177 Negligence 177 Strict Liability 181
177
PART III DEFENCES
209
211
Capacity and Incapacitating Conditions

Introduction 211 Infancy 211 Mental Abnormality 216:
Insanity 225; Automatism 237; Diminished Responsibility 248
Intoxication 255
Justifications and Excuses
277
Introduction 277 Self-defence and Crime Prevention 279

Duress and Necessity 300: Duress by Threats 301; Necessity
and Duress of Circumstances 313 Marital Coercion 323
Superior Orders 324
PART IV PARTICIPATION AND INCHOATE LIABILITY
327
329
Participation
Introduction 329 Principals 330 Secondary Parties 333:
Aiding, Abetting, Counselling or Procuring 338; Joint
Enterprise Liability 360 Special Rules 378 Assistance
After Commission of an Arrestable Offence 383 Vicarious
Liability 388 Corporate Liability 395
vii
CONTENTS
Inchoate Offences: Incitement, Conspiracy and Attempt
403
Introduction 403 Incitement 405 Conspiracy 414:

Statutory Offence 416; Conspiracy to Defraud 442
Attempt 458
PART V
OFFENCES AGAINST THE PERSON
10 Homicide
487
489
Introduction 489 Murder 497 Manslaughter 501:

Voluntary Manslaughter 501; Diminished Responsibility 501;
Provocation 502; Suicide and Murder 525; Involuntary
Manslaughter 526; Constructive Manslaughter (Unlawful and
Dangerous Act) 527; Gross Negligence 537; Reckless
Manslaughter 544 Infanticide 547 Causing Death by
Dangerous Driving 548
11 Non-fatal Offences Against the Person
553
Introduction 553 Common Assault 553: Assault 555;

Battery 562; Unlawfulness 564 Aggravated Assaults 579:
Occasioning Actual Bodily Harm 579; Assaulting Police Officer
in Due Execution of Duty 582 Wounding and Grievous
Bodily Harm 590: Malicious Wounding/Grievous Bodily
Harm 590; Wounding/Grievous Bodily Harm with Intent 597
12 Sexual Offences
Introduction 599 Offences Involving Sexual Violence or
Violation 600: Rape 600; Unlawful Sexual Intercourse 612;
Incest 614; Buggery, Gross Indecency and Related
Offences 615; Procuring and Enabling Unlawful Sexual Acts
619; Abduction Offences 621; Indecent Assault 622 Offences
Involving Sexual Exploitation 636: Soliciting 636; Vice
Offences 637 Evidential, Procedural and Publication
Rules 640
599
viii
CONTENTS
PART VI OFFENCES AGAINST PROPERTY
643
13 The Theft Ordinance: Theft, Robbery and Handling
645
Introduction 645 Theft 647: Property 648; Belonging to

Another 657; Appropriation 674; Dishonesty 701; Intention
of Permanently Depriving 706 Robbery 712 Handling
Stolen Goods 715
14 The Theft Ordinance: Deception and Fraud Offences
727
Introduction 727 Deception Offences 728 Obtaining

Property 743 Obtaining Pecuniary Advantage 748
Obtaining Services 752 Evading Liability 754 Procuring
Entry in Records 761 Procuring Execution of Valuable
Security 763 False Accounting 766 Fraud 768
Index
773
CONTENTS
ix
Preface
The criminal law of the Hong Kong Special Administrative Region is founded
on the same general principles that underlie English criminal law and the
criminal law of other Anglo-based legal jurisdictions. Until recently, students
and teachers alike of Hong Kong criminal law had easy recourse to
established English textbooks for most of their needs. To a considerable
extent, this still holds true, but increasingly it is the differences between
Hong Kong and English law, and the distinctive features of Hong Kong
criminal law that engage the attention of teachers and students and
necessitate caution on the part of practitioners. This is all the more so, it
could be added, since 1 July 1997, when Hong Kong formally dissolved its
constitutional links with the United Kingdom and reconstituted itself as a
Special Administrative Region under the sovereignty of the Peoples Republic
of China. With the traditional reliance on English criminal law now less
easily maintained, the challenge for Hong Kongs criminal lawyers and the
judiciary of the SAR is to both reinforce fundamental principles of the
criminal law and also fashion new law to meet the changing needs of Hong
Kongs criminal justice system.
This book is intended as a step in that direction. It is a response to
increasingly frequent suggestions, entreaties even, by numerous students
in recent years for a textbook on Hong Kong criminal law. It has been
written primarily with these students in mind, and follows the traditional
format and approach of an undergraduate criminal law textbook. It involves
first the exposition of the general principles of criminal liability, and then
PREFACE
a discussion of their application to a range of offences against the person

and property. No doubt there are other offences that could, perhaps even
should, have been included; but attempting to cover every offence has never
been the purpose or ideal model for an undergraduate textbook. These
limitations aside, I hope this book may also prove to be a useful resource
for the members of Hong Kongs judiciary, practitioners and other law
enforcement and criminal justice personnel, new and experienced, in their
daily battles within and without the criminal justice system.
I would like to thank all those people who have helped in so many
ways to bring this book to fruition. First, present and past colleagues at the
University of Hong Kong who have co-taught criminal law and helped me
formulate my own thoughts, especially Ms Janice Brabyn, Mr Rick
Glofcheski, Mr Bill McNeil, Mr Fu Hualing, Mr Simon Young, and Mr
Simon Bronitt; to them I owe a great debt. I am also grateful to several
present and past Hong Kong practitioners, Mr Melville Boase, Mr Colin
Cohen, and Ms Monica Skowronska, who gave me opportunities to
experience the practice of criminal law in Hong Kong and even occasionally
pursue academic points in the courts. I owe enormous thanks to Hong
Kong University Press, who stuck with the book despite what criminal
lawyers would undoubtedly call the most severe provocation. Last, and
certainly not least, my thanks to my wife, Terri, who helped type early
drafts and thereafter cajoled, comforted, cursed whatever it took to get
me to complete the final draft while labouring herself to produce our
two beautiful children, Sorcha and Cian.
Criminal law changes rapidly and often. I have endeavoured to state
the law as of January 2002 (with a few additions at the proofreading stage);
the errors remaining are all mine.
Michael Jackson
The University of Hong Kong
December 2002
1
Table of Cases
HONG KONG
A-G of HK v Chan Nai-keung Daniel [1987] 1 WLR 1339, [1988] 1 HKLR
70 654, 677, 697698, 703, 746
A-G of HK v Yip Kai-foon [1988] AC 642 719, 725726
A-G of HK v Reid, see NZ cases
A-G v Chan Yuen Lung [1989] 1 HKC 470 315
A-G v Chik Wai-lun [1987] HKLR 41 412
A-G v Chow Wai-ming, Yau Siu-ming [1992] 1 HKCLR 214 761
A-G v Demand Enterprises Ltd [1987] HKLR 195 188189, 193
A-G v Lee Kwong-kut [1993] 2 HKCLR 186 39, 43, 4447, 205
[1992] HKCLR 76 CA 198
A-G v John Lok [1986] HKLR 325 31
A-G v Shun Shing Construction & Engineering Co Ltd [1986] HKLR 311 204
A-G v Tong Ping-wing [1982] HKLR 1 639
A-G v Yeung Sum-shun [1987] HKLR 987 429, 431
Ajax Engineers & Surveyors Ltd (1997) 27 HKLJ 40 400
Au Lai Hong [1992] 2 HKC 217 713
Cham Kam [1959] HKLR 586 724
Chan Chan-yi v Yip Kim-ming [1964] HKLR 722 140
Chan Chi Kwang (1978) Cr App No. 1144 of 1977 559
Chan Chi Kwong (1991) Cr App No. 444 of 1991 737
Chan Chi Wah [1967] HKLR 241 214
xii
TABLE OF CASES
Chan Chi-wah [1992] 1 HKCLR 133

Chan Chi-wo (1982) Cr App No. 311 of 1981 736
Chan Ching-fung [1992] HKCLR 190 470, 519
Chan Cho-nam [1986] HKC 603 336
Chan Hing-cheung [1974] HKLR 196 604
Chan Ka-shing [1997] HKLR 323 507
Chan Kai [1990] 1 HKLR 68 412
Chan Kai Hing [1997] 3 HKC 575 559
Chan Kang To [1997] 2 HKC 281 449450
Chan Kin Sum [1995] HKDCLR 1 614
Chan Kwong [1952] HKLR 212 503
Chan Kwong [1987] HKLR 756 474
Chan Lai-hong (1990) Mag App No. 1443 of 1989 728, 747
Chan Lap Man Raymond & Others (No.4) [1996] 3 HKC 671 418, 420
Chan Man-sin v A-G of HK [1988] 1 WLR 196, [1988] 1 All ER 1, [1987] 2
HKC 56 652, 675, 694, 695, 707708
Chan Ming-luk [1962] HKLR 651 226, 249
Chan Pui-kay [1992] 1 HKCLR 218 401
Chan Shui-sing [1980] HKLR 310 648
Chan Siu-ming [1984] HKC 159 713
Chan Tak Kwong [1997] 1 HKC 478 239
Chan Wai Hung v HKSAR (2000) 3 HKCFAR 288 607, 609
Chan Wai-lam [1981] HKLR 139 743744
Chan Wing Hang [1996] 3 HKC 225 346347, 390391
Chan Wing-siu [1985] HKLR, [1985] 1 HKC 393, [1985] AC 168 363, 364
366, 367, 368
Chan Wing-yin (1996) Cr App No. 570 of 1995 298, 299, 510
Chan Yu-keung [1987] HKLR 276 252, 493494, 525
Chau Ming-cheong [1983] HKLR 187 147, 156
Chen Dah Shing (1988) Cr App No. 286 of 1987 767
Cheng Cheuk Ming [1993] 2 HKC 537 583, 590
Cheung Chung Ching (1984) Cr App No. 546 of 1984 383
Cheung Chung-yau Mag App 33 No. of 1985 703
Cheung Ka-fai [1995] 2 HKCLR 184 421
Cheung Kam Kei [1995] HKLD J39 492
Cheung Kin Shing [1995] 2 HKC 210 612
Cheung Kwok Wai (1997) Crim App No. 271 of 1996 293
Cheung Moon-tong [1981] HKLR 402 611
Cheung Ping-mui [1991] 1 HKC 302 540, 543, 548
Cheung Wai-leung [1991] 1 HKC 420 478, 482
Cheung Wai-wan [1994] 2 HKCLR 237 741
TABLE OF CASES
xiii
Cheung Wing Shun [1984] HKC 403 703

Cheung Yuet Pang [1991] 1 HKC 569 639
Chim Pui Chung v HKSAR [1999] 1 HKLRD 836 420
Chiu Anastasius [1995] 1 HKCLR 217 733
Chiu Cheung (1986) Cr App No. 119 of 1986 251, 255
Chiu Cheung [1989] 1 HKLR 15 470
Chiu Sau Wah (1997) Crim App No. 182 of 1996 253
Chiu Tat-shing Dennis (1984) Cr App No. 238 of 1984 157
Chiu Yu Man v HKSAR [2001] 4 HKC 351 765
Chiu Yu To [1983] 2 HKC 420 584
Choi Wai Kwong [1989] 2 HKLR 31 580
Chow Sai-leong [1989] 2 HKLR 385 583
Chow Shui Ming (1996) Cr App No. 335 of 1996 459
Chow Siu Hei (1996) Cr App No. 692 of 1995 612
Chu Cheuk-keung (1986) Mag App No. 1063 of 1985 157
Chung Chi-cheung [1987] HKLR 1221 584
Chung Shi Shun (1985) Cr App No. 530 of 1984 723
Cunningham (1992) Mag App No. 341 of 1992 398, 402
Erisman [1988] 1 HKLR 370 575576
Fok Kau [1994] 1 HKCLR 122 342343, 355
Fong Chi Wai [1996] 2 HKC 300 629
Fong Ma-sum [1973] HKLR 533 507
Fong Shun Yuen [1995] 2 HKC 498 766
Fung Chun-wai [1982] HKLR 302 260
Fung Kam wa (1989) Mag App No. 608 of 1988 760
Fung Mui Lee [1996] 1 HKC 72 239
Gammon (Hong Kong) Ltd v A-G of Hong Kong [1985] 1 AC 1, [1985] 2 HKC
661 185186, 187, 191, 192, 194196, 198, 200, 204, 392, 396
Giles Christine Yun-tai (1984) Cr App No. 214 of 1984 757
Harris [1991] 1 HKLR 389 619
HKSAR v Au Yeung Boon Fai [1999] 3 HKC 605 651652
HKSAR v Au Yuen Mei [2000] 1 HKC 411 324
HKSAR v Butrago [1998] 3 HKC 113 313
HKSAR v Chan Wing Hung [1997] 3 HKC 427 604, 619
HKSAR v Cheng Chung Ming [2001] 1 HKC 480 766
HKSAR v China Road Engineering & Investment Co Ltd [1998] 4 HKC 722 188
HKSAR v Choi Fei Ngai [1998] 3 HKC 455 627
xiv
TABLE OF CASES
HKSAR v Coady [2000] 2 HKC 12 369, 498

HKSAR v Coady (No. 2) [2000] 3 HKC 570 507, 508, 512
HKSAR v Do Van Ve (1997) Cr App No. 543 of 1997 724
HKSAR v Goh Swee Yan Angelina [2000] 2 HKC 711 650, 668669, 706,
728, 746, 747, 758759, 762763
HKSAR v Ho Wai Lun [2001] 3 HKC 557 720
HKSAR v Ho Wing Cheong [1977] 3 HKC 754 636
HKSAR v Heung Yu Nam [1997] 3 HKC 632 415
HKSAR v Lam Chun Sun [1998] 2 HKC 214, [1998] 1 HKLRD 339 729,
733, 747
HKSAR v Lam Chun Wah [1999] 2 HKC 731 107
HKSAR v Lau Kwai Chung [2000] 3 HKC 658 630
HKSAR v Lau Tai Heung [1999] 4 HKC 60 723
HKSAR v Lee Yuet Tong (1997) Cr App No. 711 of 1996 606, 607
HKSAR v Leighton Contractors (Asia) Ltd [2000] 1 HKLRD 787 206
HKSAR v Leung Wai Chung [1998] 1 HKLRD 196, [1999] 2 HKC 471 252,
253
HKSAR v Li Ting [2000] HKLRD 129 667
HKSAR v Lo Tak Chi [2000] 1 HKC 385 591592
HKSAR v Ma Pui Ying [1998] 1 HKLRD 41 706
HKSAR v Ma Wai-kwan David [1997] 2 HKC 315 27
HKSAR v Man Kwok Wan [2000] 1 HKC 778 700, 718
HKSAR v Ng Chung Wai [1998] 4 HKC 219 157
HKSAR v Pang Tat Sing [1998] 1 HKC 604 415
HKSAR v Pat Kim Por [1999] 4 HKC 840 206
HKSAR v Paul Y-ITC Construction Ltd [1998] 3 HKC 189 206
HKSAR v Saifudeen Abdul Wahid [1997] 3 HKC 729 453
HKSAR v Siu Ping Fuk [1999] HKLRD B3 439
HKSAR v Sunami Marwito [2000] 1 HKLRD 892 363
HKSAR v Sze Sun Man [1998] 4 HKC 231 724
HKSAR v Tai Kwok Hei [1998] 3 HKC 241 724
HKSAR v Tam Kon Chung [1998] 3 HKC 392 612
HKSAR v Tsang Chin Tak [1999] 4 HKC 845 252
HKSAR v Tsang Sai Kit [1997] 3 HKC 790 612
HKSAR v Wong Cho Sum [2001] 3 HKC 268 650, 676, 691692, 693, 759
HKSAR v Wong Kwong-yick (1997) Cr App No. 594 of 1996 612
HKSAR v Wong Ying Yu [1997] 3 HKC 453 285, 586
HKSAR v Wu Yat Kwong [1999] 3 HKC 853 717
HKSAR v Yang Yon Ching [1997] 3 HKC 744 285
HKSAR v Yeung Kin Ping [1997] 3 HKC 478 285, 587
HKSAR v Zheng Wan Tai [2000] 1 HKC 627 724
TABLE OF CASES
xv
Ho Chun Yuen [1961] HKLR 433 503

Ho Chung-yum (1985) Cr App No. 120 of 1985 381
Ho Wai-Leung [1977] HKLR 93 252
Ho Wing-sum [1987] HKLR 952 299
Hui Chi-ming [1991] 2 HKLR 537, [1992] 1 AC 34 336, 363, 366369, 378
Hui Lan-chak [1992] DCt, Case No. 556 of 1992 197
Hui Yau Tsen [1991] HKLD F30 632, 634
Hui Yiu-fai [1993] 1 HKC 223 107
Huang Chen Sheng [1988] HKC 544 221
Hung Man-chit [1996] 3 HKC 25 363, 382
In re Piracy Jure Gentium [1934] AC 584 57
Ip Chong Fun [1996] 1 HKC 597 260
Ip Siu Man [1985] 1 HKC 122 506, 507, 513515
Jimmy Johnson [1983] HKLR 344 219, 226, 249
Kam Man Fai [1983] 1 HKC 614 582, 586
Keung Sai-chung [1986] HKLR 833 220
Kong Cheuk Kwan [1986] HKLR 648 PC, [1984] HKLR 163 CA 155, 157,
160, 537, 540, 541, 544, 545546
Kong Kwong San v HKSAR [1999] HKLRD 250 522, 523
Kong Man Heung [2000] 1 HKC 406 324
Kowloon Motor Bus Co (1933) Ltd [1973] HKLR 395 392, 398
Ku Kat Sui [1989] 2 HKC 526 582
Kwan Chi-hung [1993] 2 HKCLR 113 338
Kwan Kwok-hing [1977] HKLR 159 345346, 349
Kwan Ping-bong [1979] HKLR 1 10, 3536
Kwok Chak Ming [1963] HKLR 226, Kwok Chak Ming (No. 2) [1963] HKLR
349 163, 491, 492, 499, 500, 163, 491, 492, 499, 500, 502
Kwok Hung-fai [1982] HKLR 453 389390, 393, 394
Kwok Tak Ming Danny [1996] 4 HKC 395 612
Kwok Yuen-sum (1985) Cr App No. 561 of 1984 706, 728
Lai Chi Shing [1987] HKLR 422 724
Lai Kit [194649] HKLR 7 313
Lai Kok-che [1993] 1 HKCLR 245 733
Lai Kuen [1972] HKLR 442 252
Lai Kwai Hing v R (1985) Mag App No. 384 of 1985 157
Lai Yip Kie (1997) Cr App No. 367 of 1996 510
Lam Chi Chee [1992] HKLD L21 629
xvi
TABLE OF CASES
Lam Chiu Va [1996] 1 HKC 302 717

Lam Hon Wing [1987] 3 HKC 173 526
Lam Leung-ping (1978) Cr App No. 579 of 1977 557
Lam So Chun [1996] HKLR 28 640
Lam Yee Foon [1993] 2 HKCLR 247 766, 767
Lau Chi-kin [1988] 1 HKLR 282 338, 343
Lau Chun Hon [1995] 2 HKC 599 570, 607, 609, 626
Lau Man-cheung [1986] HKLR 1172 252
Lau Pui [1966] HKLR 201 162
Lau Sai Wai [1985] HKLR 423 460, 471
Lau Shiu-wah [1991] 1 HKPLR 202 733
Lau Sik Chung [1982] HKLR 113 363
Lau Sui-fu (1997) Cr App No. 174 of 1995 518
Lau Wai-tung (1986) Mag App No. 763 of 1985 628
Lau Wan-chung [1992] DCt, Case No. 450 of 1992 198
Lau Yin Kum (1997) Mag App No. 15 of 1997 584
Law Siu Long [1996] 1 HKC 469 370371
Law Tin Ching (1990) Mag App No. 368 of 1993 640
Lee Chee-chung [1987] HKLR 392 636
Lee Cheung Wing, Lam Man Yau [1991] 2 HKLR 220 767
Lee Chi Wai (1993) Cr App No. 306 of 1992 339, 343344
Lee Chun Chuen [1962] HKLR 450 507
Lee Chun Chuen (No.2) [1963] HKLR 443, [1963] AC 220 503, 505
Lee Leung-wai [1988] 2 HKLR 448 639
Lee Shek [1976] HKLR 636 478
Lee Shek-ching [1986] HKLR 304 323, 386
Lee Sing Chan (1995) Cr App No. 572 of 1994 505
Lee Tsat-pin (1985) Cr App No. 315 of 1985 397, 402
Lee Wing On [1994] 1 HKC 257 601
Lee Yin-ping [1979] HKLR 454 588
Lee Yiu-kwong [1985] HKLR 184 351352
Lei Sou Wa [1996] 3 HKC 494 460, 471
Leong How-seng (1983) Cr App No. 1011 of 1982 736
Leung Cheong [1988] 1 HKLR 103 639
Leung Ka-fai [1992] 1 HKCLR 255 291, 299, 525
Leung Kam Kwok [1986] HKLR 185 124
Leung Kam-wah (1992) Mag App No. 78 of 1992 589
Leung Tak Choi [1995] 2 HKCLR 32 218, 219
Leung Wing Hong [1993] 2 HKCLR 149 710711
Leung Yuet-man [1991] 1 HKLR 300 291, 509
Li Chi Ho (1997) Mag App No. 1330 of 1996 724
TABLE OF CASES
xvii
Li Kwai (1986) D Ct No. 264 of 1985 655, 663

Li Shu-ling (1986) Cr App No. 103 of 1986 132
Li Tze Hei [1984] HKC 490 582
Li Wang (1996) Mag App No. 499 of 1996 295
Li Wang-fat [1982] HKLR 133 539
Liang Bing Zhao [1997] 2 HKC 499 57
Lin Kuo Liang David (No.17) [1997] 2 HKC 679 479, 482
Lo Pun-man (1986) Cr App No. 320 of 1986 252, 254
Lo Tin [1963] HKLR 903 226, 249
Lo Yung-kan [1985] 1 HKC 302 132
Looi Kim Lee [1985] 2 HKC 410 767
Luc Thiet Thuan [1996] 1 HKC 663; [1997] AC 131 512, 521, 522, 523
Luk Siu-keung [1984] HKLR 333, (1984) Cr App No. 1441 of 1983 310,
336
Lung Fan-wa [1994] 3 HKC 106 224
Ma Wai-fun [1962] HKLR 61 517
Mak Sun-kwong [1980] HKLR 466 411, 462
Man Ping-wong [1988] HKLR 609 736, 737, 741
Man Wai Keung [1992] 1 HKCLR 89 291, 293, 497
Man Yi-keung [1992] 1 HKCLR 89 591
Mohammad Hussain [1993] 1 HKCLR 1 240242
Mok Pak-wo [1980] HKLR 347 623, 632
Mulitex (Exports) Ltd (1996) Mag App No. 516 of 1996; [1996] HKLD
A17 474
Neil Pryde Ltd v Bryan Chau & Others [1995] 2 HKLR 125 484
Ng Chi-kwong [1980] HKLR 32 736
Ng Ming [1994] 3 HKC 320 584
Ng Shui-sang (1995) Mag App No. 812 of 1994 702, 715
Ng Wai-chun [1990] 1 HKLR 170 648
Ng Yin-han [1980] HKLR 878 752
Ng Yun-tong [1991] 1 HKLR 335 479
Pang Bing-yee [1984] HKLR 298 23, 507508, 509
Pang Shun-yee [1988] 2 HKLR 146 303, 311
Po Koon-tai [1980] HKLR 492 335, 411, 434, 462
Poon Ping-kwok [1993] 1 HKCLR 56 612, 613, 619, 638
Savage [1997] HKLRD 428 618, 619
Secretary for Justice v Wong Sau Fong [1998] 3 HKC 544 757
xviii
TABLE OF CASES
Sheik Abdul Rahman Bux [1989] HKLR 1 418

Shing Hing-sang [1983] HKLR 1 158, 610
Sin Chi Keung [1995] 2 HKCLR 1 336
Sin Yau-ming [1992] HKCLR 127 42, 4344
Sit Yat-keung [1986] HKLR 434 412
Siu Kin-him [1980] HKLR 126 298, 524
Siu Yin-king [1994] 1 HKCLR 58 768
Sizto Yuk Hing [1985] 1 HKC 138 589
So Ching Kwan [1993] 1 HKCLR 156 479
Sohn Young-shek John [1990] 2 HKLR 121 610, 612
Somchai Liangsiriprasert v Govt of the USA [1990] 2 HKLR 612, [1991] 1 AC
255 5657, 5859, 428429, 430431, 432
Sze Sing-ming [1991] 2 HKLR 481 706, 762
Szeto Kwok-hei [1991] 2 HKLR 178 372373, 374
Tam Chung-shing (1988) Cr App No. 490 of 1988 706
Tam Kit-nin [1982] HKC 40 223
Tam Wing-him [1978] HKLR 404 393
Tam Wing-kwong [1988] 2 HKLR 313 640
Tang Yau-chi [1988] 1 HKLR 416 221, 223
Tiu Chun Kit (1997) Cr App No. 234 of 1996 721
Tonti (1988) Cr App No. 174 of 1988 616
Tsang Chi Ho [1997] 3 HKC 36 720, 721
Tsang Kam Pui (1993) Mag App No. 961 of 1992 584
Tsang Ming Hung [1987] 1 HKC 147 702
Tsang Wai-keung [1973] HKLR 432 372
Tse Chi-kin [1988] HKC 581 766, 767
Tsui Shing-yau [1980] HKLR 706 506, 507
Uniglobe Telecom (Far East) Ltd v HKSAR [1999] 2 HKC 389 206
Vu Van Thang [1991] 2 HKLR 523 506
Wai Yu-tsang [1992] HKCLR 29, [1992] 1 AC 269 444, 446449, 772
Wan Kiu Sang [1994] 3 HKC 589 640
Wang Shih-hung, Fong Chin-yue [1995] 1 HKCLR 193 198, 200, 204206,
207
Wong Chai-chung [1993] 1 HKCLR 19 449, 451
Wong Chi Hung [1982] HKLR 361 639
Wong Hiu-chor (1992) Mag App No. 227 of 1992 198
Wong Ka Ching (1990) Mag App No. 1124 of 1990, [1990] HKLD J23 580
TABLE OF CASES
xix
Wong Kui-wai v WBG Banks (1993) MP No. 3476 of 1992 545

Wong Kwai-fun [1993] 2 HKCLR 171, (1993) Cr App No. 390 of 1991 335,
385
Wong Lin Fai [1962] HKLR 673 604
Wong Pik-har [1987] HKLR 373 636
Wong Tak-shing [1989] 2 HKC 94 132, 133, 498
Wong Tat Chuen [1997] HKLRD 33 99100
Wong Tin Sang (1985) Mag App No. 811 of 1984 722
Wong Wah Sing [1996] 2 HKC 139 505, 513
Wong Wai Hung [1997] 3 HKC 146 724
Wong Wai Pong [1996] 1 HKC 313 721, 722
Wong Wing-ho [1982] HKDCLR 69 736, 744
Yau Wai-hung [1988] 1 HKLR 452, [1997] 3 HKC 146 612, 715
Yeung Chu-tim (1992) Mag App No. 718 of 1992 198
Yeung Ka Wah (1992) Cr App No. 306 of 1991, [1992] HKLD 299 260, 715
Yeung Kit Yung (1993) Cr App No. 15 of 1993 346
Yeung Pak-lun (1982) Cr App No. 782 of 1981 239, 240
Yeung Piu Yan (1973) Cr App No. 136 of 1973 296
Yeung Siu Hung [1993] HKLD E24 632
Yin Lai-kuen [1993] 1 HKCLR 215 449
Yip Chiu-cheung [1994] 2 HKCLR 35, [1995] 1 AC 111 324325, 381, 423
424, 429, 438, 439
Yiu Lai-kuen [1993] 1 HKCLR 215 744, 746
Yong You Ching [1997] 3 HKC 744 587
Yu Fung Hi [1996] 1 HKCLR 126 470
Yu Yem Kin (1994) Cr App No. 162 of 1994 428
Yuen Chong [1996] 3 HKC 205 574, 577, 578
Yuen Yun Yu (1990) Mag App No. 1605 of 1990 706
Yung Yuk (1985) Mag App No. 662 of 1985 297
Zeng Liang Xin v HKSAR [1997] 3 HKC 1 508, 512, 522
ENGLAND
A (a minor) v Eisenhower [1983] 3 WLR 537 591
Abbott v R [1977] AC 755 308, 311
Abdul-Hussain [1999] Crim LR 570 302, 303
Abraham [1973] 1 WLR 1270 299
xx
TABLE OF CASES
Acott [1997] 1 WLR 306 503, 504, 505, 508, 509, 510, 524
Adams [1993] Crim LR 72 699
Adams [1995] 1 WLR 52 443, 451
Adomako [1995] 1 AC 171 160, 528, 537, 540, 541543, 546
Sulman, Prentice, Adomako, & Holloway [1994] QB 302 CA 541, 543,
547
A-G v Able [1984] QB 795 462, 526
A-G for Northern Ireland v Gallagher [1963] AC 349 108, 275
A-Gs Ref (No. 1 of 1974) [1976] QB 744 718
A-Gs Ref (No. 1 of 1975) [1975] QB 773 338340, 341, 342, 350
A-Gs Ref (Nos. 1& 2 of 1979) [1980] 1 QB 180 472
A-Gs Ref (No. 4 of 1979) [1981] 1 All ER 1193 716
A-Gs Ref (No. 1 of 1980) (1981) 72 Cr App R 60 767
A-Gs Ref (No. 4 of 1980) [1981] 1 WLR 705 108
A-Gs Ref (No. 6 of 1980) [1981] QB 715, [1981] 1 WLR 705 566, 570, 572,
573, 574, 575
A-Gs Ref (No. 1 of 1982) [1983] QB 751 427, 428, 446
A-Gs Ref (No. 2 of 1982) [1984] QB 624 698
A-Gs Ref (No. 1 of 1983) [1985] QB 182 672
A-Gs Ref (No. 2 of 1983) [1984] 1 QB 456 297
A-Gs Ref (No. 1 of 1985) [1986] QB 491 662, 663, 669
A-Gs Ref (No. 1 of 1988) [1989] AC 971 31
A-Gs Ref (No. 1 of 1992) [1992] 1 WLR 274, [1993] 2 All ER 190 476477,
602
A-Gs Ref (No. 2 of 1992) [1993] 2 WLR 982 238239
A-Gs Ref (No. 3 of 1992) [1994] 1 WLR 409 466, 467468, 469, 471
A-Gs Ref (No. 3 of 1994) [1998] AC 245 161, 162163, 490, 492, 497, 498,
499500, 527, 528, 531, 533, 536
[1996] QB 581 CA 500
A-Gs Ref (No. 2 of 1999) [2000] Crim LR 475 400
A-Gs Ref for Northern Ireland (No. 1 of 1975) [1977] AC 105 293, 294
Ahluwalia [1992] 4 All ER 889 251, 253, 505, 510511, 520, 521
Airedale NHS Trust v Bland [1993] AC 789 8184, 85, 493, 525
Aitken [1992] 1 WLR 1006 575
Albert v Lavin [1982] AC 546 169, 586
Ali [1989] Crim LR 734 517
Ali [1995] Crim LR 303 322
Allan [1965] 1 QB 130 344
Allen [1988] Crim LR 698 257
Allen v Whitehead [1930] 1 KB 211 393
Allsop (1976) 64 Cr App R 29 445, 447, 448, 449
TABLE OF CASES
xxi
Anderson [1986] 1 AC 27 424, 435437, 438, 439, 454

Anderson & Morris [1966] 2 QB 110 369, 371, 374
Anderton v Ryan [1985] AC 560 480, 481
Andrews v DPP [1937] AC 576 528529, 537, 538, 539, 541, 542
Andrews & Hedges [1981] Crim LR 106 758
Anon (1701) 12 Mod Rep 560 396
Ansell v Swift [1987] Crim LR 194 295
Anthony [1965] 2 QB 189 336
Arnold [1997] 4 All ER 1 661, 665, 668
Arobieke [1988] Crim LR 314 529
Arthurs case [1985] Crim LR 705 493
Ash [1999] RTR 347 550
Ashbee [1989] 1 WLR 109 744
Asher [1981] Times, June 9 253
Aston & Hadley [1973] 3 All ER 1045 729, 749
Aston and Mason (1992) 94 Cr App R 180 363
Atakpu & Abrahams [1994] QB 69, [1993] 3 WLR 812 678, 719
Atkinson [1985] Crim LR 314 254
Attewell-Hughes [1991] 1 WLR 955 758
Atwal [1989] Crim LR 293 753
Atwal v Massey [1971] 3 All ER 881 722
Austin [1981] 1 All ER 374 331
Aves [1950] 2 All ER 330 724
Axtel (1660) Kel 13 313
Ayres [1984] AC 447 452
Re B (a Minor) [2000] 2 AC 428, [2000] 2 WLR 452 164, 165, 166, 174,
183, 184, 185, 187, 202, 206207, 612, 613, 614, 619, 621, 622, 627,
628
B, R v A [1979] 1 WLR 1185 215
B v R (1958) 44 Cr App R 1 214, 215
Backshall [1999] Crim LR 662 318
Bailey [1983] 1 WLR 760 242, 246247, 266
Bainbridge [1960] 1 QB 129 354355
Baker & Wilkins [1999] 2 Cr App R 335, [1997] Crim LR 497 301, 321,
322
Bale v Rosier [1977] 1 WLR 263 749
Ball (1983) 77 Cr App R 131 724
Ball (1989) 90 Cr App R 378 535, 536
Barratt [1873] LR 2 CCR 81 607
Barratt & Sheehan [1996] Crim LR 495 419
xxii
TABLE OF CASES
Barrett v Barrett (1980) 72 Cr App R 212 175

Barrow (1868) 11 Cox CC 191 608
Barton [1987] Crim LR 399 611
Bateman (1925) 19 Cr App R 8 537, 538, 539, 542
Beard [1920] AC 479 258, 260, 262,
Beatty v Gillbanks (1882) 9 QBD 308 285
Becerra (1975) 62 Cr App R 212 380
Beck [1985] 1 WLR 22 764
Beckford (Solomon) [1988] AC 130 279, 283, 289, 303, 631
Bedder [1954] 1 WLR 1119 503
Belfon [1976] 1 WLR 741 124, 597
Bell [1984] 3 All ER 842 148149
Bello (1978) 67 Cr App R 288 138
Bennett (1979) 68 App R 168 453
Benstead & Taylor (1982) 75 Cr App R 276 765
Betts v Steven [1990] 1 KB 1 584
Betty (1963) 48 Cr App R 6 371372
Bevan (1986) 84 Cr App R 143, [1987] Crim LR 129 751
Bhachu (1976) 65 Cr App R 261 675
Billinghurst [1978] Crim LR 553 575
Bingham [1991] Crim LR 433 230
Bird (Debbie) [1985] 1 WLR 816 294
Birtles (1969) 53 Cr App R 469 382
Blackburn v Bowering [1994] 1 WLR 1324, [1994] 3 All ER 380, [1995] Crim
LR 38 166, 295, 589
Blakely, Sutton v DPP [1991] RTR 405 350351, 352, 354
Bland [1988] Crim LR 4 347
Blaue [1975] 1 WLR 1411 9394
Bloxham (1944) 29 Cr App R 37 676, 715
Bloxham [1983] 1 AC 109 721
Board of Trade v Owen [1957] AC 602 427
Bodin [1979] Crim LR 176 411
Bogdal v Hall [1987] Crim LR 500 746
Boggeln v Williams [1978] 2 All ER 1061 704
Bourne [1939] 1 KB 61 314
Bourne (1952) 36 Cr App R 125 300, 358
Bowen [1996] 2 Cr App R 157 304, 305
Boyea [1992] Crim LR 574 573, 626
Boyle (1987) 84 Cr App R 270 475
Bratty v A-G for Northern Ireland [1963] AC 386 42, 68, 69, 226, 228229,
231, 237, 238, 239, 242, 243
TABLE OF CASES
xxiii
Breaks & Huggan [1998] Crim LR 349 666

Brewster (1979) 69 Cr App R 375 669, 670
Briggs (Note) [1977] 1 WLR 605 142
Broom v Crowther (1984) 148 JP 592 693694, 721
Broome v Perkins [1987] RTR 321 238
Brown [1970] 1 QB 105 721
Brown [1972] 2 QB 229 524
Brown [1994] 1 AC 212 422, 554, 555, 560, 561, 562, 565, 570572, 573,
574, 576, 577, 582, 592, 626
Browne [1994] 1 AC 212 379
Brutus v Cozens [1973] AC 854 31, 701
Bruzas [1972] Crim LR 367 502
Buckoke v GLC [1971] 2 All ER 254 315
Budd [1962] Crim LR 49 242
Burgess [1991] 2 QB 92 231, 237238, 239, 240, 243, 244
Burke [1987] Crim LR 336 517, 520
Burley [2000] Crim LR 843 295, 589
Burns (1984) 79 Cr App R 175 455
Burrell v Harmer [1967] Crim LR 169 569
Byrne [1960] 2 QB 396 250251, 252, 253
C (a minor) v DPP [1996] 1 AC 1 29, 214
Cahill [1993] Crim LR 141 708
Cairns [1999] Crim LR 826 303
Caldwell, see Metropolitan Police Commissioner v Caldwell [1982] AC 341
Calhaem [1985] QB 808 341
Callender [1993] QB 303 752
Callow v Tillstone (1900) 83 LT 441 354
Cambridge [1994] 1 WLR 971 506, 507
Campbell (1987) 84 Cr App R 255 249
Campbell [1991] Crim LR 268 475476
Campbell (No. 2) [1997] Crim LR 227 523
Camplin, see DPP v Camplin [1978] AC 705
Camplin (1845) 1 Cox CC 220 607
Carter v Richardson [1974] RTR 314 351
Cascoe [1970] 2 All ER 833 505
Cash [1985] QB 801 719, 725
Caswell [1984] Crim LR 111 627
Cato [1976] 1 WLR 110 532
Chan-Fook [1994] 1 WLR 689 580
Chapman [1959] 1 QB 100 602
xxiv
TABLE OF CASES
Charlson [1955] 1 WLR 317 228

Chase-Manhatten Bank NA v Israel-British Bank (London) Ltd [1981] Ch
105 673
Chelmsford Justices, ex p Amos [1973] Crim LR 437 412, 462
Cheshire [1991] 1 WLR 844 94, 9899, 100, 493
Chief Constable of Avon & Somerset Constabulary v Shimmen (l986) 84 Cr App
R 7 153154
Chisam (1963) 47 Cr App R 130 288
Chrastny [1991] 1 WLR 1381 421
Church [1966] 1QB 59 106, 107, 108, 533, 538
Churchill v Walton [1967] 2 AC 224 440
Clarence (1888) 22 QBD 23 569, 593, 594, 602, 608
Clark (Brian) [2001] Crim LR 572 653
Clarke [1972] 1 All ER 219 227
Clarke (1984) 80 Cr App R 344 382
Clarkson [1971] 1 WLR 1402 345, 349
Cleary v Booth [1893] 1 QB 465 578
Clegg [1995] 1 AC 482 296, 325
Clouden [1987] Crim LR 56 714
Clowes (No. 2) [1994] 2 All ER 316 661, 665
Coady [1996] Crim LR 518 737
Cocker [1989] Crim LR 740 512
Codere (1916) 12 Cr App R 21 233
Coffey [1987] Crim LR 498 710
Coffin v Smith (1980) 71 Cr App R 221 587
Cogan & Leak [1976] QB 217 333, 356357, 359
Cole [1993] Crim LR 300 260
Cole [1994] Crim LR 582 301, 322
Cole [1996] Crim LR 576 323
Coleman [1986] Crim LR 56 721
Coles (1980) 144 JPN 528 253
Coles [1994] Crim LR 820 149, 151
Collins v Wilcock [1984] 1 WLR 1172 555, 560, 566, 567, 568, 588, 589,
626
Collis-Smith [1971] Crim LR 716 737
Coney (1882) 8 QBD 534 343, 349, 565, 575
Constanza [1997] 2 Cr App R 492 556
Conway [1988] 3 WLR 1238, [1988] 3 All ER 1025 149, 318, 319, 322
Cooke & Sutcliffe [1986] AC 909, [1986] 2 All ER 985 446, 452, 740
Cooper [1994] Crim LR 531 602
Coppen v Moore (No. 2) [1898] 2 QB 306 392
TABLE OF CASES
xxv
Corbett v Corbett [1971] P 83 576

Corcoran v Anderton (1980) 71 Cr App R 104 678
Coroner for East Kent, ex p Spooner (1989) 88 Cr App R 10 400
Court [1989] AC 28, [1988] 2 WLR 1071 623625, 626, 628, 630, 631,
632, 633
Courtie [1984] AC 403 441
Cousins [1982] QB 526 281, 284, 294, 297
Cox (1968) 52 Cr App R 130 249
Cox [1995] 2 Cr App R 513 509
Croft [1944] KB 295 380, 525
Crook v Edmondson [1966] 2 QB 81 637
Crossman [1986] RTR 49 550
Cuddy (1843) 1 Car & Kir 210 570
Culmer [1997] 1 WLR 1296 504
Culyer [1992] Times 17 April 1992 635
Cunningham [1957] 2 QB 396 114, 141, 142, 609
Cunningham [1982] AC 566 497, 498
Curr [1968] 2 QB 944 407408
Dadson (1850) 4 Cox CC 358 286
Dalby [1982] 1 WLR 425 535, 536
Davey v Lee [1968] 1 QB 366 473
Davidge v Bunnett [1984] Crim LR 297 666, 670
Davies [1975] QB 691 509
Davies v DPP [1954] AC 378 370
Davies v Flackett [1973] RTR 8 729
Davis (1989) 88 Cr App R 347 672673
Dawson (1976) 64 Cr App R 170 713
Dawson (1985) 81 Cr App R 150 93, 534
Day (1841) 9 C & P 722 606
De Munck [1918] 1 KB 635 636
Dear [1996] Crim LR 595 94
Dee (1884) 15 Cox CC 579 608
Deller (1952) 36 Cr App R 184 729
Denton [1987] RTR 129, (1987) 85 Cr App R 246 149, 318
Devlin v Armstrong [1971] NI 13 294
Dhillon [1997] Crim LR 295 507
Dickie [1984] 1 WLR 1031 226
Dip Kaur [1981] 1 WLR 578 682
Dobson v General Accident Fire and Life Assurance Corp plc [1990] QB
274 683, 685
xxvi
TABLE OF CASES
Dolan (1975) 62 Cr App R 36 718

Donaghy [1981] Crim LR 644 714
Donald & Donald [1986] Crim LR 535 385
Donnelly v Jackman [1970] 1 WLR 562 567
Donovan [1934] 2 KB 498 562, 573, 580, 626
Doodeward v Spence (1908) 6 CLR 406 657
Doughty (1986) 83 Cr App R 319 507, 509
Doukas [1978] 1 WLR 372 736, 740
Downes (1983) 77 Cr App R 260 709
DPP v Armstrong-Braun [1999] Crim LR 416 291
DPP v Armstrong [2000] Crim LR 379 408, 410
DPP v Bell [1992] RTR 335 150, 302, 318, 320321
DPP v Camplin [1978] AC 705 504, 506, 509, 515517, 521, 522, 524
DPP v Daley [1980] AC 237 535
DPP v Doot [1973] AC 807 418, 429, 431
DPP v Gomez [1993] AC 442 675, 678, 679, 681, 682, 684685, 686, 687,
689, 690, 691, 692, 694, 698, 736, 748
DPP v Harper (1997) The Times, May 2 235
DPP v Huskinson [1988] Crim LR 620 666
DPP v K (a Minor) [1990] 1 WLR 1067 80, 158, 561, 563
DPP v K & B [1997] 1 Cr App R 36 213, 357358, 359
DPP v Kent & Sussex Contractors Ltd [1944] KB 146 396, 398
DPP v Lavender [1994] Crim LR 297 708
DPP v Little [1992] 1 QB 645 555
DPP v Majewski [1977] AC 443 135, 136, 246, 257, 258259, 261262,
264, 265, 266, 270
DPP v Morgan [1976] AC 182 135, 159, 166, 167168, 169, 172, 174, 202,
262263, 274, 333, 601, 603, 609, 610, 611, 631
DPP v Newbury [1977] AC 500 527, 530, 531, 532, 533
DPP v Nock [1978] AC 979 410, 425, 452, 453
DPP v Ray [1974] AC 370 730, 732
DPP v Shannon [1975] AC 717 455
DPP v Smith [1961] AC 290 117, 122, 123, 497, 591
DPP v Stonehouse [1978] AC 55 473, 746747
DPP v Turner [1974] AC 357 749
DPP for Northern Ireland v Lynch [1975] AC 653 300, 308, 309, 313
DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350 338, 355
Dryden [1995] 4 All ER 987 521
Dudley [1989] Crim LR 57 441
Dudley & Stephens [188185] All ER 61 300, 313314
Duffy [1949] 1 All ER 932 502, 524
TABLE OF CASES
xxvii
Duffy [1967] 1 QB 63 280, 284, 513

Duguid (1906) 21 Cox CC 200 455
Dunbar [1988] Crim LR 693 371
Duncan v Jones [1936] 1 KB 218 285, 586
Dunbar [1958] 1 QB 1 248
Dunbar [1994] 1 WLR 1484 666
Dunnington [1984] QB 472 483
Duru [1974] 1 WLR 2 708, 745
Dyson [1823] Russ & Ry 523 525
Dyson [1908] 2 KB 454 496
Eagleton (1855)[184360] All ER 363 473
Easom [1971] 2 QB 315 712
Eddy v Niman [1981] Crim LR 502 680
Edwards [1973] AC 648; [1972] HKLR 301 524, 525
Edwards [1975] QB 27 39, 45, 46
Edwards [1978] Crim LR 49 744
Edwards [1991] Crim LR 45 438
Edwards v Ddin [1976] 1 WLR 942 663
Edwards v Toombs [1983] Crim LR 443 767
Egan [1992] 4 All ER 470 254
Egan [1997] Crim LR 225 220, 221
Elbekkay [1995] Crim LR 163 608
Eldershaw (1828) 3 C & P 398 215
Elliot v C (A Minor) [1983] 1 WLR 939 150
Ellis, Street and Smith (1986) 84 Cr App R 235 169
Emery (1993) 14 Cr App R(S) 394 305
Enoch (1833) 5 C& P 539 491
Evans [1986] Crim LR 470 411
Evans [1992] Crim LR 659 535
Evans v Hughes [1972] 3 All ER 412 297
Evans & Co Ltd v Lee [1914] 3 KB 315 396
In re F (mental patient: sterilisation) [1990] 2 AC 1 315, 577, 578
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 84, 85, 102
103, 105, 106, 554, 563
Farrell v Secretary of State for Defence [1980] 1 All ER 166 293
Faulkner v Talbot [1981] 1 WLR 1528, [1981] 3 All ER 468 619, 626, 627
Feely [1973] QB 530 31, 704
Felstead [1914] AC 534 225
Fennell [1971] 1 QB 428, (1970) 54 Cr App R 451 288, 295, 589
xxviii
TABLE OF CASES
Fenton [1830] 1 Lew CC 179 527

Ferguson v Weaving [1951] 1 KB 814 353, 394
Fernandes [1996] 1 Cr App R 175 710
Field (1943) 29 Cr App R 151 383
Firth (1990) 91 Cr App R 217 731, 761
Fitzmaurice [1983] 1 QB 1083 406, 410
Fitzpatrick [1977] NI 20 307
Flatt [1996] Crim LR 576 304
Floyd v DPP [2000] Crim LR 411 667
Flynn [1970] Crim LR 118 702
Forbes v Webb (1865) 10 Cox CC 362 588
Forrester (1992] Crim LR 793 702
Forsyth [1997] 2 Cr App R 299 722
Fortheringham (1989) 88 Cr App R 206, [1988] Crim LR 846 275, 612
Franklin (1883) 15 Cox CC 163 527
Fritschey [1985] Crim LR 745 685
Gallasso (1992) 98 Cr App R 284 686, 687
Gamble [1989] NI 268 375
Gardner v Ackroyd [1952] 2 QB 743 394
Gaughan [1990] Crim LR 880 338
Geddes [1996] Crim LR 894 476
George [1956] Crim LR 52 628629
Ghosh [1982] QB 1053 451, 701, 704, 705, 706, 722, 747, 762, 766, 770
Giannetto [1996] Crim LR 722 338
Gibbons & Proctor (1918) 13 Cr App R 134 76
Gilbert (1977) 66 Cr App R 237 506, 507
Gilks [1972] 3 All ER 280 665, 672
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 121,
315, 348
Gilmartin [1983] QB 953 734, 741
Gilmour [2000] Crim LR 763 374, 377
Gittens [1984] 3 WLR 377 254
Goleccha and Choraria (1990) 90 Cr App R 24 767768
Gomez (1964) 48 Cr App R 310 251
Gomez (1993), see DPP v Gomez
Goodfellow (1986) 83 Cr App R 23 528, 536
Gores Case (1609) 9 Co Rep 81 161
Gorrie (1918) 83 JP 136 214
Gotts [1992] 2 AC 412 312
[1991] 1 QB 660 CA 312
TABLE OF CASES
xxix
Gould [1968] 2 QB 65 173

Government of USA v Jennings [1983] 1 AC 624 544, 545
Governor of Pentonville Prison, ex p Chinoy [1992] 1 All ER 317 383
Governor of Pentonville Prison, ex p Osman [1988] Crim LR 611 696
Graham [1982] 1 WLR 294, (1982) 74 Cr App R 235 173, 301, 302, 303,
304, 320
Grainge [1974] 1 WLR 619 723
Gray v Barr [1971] 2 QB 554 530
Great North of England Railway (1846) 2 Cox CC 70 396
Greater London Council Police Commissioner v Strecker (1980) 71 Cr App R
113 718
Greatrex [1999] 1 Cr App R 126, [1998] Crim LR 733 377
Green [1992] Crim LR 292 706
Green v Moore [1982] QB 1044 587
Greenstein [1975] 1 WLR 1353 747
Gregory (1983) 77 Cr App R 41 714, 718
Griffin [1993] Crim LR 515 476
Griffiths [1965] 2 All ER 448 418
Griffiths (1974) 60 Cr App R 14 719, 725
Groark [1999] Crim LR 669 268
Groombridge (1836) 7 C & P 582 215, 602
Gross (1913) 23 Cox CC 455 502
Grundy [1977] Crim LR 543 381
Gullefer [1990] 1 WLR 1063 474
Halai [1983] Crim LR 624 753
Hale (1978) 68 Cr App R 415 677, 678, 714, 718
Hall [1973] QB 126 665, 666
Hall (1985) 81 Cr App R 260 138, 722
Hall (1988) 86 Cr App R 159 614
Hallam & Blackburn [1995] Crim LR 323 664
Hamilton (1991) 92 Cr App R 54 734, 740
Hampshire v Mace [1986] Crim LR 752 462
Hancock [1990] Crim LR 125 660
Hancock & Shankland [1986] 1 AC 455 123, 124, 127128, 129, 131, 132,
368, 498
Hardie [1985] 1 WLR 64 245, 266, 267,
Harris (1975) 62 Cr App R 28 730
Harris (1987) 84 Cr App R 75 723
Haughian & Pearson (1985) 80 Cr App R 334 612
Haughton v Smith [1975] AC 476 410, 452, 477, 479, 716, 718
xxx
TABLE OF CASES
Hayes (1977) 64 Cr App R 82 665

Haystead v Chief Constable of Derbyshire [2000] Crim LR 758 562
Hayward (1908) 21 Cox CC 692 495
Hazelton (1874) LR 2 CCR 134 734
Heath [2000] Crim LR 109 307, 322
Hegarty [1994] Crim LR 353 305
Hendrickson & Tichner [1977] Crim LR 356 406
Hennessy [1989] 1 WLR 287 229, 230, 243, 244,
Hennigan (1971) 55 Cr App R 262 551
Hibbert (1869) LR 1 CCR 184 183
Hibbert v McKiernan [1948] 2 KB 142 659
Higgins (1801) 102 ER 269 405, 406
Hill v Baxter [1958] 1 QB 277 238, 239
Hills v Ellis [1983] QB 680 589
Hilton [1997] 2 Cr App R 445 651, 676, 696
Hinks [2001] 2 AC 241 678, 679, 681, 687, 688691, 692, 693, 694, 703,
736, 748
HL Boulton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB
159 397398
Hobson [1997] Crim LR 759 521
Holbrook (1878) 4 QBD 42 388
Holden [1991] Crim LR 478 704
Holland (1841) 2 Mood & R 351 94
Hollinshead [1985] 2 WLR 761 CA, [1985] AC 975 HL 434435, 450
Holt [1981] Crim LR 500 756
Horne [1994] Crim LR 584 304
Horrex [1999] Crim LR 500 521
Horseferry Rd Magistrates Court, ex p. K [1996] 3 All ER 769 235
Howard [1966] 1 WLR 13, [1965] 3 All ER 684 568, 607
Howe, Bannister, Burke and Clarkson [1987] 1 AC 417 173, 303, 308311,
312, 313, 378
Howell [1982] QB 416 285, 586
Howker v Robinson [1972] 2 All ER 786 394
Hudson [1966] 1 QB 448 628
Hudson & Taylor [1971] 2 QB 202 305306
Huggins (1730) 2 Stra 883 388
Hughes (1857) Dears & Bell 248 74
Humphreys [1996] Crim LR 431 521
Humphries & Turner [1965] 3 All ER 689 336
Hunt [1987] AC 352 39
Huskinson [1988] Crim LR 620 482
TABLE OF CASES
xxxi
Hussey (1924) 18 Cr App R 160 299

Husseyn (1977) 67 Cr App R 131 472
Hyam v DPP [1975] AC 55 123, 124,
Hyde [1994] 1 QB 134 366, 372, 374
Ibrams (1981) 74 Cr App R 154 513
ICR Haulage Ltd [1944] KB 551 397, 401
Ilyas (1983) 78 Cr App R 17 475
Inner West London Coroner, ex p De Luca [1988] 3 WLR 286 496
Inseal [1992] Crim LR 35 253
Invicta Plastics Ltd v Clare [1976] RTR 251 406
IPH v Chief Constable of South Wales [1987] Crim LR 42 215
Ireland, Burstow [1998] AC 147, [1997] 3 WLR 535 553, 556, 557, 558,
563, 580, 592, 595
Isitt [1978] RTR 211 238
Jackson [1983] Crim LR 617 756, 757
Jackson [1985] Crim LR 442 419
Jaggard v Dickenson [1981] QB 527 273274
Jakeman (1982) 76 Cr App R 223 101
James & Ashford (1985) 82 Cr App R 226 406, 412
JBH and JH (minors) v OConnell [1981] Crim LR 632 215
Jefferson [1994] 1 All ER 270 335
Jennings [1990] Crim LR 588 532
JF Alford Transportation Ltd [1977] Crim LR 745 347
JM (a minor) v Runeckles (1984) 79 Cr App R 255 214, 215
John Henshall (Quarries) Ltd v Harvey [1965] 2 QB 233 398
Johnson [1989] 1 WLR 740 298, 524, 525
Johnson v Phillips [1976] 1 WLR 65 315
Johnson v Youden [1950] 1 KB 544 353
Jones [1949] 1 KB 194 386
Jones [1990] WLR 1057 475
Jones [1993] The Times, 15 February 731
Jones (Peter) [1987] Crim LR 701 524
Jones (Terence) (1986) 83 Cr App R 375 575, 576
Jones v Sherwood [1942] 1 KB 127 554
Julien [1969] 2 All ER 856 294
Kanwar (1982) 75 Cr App R 87 720, 721
Kassim [1992] 1 AC 9 740
[1988] Crim LR CA 764
Kay v Butterworth (1945) 173 LT 191 68
xxxii
TABLE OF CASES
Kelbie [1996] Crim LR 802 296, 586

Kell [1985] Crim LR 239 702
Kelly [1998] 3 All ER 741 657, 659
Kemp [1957] 1 QB 399 228, 229, 243
Kendrick & Hopkins [1997] 2 Cr App R 524 688
Kenlin v Gardner [1967] 2 QB 510 295, 567, 588
Kennedy [1999] Crim LR 65 532
Kerr v DPP [1995] Crim LR 394 567
Khan [1990] 1 WLR 813 159, 262, 466467, 468, 469, 471, 610, 612
Khan [1998] Crim LR 830 75, 528
Kimber [1983] 1 WLR 1118 169, 631
King [1964] 1QB 285 173
King [1966] Crim LR 280 417
King [1979] Crim LR 122 731
King [1987] QB 547, [1987] 1 All ER 547 736, 738
King [1992] 2 QB 20 765
Kingston [1993] 3 WLR 676 CA 269
[1995] 2 AC 355 111, 256, 257, 259, 269271, 635
Kinsey [1996] Crim LR 35 551
Kite & DLL Ltd (1984) Unrep, Winchester Crown Ct 400
Klineburg & Marsden [1999] 1 Cr App R 427 667, 668
Knuller v DPP [1973] AC 435 27, 28
Kohn (1979) 69 Cr App R 395 651, 696
Kooken (1982) 74 Cr App R 30 226, 249
Kovacs [1974] 1 WLR 370 741
Kowalski (1988) 86 Cr App R 339 627
Kumar, Re [2000] Crim LR 504 666
L & Others v DPP [1996] 2 Cr App R 501 215
Lally [1989] Crim LR 648 747
Lamb [1967] 2 QB 981 529530, 531, 556
Lambie [1982] AC 449 735, 739740, 741
Landy [1981] 1 All ER 1172 450
Lane and Lane (1985) 82 Cr App R 5 363
Lang (1975) 62 Cr App 50 607
Larkin [1943] KB 174, [1943] 1 ALL ER 217 527, 533
Larsonneur (1933) 24 Cr App R 74 81, 182
Larter & Castleton [1995] Crim LR 75 606
Latimer (1886) 17 QBD 359, [188690] All ER Rep 386 161, 162,
Laverty [1970] 3 All ER 432 739
Lavin v Albert [1982] AC 546 285286, 288, 295
TABLE OF CASES
xxxiii
Lawrence [1982] AC 510 139, 143, 144145, 146, 147, 150, 151, 152, 156,
157, 158, 159, 178, 544, 545, 546, 609
Lawrence v Metropolitan Police Commissioner [1972] AC 626 679, 680, 681,
683, 684, 685, 689, 748
Le Brun [1991] 4 All ER 673 107, 108
Lee [2000] Crim LR 991 589
Leeson (1968) 52 Cr App R 185 629
Levene v Pearcey [1976] Crim LR 63 744
Lewis (1993) 96 Cr App R 412 306307
Lewis v Cox [1985] QB 509 584, 589
Lewis v Lethbridge [1987] Crim LR 59 669670
Lightfoot [1993] Crim LR 137 705
Linekar [1995] Crim LR 320 607
Linnett v MPC [1946] KB 290 393
Lipman [1970] 1 QB 152 258
Lister v Stubbs (1890) 45 Ch D 1 662
Lloyd [1967] 1 QB 175 255
Lloyd [1985] 1 QB 829 707, 709, 710
Lockley [1995] Crim LR 656 714
London Borough of Harrow v Shah & Shah [2000] Crim LR 692 392
London Borough of Southwark v Williams [1971] 2 All ER 175 316
London Globe Finance Corpn Ltd, In re [1903] 1 Ch 728 729, 769, 770
Longman (1980) 72 Cr App R 121 456
Loukes [1996] 1 Cr App R 444, [1996] Crim LR 341 357, 359, 550
Lovesey & Peterson [1970] 1 QB 352, (1969) 53 Cr App R 461 371
Low v Blease [1975] Crim LR 513 657
Lowe [1973] QB 702 528, 529
Lunt [1993] Crim LR 534 584
Mackie (1973) 57 Cr App R 453 535, 578
Madigan (l982) 75 Cr App R l45 152
Magna Plant Ltd v Mitchell [1966] Crim LR 394 398
Mainwaring (1981) 74 Cr App R 99 665
Malcherek, Steel [1981] 1 WLR 690, [1981] 2 All ER 422 9697, 493
Mallett [1978] 3 All ER 10 767
Malone [1998] 2 Cr App R 447 605
Mancini v DPP [1942] AC 1 524
Mandair [1995] 1 AC 208 592
Marison [1997] RTR 457 550
Marjoram [2000] Crim LR 372 92
Marshall [1998] 2 Cr App R 282 710
xxxiv
TABLE OF CASES
Martin (1881) 8 QBD 54 593

Martin [1956] 2 All ER 86 58
Martin [1989] 1 All ER 652, (1989) 88 Cr App R 345 150, 303, 318, 319
320, 321, 322
Maughan (1934) 24 Cr App R 130 627
Mawji [1957] AC 126 421
Mazo [1997] 2 Cr App R 518 688
McAllister [1997] Crim LR 233 606
McBride [1962] 2 QB 167 550
McBride v Turnock [1964] Crim LR 456 588
McCann (1971) 56 Cr App R 359 382
McConnell v Chief Constable of the Greater Manchester Police [1990] 1 WLR
364 285, 587
McCrone v Riding [1938] 1 All ER 157 179
McCullum (1973) 57 Cr App R 645 169, 722
McDonnell [1966] 1 QB 233 423
McDonough (1962) 47 Cr App R 37 410, 411
McFall [1994] Crim LR 226 611
McHugh (1977) 64 Cr App R 92 663
McHugh (1988) 88 Cr App R 385 698
McHugh (1993) 97 Cr App R 335 666
McIvor [1982] 1 All ER 491 451
McKechnie [1992] Crim LR 194 99
McNiff [1986] Crim LR 57 752
McPherson [1973] Crim LR 191 681
McShane (1978) 66 Cr App R 97 462, 526
Meade v Belt (1823) 1 Lew CC 184 557
Meech [1974] QB 549 659, 670
Mellor [1996] Crim LR 743 97
Menby & Sheridan (1974) 60 Cr App R 59 382
Mepstead v DPP [1996] Crim LR 111 567
Meredith [1973] Crim LR 253 659
Merrick (1980) 71 Cr App R 130 456
Merrick [1995] Crim LR 802 154155
Merriman [1973] AC 584 338
Metropolitan Police Commissioner v Caldwell [1982] AC 341 112, 135, 139,
143144, 145, 146, 147, 148, 150, 151, 152, 156, 157, 158, 159, 178,
257, 260, 262, 264265, 266, 272, 609
Metropolitan Police Commissioner v Charles [1977] AC 177 734, 735, 741
Millard [1987] Crim LR 393 464, 470
Miller [1954] 2 QB 282 580, 602
TABLE OF CASES
xxxv
Miller [1972] Times May 16 253

Miller [1983] 2 AC 161 75, 7879, 80, 86, 104, 105, 106, 109, 139, 156, 563
[1982] 1 QB 532 (CA) 78, 103, 105, 157
Miller (1992) 95 Cr App R 421 738
Millward [1994] Crim LR 527 357, 359
Mitchell [1983] QB 741, [1983] 2 All ER 427 161, 536
Mitchell [1993] Crim LR 788 653, 745
Mitchell [1999] Crim LR 496 362, 381
MNaghtens case (1843) 10 Cl & Fin 200, [184360] All ER Rep 229 217,
225226, 233, 234
Modupe [1991] Crim LR 539 755
Mohan [1976] 1 QB 1 113, 120, 121, 124, 463, 465, 470
Moloney [1985] AC 905 119, 123, 124, 125126, 127, 128, 129, 131, 132,
368, 498, 499
Monger [1973] Crim LR 30 163
Moore v Green [1983] 1 All ER 663 589
Moore v I. Bresler Ltd [1944] 2 All ER 515 397
Morhall [1996] 1 AC 90 517518, 521, 522
Moriarty v Brooks (1834) 6 C & P 684 591
Morris [1984] AC 320 671, 674, 675, 679, 680682, 683, 684, 685, 689,
691, 694
Moses [1991] Crim LR 617 445
Most [1881] 7 QBD 244 406
Mousell Bros v London and North Western Rlwy [1917] 2 KB 836 391
Mowatt [1968] 1 QB 421 596
Moys (1984) 79 Cr App R 72 723
Moynes v Coopper [1956] 1 QB 439 646, 671672
Mulcahy (1863) LR 3 HL 306 415
Mullins [1848] Cox CC 526 382
Nabina [2000] Crim LR 481 736
Nash [1991] Crim LR 769 561
Nash [1999] Crim LR 308 476
National Coal Board v Gamble [1959] 1 QB 11 348, 349
Navvabi [1986] 1 WLR 1311 652, 677, 696, 697
Nedrick [1986] 1 WLR 1025 123, 129130, 131, 132, 465, 498
Newell (1980) 71 Cr App R 331 518
Ngan [1998] 1 Cr App R 331 654, 697
Nicklin [1977] 1 WLR 403 720
Nicol v DPP [1996] Crim LR 318 285
Noon v Smith [1964] 1 WLR 1450 657
xxxvi
TABLE OF CASES
OBrien (1974) 59 Cr App R 222 417

OConnell [1997] Crim LR 683 253
OConnor [1991] Crim LR 135 273, 292
ODonnell [1996] Crim LR 121 220, 236
OGrady [1987] QB 995, [1987] 3 WLR 321 272, 273, 274, 292
OToole [1987] Crim LR 759 464
Oatridge (1992) 92 Cr App R 367 289
Ofori (No. 2) (1994) 99 Cr App R 223 717
Oldcastles case [1419] 1 Hale 313
Olugboja [1982] QB 320 605, 606, 607
Ortiz (1986) 83 Cr App R 173 301, 302
Osman, Ex p [1990] 1 WLR 277 677
Overington [1978] Crim LR 692 717
Owen (1830) 4 Car & P 236 214
Owino [1996] 2 Cr App R 128 290
Oxford v Moss (1978) 68 Cr App R 183 654
P [1990] Crim LR 323 602
P & O European Ferries (Dover) Ltd (1990) 93 Cr App R 72 400
Pagett (1983) 76 Cr App R 279 87, 90, 9293
Palmer [1971] AC 814 292, 296
Park (1988) 87 Cr App R 164 721
Parker [1977] 1 WLR 600 142
Parker [1997] Crim LR 760 523
Parsons [1993] Crim LR 792 631
Pearman (1985) 80 Cr App R 259 124, 465, 470
Pearsons case (1835) 2 Lew 144 269
Pearson (William) [1992] Crim LR 193 505, 512
Pedro v Diss [1981] 2 All ER 59 567, 588
Pembliton (1874) LR 2 CCR 119, [187480] All ER Rep 1163 161, 162, 163
Pepper v Hart [1993] AC 593 32
Pethick [1980] Crim LR 242 723
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR
903 202
Phekoo [1981] 1 WLR 1117 169
Philips (1839) 3 C & P 736 215
Phillipou (1989) 89 Cr App R 290 698
Phillips [1969] 2 AC 130 509, 524
Piddington v Bates [1960] 3 All ER 660 586
Pigg [1982] 1 WLR 762 (revsd on other grounds [1983] 1 WLR 6 HL) 158
159, 466, 609
TABLE OF CASES
xxxvii
Pilgram v Rice-Smith [1977] 2 All ER 658 675

Pitchley (1973) 57 Cr App R 30 721
Pitham & Hehl (1976) 65 Cr App R 45 676, 678, 718
Pittwood (1902) 19 TLR 37 75
Plunkett v Matchell [1958] Crim LR 252 562
Podola [1960] 1 QB 325 220
Pommell [1995] 2 Cr App R 607 318, 321, 322
Porter [1976] Crim LR 58 717
Poulton (1832) 5 C & P 329 491
Powell, English [1999] AC 1, [1997] 3WLR 959 363, 368369, 370, 374
375, 377
Pratt [1984] Crim LR 41 634635
Preddy [1996] AC 815 649, 650, 653, 654, 667, 668, 693, 694, 708, 716,
744, 745, 746, 759
Price (1989) 90 Cr App R 409, [1990] Crim LR 200 706, 748, 753
Prince (1875) LR 2 CCR 154, [187480] All ER 881 183, 184, 206, 207,
612, 621, 627
Purcell [1986] Crim LR 466 598
Purdy (1945) 10 JCL 182 313
Quick & Paddison [1973] QB 910 228, 230, 232, 242, 245, 246
R [1992] 1 AC 599 29, 332, 569, 603, 604
R (Stephen Malcolm) (1984) 79 Cr App R 334 151
Race Relations Bd v Applin [1973] QB 815 406
Rai [2000] 1 Cr App R 242 730731
Ram & Ram (1893) 17 Cox CC 609 332
Rance v Mid-Downs Health Authority [1991] 1 All ER 801 492
Ransford (1874) 13 Cox CC 9 406
Raven [1982] Crim LR 51 520
Ravenshead [1990] Crim LR 398 747
Read v Coker (1853) 13 CB 850 557
Reardon [1999] Crim LR 392 377
Reddhead Freight Ltd v Shulman [1988] Crim LR 696 398
Reed [1982] Crim LR 819 419, 420
Reid [1973] 3 All ER 1021 174
Reid (1975) 62 Cr App R 109 372
Reid [1992] 1 WLR 793 140, 146, 149, 152, 155, 157, 160, 544
Reigate Justices, ex parte Counsell (1984) 148 JP 193 580
Renouf [1986] 1 WLR 522, [1986] 2 All ER 449 150, 297
Rice v Connolly [1966] 2 QB 414 584, 589
xxxviii
TABLE OF CASES
Richards [1974] QB 776 308, 310, 378

Richardson [1999] QB 444 569
Richardson & Irwin [1999] Crim LR 494 273, 561, 575
Richens [1993] Crim LR 384 505
Richman [1982] Crim LR 508 324
Robert Millar (Contractors) Ltd and Robert Millar [1970] 1 AII ER 577 352
Roberts (1971) 56 Cr App R 95 9192, 580581
Roberts (1983) 78 Cr App R 41 456
Roberts (1987) 84 Cr App R 117 706, 722
Roberts [1993] 1 All ER 583 372, 373, 374
Roberts and George [1997] RTR 462, [1997] Crim LR 209 353, 357, 359,
550
Roberts v Ramsbottom [1980] 1 All ER 7 238
Robertson [1968] 1 WLR 1767 219, 220
Robinson [1977] Crim LR 173 715
Rodger & Rose [1998] 1 Cr App R 143 301, 318
Rolfe (1952) 36 Cr App R 4 625
Rook [1993] 1 WLR 1005 334, 348, 353, 379, 380
Roper v Taylors Central Garages [1951] TLR 284 137
Rossiter (1992) 95 Cr App R 326 506
Rothery [1976] RTR 550 657
Rowley [1991] 1 WLR 1020 406
Royle [1971] 1 WLR 1764 755
Russell (1984) 81 Cr App R 315 138
Russell and Russell (1987) 85 Cr App R 388 363
S (1983) 78 Cr App R 149 611
S, R v C [1996] Crim LR 340 362363
Sanders (1982) 75 Cr App R 84 720
Sanderson (1994) 98 Cr App R 325 253
Sang [1980] AC 402 382, 383
Sangha [1988] 1 WLR 519 151, 468
Sansom [1991] 2 QB 130 431432
Sargeant [1977] Crim LR 50 625
Satnam (1983) 78 Cr App R 149 159, 610
Saunders & Archer (1573) 2 Plow 473 161
Saunders [1985] Crim LR 230 497
Savage, Parmenter [1992] 1 AC 699, [1991] 3 WLR 914 114, 158, 554, 561,
581, 595, 596
Scarlett [1993] 4 All ER 629 289, 530, 547
Scott (1979) 68 Cr App R 164 417
TABLE OF CASES
xxxix
Scott [1987] Crim LR 235 711

Scott v Metropolitan Police Commissioner [1975] AC 819 444445, 447, 451,
769, 770
Secretary of State for Trade and Industry v Hart [1982] 1 WLR 481 175
Seers (1984) 79 Cr App R 261 251
Senior (1832) 1 Moody CC 346 491
Senior [1899] 1 QB 283 528
Seymour [1983] 2 AC 493 157158, 537, 540, 541, 543, 544, 545, 546
(1983) 76 Cr App R 211 CA 537
Shadrokh-Cigari [1988] Crim LR 465 661, 662, 673
Shama (1990) 91 Cr App R 138 767
Shannon (1980) 71 Cr App R 192 293
Sharp [1987] 3 WLR 1 307
Shaw v DPP [1962] AC 220 2728
Shaw [1994] Crim LR 365 408
Sheehan & Moore [1975] 1 WLR 739, [1975] 2 All ER 960 260
Sheldon [1996] 2 Cr App R 50 214
Shelton (1986) 83 Cr App R 379 724
Shendley [1970] Crim LR 49 712
Shepard (1987) 86 Cr App R 47 307
Shephard [1919] 2 KB 125 409, 491
Sheppard [1981] AC 394 72, 528
Sheriff [1969] Crim LR 260 583
Sherras v De Rutzen [1895] 1 QB 918 184
Sherry, El Yamani [1993] Crim LR 536 435
Shivpuri [1987] AC 1 480, 481
Sibartie [1983] Crim LR 470 760
Silverman (1987) 86 Cr App R 213 731
Singh (Gurpal) [1999] Crim LR 582 75, 543
Siracusa (1990) 90 Cr App R 340 417, 426, 439
Sirat (1985) 83 Cr App R 41 411
Skelton [1995] Crim LR 635 551
Skipp [1975] Crim LR 114 679, 685
Skivington [1968] 1 QB 166 715
Slack [1989] QB 775 366, 367
Slimmings [1999] Crim LR 69 163
Slingsby [1995] Crim LR 570 573
Sloggett [1972] 1 QB 430 720, 724
Small [1987] Crim LR 777 703
Smedleys Ltd v Breed [1974] AC 839 193
Smith (1845) 1 Cox CC 260 215
xl
TABLE OF CASES
Smith [1959] 2 QB 35 89, 94, 95, 96, 97

Smith [1960] 2 QB 423 382
Smith [1963] 1 WLR 1200 372
Smith (David) [1974] QB 354 175, 407, 656
Smith (David George) [1985] Crim LR 42 578
Smith (KA) [1983] Crim LR 739 548
Smith (Morgan) [2001] 1 AC 146, [2000] 3 WLR 654 523
Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R
234 556
Smythe (1980) 72 Cr App R 8 724
Sopp v Long [1970] 1 QB 518 394
Spratt [1990] 1 WLR 1073 561
Springfield (1969) 53 Cr App R 608 595
Squire [1990] Crim LR 343 706
Staines (1974) 60 Cr App R 160 732
Stalham [1993] Crim LR 310 672
Stapleton (1952) 86 CLR 358 234
Steane [1947] KB 997 121, 313
Steele (1976) 65 Cr App R 22 603
Stephens [1866] LR QB 702 388
Stephenson [1979] QB 695 142, 143, 148
Stewart [1995] 3 All ER 159 360
Stone & Dobinson [1977] 1 QB 354 77, 147, 156, 539, 540, 541, 543
Stringer (1992) 94 Cr App R 13, [1991] Crim LR 639 332, 388, 676
Stripp (1978) 69 Cr App R 318 248
Strong [1995] Crim LR 428 550
Sullivan [1984] AC 156 228, 231232, 243, 244
Surujpaul v R [1958] 1WLR 1050 336
Sweet v Parsley [1970] AC 132 187, 189, 190191, 194, 201202, 205, 207
T [1990] Crim LR 256 244
T v DPP [1989] Crim LR 498 215
Taaffe [1984] AC 539 480, 482
Tabassum [2000] Crim LR686 626
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 695
Tandy [1989] 1 WLR 350 253, 254
Tatam (1921) 15 Cr App R 132 602
Teong Sun Chuah [1991] Crim LR 463 753
Tesco Supermarkets Ltd v Nattrass [1972] AC 153 397, 398
Thabo Meli [1954] 1 WLR 288 106, 107
Thomas (1982) 77 Cr App R 63 611
TABLE OF CASES
xli
Thomas (1985) 81 Cr App R 331 628629

Thomas (Sharon) [1995] Crim LR 314 226
Thompson (1984) 79 Cr App R 191 741
Thornton [1992] 1 All ER 306 505, 510, 521
Thornton (No. 2) [1996] 1 WLR 1174 521
Thorpe [1972] RTR 118 550
Tirado (1974) 59 Cr App R 80 739
Tolson (1889) 23 QBD 168 173, 174, 201
Tokeley-Parry [1999] Crim LR 578 721
Tomlin (1954) 38 Cr App R 82 648
Tomsett [1985] Crim LR 369 696
Toor (1987) 85 Cr App R 116 723
Tosti & White [1997] Crim LR 746 476
Treacy v DPP [1971] AC 537 646
Tuck v Robson [1970] 1 WLR 741 346
Turberville v Savage (1669) 1 Mod Rep 3 557
Turner (No. 2) [1971] 2 All ER 441 658659
Tyrrell [1894] 1 QB 710 406
Uddin [1999] QB 431 375376
United States of America Government v Jennings [1983] 1 AC 624 157
Valderama-Vega [1985] Crim LR 220 301, 302
Vane v Yiannopoullos [1965] AC 486 393
Velumyl [1989] Crim LR 299 711
Venna [1976] QB 421 530, 561
Vinagre (1979) 69 Cr App R 104 249
Von Starke [2000] 1 WLR 1270 507
Waite [1892] 2 QB 600 215, 602
Waites [1982] Crim LR 369 751
Wakely [1990] Crim LR 119 366, 367
Walker [1962] Crim LR 458 417
Walker & Hayles (1989) 90 Cr App R 226 130, 464, 465
Walters v Lunt [1951] 2 All ER 645 213
Walton [1977] 3 WLR 902 253
Wan and Chan [1995] Crim LR 296 371
Warner (1970) 55 Cr App R 260 706
Warner v Metropolitan Police Commissioner [1969] 2 AC 256 189190, 193
194
Waterfield [1964] 1 QB 164 584585, 588
xlii
TABLE OF CASES
Watkins [1976] 1 All ER 578 751

Watson [1989] 1 WLR 684 534
Webb [1964] 1 QB 357 636
Weekes [1999] Crim LR 907 249
Welham v DPP [1961] AC 103 445, 447
Welsh [1974] RTR 478 657
West (1848) 175 ER 329 491, 492
Westdeutsche Landesbank Gorozentrale v Islington London Borough Council
[1996] AC 669 673
Westminster City Council v Croyalgrange Ltd [1986] 1 WLR 674 137
Wheeler (1968) 52 Cr App R 28 299
Wheelhouse [1994] Crim LR 756 357
Wheeler (1991) 92 Cr App R 279 699
White [1910] 1 KB 124 86, 88
Whitechurch (1890) 24 QBD 420 455
Whitefield (1983) 79 Cr App R 36 381
Whitehouse [1977] QB 868 405, 408409, 615
Whybrow (1951) 35 Cr App R 141 463, 464
Whyte [1987] 3 All ER 416 293
Widdowson (1985) 82 Cr App R 314, [1986] RTR 124 475, 754
Willer [1987] RTR 22, (1986) 83 Cr App R 225 149, 318, 322
Williams [1893] 1 QB 320 216
Williams (Gladstone) [1987] 3 All ER 411, (1984) 78 Cr App R 276 171,
272, 273, 283, 284, 287, 288, 289, 290, 291, 303, 561, 589, 631
Williams (Roy) [2001] 1 Cr App R 362, [2001] Crim LR 253 651, 696
Williams, Lamb [1995] Crim LR 77 669
Williams & Davis [1992] 1 WLR 380 535
Williams v Phillips (1975) 41 Cr App R 5 660
Wills (1991) 92 Cr App R 297 666
Wilson (Alan) [1997] QB 47 562, 564, 573, 574, 576, 577
Wilson (Clarence) [1984] AC 242 592, 593, 594, 595
Wilson v Pringle [1987] QB 237 560, 566
Windle [1952] 2 QB 826 233, 234
Winzar v Chief Constable of Kent [1983] The Times, 28 March 183
Woodman [1974] QB 754 659
Woods (1982) 74 Cr App R 312 264, 268, 275
Woods v Richards [1977] RTR 201 315
Woodward [1995] RTR 138 550
Woollin [1999] 1 AC 82 119, 120, 123, 129, 130, 131132, 133, 134, 466,
499
Woolmington v DPP [1935] AC 462 10, 35, 39, 202, 205, 226
TABLE OF CASES
xliii
Woolven (1983) 77 Cr App R 231 728

Wootten [1990] Crim LR 201 702
Young (1838) 8 C & P 644 570
AUSTRALIA
Gilson (1991) 172 CLR 353 726
He Kaw The (1985) 157 CLR 523 203
Howe (1958) 100 CLR 448 296
Hurley [1967] VR 526 301
L (1992) 174 CLR 379, (1991) 103 ALR 577 603
McKay [1957] VR 560 296
Papadimitropoulos (1957) 98 CLR 249 607
Proudman v Dayman (1941) 67 CLR 536 203
Roffel [1985] VR 511 698
Ryan [1967] ALR 577 69, 7071
Salisbury [1976] VR 452 593594
Whitehouse [1955] QLR 100 618
Zecevic v DPP (Victoria) (1987) 162 CLR 645 296
CANADA
Bolduc v Bird (1967) 63 DLR (2d) 82 569
K and H (1957) 118 CCC 317 618
Parks (1990) 56 CCC (3d) 449 (Ont CA) 243
[1992] 2 SCR 871, (1992) 95 DLR (4th) 27 (SCC) 243
Perka (1984) 13 DLR (4th) 1 317
Quesnel (1979) 51 CCC 270 618
Reference re section 94(2) Motor Vehicle Act (1985) 24 DLR (4th) 536 197
R v City of Saulte Ste Marie (1978) 85 DLR (3d) 161 202203
R v Wholesale Travel Group Inc (1991) 84 DLR (4th) 161 197
Rabey (1977) 37 CCC (2d) 461, [1980] 2 SCR 513 231, 243
Van Den Hook (1986) 161 CLR 158 502
Whitehouse [1941] 1 WWR 112 380
xliv
TABLE OF CASES
NEW ZEALAND
A-G of HK v Reid [1994] 3 All ER 1 662
Civil Aviation Dept v MacKenzie [1983] NZLR 78 203
Kaitamaki [1985] AC 147 102, 602
Meridian Global Funds Mgt Asia Ltd v Securities Commission [1995] 2 AC
560 398400
McGregor [1962] NZLR 1069 518, 521, 522
Millar v MOT [1986] 1 NZLR 660 203
SCOTLAND
S v HM Advocate [1989] SLT 469
603
SINGAPORE
Lim Chin Aik v R [1963] AC 160 192193
Tarling v Government of the Republic of Singapore (1978) 70 Cr App R 77 663
1
Table of Legislation
HONG KONG
Basic Law of the Hong Kong SAR
26
Article 8
26, 27
Article 18
26
Administration of Justice (Felonies and Misdemeanours) Ordinance
(cap 328)
47, 282, 383
s2
334
Air Pollution Control Ordinance (cap 311)
s12
396
Application of English Laws Ordinance (No. 2 of 1966)
25
s3
27
Aviation Security Ordinance (cap 494)
s59(1)(a)
583
Banking Ordinance (cap 155)
750
s12(1)
479
s53H(a)
583
Buildings Ordinance (cap 123)
s40(2A)(b), (2B)(b)
194196
Companies Ordinance (cap 32)
395, 750
s109(4)
72
Crimes Ordinance (cap 200)
30, 47, 49, 59
s4(3)
47
xlvi
TABLE OF LEGISLATION
s5
s16
s21
s22
s23B(1)(2)(3)
s24
s27
s31
s34
ss38, 56
s47
s47(1)
s47(2)
s47(3)
s48
s49(1)
s49(2)
s51
s60
s60(1)
s60(2)
s60(3)
s63(1)
s63(2)
s64
s64(2)(3)
ss7176
s93
s117
s117(1)
s117(1A)
s117(2)
s117(3)
s118
s118(1)
s118(2)
s118(3)
s118(4)
ss118A-118G
s118A
587
587
49
49, 199
58
559
559
306
137
334
614, 615
615
615
405, 409, 615
614, 615
614, 615
615
614
112, 135, 142, 279, 299
30, 75, 114, 135, 142, 157, 164, 172, 186, 264,
273, 407, 464, 468, 481, 532
154, 157, 262, 264, 267, 441, 464, 467
75, 86, 142, 157, 264, 464
468
30, 282, 468
279, 299
172, 274, 325
59, 741
334
334
169, 611, 613, 614, 636, 641
600, 604, 620, 638
601
639
139, 274, 332, 599, 600 et seq
66, 600601
607, 608
66, 158, 359, 601, 602, 609, 610
168169, 274, 275, 611
599
616
s118B
s118C
s118D
s118E(1)(2)(3)
s118F(1)(2)(3)
s118G
s118H
s118I(1)(2)
s118J(1)(2)(3)
s118K
s118L
s118M
s118N
s119
s119(1)
s120
s120(1)
s120(2)
s121
s122(1)
s122(2)(3)
s122(4)
s123
s124
s125
s126
s127
s128
ss129145
s129(1)(2)
s130
s131
s132
s133
s134
s135
ss136, 137
ss139145
s146(1)
s146(2)(3)
s147
xlvii
590, 617
616, 617
617
617
617, 618
617
618
618
618
618
358, 617
358, 616
616
462, 600, 604, 641, 642
609, 619, 620
600, 607, 641, 642
609, 620
620
600, 620621, 641, 642
180, 599, 622 et seq
627, 630
628
469, 599, 612613
165, 200, 315, 377, 422, 482, 599, 605, 613
599, 605, 613614, 622
183, 599, 621, 622
621, 622
599, 600, 621, 622
599
637
600, 637, 642
637, 642
620, 638, 642
620, 638, 642
600, 638
638
639
640
405, 599, 618619
619
599, 636637
xlviii
s147A-147F
s148
s149
s150
ss153A-153O
ss154157
s159A
s159A(1)
s159A(2)
s159A(3)
s159B
s159B(1)
s159B(2)(a)(b)
s159B(2)(c)
s159B(3)
s159C(1)
s159C(3)(4)(6)(7)
s159C(5)
s159D
s159E(1)
s159E(2)
s159E(3)
s159E(4)(5)
s159E(6)
s159G
s159G(1)
s159G(2)
s159G(3)
s159G(4)
s159G(5)
s159H(1)(2)
s159I(1)(2)(3)
s159I(4)(5)
s159J(2)
s159J(3)
s159J(4)
s159K
s159K(1)
s159K(2)
599, 637
599, 635636
640
612, 614, 620, 636
599, 640
641
331, 416, 428, 768
410, 416, 417, 419, 422, 424, 425, 426,
428, 432, 434, 435, 439, 451, 453, 454
437, 439, 440, 441
57, 427, 428
421, 428
422, 423
421422
421422, 423
421
456, 457
457
427, 456, 457
456
416, 434, 456
416, 424
451, 452, 457
455
416, 421, 428, 439, 453, 454
385, 417, 454, 479
412, 460, 461, 462, 463, 464, 466, 469, 470,
472, 473, 602
410, 461, 472, 477, 480482
461, 483
477, 480482
434, 461, 462, 483, 484
484
460, 483, 484
483
473
483
484
461
460, 461
483
s159L
Crimes (Amendment) Ordinance (No. 90 of 1991)
s(2)
s26
s2
s4
Criminal Jurisdiction Ordinance (cap 461)
s2(2)
s2(3)
s3(1)
59, 413,
s3(2)
s3(3)
s4(1)
59, 413, 432,
s4(2)
s4(3)
s4(4)
s4(5)
s5
s6(1)(a)(b)(c)
433,
s6(2)
413, 485,
s7(1)
s7(2)
Criminal Procedure Ordinance (cap 221)
s14A(1)
s41(1)(2)
s51(2)
s65A
116, 117,
s65E
s65F
s66A
s74
21, 219,
s74(1)
s75
s75(1)
s75(2)(3)(5)(7)
s75(4)
s75(6)
s75A
xlix
457
600
616
11, 489
404, 410
416, 457
460
5960, 413, 428,
432, 484, 696, 741
699, 742
700, 742
432, 484, 699, 742
59, 742
59, 413, 699, 742,
434, 485, 700, 742
432
59, 484
59, 413
700, 742
700, 742
700, 701, 742, 743
700, 701, 742, 743
433, 701, 743
413, 485, 701, 743
9
48
54
594, 595
122, 261, 262, 264
601, 616
53
455
222, 225, 235, 242
217, 236
219, 222
218
219
219, 220
219, 235
219, 222
s75A(1)
s75A(2)(5)
s76
s76(1)
s76(2)
s76(3)
s76(5)
s76A
s77
s79A
s81(1)
s81A(1)
s81D
s82
s83J
s83K(4)
s83L(1)(2)
s83M
s89
s90
s90(1)
s90(4)
s91
s91(1)
s91(2)
s91(3)
s91(4)(5)
s94A
s94A(1)
s94A(2)
s94A(4)
s100
s101(2)
s101A
s101A(1)
s101A(2)
s101B(1)
s101B(3)
s101C(1)(2)
s101E
s101I(2)
220, 236, 249

220
222, 225, 236
21
220, 221, 225, 236
220, 221
225
217, 222, 225
222
212
55
55
55
55
236
236
236
222
333 et seq, 462
330
50, 384, 385386
386
330
50, 384, 386387
384
387
384
3839, 179
38
38
39
278, 323324
50, 281, 282283, 292, 294, 554, 579
30, 172, 280282, 283, 284
280, 281, 283, 284, 285, 292, 294, 567
283, 285
459, 472, 479, 484
459
412, 413, 484
401
408, 412
li
s106A
215
s109A
212
Schedule 4
221, 222, 236
Criminal Procedure (Amendment) Ordinance (No. 37 of 1996)
ss3, 4
219, 220, 222
Dangerous Drugs Ordinance (cap 134)
214
s4
423
s39
430
s46(c)(d)
43
s47(1)(c)(d)
43
s47(3)
43
Defamation Ordinance (cap 21)
49
District Court Ordinance (cap 336)
9
s74
53
s75(1)
53
s82(2)
54
ss8384
54, 55
Drug Trafficking (Recovery of Proceeds) Ordinance (cap 405)
s25(1)(4)
4546
Dutiable Commodities Ordinance (cap 109)
204
s17(2)
204
s17(3B)
391
s46(1)
391
Employment Ordinance (cap 57)
188
Employment of Children Regulations
Reg 4(1)(b)
188189
Evidence Ordinance (cap 8)
s3(a)
212
s4
212
s4B
642
Firearms and Ammunition Ordinance (cap 238)
s13
38, 40
s24
40421
Gambling Ordinance (cap 148)
30
s27
583
High Court Ordinance (cap 4)
s3(1)
54
s3(2)
54
s12(3)
54
s13(3)
55
s34(2)
54
lii
Homicide Ordinance (cap 339)

501 et seq
s2
498
s3
30, 217, 225, 248, 501
s3(1)
248, 249250, 252, 256
s3(2)
40, 248, 249
s3(3)
217
s3(4)
250
s4
30, 504, 505, 506, 509, 513, 514, 524
s5(1)(2)(3)
380, 526
Hong Kong Bill of Rights Ordinance (cap 383)
33, 4647, 197, 199, 369, 498
s3
42, 4344
s4
42, 43
Article 2
33
Article 3
33
Article 5
33
Article 5(1)
197, 198
Article 6
33
Article 6(3)
22
Article 11
33
Article 11(1)
10, 34, 36, 39, 40, 4247, 197, 199, 200, 613, 614
Article 12
33
Article 12(1)
28
Hong Kong Court of Final Appeal Ordinance (cap 484)
55
s16(1)
55
s17
55
s32(1)
55
s32(2)
55
s32(3)
55
Immigration Ordinance (cap 115)
434
ss17C, 17D
586
s37C(1)(a), (2)(b)
197
s38(1)(b)
80
s38(4)
200201
s38A(2)(3)
200
Independent Commission Against Corruption Ordinance (cap 204)
10
Inland Revenue Ordinance (cap 112)
s80(1)
72
Interpretation and General Clauses Ordinance (cap 1)
30
s3
4, 27, 47, 49, 74, 212, 282, 385, 395, 554
s19
30
liii
s81
459, 471
s84
401
s89(1)(a)
47
Jurors Ordinance (cap 3)
s3
54
Juvenile Offenders Ordinance (cap 226)
53
s2
53, 212
s2(3)
53
s3
213, 421, 472
s3A
212
s3A(3)
53, 212
s11(1)(2)
212
s14(1)
212
s15
212
Kowloon-Canton Railway Corporation Ordinance (cap 372)
s18(1)(3)
179
Long Term Prison Sentences Review Ordinance (cap 524)
497
Magistrates Ordinance (cap 227)
9, 48, 51, 53
s5(1)
51
s5(2)
52
s5A
51
s12
51
s44
52
s57
52
s91
49, 52
s92
4849, 52, 579, 590, 591 et seq
s93
52
s94
52
s94A
49
s97(3)(a)
52
s104(1)
53
s104(10)
53
ss105113
53
Second Schedule
48
Marriage Ordinance (cap 181)
s27(2)
613, 627
Mental Health Ordinance (cap 136)
222, 614
s2(1)
220, 222, 223, 224, 614
s2(2)
221
s2(5)
223
s36
224
liv
ss4242B
236
s43
236
s44
236
s44D
222
s45
22, 217, 223, 224, 225, 236, 254
s45(1)
217, 223
s45(1)(a)(i)(ii)
223
s45(1)(a)(iii)
221
s45(1)(b)(i)(ii)
223
s45(1)(c)
223
s45(2)
224
s45(3)
224
s48
224, 254
s51(1)(a)
224
s52(1)(2)(3)
224
Mental Health (Amendment) Ordinance (No. 38 of 1996)
222
Mental Health (Amendment) Ordinance (No. 81 of 1997)
613
Miscellaneous Licences Ordinance (cap 114)
s8
388390, 394
Miscellaneous Licences Regulations
Regs 30(b), 32(b)
389390
Monetary Statistics Ordinance (cap 356)
s5(2)
179
Moneylenders Ordinance (cap 163)
s30(2)(a)
583
MTR Corporation Ordinance (cap 270)
s23D(1)(3)
179
Offences Against the Person Ordinance (cap 212)
30, 114, 141, 553
s5
57, 415, 416, 428, 497
s7
497, 501
s8B(1)(2)
491
s9
57, 491
s9A
489
s14
459
s16
281
s17(a)
118, 136, 246, 258, 262, 361, 364, 441, 462, 464, 498,
513, 553, 579, 580, 590, 592, 597598
s19
158, 246, 258, 470, 553, 560, 565, 568, 571, 579, 580,
581, 590 et seq, 593, 594, 595, 596, 597, 598
s21
461
s22
532
s27
s33A
s33B
s33C
s36(a)
s36(b)
s36(c)
s39
lv
72, 528
336, 489, 526
334, 335, 410, 462, 489, 526
496
590
84, 261, 553, 554, 567, 582, 583, 588
590
91, 158, 230, 245, 261, 282, 288, 553, 554, 556, 560,
565, 568, 571, 573, 577, 579 et seq, 582, 594
s40
115, 282, 553554, 555
s42
52
s43
52
s45
173, 201
s46
489, 492
ss47, 47A, 47B
489, 492
s47C
489, 495, 501, 547548
s49
358, 615
ss5053
616
s56
455
Peak Tramways Ordinance (cap 265)
s14H(1)(3)
179
Police Force Ordinance (cap 232)
10
s3
584
s10
585, 587
s18
584
s54
585
s63
84, 582
s64
384
Prevention of Bribery Ordinance (cap 201)
30
Prisons Ordinance (cap 234)
10
Prisons Rules
10
Protection of Women and Juveniles Ordinance (cap 213)
212
s2
212
s34
53
Public Health and Municipal Services Ordinance (cap 132)
s139
583
Public Order Ordinance (cap 245)
ss17, 17B(2), 18, 19, 24
587
Quarantine and Prevention of Disease Ordinance (cap 141)
s9
583
Reformatory School Ordinance (cap 225)
23
lvi
Road Traffic Ordinance (cap 374)

s36
48, 144, 148, 157, 160, 238, 489, 501, 543, 548551
s36(2)(a)(b)
551
s36(4)
549
s36(5)
549
s36(7)
550
s36(8)
550
s37
138, 157, 160, 543
s38
118, 178179
s38(1)(2)
72
s39
255
s48
179
s56(3)(6)
72
s77
316
s77(3)
316
Road Traffic (Traffic Control) Regulations
Reg 60
316
Summary Offences Ordinance (cap 228)
30
s4(14)
179
s12A
636
s17
80, 297
s19(1)
180
s23
583
s26(1)
80
s28(1)(2)
255
s30
44, 46
Theft Ordinance (cap 210)
30, 59, 116, 139, 645 et seq
s2
647
s2(1)
12, 113, 118, 135, 256, 647
s2(2)
647, 649, 701
s2(3)
647
s3
647, 727
s3(1)
702704, 749
s3(1)(a)
702, 715
s3(1)(b)
687, 702703
s3(1)(c)
660, 703704
s3(2)
704
s4
647, 674, 679
s4(1)
674676, 681, 689, 690, 695
s4(2)
674, 698699
s5
647, 648657, 716
s5(1)
s5(2)
s5(3)
s5(4)
s5(5)
s5(6)
s6
s6(1)
s6(2)
s6(3)
s6(4)
s7
s7(1)
s7(2)
s8(1)
s8(2)
s9
s10
s10(2)
s11
s11(1)(a)
s12
s15
s16
s16A
s16A(1)
s16A(2)
s16A(3)
s16A(4)
s17
s17(1)
s17(2)
s17(3)
s17(4)
s18
s18(1)
s18(2)
s18(2)(a)
s18(2)(b)
lvii
648, 649, 652, 654, 657, 743, 746

648, 655656, 743
648, 655, 743
648, 655, 656, 657, 743
648, 655, 656, 743
648, 656657, 743
647, 657673
646, 647, 652, 657, 658663, 664, 669, 670, 671, 673
657, 661, 663664, 669, 670
650, 653, 657, 662, 664670, 743
646, 657, 662, 671673, 711
647, 706711, 748
707711
711
647, 648, 658, 743
716, 762, 764, 767, 771
11, 59, 113, 213, 256, 282, 443, 647, 741
49, 244, 331, 337, 345, 677, 712715
136, 590
136
356
49
657
657
59, 443, 647, 727, 750, 768772
768, 769, 770, 771
772
768, 771
444, 768
59, 159, 443, 654, 655, 671, 704, 710, 727, 728, 736,
741, 743748, 754
479, 650, 651, 654, 661, 679, 699, 717, 736, 743, 744,
746, 747, 752
746, 748
748
159160, 728736, 753, 755, 761, 764, 769
59, 159, 652, 727, 728, 736, 741, 748752
748, 749, 750
749
741, 749, 750, 762
749, 750, 751
lviii
s18(2)(c)
s18(3)
s18A
s18A(1)
s18A(2)
s18A(3)
s18B
s18B(1)
s18B(1)(a)
s18B(1)(b)
s18B(1)(c)
s18B(2)
s18B(3)
s18B(4)
s18B(5)
s18C
s18D
749, 750, 752

729, 750
59, 159, 727, 736, 741, 749, 752754
752, 753, 754
750, 753, 754
729, 753
59, 159, 727, 736, 741, 749, 754761
754, 755
754, 755, 756757, 758, 759
667, 754, 755, 756, 757760
731, 753, 754, 755, 760761
755, 760
758
760
729, 755
659, 663, 727, 741
59, 159, 647, 651, 652, 706, 727, 736, 741, 746, 758,
761763
s18D(1)
761
s18D(2)
729, 762
s19
443, 727, 741, 762, 766768
s19(1)(2)
766, 767
s20
401
s21
59
s22(2)
59, 654, 727, 736, 742, 762, 763765
s22(3)
763, 765
s22(4)
729, 763, 764, 765
s23
59, 387, 741
s24
59, 137138, 213, 715726, 741
s24(1)(2)
715
s26
678, 717
s26(1)
717
s26(2)
716, 717
s26(3)
717718
s26(4)
717
s29(3)
723
s29(6)
753
s32
724, 725
s34(1)
645, 728
Theft (Amendment) Ordinance (No. 45 of 1999)
s3
443, 444
lix
Trade Descriptions Ordinance (cap 362)

s17(1)(a)
s20
Trade Unions Ordinance (cap 332)
ss46, 48
Training Centres Ordinance (cap 280)
Water Pollution Control Ordinance (cap 358)
s10
583
402
587
23
181
UK
Accessories and Abettors Act 1861
s8
Children and Young Persons Act 1933
s1(1)
Crime and Disorder Act 1998
s34
Criminal Attempts Act 1981
s1(1)
s1(2)(3)
s1(4)
s5(1)
Criminal Damage Act 1971
s1
s1(1)
s1(2)
s1(3)
s5(2)(3)
Criminal Justice Act 1925
s47
s5
s8
s12(2)
Criminal Justice Act 1993 (not yet in effect)
Criminal Justice and Public Order Act 1994
Criminal Law Act 1967
s1
334
528
29,
404,
461, 466,
480,
418, 461,
142, 143,
75, 142,
154, 267,
75,
214
475
467
481
462
416
144
112
273
467
142
274
323
387
117, 261, 262
404
452
19
696
601, 604
334
lx
s3
280
ss4, 5, 13(1), 14(1)
384
Criminal Law Act 1977
404, 432
s1(1)
416, 431, 435
s1(2)
439
s5(3)
416
s5(7)
412
Criminal Law (Amendment) Act 1885
s4
607
Criminal Procedure (Insanity) Act 1964
s6
249
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
222
Dangerous Drugs Act 1965
s5(b)
190
Drugs (Prevention of Misuse) Act 1964
s1(1)
189
Food and Drugs Act 1955
s2(1)
193
s3(3)
193
Homicide Act 1957
s1
498
s2
225, 248
s3
504 et seq, 516, 524
Indecency with Children Act 1960
s1(1)
206
Interpretation Act 1978
s5
395
Law Reform (Year and a Day Rule) Act 1996
496
Magistrates Courts Act 1980
s101
38, 39
Offences Against the Person Act 1861
142, 553
s8
349
s18
246, 262, 498, 590
s20
246, 560, 565, 568, 571, 572, 579, 580, 581,
590, 593, 594, 595, 596
s23
532
s47
91, 230, 245, 261, 288, 556, 560, 565, 568,
571, 572, 573, 579, 594
s55
183
s57
173
Police Act 1964

s51
Police and Criminal Evidence Act 1984
s24
s51
s78
Road Traffic Act 1930
s11
s1
s2
Sexual Offences Act 1956
s1(1)
s2(1)
s3(1)
s6(3)
s10(1)
s11(1)
s14(1)
s15(1)
Sexual Offences (Amendment) Act 1976
s1
s1
Theft Act 1968
s1
s2
s3
s4
s5
s5(3)
s5(4)
s6
s8
s13
s15(1)
s15(4)
s15A
lxi
84
282
285
383
538
238
148
601
604
607
613
409
409
624
625
616
601
158, 274
216, 332, 602
645, 649, 684, 701
647, 702
647, 674, 681, 689, 690
647
647, 659, 664
664, 666, 667, 669, 670
671
647, 707, 708, 710
244, 714
405
650, 704, 710, 727, 739, 744
729
651, 745, 749, 761
lxii
s16
727, 735, 739, 748, 749, 751
s17
727, 767
s20(1)(2)
727, 763
s22
715
s24
717
s24A
651, 741, 745, 749, 761
Theft Act 1978
647
s1
727, 749, 750, 752, 753
s2
727, 731, 735, 749, 754, 755, 757, 758, 761
s3
663
Theft (Amendment) Act 1996
647, 745, 761
Transport Act 1968
347
CANADA
Charter of Rights
44, 197
PART I
Introduction
1
Crime and Criminalization
INTRODUCTION
Criminal law is the body of substantive law underlying the criminal justice
system in Hong Kong. When a person is charged with a crime, this involves
an assertion or allegation that he or she has acted in a manner falling within
the scope of one or more of the myriad offences recognized under Hong Kong
law. These numerous offences, most of which are statutory in origin, but
some of which, including murder, manslaughter and common assault, remain
a product of judicial decision-making or what is called the common law,
together form part of the criminal law of Hong Kong. Another part comprises
the body of general and specific legal principles, statutory and common law,
by which the meaning and scope of an offence, and the range of persons who
may be criminally liable for an offence are determined. A third part comprises
the body of defences, such as self-defence, insanity and duress, available
under statute or at common law to a person charged with an offence. The last
part comprises the penalties, or forms of punishment, that may be imposed
upon a person who is found to have committed an offence.
Taken as a whole, the criminal law, comprising these various parts,
provides the formal background and legal authority against which the
criminal justice system operates, and all its participants including victims,
the police and other law enforcement agencies, prosecuting and defence
lawyers, judges, magistrates and other court personnel and correctional
services personnel play out their respective roles.
INTRODUCTION
This book seeks to outline the criminal law of Hong Kong. Broadly
speaking, the book is divided into two sections. The first section, comprising
Parts I to IV (Chapters 1 to 9), sets out the general principles and rules of
the criminal law as they relate to the formulation of offences,1 defences
and participation under Hong Kong law. The second section, comprising
Parts V and VI (Chapters 10 to 14), outlines in greater detail a number of
offences under Hong Kong law, looking particularly at offences against the
person (Part V) and offences against property (Part VI).
The approach adopted in this book largely involves the presentation
and exposition of the criminal law as a body of doctrinal law applied by
the criminal courts of Hong Kong, and also of England upon which much
of Hong Kongs criminal law, both statutory and case law, is based. This
body of law has been structured and fleshed out both by the judiciary and
by a succession of criminal law commentators, from Hale in the early
eighteenth century to modern commentators such as Professor Glanville
Williams and Professors Smith and Hogan, and imported into Hong Kong
in the early days of British colonization. At the same time, it remains the
case, as Norrie has pointed out, in Crime, Reason and History: A Critical
Introduction to Criminal Law (at 9, and Chapter 2),2 that much of criminal
laws present doctrinal structure is a product of the conception of crime
and criminality formulated by late eighteenth and early nineteenth century
English penal law reformers intent on constructing a body of criminal law
suitable for the changing needs and concerns of Britains rapidly
industrializing society. Key in these reforms was the dominance of the
concept of individual self-interest and right, from which flowed notions of
individual autonomy and fault-based responsibility.
Locating Criminal Law

At the outset, it is important to recognize the limitations of this account of
the criminal law of Hong Kong. In the first place, it is only a partial account
of crime. The criminal law tells us what forms of conduct have been
criminalized, but not necessarily why that is so. An influential commentator
See section 3 of the Interpretation and General Clauses Ordinance (cap. 1): offence
includes any crime, and any contravention or other breach of, or failure to comply with,
any provision of any ordinance, for which a penalty is provided.
Norrie, Alan. Crime, Reason and History: A Critical Introduction to Criminal Law (second
edition). London: Weidenfeld & Nicolson.
CRIME AND CRIMINALIZATION
on criminal law and criminal justice, Nicola Lacey, has emphasized the
need to understand the authority and force of the offence definitions which
are the official starting-point for the social conception of crime, but also
reiterated that we need to keep in mind that crime is a product of many
layers of interpretation, and that this social construction of crime is of
constant relevance to both the practical operation and the social significance
of all aspects of the criminal process.3
This leads to a second important limitation: that the criminal law is
only one aspect of the criminal justice system as a whole in Hong Kong.
Even at the level of formal law, criminal law is supplemented by the law of
criminal procedure and criminal evidence, and by the principles and rules
of sentencing. The adversarial nature of English criminal proceedings and
the presumption of innocence have played a significant role in shaping the
criminal law as it presently exists.
At a broader level, there are considerable levels of divergence between
the doctrinal portrait of crime and criminality underpinning the criminal
law, and the nature and workings of the criminal justice system itself in
Hong Kong. One commentator on the criminal justice system in Hong
Kong has noted that from the beginning of Britains colonization of Hong
Kong, laws and policies were transferred from Britain to the new colony
with scant thought as to how they would mesh with imperial Chinas
criminal law and procedure and, in relation to the criminal law in particular,
with the usual callous indifference of colonizers, without regard for whether
it would suit local needs and customs.4
Another aspect of this divergence concerns the depiction of the criminal
law as a coherent body of doctrine founded on notions of rationality and
individual responsibility. Many commentators have acknowledged that while
this depiction has considerable symbolic value, it does not stand up to
scrutiny. Norrie, for example, has argued (Crime, Reason and History,
pp. 89) that whereas the orthodox approach to criminal law scholarship
entails what has been termed rational reconstruction, i.e. the production
of clear and systematic statements of legal doctrine, accounting for statute
law and case law in terms of organising principles, the criminal law in
actual practice is:
3
4
Lacey, Nicola. Introduction: Making Sense of Criminal Justice. In A Reader on Criminal

Justice, edited by Nicola Lacey, p. 23. Oxford: Oxford University Press, 1994.
Shelley, Louise. Foreword. In Introduction to the Hong Kong Criminal Justice System, edited
by Mark Gaylord and Harold Traver, p. xi. Hong Kong: Hong Kong University Press, 1994.
INTRODUCTION
neither rational nor principled so that the extraordinary is as much

the norm as the ordinary. It is not that there is no rationality or
principle in the law at all, but rather that the elements of reason and
principle are constantly in conflict with other elements in the law
itself. This means that the rationalising enterprise is frequently
rationalisation only in the pejorative sense of an apparent rationale
papering over the cracks of deeper contradictions.
In addition, Norrie takes issue with the usual depiction of criminal law
principles and rules as in some way being natural and historic, the product
of reason and principle. Norrie argues that modern criminal law is
historically contingent, and was formed in a particular historical epoch
[nineteenth century England] and derived its characteristic shape from
fundamental features of the social relations of that epoch. The principles
therefore are historic and relative rather than natural and general (Crime,
Reason and History, p. 9). Lacey, Wells and Meure, in Reconstructing Criminal
Law,5 have argued (p. 43) that the appearance rather than the reality of
certainty, coherence and fairness is the significant thing for it is central
to the legitimizing ideology and hence power of criminal law.
This legitimizing or symbolic role is crucial, for it provides the necessary
thread of coherence for the criminal justice system as a whole when reality
suggests the system is far from being coherent, a point made by Gaylord and
Traver (In Introduction to the Hong Kong Criminal Justice System, Chapter 1,
p. 6; see note 4 above):
Hong Kongs criminal justice system is large and complex enough to
bewilder even many of those directly responsible for its administration.
There are now so many departments, often with conflicting interests
and goals, that it is difficult to understand the system as a whole.
It is frequently assumed, albeit incorrectly, that the Hong Kong
criminal justice system is a tightly knit structure in which all agencies
operate in tandem to assure that a large proportion of persons arrested
are punished to the full extent of the law. According to this view, the
government is in command of the police, courts, prisons, and related
agencies.
Such an assumption, of course, is unrealistic; the democratic
principle holds that legislative, executive, and judicial powers should
be separated and counter-balanced, with the result that criminal justice
agencies frequently work at cross-purposes.
5
Lacey, Nicola, and Wells, Celia. Reconstructing Criminal Law: Critical Perspectives on Crime
and the Criminal Process: Text and Materials (second edition). London: Weidenfeld &
Nicolson, 1998.
Related to this is the simple fact that most crimes do not involve the
systematic application of criminal law principles. Not all crimes are reported;
not all reports are investigated by the police or other law enforcement
bodies; of those that are investigated, not all lead to a charge being laid;
and where a charge is laid and a prosecution follows, most defendants
plead guilty upon a summary of facts, without any further need for
application or examination of the criminal law. The number of cases,
therefore, in which it is necessary for the criminal law to be specifically
addressed and applied is only a small proportion of the total possible
instances of offending.
This emphasizes a further aspect of this divergence. Whereas the orthodox
approach is to portray criminal law as a broadly coherent and certain set of
principles applied uniformly by the courts, the criminal justice system itself
in Hong Kong (as in most jurisdictions) is characterized at all levels by the
existence of discretion, both institutional and situational. Victims decide
whether to report an incident; the police decide whether and how to respond
to a report and whether to charge someone rather than deal with them by way
of, for example, a caution; prosecutors decide whether and in which court to
prosecute; defendants decide taking into account the possibility of a pleabargain whether (as most do) to plead guilty, or to seek a full trial by pleading
not guilty; defence lawyers decide how to present the case for the defendant;
courts decide on the admissibility of evidence and such like; judges decide
how to punish a defendant upon conviction; and so on. Criminal law may
provide the backdrop against which many of these decisions are made, but a
whole host of other social, economic and personal factors may influence the
actual decisions taken at each point in the criminal justice system.
This book does not explicitly develop many of these criminal justice
issues or related issues such as those arising from the criminologists query,
Why do people commit crime? On the other hand, since the offences and
principles constituting the criminal law of Hong Kong purport to be a
manifestation of various assumptions about crime, it would be misleading
to disregard these questions completely. The remainder of this chapter will
therefore introduce the reader to some aspects of these issues and some of
the answers that they have received.
THE CONCEPT OF CRIME

Most people know that murder, rape, theft, and arson are crimes, even
INTRODUCTION
though they may not be able to define these crimes with any legal precision.
But what does it actually mean to say these are crimes? What distinguishes
them from other forms of behaviour and leads to their classification as
crimes? And what about failing to stop at a red light, or littering, or bringing
a carton of cigarettes into Hong Kong from mainland China? These acts
may also amount to crimes or offences in Hong Kong, although they might
not be generally thought of as crimes, at least not in the same sense as
murder, rape, theft, and arson.
What then does it mean to say that something is a crime, beyond
simply asserting that it is an act prohibited by the criminal law? The question
sounds straightforward enough, but providing a satisfactory answer is far
from easy. Among the many answers that have been given, two
characteristics deviance, and the fact that the behaviour leads to what
is called a criminal response are commonly referred to. To a considerable
extent, therefore, these two characteristics serve as features which demarcate
crimes from other forms of conduct.
Deviance
Deviance is undoubtedly central to our notion of crime. Most crimes
involve deviance; that is, the acts or behaviours in question contravene or
deviate in some way from accepted or expected norms of social or
community behaviour. This is clearly the case with murder, rape, theft,
and arson, and as a result, these forms of behaviour tend to be treated as
crimes in most societies, whether by the above or other names.
However, this is not true of all forms of deviant behaviour. In the first
place, notions of deviance may differ from one society to the next. Similarly,
even within the same society, notions of what is deviant may differ over time.
More fundamentally, not all deviant acts are crimes, nor is the task of
controlling deviant behaviour solely the province of criminal law and the
criminal justice system. Many other control mechanisms also exist, such as
the family, the education system and religious organizations. Like the criminal
justice system, these institutions also employ various formal and informal
mechanisms for dealing with those who engage in deviant behaviour, and
perform powerful normative functions, informing and reinforcing acceptable
codes of behaviour within a particular society or community.
Thus, deviance, although central, does not in itself make behaviour a
crime. Something more is needed. This is commonly identified as being
the fact that the behaviour attracts a criminal response.
Criminal Response
A response is generally said to be criminal in nature if it has two
characteristics: firstly, it attracts a legal response, and secondly, it involves
punishment.
Legal response
A response is legal if it attracts the attention of the legal system, rather
than (or in addition to) any other form of institutional or non-institutional
response. Consequently, one of the ways of identifying whether an act is a
crime is the fact that the act attracts the attention of the legal system, and
is therefore a legal wrong. However, the reverse is not necessarily true; not
every legal wrong is a crime. Conduct may be legally wrongful in several
senses. Injuring another person, for example, may be legally wrongful in
the sense that it involves a contravention of the standards of care imposed
on all members of society by the law. But this breach of the law, or legal
wrong, is prima facie only a breach of the civil law (known as a tort) and
is dealt with by requiring the wrongdoer to compensate the injured victim.
To be a crime, it must instead be proved that the conduct in question and
the wrongdoers state of mind satisfy the specific requirements of one or
more of the offences involving personal injury recognized by the criminal
law of Hong Kong. In that event, it will attract a criminal response, in
addition to any civil response. The same conduct may, in other words,
attract two legal responses, one civil and the other criminal.
What is the difference? It is usually based on the different procedural
and evidential rules that are followed and applied in determining liability.
Two matters in particular distinguish a criminal response from other types
of legal response. Firstly, a criminal response is almost exclusively statecontrolled and -administered,6 and follows procedures laid down by statute7
In Hong Kong, prosecutions are generally brought in the name of the HKSAR. The decision
whether to initiate a prosecution ultimately rests with the Secretary of Justice in Hong
Kong, although most prosecutions are commenced by a police officer or other duly
authorized person representing the Department of Justice. Private prosecutions may also
be initiated, but the Secretary of Justice has the power to assume responsibility over such
proceedings and either continue them in the name of the HKSAR or halt them. See
G. generally Heilbronn, Criminal Procedure in Hong Kong (third edition), Chapter 4,
Longman, 1999.
Principally, the Criminal Procedure Ordinance (cap. 221), the District Court Ordinance
(cap. 336), and the Magistrates Ordinance (cap. 227).
10
INTRODUCTION
or common law.8 Thus, criminal investigations are generally conducted by

state organs, including the police 9 and officers of the Independent
Commission Against Corruption;10 criminal prosecutions are controlled by
a state organ, the prosecutions section of the Department of Justice; guilt is
determined in trials conducted by state organs, the judges and courts; and
prisons are administered by state organs, including the Correctional Services
Department.11
Civil proceedings, in contrast, are normally commenced at the initiative
of the litigants themselves and, although pursued in the public courts, are
subject to the parties control to a far greater degree.12
Secondly, a person who is accused of committing a crime or offence is
presumed to be innocent.13 His or her guilt must therefore be proved by
the prosecuting authority beyond reasonable doubt.14 If guilt is not proved
to this standard, then the accused is entitled to be acquitted. In civil
proceedings, in contrast, the burden of proving an allegation is generally
placed on the party making the allegation, whether that is the plaintiff or
the defendant. Furthermore, the standard of proof is lower, requiring only
proof on the balance of probabilities.15
Punishment
A second feature of the response to deviance that marks it as a criminal
response focuses on the outcome of the proceedings. It is the hallmark of
a crime that those convicted of committing it are punished in some way.
However, once again, the reverse is not necessarily true. The fact of
punishment does not necessarily mean that the deviant behaviour is a crime.
Punishment can be imposed, for example, within the family, or at school,
or by other agencies.
8
9
10
11
12
13
14
15
See generally Wesley-Smith, Peter, An Introduction to the Hong Kong Legal System (third
edition), Oxford University Press, 1998.
See generally the Police Force Ordinance (cap. 232).
See generally the Independent Commission Against Corruption Ordinance (cap. 204).
See Prisons Ordinance (cap. 234), and Prison Rules.
They can, for example, agree to settle their claims at any stage up to and even during trial,
without necessarily seeking the official sanction of the courts.
See, for example, Woolmington v DPP [1935] AC 462; Kwan Ping-bong v R [1979] HKLR
1; and Article 11(1), Hong Kong Bill of Rights Ordinance (cap. 383).
In essence, this means that the prosecutor must make the trier of fact (jury or judge) sure
that the accused did what is alleged in the charge, with the necessary guilty mind. As to
guilty acts and guilty mind, see Chapters 3 and 4.
This is commonly said to require the trier of fact to determine that it is more likely than
not that the fact in issue existed or occurred.
11
What characterizes criminal punishment is once again the fact that it

is imposed and exacted by the state, acting through its official organs, the
police, the courts, the prison service and so on. The nature of the
punishment is also relevant. Depending on the crime, the state-imposed
and -exacted punishment may range from the most severe, capital
punishment (death penalty),16 down through imprisonment or detention
in a variety of institutions (prisons, detention centres, mental hospitals), to
fines and other financial penalties, and even such notional punishments as
binding over orders (orders requiring good behaviour for a fixed period)
and unconditional discharges.17 In addition, the mere fact of conviction
itself is generally viewed symbolically as a punishment. Civil wrongdoers,
on the other hand, are made to pay compensation (called damages), or
remedy in some other way the loss or harm suffered by the victim.
Furthermore, although the courts may be called on to assist, enforcement
of a civil judgment is largely left in the hands of the successful litigant.
A Possible Definition
Putting these various characteristics together, a possible definition of crime
would therefore be: legal wrong[s] that can be followed by criminal
proceedings which may result in punishment.18 For many purposes, this
would be satisfactory. Take, for example, the task of determining whether
any particular form of behaviour is a crime. To all intents and purposes,
this can be determined simply by asking whether at law a person performing
the particular behaviour may be dealt with by a criminal procedure and
punished upon proof of commission. Answering this is often relatively
straightforward.
For example, section 9 of the Theft Ordinance (cap. 210) provides:
Any person who commits theft shall be guilty of an offence and shall
be liable on conviction upon indictment to imprisonment for 10 years.
16
17
18
Capital punishment has now been abolished in Hong Kong; see Crimes (Amendment)
Ordinance 1993 (Ordinance No. 24 of 1993).
See generally, Heilbronn, Chapter 10. Civil wrongs, on the other hand, generally lead to
compensation damages or some other remedy directed at correcting the loss or
harm suffered by the victim of the wrongdoing.
See Williams, Glanville, Textbook of Criminal Law (second edition), p. 27. London: Stevens
& Son, 1983.
12
INTRODUCTION
This sets out the behaviour in question, namely theft (formally defined
in section 2(1), Theft Ordinance), states that it amounts to an offence,
stipulates that it may be dealt with by a criminal procedure (on conviction
upon indictment), and specifies the maximum potential punishment at
law (imprisonment for 10 years). Clearly, therefore, theft satisfies the
proposed definition and is a crime.
However, this approach defining crime in terms of the consequences
of classifying behaviour as a crime or as criminal is not a complete
answer. In the first place, simple reflection reveals that it is circular, for the
question what forms of behaviour attract a criminal procedure and the
possibility of punishment? receives the answer: conduct designated as
crimes. On the other hand, in relation to any specific form of behaviour,
it is generally possible to say whether or not the law has provided that the
behaviour may be dealt with by a criminal procedure and punished.
More importantly, however, defining crime in this circular manner
fails to address an underlying query: why is the particular behaviour a
crime? What is it, in other words, about the behaviour itself, or at least
societys perception of the behaviour, that justifies or legitimates the
conferral of power on the state acting through various official organs to
prosecute and punish the individual concerned? The definition does not
attempt to answer this, and with good reason. Doing so involves issues
extending far beyond the confines of criminal law strictly speaking; it draws
in sociology, history, economics, and legal, moral and political philosophy.
As such, detailed discussion of this topic is beyond the scope of this book.
Nonetheless, some insight can be gained by considering two particular
aspects of this issue: firstly, what factors are most commonly adverted to in
explaining why we criminalize, and secondly, what reasons are commonly
relied on to explain and justify why we punish?
WHY DO WE CRIMINALIZE?
Among the many possible answers to this complex question, two general
factors are usually thought to be central to the classification of behaviour
as criminal. These are harm and immorality.
13
Harm
One commonly used justification for criminalizing behaviour is that it
involves the infliction of harm. By criminalizing the behaviour, society both
records its condemnation of the behaviour, and also seeks to prevent or at
least minimize the occurrences of such behaviour through the use or
threatened use of punishment upon infringement. According to this, harm
thus becomes one of the defining characteristics of crime.
Harm in this context is not limited to physical harm or property
damage, but extends to potential harms to a variety of other interests that
are thought to require protection in order to build or maintain a better and
more just society. This includes, for example, the maintenance of public
health and safety across a wide spectrum of activities, such as traffic
regulation and animal licensing, the prevention of obscenity, and the
continued existence and effective operation of the government and courts
themselves.
This view of the criminal law as a means to an end the prevention
of harmful behaviour in its many manifestations is known as an
instrumentalist view. It can be found, for example, in the well-known
views of the legal and political philosopher John Stuart Mill (On Liberty,
London, 1859). Writing in the mid-nineteenth century, Mill advocated the
adoption of a utilitarian ethic towards the criminal law, according to which
the coercive powers of the state should (or could) only be invoked to prevent
or minimize the occurrence of behaviour involving harm to others (but
never to control non-harmful behaviour or behaviour harmful only to the
actual actor). According to a utilitarian outlook, the criminal law can only
be justified on the basis that it is a means of maximizing happiness.
This recognizes that the mere fact harm may occur is not in itself
reason enough for criminalizing the conduct in question. Many other factors
come into play. The possibility of harm may, for example, be remote. Or it
may not be of a type that merits prevention. Or it may be relatively trivial
compared to the potential effect of a criminal conviction. Or it may simply
be too difficult effectively to enforce any prohibition.
Immorality
A second commonly expressed justification for criminalizing behaviour is
that the behaviour in question contravenes societys moral code or morality.
According to this view, the fact that behaviour is generally considered to
14
INTRODUCTION
be immoral is justification enough for making it a crime. Undoubtedly,

this is true of many crimes, especially those involving violence, such as
murder and rape, and those designed to protect the young, the weak and
the mentally deficient.
However, there are also many acts or activities which are not criminal
under the law of Hong Kong, even though they might be viewed as immoral
by large numbers of people. Obvious examples include adultery, and
homosexual acts between consenting adults (especially adult males).
The relationship between morality, or immorality, and the criminal
law, and particularly the lengths to which the criminal law should go in
officially defining and enforcing morality, has long been the subject of legal
and jurisprudential debate. Part of the problem in relying on immorality
is that many behaviours which might be viewed as immoral are of a private
nature examples of this would include drug use, prostitution, sexual
behaviour and pornography. If conducted in private, the most direct and
immediate effect of behaviours such as these is only on the individuals
who participate in them. No other harm is directly done. There are,
therefore, many who argue, using the utilitarian ethic, that the use of the
criminal law to control these forms of behaviour merely because they might
be considered immoral by others cannot be justified.
One well-known statement of this view is found in the 1957 Report of
the Wolfenden Committee in England on Homosexual Offences and
Prostitution (Cmnd 247, 1957). There it was suggested (p. 13) that:
[the function of the criminal law is] to preserve public order and
decency, to protect the citizen from what is offensive or injurious,
and to provide sufficient safeguards against exploitation and corruption
of others, particularly against those who are specially vulnerable .
It is not the function of the law to intervene in the private lives of
citizens, or to seek to enforce any particular pattern of behaviour,
further than is necessary to carry out the purposes we have outlined.
There are equally strong advocates for the contrary view. Among the
best known are HLA Hart (Law, Liberty and Morality, Oxford University
Press, 1963) and Lord Devlin. In a well-known essay, entitled Morals and
the Criminal Law,19 Lord Devlin sought to rebut the findings of the
Wolfenden Committee:
19
Originally delivered in 1959 as a Maccabean Lecture in Jurisprudence, reproduced in The

Enforcement of Morals, Oxford University Press, 1965, p. 1. See also Shaw v DPP [1962]
AC 220.
15
I think, therefore, that it is not possible to set theoretical limits to the

power of the State to legislate against immorality. It is not possible to
settle in advance exceptions to the general rule or to define inflexibly
areas of morality into which the law is in no circumstances to be
allowed to enter. Society is entitled by means of its laws to protect
itself from dangers, whether from within or without . But the true
principle is that the law exists for the protection of society. It does
not discharge its function by protecting the individual from injury,
annoyance, corruption, and exploitation; the law must protect also
the institutions and the community of ideas, political and moral,
without which people cannot live together. Society cannot ignore the
morality of the individual any more than it can his loyalty; it flourishes
on both and without either it dies .
This debate manifested itself in Hong Kong when the question of

decriminalizing homosexual acts between consenting adult males was
considered by the Law Reform Commission of Hong Kong in 1983 (Report
on Laws Governing Homosexual Conduct, 1983). Although the Law Reform
Commission recommended decriminalization, action on that
recommendation was deferred for nearly a decade, partly because the Hong
Kong government was acutely conscious of local feeling that homosexuality
was deviant and immoral and therefore ought not to be decriminalized.
Comments such as the following, taken from a letter to the Law Reform
Sub-committee considering the issue and recorded by the Law Reform
Commission in its 1983 Report (p. A36), typify this view:
I write again to stress that it is totally undesirable to legalize
homosexuality which is entirely contrary to the customs and life style
of the Chinese community in Hong Kong.
This view would probably have held sway and prevented decriminalization,
had not health concerns over AIDS eventually demanded decriminalization.
The fact that it took the government so long to respond to the Law
Reform Commissions recommendation is also evidence that whatever
utilitarians and others may say about the proper relationship between
immorality and the criminal law, the reality is that one of the first and
foremost uses of the criminal law in Hong Kong, as elsewhere, is to legislate
morality, or immorality.
16
INTRODUCTION
The Reality of Criminalization

There are many other factors which can be included in theoretical
discussions of the concept of crime and the process of criminalization.
Some critics, however, have suggested that theory and reality are somewhat
different. It has, for example, been said of the process of criminalization
elsewhere that:
Reflection on actual practices of criminal law suggests that the genesis
of the social definition of crime is both more complicated and to a
greater extent a matter of historical development, explicable in terms
of the salience of particular issues at particular moments, than general
theories can allow.20
The same holds true in Hong Kong, as any examination of Hong Kongs
criminal legislation quickly reveals. Not only are all the usual behaviours
proscribed, but in addition there are many other offences emanating from
and directed at specific forms of behaviour that feature in Hong Kong, or
which have given the public cause for concern in the past. Included in this
are triad activities, corruption, the use of and trade in dangerous drugs,
and smuggling (both goods and people).
In the same way, it has been argued that crime cannot be separated
from society. One commentator on the Hong Kong criminal justice scene
has, for example, suggested:
it is worth reminding ourselves that in the final analysis crime is
a normal feature of society. Though we are reluctant to admit it, a
great deal of crime appears to be an unintended by-product of such
things as economic growth, the elimination of social barriers to
achievement, and the expansion of individual liberties in short,
many of the things that we frequently hold up as important
achievements of a modern, open society.21
20
21
Lacey, Nicola, and Wells, Celia. Reconstructing Criminal Law: Critical Perspectives on Crime
and the Criminal Process: Text and Materials (second edition), p. 10. London: Butterworths,
1998.
Traver, H. Crime Trends. In Crime and Justice, edited by Traver and Vagg, p. 23. Oxford
University Press, 1991.
17
CRIME AND PUNISHMENT

Punishment, or the possibility of punishment, in particular, of statesanctioned and -imposed punishment, has already been identified as a central
characteristic distinguishing criminal conduct from other forms of deviance.
According to this, crime and punishment are inextricably linked. If so,
then it becomes highly relevant, in asking what makes something a crime,
to focus on this link and ask: Why do we punish?
This question has provoked numerous answers over the years, but,
like so many other questions concerned with crime, it has no easy answer.
This is partly because the question actually encompasses two separate but
entwined lines of inquiry. The first, which is general in nature, is concerned
with the social purpose or justification of punishment and asks why societies
punish. What social purpose does punishment achieve? The second inquiry
is more focused, and asks what justification there is for imposing a particular
punishment on a particular offender. The response given to the question
Why do we punish? may differ depending on which of these two lines of
inquiry is actually being answered.
Examination of theories of punishment reveals at least four different
grounds of justification, commonly expressed as retribution, deterrence,
incapacitation and rehabilitation. Of these, retribution differs from the other
three in that it focuses on the past, and asserts that punishment is justified
because of what the criminal has done. Deterrence, incapacitation and
rehabilitation, on the other hand, all focus on the future, and seek to justify
punishment on the basis of its supposed effect on the future behaviour of
both the offender and also others. Advocates of deterrence, incapacitation
and rehabilitation thus view punishment not as justified in itself, but rather
as a means to a desirable end, namely the improvement of society as a
whole.
For many years, there has been tension between these various
justifications of punishment, with the balance generally falling in favour of
the forward-looking concepts of deterrence, incapacitation and rehabilitation.
Retribution, it was commonly asserted, was barbaric and uncivilized.
Recently, however, penologists have developed a more sophisticated
understanding of retribution as a justification for punishment, and this has
seen the balance tip back in favour of retribution as the principal justification
for punishment.22
22
See, for example, Galligan D. J. in Crime, Proof and Punishment: Essays in Memory of Sir
Rupert Cross (edited by CFH Tapper), p. 144. London: Butterworths, 1981.
18
INTRODUCTION
Retribution
The idea of retribution operates at a number of levels. At its most basic, it
entails the instinctive need for revenge or vengeance that is often experienced
by those who suffer at the hands of criminals. This view of retribution is
expressed in the notion an eye for an eye, and is commonly used by laymen
to justify punishment. However, this emotional need for revenge is too
easily whipped up into uncontrolled vigilante justice the lynch-mob
mentality and, as a result, is not generally thought to be an acceptable
justification for punishment in civilized societies.
The idea of retribution also operates at a deeper, more symbolic level,
embodied in such notions as renunciation and reprobation. These assert
that the justification for punishment lies in the need both to express and
also to reinforce societys condemnation or denunciation of the behaviour
in question. According to this view, murderers are punished both to express
and also to reinforce societys condemnation of the murderers intentional
killing of another human being.
Retribution in this second sense has often commanded considerable
support as a justification for punishment. One well-known English judge,
writing in 1949 on capital punishment (the death penalty),23 expressed
himself in these terms:
Punishment is the way in which society expresses its denunciation of
wrong doing the ultimate justification of any punishment is, not
that it is a deterrent, but that it is the emphatic denunciation by the
community of the crime.
Retribution also embraces the idea of expiation, according to which

punishment is justified because it offers an offender the opportunity or
means of purging his or her wrongdoing or guilt in the eyes of the
community, thereby enabling him or her to return thereafter to society
with a clean slate. Prisoners serve time, in other words, so that they can
make a fresh start upon their release. This view of retribution is nowadays
thought to be of only limited value in justifying punishment, since it is
founded on religious notions of guilt and confession, and presupposes
that an offender wants to purge his or her guilt and thereby redeem himself
or herself. The reality, most penologists agree, is usually very different.
23
Royal Commission on Capital Punishment, Minutes of Evidence, Ninth Day, 1 December

1949, Memorandum Submitted by the Rt. Hon. Lord Justice Denning, p. 207.
19
The last aspect of retribution, and the one that has come to
predominance in recent years among penologists, lawmakers and others,
involves the idea of desert or just desert.24 This view, drawing on various
philosophical threads, asserts that punishment is justified because offenders
deserve to be punished, but not in the simple sense of vengeance. Rather
it asserts that offenders are autonomous, responsible beings, who choose
to commit crimes. By so doing, they break the social contract binding a
community together and contravene notions of fair play which underlie it.
They have, in other words, unfairly obtained an advantage for themselves
over other members of society who choose to abide by the terms of the
social contract. Punishment therefore serves as a means of depriving such
persons of their advantage and returning them to an even footing with
other members of society. Thus, the murderer, in killing, is said to have
advanced himself or herself over other members of society who chose to
accept and abide by societys proscription on the killing of others. It is only
proper therefore that the murderer should be denuded of this advantage
it is what he or she deserves and punishment is viewed as the means of
doing this.
This idea of just desert has its critics. Most importantly, it has been
argued that even if an offender can be said to have unfairly obtained an
advantage, this does not necessarily lead to the conclusion that punishment,
as that term is used in the criminal context, is the proper means of depriving
him or her of it. Why not choose some other means of depriving the offender
of his or her advantage, such as compensation?
Exponents of the view that the justification for punishment lies in the
idea of just desert often answer this criticism by resorting to other aspects
of retribution: only punishment, they assert, satisfies both the need to ensure
an offender gets his or her just desert, and also the concurrent need to
renounce and reprove the offender for his or her conduct.
Deterrence
Punishment is often said to be justified on the ground that it deters future
offending.
24
See Crime, Justice and Protecting the Public (Cmnd 965, 1991), para 2.1. Just desert has
now been adopted in England as the central principle of its sentencing practices; see
Criminal Justice Act 1991.
20
INTRODUCTION
This operates firstly at the level of the individual offender. Exponents

of deterrence assert that the experience of punishment will prevent the
individual from re-offending (known as recidivism), provided that the
punishment imposed on the wrongdoer is carefully chosen to have this
desired effect. In some cases, this might even mean that no punishment is
imposed, if the mere fact of accusation can be shown to have the required
effect. This assumes that a wrongdoer can be effectively deterred from future
offending by the imposition of punishment for his or her past transgressions,
but this assumption has not held up under investigation. Studies done in
overseas jurisdictions suggest the opposite may in fact be true: someone
who has once offended and been punished may actually be less likely to be
deterred in the future merely by the threat of further punishment.
Furthermore, the deterrent effect of further punishment may well be
seriously weakened in the case of multiple offenders. In other words, the
deterrent effect of punishment has its most powerful hold on the minds of
those who have not yet offended; those who have already offended are
much less likely to be deterred. If so, then punishment cannot be justified
on the basis that it will deter the offender in the future.
Deterrence theory thus shifts from an emphasis on the individual to an
emphasis on the supposed effect of punishment on society in general.
Punishment, it is asserted, deters members of society from offending in the
first place; and this then becomes the justification for punishing individual
offenders, even though punishment may thereby lose its deterrent effect
for that individual. The individual offender suffers punishment as a means
of reinforcing this general deterrent effect.
This view of deterrence theory is graphically illustrated by cases in
which the offender is sentenced more heavily than that which either his or
her personal circumstances or the normal tariff would dictate, in response
to a perceived rise in the occurrence of that particular form of deviant
behaviour.
General deterrence theory also has its critics. In simple terms, critics
query the underlying assumption of deterrence theory, that the possibility
of punishment in itself is enough to deter members of society from deviant
behaviour. If this were so, it is said, why then do non-offenders commit
offences in the first place? The very fact that they do, critics contend,
illustrates the vulnerability of this assumption.
Critics also argue that the deterrent effect of punishment arises not
simply from the possibility of punishment, but rather from a potential
offenders belief that there is a high risk of detection leading inevitably to
punishment. Where the likelihood of detection is perceived to be low, as is
21
often the case, the deterrent effect of punishment is significantly reduced,

no matter how heavy the punishment imposed on the unfortunate few
who are detected and convicted may ultimately prove to be.
A further criticism of deterrence theory is that it assumes unduly rational
offenders, presupposing both the ability to weigh up the relative merits
and demerits of different prospective forms of behaviour and the actual use
of this judgment. Reality, critics suggest, may be very different.
A third aspect of deterrence theory asserts that punishment is justified
because it reinforces the habit of compliance with the criminal law that is
inculcated in most of us from an early age and which operates at a
subconscious level to deter us from criminal behaviour. A failure to punish,
it is asserted, would lead to a breakdown in these unconscious inhibitions
on our behaviour.25
Incapacitation
Incapacitation is of limited scope as a justification for punishment. It
operates primarily in relation to offenders who are both dangerous and
likely to re-offend, and asserts that the imposition of an extended period of
detention is justified, even though it may be longer than the maximum
period which could normally be justified. It applies, for example, to persons
who are mentally disordered, and to certain classes of sexual offender
(especially those who suffer irresistible impulses to commit sexual offences
against the young or weak). Incapacitation theory asserts that although
this type of offender may be neither deterred nor rehabilitated by their
experience of punishment, their prolonged detention is nonetheless justified
at a purely practical level locking them up limits the threat of further
harm by the offender.
An example of this in Hong Kong law is the so-called hospital order
that may be (in some instances, must be) imposed upon persons found
not guilty by reason of insanity.26 This orders the offender to be admitted
to the Correctional Services Department Psychiatric Centre or a mental
25
26
See, for example, Hyman Gross, A Theory of Criminal Law (1979), pp. 4001: There is a
third version of deterrence According to this theory, punishment for violating the rules
of conduct laid down by the law is necessary if the law is to remain a sufficiently strong
influence to keep the community on the whole law-abiding and so to make possible a
peaceable society.
See sections 74 and 76(1) of the Criminal Procedure Ordinance (cap. 221).
22
INTRODUCTION
hospital where he or she may be detained for an indeterminate period for

treatment.27
Incapacitation theory thus elevates the need to protect the public from
future harm to a justification for extended detention, instead of being merely
one of the purposes served by punishment.
Rehabilitation
According to rehabilitation theory, the purpose and principal object of
punishment is the rehabilitation, or re-education, of offenders so that they
can fit back into society more easily and pursue a more useful and productive
lifestyle than that which previously led to their offending. Since this is
thought to be a worthwhile and desirable objective, its achievement through
punishment is thereby said to be justified.28
Rehabilitation theory gained prominence in England and elsewhere in
the eighteenth and nineteenth centuries as an integral aspect of the
developing humanitarian movements programme of prison reform. One of
the principal advocates for humanitarian prison reform, Bentham, believed,
for example, that by undergoing a period of punishment, offenders would
see the error of their ways and reform themselves into better persons. This
particular view of rehabilitation theory (that punishment would encourage
inner rehabilitation) was later superseded by the view that the purpose of
punishment is to afford the state an opportunity to re-educate offenders
and provide them with a selection of vocational and social skills which
they can use to function more effectively and productively in the future.
This second view of rehabilitation theory gained considerable support
during the twentieth century and led to experimentation both overseas and
in Hong Kong with various types of rehabilitative programmes, especially
during the 1960s and 1970s. It finds expression, for example, in Hong
Kongs criminal and penal legislation. Article 6(3) of Hong Kongs Bill of
Rights, for example, which deals with the rights of prisoners, provides that
[t]he penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation.
27
28
Subject however to section 45 of the Mental Health Ordinance (cap. 136), which stipulates
that the period of detention shall not be greater than the sentence which the court or
magistrate could have imposed in respect of the offence with which such person was
charged. Discussed further below, pp. 2356.
This differs from expiation since it looks to the future welfare of the offender, not his or
her past misdeeds, as expiation does.
23
Similarly, several of the special sentences that can be imposed on young

offenders including reform school29 and training centre30 were
expressly enacted with rehabilitative or reformative objectives in mind.
Despite its humanitarian appeal, rehabilitation theory has often been
criticized. Critics have pointed to studies casting doubt on the supposed
effectiveness and value of custodial vocational and training programmes.
Such programmes, they have pointed out, operate within an environment
which has many negative influences operating on prisoners, and these
influences, it is suggested, may do more harm than any good that can be
done by rehabilitative programmes. Critics have also queried the assumption
made by rehabilitation exponents that the state is entitled to try and reform
an offender. They have also pointed to the conflict that exists between the
rehabilitative ideal and general perceptions of what is a just punishment.
If, as rehabilitation theory asserts, reform is truly the purpose of and
justification for punishment, then, according to critics, this would justify
an extended period of reform (i.e. punishment) as a means of achieving
this objective, even though this might exceed any period which could be
considered just having regard to what the offender actually did.
29
30
See Reformatory School Ordinance (cap. 225).

See Training Centres Ordinance (cap. 280).
2
The Criminal Law of Hong Kong
INTRODUCTION
The general structure and much of the content of Hong Kongs present
body of criminal law was imported into Hong Kong from England in 1843
in the Special Administrative Regions (SAR) early days as an English
colony.1 It has been added to and modified in the course of time, but still
closely resembles English criminal law which continues to influence its
development. Broadly speaking, the criminal law entails two distinct parts
the general principles of criminal liability, which are used to determine
whether a person is liable for any particular offence, and the offences
themselves.
The offences include such well-known crimes as murder, rape, theft, and
arson, but also many other forms of behaviour. Classified according to the
interests they seek to protect, there are, for example, offences against the
person (ranging from the most serious crimes of violence such as murder, to
relatively minor offences such as common assault), offences against property
(covering a range including theft and obtaining by deception, forgery,
counterfeiting, and criminal damage), offences against public morals and
public order (such as obscenity, public nuisance, and piracy and hijacking),
offences relating to the administration of justice (such as perjury, perversion
1
Specifically, in 1843 when English law was received generally into Hong Kong; see
Application of English Laws Ordinance (No. 2 of 1966).
26
INTRODUCTION
of the course of justice, and contempt of court), and offences against the
security of the state (mainly treason and official secrets). Like most modern
legal systems, Hong Kongs criminal law also includes a large number of
regulatory offences dealing with almost every field of human activity and
endeavour, from road traffic to liquor licensing to pollution control.
SOURCES OF HONG KONGS CRIMINAL LAW

Since 1 July 1997, the root source of all law in Hong Kong, including the
criminal law, is the Basic Law of the Hong Kong SAR enacted by the National
Peoples Congress (i.e. legislature) of the Peoples Republic of China (PRC)
(see generally Yash Ghai, Hong Kongs New Constitutional Order, Chapter 8,
Hong Kong: Hong Kong University Press, second edition, 2001). Article 18
states that the laws of Hong Kong include the laws previously in force as
provided for in Article 8. Article 8 provides:
The laws previously [i.e. as at 30 June 1997] in force in Hong Kong,
that is, the common law, rules of equity, ordinances, subordinate
legislation and customary law shall be maintained, except for any that
contravene this [Basic] Law, and subject to any amendment by the
legislature of the Hong Kong Special Administrative Region.
In accordance with Articles 18 and 8, Hong Kongs criminal law

continues to have two principal sources, the common law and legislation
(i.e. ordinances and subordinate legislation). It differs in this respect from
those legal jurisdictions, such as that of the PRC itself, which have attempted
to enact a comprehensive criminal code (i.e. a single piece of legislation),
and are usually described as having a civil law legal system.
Common Law2
Common law here refers to law made by judges, i.e. the body of legal
principles laid down by judges in cases decided by them, as recorded in
reports of their decisions. In this context, common law refers to decisions
For an introduction to the development of the common law, see Roebuck Derek, The
Background of the Common Law. Hong Kong: Oxford University Press, second edition, 1991.
THE CRIMINAL LAW OF HONG KONG
27
of judges in both the common law courts and also the courts of equity
(compare Article 8 of the Basic Law, which refers to the common law and
rules of equity separately as part of the law remaining in force in Hong
Kong after 1 July 1997).
Prior to 1 July 1997, this body of law comprised the common law of
England3 as formally received in Hong Kong in 1844 (subject to subsequent
modification in England), as applied to Hong Kong or modified by decisions
of the courts of Hong Kong or by legislation (see section 3 of the Application
of English Law Ordinance; this ordinance lapsed on 1 July 1997, having
been declared to be in contravention of the Basic Law of the HKSAR). As
mentioned above, Article 8 of the Basic Law maintained this body of law as
the common law of the SAR (except to the extent that it might contravene
the Basic Law, and subject always to any subsequent amendment by the
SARs legislature; for the effect of this provision, particularly the meaning
of maintained, see HKSAR v David Ma Wai-kwan [1997] 2 HKC 315).
Until the nineteenth century, English criminal law (which provides
the basis of Hong Kongs criminal law) was largely a product of the common
law, meaning judge-made law, and this remains true of a large part of the
general principles of criminal liability discussed in the following chapters.
Some offences also remain a matter of common law. In other words,
some activities in Hong Kong are offences because judges at some time in
the past decided that the activities were crimes (and neither later judges
nor the legislature have adopted a contrary view). Examples of this in Hong
Kongs criminal law include murder, manslaughter and common assault.
In these cases, it is possible to determine what exactly is prohibited only
by reading previous judicial decisions. This power to recognize or declare
new offences may still exist as part of Hong Kongs common law, but it is
not often exercised, in recognition of the convention that the task of creating
new offences should nowadays be left to the legislature and other bodies to
whom legislative power has been delegated.4 Even so, on occasion, this
power has been exceptionally exercised in relatively recent times, especially
in relation to various forms of immoral conduct. This is illustrated by
Shaw v DPP ([1962] AC 220), in which the House of Lords was invited to
rule that the publication of a booklet containing the names and contact
numbers of female prostitutes and, in some instances, photographs and
3
4
See section 3 of the Interpretation and General Clauses Ordinance prior to its amendment
on 1 July 1997; section 3 now refers to the common law in force in Hong Kong.
There are occasional exceptions; see, for example, Shaw v DPP [1962] AC 220, Knuller v
DPP [1973] AC 435.
28
INTRODUCTION
particulars of sexual perversions they were willing to undertake, breached

public morals and should be declared a criminal conspiracy. The Lords
accepted this invitation, with Lord Simonds stating (at 267):
In the sphere of criminal law I entertain no doubt that there remains
in the courts a residual power to enforce the supreme and fundamental
purpose of the law, to conserve not only the safety and order but also
the moral welfare of the State, and that it is their duty to guard it
against attacks which may be the more insidious because they are
novel and unprepared for.
This may be contrasted with Knuller (Publishing) Ltd. v DPP ([1973] AC

435), another decision of the House of Lords, this time involving an alleged
conspiracy to breach public morals (in this case, an agreement to publish
advertisements facilitating the commission of homosexual acts between adult
males in private, conduct that had previously been expressly decriminalized).
In this case, Lord Simon attempted to deny the existence of any such residual
power to extend the criminal law of conspiracy merely to enforce morality.
All that the courts can do, he stated (at 490), is to recognise the applicability
of established offences to new circumstances to which they are relevant.
One of the central objections to the exercise of this power is that it
purports retrospectively (i.e. after the fact) to criminalize conduct not
otherwise thought to be criminal at the time of its commission. Apart from
this general objection, the purported exercise of such a power in the SAR
may also be amenable to challenge under Article 12(1) of Hong Kongs Bill
of Rights, which inter alia states: (1) No one shall be held guilty of any
criminal offence on account of any act or omission which did not constitute
a criminal offence, under Hong Kong or international law, at the time when
it was committed.
Some matters of excuse and justification recognized by Hong Kongs
criminal law i.e. criminal defences continue to be common law in
origin (although they may have been expressly or impliedly modified by
statute). Examples include the defences of duress, insanity and self-defence
(although the principles of self-defence have been treated as impliedly
modified by statutory amendments to the related defence of crime
prevention). Courts continue to expand and develop defences in response
to new circumstances; on occasion, they have even recognized new defences
(see, for example, duress of circumstances; below, Chapter 7) at common
law. There is less reason for objection to judicial lawmaking of this type,
since it usually operates in favour of defendants. Exceptionally, the courts
have also abolished existing defences or immunities. An example of this is
29
R v R ([1992] 1 AC 599), in which the House of Lords held that a husband

could be convicted of raping his wife, contrary to existing authority holding
that a husband was immune from prosecution for raping his wife (see
Chapter 12, pp. 6056). In C v DPP ([1996] AC 1), on the other hand, the
House of Lords refused to abolish the traditional common law presumption
that a child aged 10 to 14 (presently 7 to 14 in Hong Kong; see Chapter 6,
p. 214) is incapable of committing an offence.5 In giving judgment, Lord
Lowry set out (at 28) five guiding principles that should be followed by
courts when invited to undertake judicial lawmaking:
(1) if the solution is doubtful, the judges should beware of imposing
their own remedy; (2) caution should prevail if Parliament has rejected
opportunities of clearing up a known difficulty or has legislated while
leaving the difficulty untouched; (3) disputed matters of social policy
are less suitable areas for judicial intervention than purely legal
problems; (4) fundamental legal doctrines should not be lightly set
aside; (5) judges should not make a change unless they can achieve
finality and certainty.
One of the central features of all common law legal systems (such as
Hong Kongs, but also including other countries that originally derived
their legal systems from English law, including Australia, Canada, New
Zealand and the USA) is the doctrine of judicial precedent.6 A precedent
is a prior judicial decision that contains a binding statement of legal
principle. Insofar as that statement of principle is taken to express the legal
basis of the decision, it is called the ratio of the decision, and a later judge
in a court at the same or lower level in the judicial hierarchy must follow
it in a similar case. This feature of common law legal systems that
precedents are binding on later courts enables the body of judicial
decisions to be described as law.
Statutory Sources
The second source of Hong Kongs criminal law is statutory sources,
including ordinances, regulations and other forms of subordinate legislation.
5
6
This presumption was subsequently abolished in England by statute; see section 34 of the
Crime and Disorder Act 1998.
See further, Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (third
edition, 1998), Chapter 9.
30
INTRODUCTION
Most offences under Hong Kongs criminal law are statutory in origin;
that is, the source of the prohibition on the activity is a statutory provision,
whether it be in an ordinance,7 in regulations or in some other form of
subordinate legislation. An illustration is provided by section 60(1) of the
Crimes Ordinance (cap. 200), which expressly enacts an offence of criminal
damage to property (punishable by up to ten years imprisonment; section
63(2)). It states:
Any person who without lawful excuse destroys or damages any
property belonging to another intending to destroy or damage any
such property or being reckless as to whether any such property would
be destroyed or damaged shall be guilty of an offence [emphasis added].
Interpreting statutory provisions such as this often involves the common

law. For example, section 60(1) above does not define damage, destruction,
property, intending or reckless. The meaning of these terms must instead
be sought in the common law.
Some of the general principles of criminal liability as well as some of the
defences recognized under Hong Kongs criminal law are also statutory in
origin (e.g. diminished responsibility; section 3 of the Homicide Ordinance
(cap. 339)), or have been wholly or partially statutorily codified (e.g. the
defences of crime prevention (see section 101A of the Criminal Procedure
Ordinance) and provocation (see section 4 of the Homicide Ordinance)).
Interpreting criminal law statutes and regulations
Where an offence, defence or general principle is statutory in origin (whether
wholly or partially), this does not necessarily exclude the need for the
consideration and application of common law principles. Statutory
provisions by their nature must be expressed in general terms, and this
means that they will have to be interpreted and applied by judges in
particular cases in order to decide the case. Sometimes, the statute itself
may provide relevant definitions; in other instances, a general definition
may be available elsewhere (e.g. in the Interpretation and General Clauses
Ordinance (cap. 1)). However, often neither applies.
7
Major criminal ordinances include Crimes Ordinance (cap. 200, Laws of Hong Kong),
Offences Against the Person Ordinance (cap. 212, Laws of Hong Kong), Theft Ordinance
(cap. 210, Laws of Hong Kong), Summary Offences Ordinance (cap. 228, Laws of Hong
Kong), Prevention of Bribery Ordinance (cap. 201, Laws of Hong Kong), and the Gambling
Ordinance (cap. 148, Laws of Hong Kong).
31
When interpretation becomes necessary, the general approach that

judges should adopt in Hong Kong is set out in section 19 of the
Interpretation and General Clauses Ordinance (cap. 1):
An Ordinance shall be deemed to be remedial and shall receive such
fair, large and liberal construction and interpretation as will best ensure
the attainment of the object of the Ordinance according to its true
intent, meaning and spirit.
The meaning and effect of this provision in relation to criminal legislation

has never been clearly decided (see generally Peter Wesley-Smith, The
Sources of Hong Kong Law, p. 239, Hong Kong: Hong Kong University Press,
second edition, 1994). One view is that it requires judges to adopt what is
commonly called a purposive approach for both non-criminal and criminal
legislation (see A-G v John Lok [1986] HKLR 325; see also A-Gs Reference
(No. 1 of 1988) [1989] AC 971, in which the House of Lords adopted a
purposive approach with regard to criminal statutes). Another view offered
by Wesley-Smith is that it requires criminal or penal statutes to be
interpreted as though [they] were remedial, thus abrogating any common
law notion that penal legislation should receive a strict construction.
Wesley-Smith has suggested (at 247) that the most sensible view is that
section 19 does no more than remind a court that it should construe a
statute so as to give effect to the intention of the legislature.
In addition to section 19, there are a number of other matters that a
judge should, or at least may, take into account in interpreting criminal
statutory provisions, particularly those actually creating offences. These
include:
Ordinary meaning
Where possible, the court should give the words used in a statutory
provision their ordinary meaning (see, for example, R v Feely [1973] QB
530; Brutus v Cozens [1973] AC 854). Unless a word has a special legal
meaning and is a legal term of art, it is permissible to look up a words
meaning in a dictionary.
Use of legislative background
If there is ambiguity, then the court may have regard to the legislative
background of the statutory provision in question, including pre-legislative
materials such as the reports of law reform committees and commissions
32
INTRODUCTION
that reviewed the existing law. Materials such as these may be used to
ascertain the general purpose of the statute or a relevant part of it, but
there are limits on the use of such materials in determining the intended
meaning of a particular provision (see Pepper v Hart [1993] AC 593).
Presumption of strict construction
If, after considering the ordinary meaning of the word or words used in a
statutory provision, and the legislative background, a judge remains unclear
about the statutory provisions interpretation, then he or she should adopt
the interpretation favouring the defendant. This is the so-called
presumption or rule of strict construction referred to by Wesley-Smith in
the passage mentioned above. Courts no longer adopt a strained
interpretation of the words used in a statutory provision (contrary to the
plain meaning of the words) solely because it will benefit a criminal
defendant, but it seems still to be the case that where there is a reasonable
interpretation which will avoid the imposition of a penalty, preference
should be given to this interpretation. The weight of this presumption should
increase where the potential penalties are heavy.
In contrast, courts have occasionally veered towards the contrary
position, adopting a somewhat strained view of the words of a statutory
provision in order to secure the conviction of the obviously guilty. One
example of this is in relation to theft, where the courts have adopted an
interpretation of appropriation the central conduct element of theft
that is morally neutral in character, leaving the question of criminal liability
to depend essentially on a determination of whether or not an alleged thief
acted dishonestly, which in turn depends largely on whether or not ordinary
honest people would so characterize his or her conduct (see Chapter 13).
Ashworth has noted this conviction-minded approach to interpretation,
and has commented as follows (A. Ashworth, Interpreting Criminal Statutes:
A Crisis of Legality? (1991) 107 LQR 419, at 4434):
If one of the aims of the criminal law is to convict those who culpably
cause harm, this constitutes a policy goal which should form part of
the doctrine of criminal law and which may properly enter into
decisions on interpretation. The claim here is not that criminal laws
should be extended retrospectively to citizens conduct, but rather
that people who knowingly sail close to the wind should not be
surprised if the law is interpreted so as to include their conduct.
33
Presumption of mens rea

One particular rule relevant to criminal statutes is that whenever a section
creating an offence is silent as to the need to prove criminal intent (mens
rea), then such a need for mens rea should be presumed. This is discussed
further below (see Chapter 4).
Bill of Rights
Judges should also keep the provisions of Hong Kongs Bill of Rights in
mind (see Hong Kong Bill of Rights Ordinance (cap. 383) (BORO)). As
already mentioned, a number of the articles in the Bill of Rights directly or
indirectly relate to the criminal law. These include:
Article 2, which deals with the right to life and imposes restrictions on
the imposition of capital punishment;
Article 3, which prohibits torture and cruel, inhuman or degrading
treatment or punishment;
Article 5, which provides that no one shall be subjected to arbitrary
arrest or detention (5(1)), that a person who has been arrested shall be
informed, at the time of arrest, of the reasons for his or her arrest and
shall be promptly informed of any charges against him or her (5(2)),
and that a person arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable
time or to release (5(3));
Article 6, which deals with the rights of persons deprived of their liberty,
i.e. imprisoned; and
Article 12, previously mentioned, which prohibits retrospective criminal
offences or penalties.
Article 11 deals in some detail with the rights of persons charged with
or convicted of a criminal offence and is worth setting out in full:
(1) Everyone charged with a criminal offence shall have the right to
be presumed innocent until proved guilty according to law.
(2) In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full
equality
(a) to be informed promptly and in detail in a language which he
understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his
34
INTRODUCTION
(3)
(4)
(5)
(6)
defence and to communicate with counsel of his own

choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person
or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of this right;
and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment
by him in any such case if he does not have sufficient means
to pay for it;
(e) to examine, or have examined, the witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot
understand or speak the language used in court;
(g) not to be compelled to testify against himself or to confess guilt.
In the case of juvenile persons, the procedure shall be such as
will take account of their age and the desirability of promoting
their rehabilitation.
Everyone convicted of a crime shall have the right to his conviction
and sentence being reviewed by a higher tribunal according to
law.
When a person has by a final decision been convicted of a criminal
offence and when subsequently his conviction has been reversed
or he has been pardoned on the ground that a new or newly
discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according to
law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in
accordance with the law and penal procedure of Hong Kong.
Article 11(1) has had a significant impact on the recent development of the
criminal law in Hong Kong, in particular in relation to burdens of proof,
and is discussed more fully below (p. 42).
THE FOUNDATIONS OF HONG KONGS CRIMINAL JUSTICE

SYSTEM
Criminal law is only one part of Hong Kongs criminal justice system (see
35
Chapter 1).8 It is therefore important to keep several fundamental notions

in mind, for these provide the historical foundations of much of Hong
Kongs criminal justice system and as such underpin the body of criminal
law doctrine that has evolved as the basis of Hong Kongs criminal justice
system.
The Presumption of Innocence and the Burden of Proof

At the heart of Hong Kongs criminal justice system is the presumption of
innocence. This presumption dictates that in every criminal case, it is for
the prosecution to prove an accuseds guilt, not for the accused to prove
his or her innocence. If guilt is not proved to the requisite standard, then
the accused is entitled to be acquitted that is, he or she must be acquitted.
Nature of the presumption of innocence
This presumption is a product of the common law. The best-known
statement of the common law position is that of Lord Sankey LC, in
Woolmington v DPP ([1935] AC 462) where he stated (at 4812):
Throughout the web of the English criminal law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the
prisoners guilt subject to what I have already said as to the defence
of insanity and subject also to any statutory exception. If, at the end
of and on the whole of the case, there is a reasonable doubt, created
by the evidence given by either the prosecution or the prisoner, as to
whether the prisoner [on a charge of murder] killed the deceased
with a malicious intention, the prosecution has not made out the case
and the prisoner is entitled to an acquittal. No matter what the charge
or where the trial, the principle that the prosecution must prove the
guilt of the prisoner is part of the common law of England and no
attempt to whittle [i.e. cut] it down can be entertained.
This presumption is part of the common law of Hong Kong, as recognized

by the Privy Council in Kwan Ping-bong ([1979] HKLR 1), on appeal from
Hong Kong. Lord Diplock observed (at 5):
See further, Mark Gaylord and Harold Traver, eds., Introduction to the Hong Kong Criminal
Justice System, Hong Kong: Hong Kong University Press, 1994.
36
INTRODUCTION
There is no principle of the criminal law of Hong Kong more

fundamental than that the prosecution must prove the existence of all
essential elements of the offence with which the accused is charged
and the proof must be beyond all reasonable doubt, which calls
for a degree of certainty considerably higher than proof on a mere
balance of probabilities.
The presumption of innocence now has an additional statutory

foundation in Hong Kong in Article 11(1) of Hong Kongs Bill of Rights
(cap. 383), which reads: Everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty according to
law.
However, this presumption is not absolute in nature, either at common
law or as manifested in Article 11(1). Firstly, at common law, as Lord
Sankey LC acknowledged, there may be exceptions to the presumption,
whereby the burden of proving matters relevant to guilt or innocence may
be placed on the accused. One such exception noted by Lord Sankey relates
to the common law defence of insanity. Since the common law presumes
all persons to be sane, the legal burden of proving that a particular defendant
is not sane (or was not sane at the material time), i.e. was insane, is placed
at common law on the defendant, proof being on the balance of probabilities
(see Chapter 6, p. 225). A second common law exception, not mentioned
by Lord Sankey, relates to what are called negative averments and is
discussed more fully below. A third general exception, the second category
mentioned by Lord Sankey, concerns statutory exceptions. Hong Kong,
like England, has long had a practice of enacting statutory provisions that
expressly or impliedly place the legal burden of proving a matter on the
accused. This category of exception is discussed more fully below.
Secondly, in relation to Article 11(1), the phrase according to law
allows for exceptions, whereby the burden of proving matters relevant to
guilt or innocence may potentially be placed on a defendant.
The burden and standard of proof in a criminal trial
In accordance with the presumption of innocence, the general rule is that
the prosecution bears the burden of proving the accuseds criminal liability
or guilt beyond reasonable doubt. This means that the prosecution must
prove all the elements of the offence(s) charged, including disproving
credible defences, beyond reasonable doubt. This is called the legal burden,
or sometimes the persuasive burden since it requires the prosecution to
persuade the jury or judge (or magistrate) that the alleged facts giving rise
37
to the prosecution occurred. If the prosecution fails to persuade the trier of

fact, then the matter is treated as not proven, and the accused is entitled to
be acquitted. This burden remains on the prosecution throughout the whole
trial; this means that even if the accused presents a defence that is rejected
by the jury or judge, the accused may still only be convicted provided the
judge or jury is satisfied that all the elements of the offence have been
proved by the prosecution.
The standard of proof is concerned with how much evidence must be
adduced by the prosecution (or defendant where the burden of proof is
placed upon the defendant) to convict the accused. In relation to the
prosecution, the standard of proof in a criminal trial is proof beyond
reasonable doubt. This is commonly expressed as requiring the jury or
judge to be sure that each particular fact or event or state of mind (to be
proved for a particular offence) existed or occurred.
Where the burden of proof is placed upon the defendant, then, in the
absence of any express statutory provision to the contrary, the standard is
the lower civil standard of proof on the balance of probabilities. This is
commonly said to require the jury or judge to be satisfied that the particular
fact or event or state of mind in issue is more likely than not to have
existed or occurred.
Exceptions: reversing the burden of proof
As already mentioned, there are exceptions to the presumption of innocence,
whereby the legal burden is placed on the defendant. Where this is so, the
standard of proof is generally the civil standard: that is, proof on the balance
of probabilities (i.e. the fact is more likely than not to have existed).
Common law
Two common law exceptions exist. The first is insanity: the legal burden
of proving that a particular defendant is not sane (or was not sane at the
material time), i.e. was insane, lies at common law on the defendant, proof
being on the balance of probabilities (see Chapter 6, p. 225).
The second common law exception relates to what are called negative
averments 9 (although it should be emphasized that this category of
See generally, John Rear, The Pearl and the Golden Thread: The Proof of Negative
Averments I and II (1972) 2 HKLJ 169, 298.
38
INTRODUCTION
exception relates to statutory offences, and has also been given general
statutory recognition in section 94A of the Criminal Procedure Ordinance
(cap. 221) (compare section 101 of the Magistrates Courts Act 1980). The
notion of a negative averment may be illustrated by section 13(1) of the
Firearms and Ammunition Ordinance (cap. 238) which reads:
(1) No person shall have in his possession any arms or ammunition
unless
(a) he holds a licence for possession of such arms or ammunition
or a dealers licence .
When a charge is laid under section 13, the prosecution essentially makes
two assertions (or averments). The first you possessed arms or
ammunition involves a positive assertion (or averment). The second
you didnt have an appropriate licence involves a negative averment
(or assertion). In essence, section 13 prohibits the possession of arms or
ammunition; paragraph (a) specifies the means of avoiding liability, but
does not as such set out an essential element of the offence. When a person
is charged under section 13, the prosecution (which must prove guilt beyond
reasonable doubt) must undoubtedly prove the positive assertion, you
possessed arms or ammunition, for it contains the elements of the offence,
but what about the negative averment? At common law, it was held that
since it is generally much easier for a defendant to prove that he or she has
a licence (here is my licence) than it is for the prosecution to prove that
he or she does not, the burden of proof in relation to the negative averment
should be placed on the defendant, on the balance of probabilities. A
defendant must, in other words, prove that he or she falls within the stated
exception (the negative averment) (and this is called proving the affirmative
of a negative averment i.e. I have authority I fit within the exception,
etc.).
This common law exception applies whenever a statutory offence
contains language amounting to a negative averment, with a wide range of
expressions having been interpreted in this way. It has been codified as a
general rule in section 94A of the Criminal Procedure Ordinance (the same
rule is also repeated in various forms in many ordinances for the purposes
of particular statutory offences). Subsections (2) and (4) state:
(2) For the avoidance of doubt it is hereby declared that in criminal
proceedings
(a) it is not necessary for the prosecution to negative by evidence
any matter to which this subsection applies; and
39
(b) the burden of proving the same lies on the person seeking to
avail himself thereof.
(4) The matters to which subsection (2) applies are any licence,
permit, certificate, authorization, permission, lawful or reasonable
authority, purpose, cause or excuse, exception, exemption,
qualification or other similar matter.
However, neither the common law rule nor section 94A applies to general
common law defences, such as self-defence, duress and necessity.
The validity and scope of this common law rule and its statutory
equivalents in England were considered and upheld by the English Court
of Appeal in Edwards ([1975] QB 27), and again by the House of Lords
in R v Hunt ([1987] AC 352). In Hunt, the Lords rejected an argument
that Lord Sankeys reference to statutory exceptions in Woolmington was
limited to provisions expressly placing the burden on a defendant, accepting
that a statutory provision could impliedly have this effect. In addition,
the Lords accepted that the common law rule codified in England in section
101 of the Magistrates Court Act 1980 applied equally in trials on
indictment.
In Hong Kong, section 94A and other statutory provisions to like effect
have been challenged on a number of occasions for inconsistency with
Article 11(1) of BORO. In general, these challenges have been unsuccessful,
with section 94A and similar provisions being upheld as a legitimate
exception to the presumption of innocence. In the leading Privy Council
decision on Article 11(1), Lee Kwong-kut ([1993] 2 HKCLR 186), discussed
further below, Lord Woolf, discussing exceptions to the presumption of
innocence, observed that [s]ome exceptions will be justifiable, others will
not. As an example, he referred to an offence involving the performance
of some act without a licence and commented:
Common sense dictates that the prosecution should not be required
to shoulder the virtually impossible task of establishing that a defendant
has not a licence when it is a matter of comparative simplicity for a
defendant to establish that he has a licence.
The Privy Council justified its conclusion that such provisions are not in
breach of Article 11(1), despite the fact that they place the burden of proof
on the defendant, by holding that negative averments are not an essential
element of an offence (being instead in the nature of a defence available
to the accused). Because of this, there can be little complaint, it is said, if
40
INTRODUCTION
the burden of proving innocence is placed on the defendant in relation to

the negative averment.
Statutory exceptions
Statutory provisions may expressly or impliedly place the burden of proof on
the defendant in at least two ways. Firstly, a statutory provision may
expressly state that the burden of proving a particular matter lies on the
defendant. An example of this can be found in section 3 of the Homicide
Ordinance (cap. 339), relating to diminished responsibility, one of the special
defences to murder (see Chapter 10, pp. 5012). Section 3(2) states:
On a charge of murder, it shall be for the defence to prove that the
person charged is by virtue of this section not liable to be convicted
of murder. [emphasis added]
The standard of proof is on the balance of probabilities.

The second way in which statutory provisions may reverse the burden
of proof is through rebuttable presumptions of fact, usually mandatory in
nature. Section 13 of the Firearms and Ammunition Ordinance, mentioned
above in discussing negative averments, provides a basis for illustrating
this type of statutory exception. The section makes it an offence to possess
arms or ammunition. Putting aside any question of a licence, the prosecution
will prima facie need to prove the following matters beyond reasonable
doubt to obtain a conviction under section 13: the existence of arms or
ammunition, the fact that D possessed them, and Ds knowledge that he
or she was in possession of arms or ammunition; each of these elements of
liability must be proved beyond reasonable doubt. However, section 24 of
the ordinance creates several mandatory rebuttable presumptions that the
prosecution may rely on to help it prove these matters. Section 24 reads:
(1) Any person who is proved to have had in his physical possession
(a) anything containing arms or ammunition, or both;
(b) the keys of any baggage, briefcase, box, case, cupboard,
drawer, safe-deposit box, safe or other similar containers
containing arms or ammunition, or both, shall, until the
contrary is proved, be presumed to have had the arms or
ammunition, or both, as the case may be, in his possession.
(2) Any person who is proved or presumed to have had arms or
ammunition, or both, in his possession shall, until the contrary is
proved, be presumed to have known the nature of such arms or
ammunition, or both, as the case may be.
41
(3) The presumptions provided for in this section shall not be rebutted
by proof that the defendant never had physical possession of the
arms or ammunition, or both, as the case may be. [emphasis
added]
This section does two things. Firstly, it enables the prosecution to obtain a
conviction merely by proving beyond reasonable doubt either of the matters
specified in subsection (1)(a) or (b). Suppose, for example, the prosecution
proves that D physically possessed a bag containing a gun (i.e. in fact it
was in Ds possession). From this single proved fact, everything else
necessary to establish the elements of the offence may be presumed: firstly,
it may be presumed that D possessed the gun (section 24(1)) and then,
based on that presumption of possession, it may be further presumed that
D knew he or she possessed a gun (section 24(2)).
Secondly, section 24 places the burden of disproving these presumed
facts upon the defendant until the contrary is proved. Thus, to avoid
liability, D will need to prove, on the balance of probabilities, that D either
did not know he or she had possession of the gun, or did not know it was
a gun. Unless D proves either of these exculpatory facts, he or she will be
convicted.
The question whether this type of statutory provision may be challenged
pursuant to Article 11(1) of the Bill of Rights is discussed below (pp. 42
7).
The evidential burden
Criminal lawyers also speak of the evidential burden. This refers to the
need to produce evidence to properly raise an issue at trial. This burden
can rest on either party, although it usually relates to matters of defence
raised by the accused. Suppose, for example, an accused pleads not guilty
to a charge of battery on the grounds that he or she was suffering from a
seizure at the time and that his or her actions were involuntary. The accused
must ensure that some evidence supporting this assertion in this case,
medical evidence of a medical condition that may have caused a seizure
is adduced at trial. If sufficient evidence is adduced, this will put the
voluntariness of the defendants conduct in issue. Once properly raised,
then the prosecution, pursuant to its legal burden of proving all the elements
of the offence, will have to disprove involuntariness (i.e. prove that the
defendants conduct was voluntary). Otherwise, it will have failed to prove
an element of the offence voluntary conduct beyond reasonable doubt.
If such evidence is not adduced, then the prosecution will not need to
42
INTRODUCTION
disprove involuntariness, and the issue will not have to be considered by

the jury or judge. Deciding whether there is evidence supporting an issue,
so as to require its consideration by the trier of fact, is a question for the
judge. This process is sometimes misleadingly described as shifting the
burden of proof; misleadingly because the burden placed on a defendant is
not the legal burden of proof resting on the prosecution.
The reason for imposing an evidential burden was stated by Lord Morris
in Bratty v A-G for Northern Ireland ([1963] AC 386, at 4167):
As human behaviour may manifest itself in infinite varieties of
circumstances it is perilous to generalise, but it is not every facile
mouthing of some easy phrase of excuse that can amount to an
explanation. It is for a judge to decide whether there is evidence fit to
be left to the jury which could be the basis of some suggested verdict.
The evidential burden thus ensures that the prosecution does not have to
disprove all imaginable defences, only those properly raised and supported
by evidence.
The impact of Article 11(1) of BORO
Article 11(1) differs from the common law presumption of innocence in an
important respect. As a matter of common law, the presumption of
innocence always had to give way to statutory provisions expressly or
impliedly reversing the burden of proof, in accordance with the doctrine of
legislative superiority. Article 11(1), on the other hand, is itself legislative
in nature. In addition, sections 3(1)(2) and 4 of BORO, as originally enacted,
expressly empowered the courts of Hong Kong to consider respectively
pre-existing and subsequently enacted legislation (including therefore
statutory provisions creating offences and reversing the burden of proof)
for consistency with the provisions of BORO in the case of pre-existing
legislation, and with the International Convention on Civil and Political
Rights (on which BORO was modelled) in relation to subsequently enacted
legislation. If a statutory provision was found to be inconsistent, the courts
were expressly empowered to declare that the statutory provision in question
was repealed. From the enactment of BORO until 1 July 1997, many
challenges were brought in criminal cases based on Article 11(1); two of
the leading cases, Sin Yau-ming and Lee Kwong-kut, are discussed below.
However, on 1 July 1997, pursuant to a Decision of the Standing
Committee of the National Peoples Congress dated 23 February 1997,
43
sections 3 and 4 of BORO were repealed for inconsistency with the Basic
Law (along with a number of other statutes or statutory provisions).
However, it is not clear that this necessarily makes any significant difference
as regards the effect of the Bill of Rights, including Article 11(1), for the
following reasons. Firstly, as regards pre-existing legislation, at common
law, there is a rule of statutory interpretation to the effect that in the event
of inconsistency between two pieces of legislation, the later in time prevails.
Accordingly, the remaining provisions of the Bill of Rights (including Article
11(1)) theoretically override any inconsistent pre-existing statutory
provisions (i.e. existing on 8 June 1991, when BORO came into effect).
Secondly, as regards subsequent legislation, a second rule of statutory
construction would require legislation passed after BORO to be construed
consistently with the International Convention on Civil and Political Rights.
Nonetheless, the number and extent of challenges based on Article 11(1)
since 1 July 1997 has substantially reduced.
Sin Yau-ming and Lee Kwong-kut
The two leading cases on the application and interpretation of Article 11(1),
BORO, are R v Sin Yau-ming ([1992] 1 HKCLR 127), the first decision of
the Court of Appeal on Article 11(1), and A-G v Lee Kwong-kut ([1993] 2
HKCLR 186), the first Privy Council decision on the same issue.
In Sin Yau-ming, Sin was charged under the Dangerous Drugs Ordinance
(cap. 134) with two counts of possession of dangerous drugs for the purpose
of unlawful trafficking. In relation to each count, the prosecution sought
to rely on several mandatory presumptions of fact then contained in the
Dangerous Drugs Ordinance. These provided firstly that a defendant proved
to have had the keys to or been in possession of premises in which dangerous
drugs were found was to be presumed, until the contrary was proved, to
have had such drugs in his or her possession (section 47(1)(c)(d)); secondly,
that upon possession being proved or presumed, the defendant was to be
presumed, until the contrary is proved, to have known the nature of the
drug (section 47(3)); and thirdly, upon possession of a certain quantity of
a particular dangerous drug being proved or presumed, the defendant was
to be further presumed, until the contrary was proved, to have had such
dangerous drugs in his or her possession for the purpose of trafficking
(section 46(c)(d)). The Court of Appeal was asked to consider whether
these particular statutory provisions were consistent with Article 11(1),
and if not, to what extent they had been repealed by virtue of section 3(2)
(as it then existed). The Court of Appeal held that the particular provisions
44
INTRODUCTION
were inconsistent, could not be justified, and therefore were repealed

pursuant to section 3(2).
In reaching this conclusion, the Court of Appeal considered how judges
in Hong Kong should set about interpreting and applying the Bill of Rights.
Acknowledging that BORO was sui generis and therefore not to be simply
interpreted using the normal canons of construction, the Court, drawing
on Canadian jurisprudence on Canadas Charter of Rights, inter alia
concluded that mandatory presumptions of facts essential to a particular
offence are prima facie inconsistent with Article 11(1), but may be justified
by the prosecuting authorities upon proof (1) that there is a rational and
realistic connection between the fact(s) proved and the fact(s) presumed,
and (2) that the presumption is proportionate. Neither of these criteria was
satisfied in respect of the provisions challenged in this case. One important
feature of Sin Yau-ming is the Courts adoption of the two-step approach
employed by Canadian courts in determining whether equivalent provisions
in Canadas Charter had been breached: firstly, ask whether the particular
provision is prima facie in breach of the presumption of innocence; if so,
then secondly ask whether it may nonetheless be justified so as to bring it
within the words according to law in Article 11(1). Significantly, negative
averments and such like would not necessarily be inconsistent on this
approach, since the Court favoured the view that a provision may be prima
facie in breach of the presumption of innocence in Article 11(1) only if it
has the effect of placing the burden of proving (or disproving) essential
elements of an offence on the defendant.
In Lee Kwong-kut, a year later, the Hong Kong Court of Appeal expressed
a willingness to adopt an even more rigorous approach to the question of
whether a statutory provision was prima facie inconsistent with Article
11(1). Lee Kwong-kut involved two cases consolidated on appeal. The first,
dealing with Lee, involved a charge laid under section 30 of the Summary
Offences Ordinance, which read (now repealed):
Any person who is brought before a magistrate charged with having
in his possession or conveying in any manner anything which may be
reasonably suspected of having been stolen or unlawfully obtained,
and who does not give an account, to the satisfaction of the magistrate,
how he came by the same, shall be liable to a fine of $1,000 or to
imprisonment for 3 months.
Before the magistrate Lee had argued that section 30 was inconsistent with
the presumption of innocence; this had been accepted and the charge
dismissed. The Attorney-General of Hong Kong appealed unsuccessfully to
45
the Court of Appeal. In reaching their conclusion, the Court of Appeal

paid heed to several further decisions of the Canadian courts which had
rejected an approach focused simply on the essential elements of an offence
in determining whether a statutory provision was prima facie in breach of
the presumption of innocence, holding instead that it is the final effect of
a provision on the verdict that is decisive. If an accused is required to
prove some fact on the balance of probabilities to avoid conviction, the
provision violates the presumption of innocence because it permits a
conviction in spite of a reasonable doubt in the mind of the trier of fact as
to the guilt of the accused. The Court of Appeal went a long way towards
accepting this more rigorous approach.
The second case in Lee Kwong-kut, involving a defendant named Lo,
related to charges of assisting another person to retain the benefit of drug
trafficking, contrary to section 25(1) of the Drug Trafficking (Recovery of
Proceeds) Ordinance (cap. 405). Section 25(4) provided a defendant with
a defence, if the defendant proved certain matters, such as that he or she
did not know or suspect that the arrangement in question giving rise to the
charge related to any persons proceeds of drug trafficking. Lo challenged
the validity of both section 25(4) and also section 25(1), the offence section,
which made it an offence to enter into or be concerned in an arrangement
facilitating the retention or control of a persons proceeds of drug trafficking,
knowing or having reasonable grounds to believe that the person for whom
the arrangement is made carries on or has carried on drug trafficking. The
trial judge, following the guidelines in Sin Yau-ming, held first that these
provisions were prima facie in breach of Article 11(1) and then that the
prosecuting authority had failed to demonstrate they were permissible
according to the criteria laid down in Sin Yau-ming.
The Attorney-General of Hong Kong appealed Lee to the Privy Council,
Lo being added with the special leave of the Privy Council. Dismissing the
Attorney-Generals appeal in Lee, but allowing it in respect of Lo, the Privy
Council effectively rejected the more rigorous approach adopted by the
Court of Appeal, taking the view, in the words of Lord Woolf (at 200), that
it is not necessary, at least in the vast majority of cases, to follow the
somewhat complex process now established in Canada. Instead, suggested
Lord Woolf, it should be more simply a matter of examining the substance
of the statutory provision, perhaps applying a test along the lines suggested
by the English Court of Appeal in Edwards. Lord Woolf observed (at 197):
Some exceptions will be justifiable, others will not. Whether they are
justifiable will in the end depend upon whether it remains primarily
46
INTRODUCTION
the responsibility of the prosecution to prove the guilt of an accused

to the required standard and whether the exception is reasonably
imposed, notwithstanding the importance of maintaining the principle
which Article 11(1) enshrines. The less significant the departure from
the normal principle, the simpler it will be to justify an exception. If
the prosecution retains responsibility for proving the essential
ingredients of an offence, the less likely it is that an exception will be
regarded as unacceptable. In deciding what are the essential ingredients,
the language of the statutory provision will be important. However
what will be decisive will be the substance and reality of the language
creating the offence rather than its form.
He added (at 200):

The court can ask itself whether, under the provision in question, the
prosecution is required to prove the important elements of the offence;
while the defendant is reasonably given the burden of establishing a
proviso or an exemption or the like of the type indicated [in Edwards].
If this is the situation, Article 11(1) is not contravened.
Lord Woolf added that even in cases of real difficulty, there is still no need
to apply the Canadian tests rigidly or cumulatively, and, further, that they
should in any event only be treated as providing useful general guidance.
The Privy Council concluded that section 30 could not be justified
and therefore was correctly held to have been repealed, whereas section
25(4) fell squarely within the type of exception that was permitted under
Edwards. Lord Woolf stated (at 201):
It is not important whether section 25(4) is regarded as creating a
defence or an exception if it does not constitute part of the substance
of the offence. The substance of the offence is contained in section
25(1) as to which the onus is on the prosecution.
Concluding the judgment, Lord Woolf added the following comments (at
202), significantly undermining, in the view of many commentators, the
newfound freedom to examine legislation thought to have been given to
the Hong Kong judiciary by the Bill of Rights:
While the Hong Kong judiciary should be zealous in upholding an
individuals rights under the Hong Kong Bill, it is also necessary to
ensure that disputes as to the effect of the Bill are not allowed to get
out of hand. The issues involving the Hong Kong Bill should be
approached with realism and good sense, and kept in proportion. If
47
this is not done the Bill will become a source of injustice rather than
justice and it will be debased in the eyes of the public. In order to
maintain the balance between the individual and the society as a whole,
rigid and inflexible standards should not be imposed on the legislatures
attempts to resolve the difficult and intransigent problems with which
society is faced when seeking to deal with serious crime. It must be
remembered that questions of policy remain primarily the responsibility
of the legislature.
CLASSIFYING OFFENCES
Under the common law, all crimes, whether common law or statutory in
origin, were divided for various procedural and substantive purposes into
three broad categories, treason, felony and misdemeanour. Felonies were
purportedly more serious offences than misdemeanours, though in practice
this distinction did not always hold true.
Today, for general discussion purposes, all crimes in Hong Kong can
be simply known as offences. Offence is non-exhaustively defined for
general purposes in section 3 of the Interpretation and General Clauses
Ordinance (cap. 1) as including any crime, and any contravention or other
breach of, or failure to comply with, any provision of any Ordinance, for
which a penalty is provided.
All three of these categories of offence were historically triable on
indictment (i.e. before a judge and jury). Subsequently, when the English
Parliament began enacting a body of relatively minor statutory offences, it
also provided that they should be dealt with by way of a more informal,
summary procedure (i.e. by a judge or magistrate alone, without a jury),
and this gave rise to a fourth category known as summary offences.
Treason still exists under Hong Kongs criminal law as a separate
category of offence,10 along with summary offences, but the distinction
between felony and misdemeanour was abolished in 1991 (see section
2(1) of the Administration of Justice (Felonies and Misdemeanours)
Ordinance (cap. 328)).
On occasion it is still necessary to classify or distinguish.
10
See Part I, Crimes Ordinance (cap. 200); section 4(3) provides that the procedure on trials
for treason or misprision of treason [i.e. failure to disclose knowledge of treasonous acts
to the proper authority within a reasonable time] shall be the same as the procedure on
trials for murder. See also section 89(1)(a) of the Interpretation and General Clauses
Ordinance (cap. 1).
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INTRODUCTION
Trial Procedure11
The most important distinction relates to trial procedure. An offence may
be triable on indictment (or indictably) (i.e. before a judge and jury,
based on charges specified in a document known as an indictment), or
summarily (i.e. before a magistrate sitting without a jury, based on charges
specified in a document known as a summons), or both on indictment and
summarily.
If an offence is triable on indictment, then the offence is an indictable
offence, and it may be tried either in the Court of First Instance before a
judge and jury, or in the District Court (before a District Court judge sitting
without a jury). If an offence is triable summarily, then it is a summary
offence and must be tried in the magistrates courts before a magistrate.
Common law offences remain triable on indictment.
Statutory offences will usually be expressly designated as triable on
indictment or triable summarily by the statutory provision enacting the
offence, but if not, then the matter is regulated by section 14A(1) of the
Criminal Procedure Ordinance (cap. 221) which provides that the offence
shall be triable only summarily, unless:
the offence is declared to be treason;
the words upon indictment or on indictment appear; or
the offence is transferred to the District Court in accordance with Part
IV of the Magistrates Ordinance (section 14A(1) of the Criminal
Procedure Ordinance).
In some instances, the statutory provision enacting the offence may specify
that an offender may be liable either on indictment or summarily, with
different penalties depending on which mode of trial is adopted. It appears
that provisions such as these (e.g. section 36 of the Road Traffic Ordinance
(cap. 374)) should be interpreted as creating two (or dual) offences, one
triable summarily by a magistrate and the other triable on indictment.
Although an offence may be declared triable on indictment, this does
not generally mean that it must be tried on indictment since most such
offences may also be tried summarily. This is the effect of section 92 of the
Magistrates Ordinance (cap. 227) which provides that a permanent
magistrate may (i.e. has jurisdiction to) summarily deal with and try any
indictable offence, except those specified in Part I, Second Schedule,
11
See generally, G. Heilbronn, Criminal Procedure in Hong Kong, (third edition, 1998,
Longman).
49
Magistrates Ordinance.12 Section 91 of the Magistrates Ordinance likewise

confers jurisdiction on a special magistrate to summarily deal with and try
a broad range of indictable offences, excluding those set out in Parts I, II
and III of the Second Schedule (for example, perjury and bribery (in Part
II) and certain immigration offences (in Part III) may be tried by a permanent
magistrate but not a special magistrate).
Where a magistrate summarily tries and convicts an offender of an
offence triable on indictment, the magistrates sentencing powers are limited,
in the case of a permanent magistrate, to the imposition of two years
imprisonment and a fine of HK$100,000 (even though the offence may
provide for greater maximum penalties), and, in relation to a special
magistrate, six months imprisonment and a HK$50,000 fine, unless, in
either case, there is express provision in another ordinance permitting or
requiring a magistrate to impose a greater or lesser punishment (see sections
91 and 92 of the Magistrates Ordinance).
Where an offence may be tried either summarily or on indictment, the
decision whether to proceed before a magistrate, or to have it heard in the
District Court or Court of First Instance (i.e. whether to proceed summarily
or on indictment), is a matter for the prosecution (section 94A of the
Magistrates Ordinance), unlike many other jurisdictions where the accused
usually has this choice.
Arrestable Offence
In several circumstances, it is necessary to distinguish between arrestable
and non-arrestable offences. Pursuant to section 3 of the Interpretation
and General Clauses Ordinance (cap. 1), an offence is arrestable if it carries
12
Excepted are:
any offence which is punishable with death;
any offence (except an offence against section 10 or 12 of the Theft Ordinance (cap.
210), or an offence against Part VIII of the Crimes Ordinance (cap. 200)) which is
punishable with imprisonment for life;
any offence against section 21 or 22 of the Crimes Ordinance;
misprision of treason;
any offence against Part I or Part II of the Crimes Ordinance;
blasphemy and offences against religion;
composing, printing or publishing blasphemous, seditious or defamatory libels, except
as provided by section 16 of the Defamation Ordinance (cap. 21);
genocide and any conspiracy or incitement to commit genocide; and
torture.
50
INTRODUCTION
a maximum term of imprisonment exceeding 12 months. This distinction

applies to the following:
Arrest without warrant
The general power of arrest without warrant provided for in section 101(2)
of the Criminal Procedure Ordinance (cap. 221) may be exercised only in
relation to arrestable offences.
Assisting offenders and concealing offences
Sections 90(1) and 91(1) of the Criminal Procedure Ordinance, respectively
enact offences of assisting an offender after the commission of an offence,
and concealing material information relating to the commission of an offence
in return for payment. Both sections require the offence committed by the
offender to be an arrestable offence.
Categories of Offence
Offences may be classified according to the interests they seek to protect.
Thus, Hong Kongs criminal law contains offences against the person
(ranging from the most serious crimes of violence, such as murder, through
sexual offences, such as rape and indecent assault, down to relatively minor
offences, such as common assault), offences against property (covering a
range of activities from theft and obtaining by deception, through forgery and
counterfeiting, to criminal damage), offences against public morals and
public order (such as obscenity, public nuisance, and piracy and hijacking),
offences relating to the administration of justice (such as perjury, perverting
the course of justice, and contempt of court), and offences against the
security of the state (predominantly treason and official secrets). In addition,
there are a large number of regulatory or public welfare offences scattered
throughout Hong Kongs legislation covering a wide range of matters.
HONG KONGS COURTS OF CRIMINAL JURISDICTION

Hong Kong has three courts with original criminal jurisdiction (i.e. trial
courts), the Magistrates Court, the District Court and the Court of First
51
Instance (formerly the High Court), and three courts with appellate
jurisdiction, the Court of First Instance, the Court of Appeal and the Court
of Final Appeal. The Court of First Instance and the Court of Appeal together
constitute what is now known as the High Court of the Hong Kong SAR
(formerly, the Supreme Court of Hong Kong).
The responsibility for commencing prosecutions generally rests with
the Secretary of Justice, although the actual commencement of proceedings
in the Magistrates Court by the laying of an information or making of a
complaint is ordinarily done by police officers and other persons to whom
the Secretary has delegated this authority (section 12 of the Magistrates
Magistrates
Most criminal cases in Hong Kong commence in one of Hong Kongs ten
Magistracies (or Magistrates Courts) before magistrates exercising statutory
criminal jurisdiction pursuant to the provisions of the Magistrates Ordinance
(cap. 227). Magistrates have jurisdiction to deal with both summary offences
and also indictable offences triable summarily. Offences that must be tried
on indictment (e.g. murder) will also first appear in the Magistrates Courts;
in these cases, there will be a hearing known as a committal hearing, the
purpose of which is to determine whether there is sufficient evidence for
the case to be committed for trial on indictment in the Court of First
Instance.
Permanent and special magistrates
Section 5(1) of the Magistrates Ordinance provides for the appointment by
the Chief Executive of permanent and special magistrates.13 Permanent
magistrates must be legally qualified (unlike, for example, in England, where
magistrates courts when trying a case summarily normally consist of two
or more lay magistrates who rely on legally qualified court clerks to advise
them on the law), and they are empowered to exercise all the jurisdiction
and powers conferred on a magistrate by enactment or otherwise (section
13
In addition, section 5A of the Magistrates Ordinance (added by section 13, Ordinance No. 21
of 1999) provides for the appointment by the Chief Justice of deputy magistrates who hold
office for a limited period and, subject to the terms of appointment, have all the jurisdiction,
powers and privileges and perform all the duties of a permanent magistrate.
52
INTRODUCTION
5(2) of the Magistrates Ordinance). Pursuant to section 92 of the Magistrates

Ordinance, the maximum penalty that a permanent magistrate may impose
on a convicted offender is two years imprisonment for a single offence and
a fine of HK$100,000, but this is subject to any greater punishment
specifically provided for in any other Ordinance (section 92 of the
Magistrates Ordinance; see also section 97(3)(a) of the Magistrates
Ordinance, which limits the power to fine except where a greater sum is
specifically provided for in any other Ordinance). A number of ordinances
give magistrates the power to impose sentences of up to three years
imprisonment and substantially larger fines, in some cases up to
HK$5,000,000. Where an offender is convicted of more than one offence
and sentenced to a term of imprisonment on each, a permanent magistrate
may order the terms to run consecutively, up to three years in total (section
57 of the Magistrates Ordinance). Special magistrates are generally
Cantonese-speaking persons with some experience of judicial work, though
they may not be legally qualified. Their jurisdiction is more limited than
that of permanent magistrates, particularly as regards the summary hearing
of indictable offences (section 91 of the Magistrates Ordinance). They
commonly deal with minor offences such as hawking, traffic summonses
and littering. Their sentencing powers are also more limited. Their power
to fine is limited to HK$50,000 (section 97(3)(a) of the Magistrates
Ordinance, except where a greater sum is specifically provided for in any
other Ordinance). Their power to sentence an offender convicted of an
indictable offence tried summarily is generally restricted to six months
imprisonment and a fine of HK$50,000 (section 91 of the Magistrates
Ordinance; but see also section 94, which permits a maximum sentence of
one years imprisonment in relation to theft or an offence against sections
42 and 43 of the Offences Against the Person Ordinance (cap. 212)). Where
an offender is convicted of more than one offence, a special magistrate may
impose consecutive terms of imprisonment, not exceeding 12 months in
total (section 57 of the Magistrates Ordinance; but cumulative sentences
for several assaults committed on the same occasion must not exceed six
months section 44 of the Magistrates Ordinance).
Where an indictable offence is dealt with summarily, then the procedure
followed by a magistrate is the same as if the offence were an offence
punishable on summary conviction and not on indictment (section 93 of
the Magistrates Ordinance).
53
Review and appeal

An accused who is dissatisfied with the decision of a magistrate may apply
to the same magistrate within 14 days after the determination to review the
decision (section 104(1) of the Magistrates Ordinance). If still dissatisfied,
he or she may appeal in the normal way to the Court of First Instance
(section 104(10) of the Magistrates Ordinance).
Alternatively, an accused may, within 14 days of decision, appeal directly
to the Court of First Instance against conviction, or sentence, or conviction
and sentence (sections 105 to 113 of the Magistrates Ordinance).
Juvenile Court
When a child (a person under the age of 14 years; section 2 of the Juvenile
Offenders Ordinance) or young person (between the ages of 14 and 16;
section 2 of the Juvenile Offenders Ordinance) is charged with an offence
(other than homicide), he or she will generally14 appear before a permanent
magistrate sitting as a specially constituted court known as a Juvenile Court,
pursuant to the provisions of the Juvenile Offenders Ordinance (cap. 226)
(section 3A(3) of the Juvenile Offenders Ordinance). The Juvenile Court
has jurisdiction to make care and protection orders in respect of young
persons (section 34 of the Protection of Women and Juveniles Ordinance
(cap. 213)), where criminal prosecution is inappropriate.
The District Court

The District Court in its criminal jurisdiction deals with indictable offences
transferred from the Magistrates Court, either for trial or for sentence. Its
criminal jurisdiction is based on section 74 of the District Court Ordinance
(cap. 336), which provides that it has jurisdiction to hear and determine
such charges as may be transferred to it either by a magistrate pursuant to
Part IV of the Magistrates Ordinance (section 75(1) of the District Court
Ordinance) or from the High Court pursuant to section 65F of the Criminal
Procedure Ordinance (cap. 221).
14
The Juvenile Court has exclusive jurisdiction over summary offences (section 2(3) of the
Juvenile Offenders Ordinance), but the Court of First Instance has concurrent jurisdiction
in relation to indictable offences.
54
INTRODUCTION
In general, the District Court deals with more serious criminal cases,
excepting murder, manslaughter and rape. A District Court judge sits alone
without a jury in criminal trials. On conviction, he or she may impose a
sentence of imprisonment of up to seven years (section 82(2) of the District
Court Ordinance (cap. 336)).
There is a right of appeal against conviction or sentence or both to the
Court of Appeal within 28 days from the date of decision (sections 83 and
84 of the District Court Ordinance).
The Court of First Instance

The Court of First Instance of the High Court has unlimited jurisdiction in
criminal matters (sections 3(2) and 12(3) of the High Court Ordinance
(cap. 4)). In practice, it tries the most serious criminal offences, such as
murder, manslaughter, rape, armed robbery, complex commercial frauds
and drug offences involving large quantities. Trials in the Court of First
Instance are heard on indictment, that is, before a judge of the Court of
First Instance sitting with a jury (section 41(1)(2) of the Criminal Procedure
Ordinance (cap. 221)). A jury normally consists of seven (but may
exceptionally include nine) jurors selected in accordance with section 3 of
the Jurors Ordinance (cap. 3).
In a jury trial, the judge is responsible for deciding matters of law,
while the jury decides matters of fact. The judge directs the jury, during
his or her summing-up at the end of a trial, on the relevant legal principles
the jury must apply, and the jury then retires to the jury room and applies
the law to the facts. If a trial judge misdirects a jury on the law, i.e. he or
she misstates the law, this may provide an accused with grounds for an
appeal against conviction.
Appeals from the Court of First Instance generally go to the Court of
Appeal.
The Court of Appeal

The Court of Appeal is the second highest court in Hong Kongs judicial
hierarchy, and forms part of the High Court of the Hong Kong SAR (section
3(1) of the High Court Ordinance (cap. 4)). It hears appeals, rather than
trials, and these are normally heard by three judges sitting together (section
34(2) of the High Court Ordinance). Its criminal jurisdiction is set out in
55
section 13(3) of the High Court Ordinance. It may hear appeals from both
the Court of First Instance and the District Court (pursuant to section 82
of the Criminal Procedure Ordinance (cap. 221) and section 84 of the
District Court Ordinance (cap. 336)). It can also make rulings on questions
of law referred to it by the lower courts (pursuant to section 81(1) of the
Criminal Procedure Ordinance), hear applications made by the Secretary
of Justice for the review of a sentence (pursuant to section 81A(1) of the
Criminal Procedure Ordinance), and consider references of law by the
Secretary of Justice following an acquittal (pursuant to section 81D of the
Criminal Procedure Ordinance).
The Court of Final Appeal

The Court of Final Appeal was established on 1 July 1997, pursuant to the
Hong Kong Court of Final Appeal Ordinance (cap. 484), and is the highest
appellate court in Hong Kong (replacing the Judicial Committee of the
Privy Council). It hears appeals at the discretion of the Court of Final
Appeal in criminal matters from any final decision of the Court of Appeal,
and any final decision of the Court of First Instance (not being a verdict or
finding of a jury) from which no appeal lies to the Court of Appeal.
Leave to appeal must be granted by the Court of Final Appeal (section
32(1) of the Hong Kong Court of Final Appeal Ordinance). Such leave will
be granted only if the Court of Appeal or the Court of First Instance (as the
case may be) certifies that a point of law of great and general importance is
involved in the decision or it is shown that substantial and grave injustice
has been done (section 32(2)) (although the Court of Final Appeal has the
discretion to certify a matter and grant leave to appeal even where the Court
of Appeal or the Court of First Instance declines to do so; section 32(3)).
The Court, when sitting, comprises five judges the Chief Justice, three
permanent judges of the Court of Final Appeal, and one non-permanent
Hong Kong judge or one judge from another common law jurisdiction
(section 16(1) of the Hong Kong Court of Final Appeal Ordinance). The
powers of the Court of Final Appeal on appeal are set out in section 17 of
the Hong Kong Court of Final Appeal Ordinance. It may confirm, reverse
or vary the decision of the court from which the appeal lies, or may remit
the matter with its opinion to that court, or may make such other order in
the matter as it thinks fit (section 17(1)). It may order a retrial, or may remit
a case to the court from which the appeal has been made (section 17(2)).
The decision of the Court is final and shall not itself be subject to appeal.
56
INTRODUCTION
Coroners Court
Questions of criminal liability may also arise in Coroners Courts. A coroner
is empowered to investigate deaths occurring in Hong Kong (or outside
Hong Kong if the body is found within Hong Kong) where the death has
not been certified by a doctor as being solely due to natural causes. The
decision on whether or not to hold an inquiry an inquest lies with
the coroner, as does the decision on whether or not to sit with a fiveperson jury (if death occurs in official custody, it is mandatory to sit with
a jury). The purpose of an inquest is to ascertain the circumstances
surrounding the death. On occasion, this may involve issues of criminal
liability; for example, where death was caused by a police officer, it may be
necessary to determine whether the police officer was lawfully acting in
execution of duty or in self-defence.
If it appears to a coroner that the death may involve the commission of
murder, manslaughter, infanticide or dangerous driving, then the coroner
may adjourn an inquest and refer the matter to the Secretary for Justice for
decision on whether to prosecute the person or persons responsible for the
death.
CRIMINAL JURISDICTION
Territoriality
The traditional rule at common law is that criminal jurisdiction is territorial;
a person may prima facie only be tried and convicted by the courts of the
Hong Kong SAR for an offence committed within Hong Kongs territorial
limits. Therefore, all offences must ordinarily be read as if they included
the words in the Hong Kong SAR.
The rationale for this territorial rule is that [the] criminal law is
developed to protect [the local society] and not that of other nations which
must be left to make and enforce such laws as they see fit to protect their
own societies (Somchai Liangsiriprasert v Government of the USA [1990] 2
HKLR 612, at 619, per Lord Griffiths). However, as Lord Griffiths also
recognized in Somchai (a decision of the Privy Council on appeal from the
Hong Kong Court of Appeal, concerning the jurisdiction of Hong Kongs
criminal courts over a conspiracy to traffic in dangerous drugs entered into
in Thailand), this territorial rule is no longer applied as strictly as it once
57
was, since in this century crime has ceased to be largely local in origin and
effect. Crime is now established on an international scale and the common
law must face this new reality.
Accordingly, there are a number of exceptions to the rule of territoriality
both at common law and under statute, whereby the courts of Hong Kong
may exercise criminal jurisdiction over a person even though his or her
alleged criminal conduct, strictly speaking, did not take place in Hong Kong.
Exceptions
Exceptions or extensions of jurisdiction include the following:
(1) Offences of an international character, such as piracy and aircraft
hijacking: these may be triable in Hong Kong as a matter of international
criminal law, even though the criminal activity constituting the offence
takes place outside Hong Kong (In re Piracy Jure Gentium [1934] AC 584:
Privy Council appeal from Hong Kong) (see also sections 19 to 23 of the
Crimes Ordinance (cap. 200), enacting domestic offences that co-exist with
their international law counterparts). For a recent example of piracy, the
first prosecuted in Hong Kong in 60 years, see R v Liang Bing Zhao ([1997]
2 HKC 499).
(2) Murder and related offences: several statutory provisions provide
Hong Kongs courts with jurisdiction over murder or related offences, despite
an element of extra-territoriality. These include: section 9 of the Offences
Against the Person Ordinance (cap. 212), which provides that where a
person is unlawfully stricken, poisoned, or otherwise hurt at any place in
Hong Kong but dies as a result upon the sea or at any place out of Hong
Kong, then any person alleged to have caused the death, or been party to
such, may be tried for murder or manslaughter, or as an accessory to murder
or manslaughter, in Hong Kong in the same manner in all respects as if
such offence had been wholly committed in Hong Kong; section 5 of the
Offences Against the Person Ordinance, which provides that persons who
conspire in Hong Kong to murder another person, or solicit another person
to do so, whatever the nationality or citizenship of the intended victim and
wherever he or she may be, thereby commit an offence (see also section
159A(3) of the Crimes Ordinance: for the purposes of conspiracy, offence
includes murder notwithstanding that the murder in question would
not be so triable if committed in accordance with the intentions of the
parties to the agreement).
(3) Other offences committed on ships outside Hong Kong (or in
58
INTRODUCTION
Hong Kong waters): historically, criminal jurisdiction also existed over

offences committed on ships outside the territorial limits of the Hong Kong
SAR, particularly on the high seas. This reflects the view that ships may
be treated as part of a territory (R v Martin [1956] 2 All ER 86). This
jurisdiction is now specifically provided for in sections 23B(1) and (3) of
the Crimes Ordinance. Subsection (1) provides that acts taking place on
board a Hong Kong ship on the high seas which, apart from section 23B,
would not be an offence, but, were they to take place in Hong Kong, would
constitute an offence under the law of Hong Kong, shall constitute an offence
triable in Hong Kong, regardless of the citizenship or nationality of the
person committing the acts. Subsection (3) provides that acts by residents
of the Hong Kong SAR (i) on board a Hong Kong ship in any port or
harbour outside Hong Kong or (ii) on board a ship which is neither a
Hong Kong ship nor a ship to which the person belongs, which, apart from
subsection (3), would not constitute an offence under the law of Hong
Kong but would do so if the act took place in Hong Kong, shall constitute
an offence triable under the law of Hong Kong. In addition, section 23B(2)
provides for the reverse: the SAR courts have criminal jurisdiction in certain
circumstances over acts committed on board a ship which is not a Hong
Kong ship while it is in Hong Kong waters if those acts, were the ship a
Hong Kong ship, would constitute an indictable offence under the law of
Hong Kong, regardless of the citizenship or nationality of the person
committing the acts.
(4) Conspiracy, attempts and incitement: at common law, the courts
have expressed a willingness to adopt a more expansive view of jurisdiction
in relation to the inchoate offences of conspiracy, attempt and incitement.
This was considered by the Privy Council on appeal from the Hong Kong
Court of Appeal in Somchai Liangsiripraesert v Government of the USA, above.
Although the case related specifically to conspiracy, Lord Griffiths, delivering
the advice of the Privy Council, observed (at 625):
the inchoate crimes of conspiracy, attempt and incitement developed
with the principal object of frustrating the commission of a
contemplated crime by arresting and punishing the offenders before
they committed the crime. If the inchoate crime is aimed at England
with the consequent injury to English society why should the English
courts not accept jurisdiction to try it if the authorities can lay hands
on the offenders, either because they come within jurisdiction or
through extradition procedures?
and concluded (at 626):
59
Unfortunately in this century crime has ceased to be largely local in

origin and effect. Crime is now established on an international scale
and the common law must face this new reality. Their Lordships can
find nothing in precedent, comity or good sense that should inhibit
the common law from regarding as justiciable in England inchoate
crimes committed abroad which are intended to result in the
commission of criminal offences in England. Accordingly a conspiracy
entered into in Thailand with the intention of committing the criminal
offence of trafficking in drugs in Hong Kong is justiciable in Hong
Kong even if no overt act pursuant to the conspiracy has yet occurred
in Hong Kong.
(5) Criminal Jurisdiction Ordinance (cap. 461) (CJO): this ordinance

extends the criminal jurisdiction of Hong Kongs courts firstly over a range
of offences against the Theft Ordinance (cap. 210) (including theft (section
9), fraud (section 16A), six deception offences (sections 17, 18, 18A, 18B,
18D and 22(2)), false accounting (section 19), false statements by company
directors (section 21), blackmail (section 23), and handling stolen goods
(section 24)) and the Crimes Ordinance (cap. 200) (including forgery
(section 71) and five offences relating to false instruments (sections 72 to
76)) (collectively called Group A offences). These offences may all readily
have an extra-territorial element. Section 3(3) provides: A person may be
guilty of a Group A offence if any of the events which are relevant events in
relation to the offence occurred in Hong Kong. Relevant event in relation
to a Group A offence means any act or omission or other event (including
any result of one or more acts or omissions) proof of which is required for
conviction of the offence, i.e. constituting part of the actus reus of the
offence (section 3(1) of the CJO). In determining whether or not a particular
event is a relevant event in relation to a Group A offence, any question as
to where it occurred is to be disregarded (section 3(2)). The operation of
the CJO in particular in relation to offences against the Theft Ordinance is
discussed more fully elsewhere (see Chapters 13 and 14). Secondly, the
CJO applies to inciting, conspiring at and attempting to commit a Group A
offence and conspiracy to defraud (collectively called Group B offences).
The application of the CJO to incitement, conspiracy and attempt is also
discussed elsewhere (see Chapter 9), but in summary, the CJO allows a
person to be tried and convicted in Hong Kong (1) of inciting a Group A
offence whether or not the incitement took place in Hong Kong (section
4(4)); (2) of conspiring to commit a Group A offence even though the
intended offence is to take place outside of Hong Kong provided that a
relevant event occurs or will occur in accordance with their intentions in
60
INTRODUCTION
Hong Kong; and (3) of attempting to commit a Group A offence whether

or not (a) the attempt was made in Hong Kong; (b) it had an effect in
Hong Kong (section 4(3) of the CJO). In addition, section 4(1) provides
generally that a person may be guilty of a Group A offence or a Group B
offence (1) whatever his or her citizenship or nationality, or whether or
not he or she was a permanent resident of Hong Kong at any material time;
and (2) whether or not he or she was in Hong Kong at any such time.
PART II
The General
Structure of
Criminal
Liability
3
The Elements of Offences:
Actus Reus
INTRODUCTION
This part will examine the general structure of criminal liability. Two
concepts are used for this purpose: actus reus and mens rea. These two
Latin terms come from the expression actus non facit reum, nisi mens sit
rea, meaning an act alone is not criminal, unless the mind also be guilty,
and, despite criticism that the use of these terms is somewhat anachronistic
in the modern day, they continue to be employed by criminal lawyers and
commentators as organizing concepts.
Actus reus and mens rea represent the two foundational aspects of
criminal liability the conduct, or physical, element (actus reus), and the
mental, or fault, element (mens rea). In theory, both are required for criminal
liability to arise. In practice, this is often not so; in particular, there are
many offences that do not require proof of a mental or fault element (beyond
a minimum requirement of voluntariness; below, p. 68) and are called strict
liability offences (see Chapter 5). Furthermore, actus reus and mens rea
should theoretically occur in the same time frame and be connected, giving
rise to a further requirement of coincidence or concurrence.
Over the centuries of development of the criminal law in England and
subsequently in Hong Kong, judges and legislative bodies have rarely
formulated offences in any uniform manner, and certainly not in accordance
with modern organizing principles or analytical structures. This means there
is often a poor fit between the analytical structure which forms the basis of
64
THE GENERAL STRUCTURE OF CRIMINAL LIABILITY
discussion of the general principles of criminal liability, and the actual

form and content of many offences. The concepts used for the purpose of
explanation and analysis of the general principles in this chapter (actus
reus) and the next two (mens rea/negligence and strict liability) are
nonetheless valuable both for what they reveal about the rationales and
values embedded in the criminal law, and also for the insight and guidance
they provide on how to analyse individual offences and thereby determine
what must be proved by the prosecution beyond reasonable doubt.
It must also be understood that these concepts merely set out what
must generally be proved to establish criminal liability against the person
who is most immediately responsible for committing the offence the
person commonly called the principal. Different concepts and rules apply
to the criminal liability of someone who helps or encourages the principal
(Chapter 8). In addition, the criminal law recognizes a variety of defences,
some specific to particular offences but most of which are general (Chapters
6 and 7), and these must be fitted into any overall analytical structure.
To facilitate analysis, actus reus and mens rea are usually broken down
into various categories of component elements. Actus reus, for example, is
commonly broken down into four Cs conduct, circumstances,
consequences and, related to consequences, causation. Mens rea, on the
other hand, is commonly discussed according to the key states of mind or
types of fault required or relied upon to establish criminal liability the
subjective states of intention, knowledge and recklessness (Chapter 4),
and then two objective bases of liability, negligence and strict liability
(Chapter 5). In addition, as already mentioned, it is generally said to be
necessary to show that the actus reus and mens rea elements coincided
(below, p. 100). There is also a further, underlying condition of criminal
liability: the conduct must be voluntary (below, p. 68).
All these concepts can be diagrammatically represented in Figure 3.1.
The way in which these concepts are used may be illustrated by two
offences, murder and rape. Murder is a common law offence, and is
classically defined as the unlawful killing of any reasonable creature in
being, under the Queens peace, with malice aforethought, either express
or implied [death occurring within a year and a day]. Malice aforethought,
a somewhat archaic term, refers to the accuseds state of mind, and means
intention to kill or intention to cause grievous [i.e. really serious] bodily
harm (see Chapter 10, p. 497); this constitutes the mens rea of the offence
of murder. All the other elements prima facie constitute the external
elements or actus reus of murder. They can be categorized as follows: a
consequence must be proved killing (i.e. death); several circumstances
THE ELEMENTS OF OFFENCES: ACTUS REUS
65
actus reus
mens rea
elements may include
fault may be one or more of

the following states of mind
CONDUCT
(voluntary)
INTENTION
>
CONSEQUENCE
RECKLESSNESS
CIRCUMSTANCES
act
STATUTORY
STATES OF MIND
(e.g. maliciously,
wilfully, permits)
state of affairs
NEGLIGENCE
omission
(duty)
STRICT LIABILITY
> CAUSATION
COINCIDENCE
DEFENCES
Figure 3.1
Analytical Structure of Offences
must exist the victim must be a reasonable creature in being (i.e. a

human being, but not, for example, a baby while still in the womb); the
killing must not take place as an incident of war (under the Queens peace);
and the prohibited consequence traditionally had to occur within a
prescribed period (death within a year and a day, although this requirement
has now been abandoned in Hong Kong). No specific form of conduct is
expressly required, but this does not mean that conduct is unnecessary
a person is not liable for murder merely because he or she plans to kill
another (i.e. has mens rea) and that other happens to die. Kill impliedly
means by conduct a person causes the death of another; in relation to
murder, this conduct may be an act (e.g. shooting, stabbing, running down
by vehicle, poisoning) or an omission (e.g. a parent fails to provide food or
obtain medical care for his or her child, in breach of his or her duty to do
so).
All these actus reus elements the conduct, the circumstances, the
consequence and causation together with mens rea (i.e. the accuseds
intention) must be proved by the prosecution beyond reasonable doubt. In
addition, the prosecution may need to prove that the killing was unlawful.
Killing is lawful if it occurs during the course of lawful self-defence or
crime prevention (see Chapter 7, p. 279); for example, when a police officer
66
shoots and kills an armed robber. If an accused asserts that he or she killed
in self-defence or in crime prevention, then the prosecution must negate
this assertion and prove that the killing was unlawful. Unlawfulness may
be characterized as a circumstance and thus constitutes an actus reus
element, or alternatively characterized as a general defence.
The second offence, rape, is a statutory offence, contrary to section
118(1) of the Crimes Ordinance. Section 118(3) defines rape as follows:
A man commits rape if
(a) he has unlawful sexual intercourse with a woman who at the
time of the intercourse does not consent to it; and
(b at that time he knows that she does not consent to the intercourse
or he is reckless as to whether she consents to it.
Section 118(3)(a) sets out the actus reus of the offence. There must be
conduct (sexual intercourse with a woman), and two circumstances are
required (the sexual intercourse must be unlawful (this once meant outside
of marriage but may now be meaningless; see Chapter 12, p. 602) and it
must be non-consensual (who at the time of the intercourse does not
consent to it)). The mens rea is set out in section 118(3)(b) the accused
must know that the intercourse is non-consensual, or be reckless as to
this fact.
In both cases, murder and rape, the actus reus and mens rea elements
must coincide. If, for example, D forms the intention to shoot and kill V,
and then, while driving to work, happens to run down and kill V without
any fault on Ds part, this is not murder. Actus reus exists (Ds conduct has
caused Vs death) and so does mens rea (Ds intention to kill V), but they
do not coincide Ds conduct is not the result or manifestation of Ds
intention.
These two offences illustrate another distinction that is commonly
drawn, between conduct crimes and result crimes. Rape is an example of
a conduct crime: the object of the criminal prohibition is to prevent the
commission of a particular form of conduct in specified circumstances,
namely unlawful sexual intercourse with a woman who does not consent.
The mens rea of the offence intention and recklessness relates to this
conduct and the circumstances attending it. No further consequence or
harm has to be proved to establish liability. Murder, on the other hand, is
a result crime: here, the object of the prohibition is preventing the harm
or consequence, i.e. killing, and the mens rea of the offence relates to this
harm. Often, as is the case with murder, result crimes do not require any
specific form of conduct; conduct must be proved, but any conduct act
67
or omission that can be said to have caused the relevant consequence

may lead to liability. This is not true of all result crimes. Some are more
specific and impose liability for causing a particular consequence by a
particular form of conduct.
Ultimately, it is important to keep in mind that the terms actus reus
and mens rea, along with their constituent elements, are essentially
conceptual tools, which aid the formulation of general principles of criminal
liability and the analysis of individual offences. However, they should not
be treated as a paradigm according to which all offences must be artificially
shaped.
ACTUS REUS
The actus reus of an offence comprises all the external elements of the
offence the prohibited conduct, the relevant circumstances that must
exist when the conduct is committed, and, for result crimes, the harm or
consequence caused by the conduct. In short, everything which must
generally be proved in order to establish criminal liability, except the state
of mind of the accused.1
Conduct
All offences require proof of conduct by the accused in some form. Most
offences are based on the fact that the accused did something or committed
an act. Some offences may be committed, either alternatively, or sometimes
exclusively, by an omission, i.e. by a failure to act in a prescribed manner
(e.g. failure to do a specific act, such as file a tax return, or failure to take
proper care, thereby causing some prohibited harm or consequence, such
as death). Other offences, such as being found drunk in a public place,
are based on the existence of a prohibited set of circumstances, or state of
affairs, where the conduct element ostensibly rests on the fact that the
accused voluntarily brought about or created the prohibited state of affairs.
1
It is also possible to include the absence of any justification, excuse or defence as an element
of the actus reus, under the general rubric of unlawfulness. See Smith, John, and Hogan,
Brian, Criminal Law (ninth edition, 1999), p. 32, and the materials there referred to by the
authors.
68
The nature of the conduct element required for a given offence is a

matter of statutory and judicial interpretation.
Voluntariness
The conduct element must be voluntary to attract criminal liability (Bratty
v A-G for Northern Ireland [1963] AC 386, at 409, per Lord Denning: [the]
requirement that it should be a voluntary act is essential, not only in a
murder case, but also in every criminal case). As observed by Humphreys
J in Kay v Butterworth ((1945) 173 LT 191), in relation to a charge of driving
without due care and attention, [a] person who through no fault of his
own, became unconscious while driving, for example, by being struck by a
stone, or by being taken ill, ought not to be liable at criminal law.
The requirement of voluntariness purports to capture or reflect a
distinction between what may be called a bodily movement, and the
attribution of responsibility for that bodily movement to the accused. Bodily
movements may occur without any conscious control or volition on the
part of the actor. Suppose, for example, D, without negligence, trips while
walking and stumbles against A, who falls to the ground and suffers injury;
D asserts the incident was an accident. At one level, this involves an
assertion that D lacked mens rea in relation to the harmful consequences
resulting from his bodily movement (i.e. D did not, at the time of the
bodily movement (stumble) intend to cause harm to A, nor was he reckless
since he did not act in the knowledge that he might cause harm). However,
at a more fundamental level, it also involves an assertion that D did not
voluntarily perform the bodily movement leading to the harm, that some
fundamental attribute or characteristic of conduct is absent.
The nature of voluntariness has been the subject of much philosophical
and jurisprudential debate, with commentators commonly using terms such
as will, desire and volition to describe this attribute. However, saying
that conduct must be willed or volitional does not fully answer the issue,
for the meaning of these terms, like voluntariness itself, remains elusive.
When a person is walking, for example, as D was before tripping and
stumbling, his or her bodily movements are more or less automatic it is
not easy to say that he or she consciously activates or wills his or her
muscles to make the body move. At the same time, the walker is obviously
in control of his or her body, choosing the pace and direction of movement
and when to stop and start again.
In many respects, the inability to define voluntariness precisely does
not cause practical problems. In the first place, voluntariness is prima facie
69
presumed upon proof that the accused physically performed the bodily
movements in question (Bratty v A-G for Northern Ireland [1963] AC 389,
at 407, per Viscount Kilmuir LC, at 413, per Lord Denning; in Ryan v R
[1967] ALR 577, Barwick CJ noted (at 582): In the ordinary run of cases
the voluntary quality of the deed physically related to the accused is not in
question. The presumption [of voluntariness] to which their Lordships refer
in [Bratty] operates sub silentio.). Accordingly, the prosecution does not
normally have to prove affirmatively that the defendants conduct was
voluntary; so the meaning of voluntariness is not in issue. Instead, it is
left to the accused to raise the issue by way of a plea of involuntariness.
When such a plea is made, then the particular basis for the claim I
tripped, I was hit on the head and blacked out (i.e. was unconscious), I
was sleep-walking, I was suffering from an epileptic seizure can be
examined and dealt with. If the prosecution does not accept the explanation
as a valid basis for an acquittal, then it will respond to the plea either by
challenging the existence of the state of involuntariness, or by relying instead
on rules limiting an accuseds entitlement to seek an acquittal on that
particular basis. If the prosecution can do neither of these, and there remains
a reasonable doubt whether the accused was acting voluntarily, then this
will prima facie lead to an acquittal, since the prosecution will have failed
to prove beyond reasonable doubt an essential element of the actus reus of
the offence (this will occur without the court needing to determine what
makes conduct voluntary).
Most pleas of involuntariness involve an assertion that D lacked
conscious control of his or her bodily movements, either because D was
unconscious, or because D was affected by some external or internal factor
causing a total lack of control; where this is asserted, it is usually
characterized as automatism (discussed below, Chapter 6, p. 237). The
courts have imposed considerable restrictions on the circumstances in which
an accused can rely on involuntariness in the guise of automatism, including
the following hurdles: (1) there must generally be medical evidence
supporting the plea; (2) if the state of unconsciousness or total lack of
control giving rise to the plea involves or is produced by a mental or physical
condition constituting a disease of the mind within the meaning of insanity
(see Chapter 6, p. 225), then the defendant is only entitled to plead insane
automatism, i.e. insanity (which he or she must prove on the balance of
probabilities and leads to a special verdict and the possibility of courtordered treatment, supervision, or incarceration in a mental institution);
and (3) if the state of unconsciousness is sane (or non-insane) rather
than insane automatism, but is self-induced (e.g. D deliberately bangs his
70
or her head against a wall, or takes alcohol or drugs), then D may find that
evidence of his or her alleged involuntary state is inadmissible, depending
on the nature of the offence D is alleged to have committed (this brings
into play the distinction between specific and basic intent offences,
originally devised in relation to self-induced intoxication). If D overcomes
these hurdles, then voluntariness is properly placed in issue, and the
prosecution must prove the voluntary nature of Ds conduct beyond
reasonable doubt.
A plea of involuntariness may also arise in the guise of reflex or
instinctive actions. Often the characterization of conduct as a reflex or an
instinctive act, like a plead of accident, is no more than a denial of mens
rea, usually in relation to the consequences of the conduct. Occasionally
involuntariness is genuinely in issue, as in Ryan v R ([1967] ALR 577), a
decision of the High Court of Australia. On trial for murder, R claimed
that he accidentally shot the victim, V, during a robbery. According to R,
he was standing behind V, with his finger on the trigger of a cocked, loaded
sawn-off rifle pointed at V, its safety removed, when a sudden movement
by V startled R and caused his finger to tighten on the trigger in a reflex
or convulsive motion (police tests confirmed the possibility of this reflex).
His plea of accident was essentially a denial of mens rea, but on appeal, R
for the first time invited the High Court to quash his conviction of murder
on the ground that the act causing Vs death pulling the trigger was
involuntary. The court acknowledged the need for voluntary conduct
It is basic that the act of the accused must be a willed, a voluntary
act which has caused the death charged. It is the act which must be willed,
though its consequences may not be intended (at 582, per Barwick CJ)
and was also willing to accept that a reflex act might be characterized as
involuntary. Nonetheless the court rejected Rs submission that his
supposed reflex could be characterized this way. In the courts view, the
jury was entitled to consider all the circumstances created by R leading up
to Vs death, including the possibility of a reflex act, in deciding whether R
had acted voluntarily in discharging the rifle. As Taylor and Owen JJ
observed (at 595):
the fact is that the wounding and the death were caused by a
combination of acts done in pursuance of the design to commit the
robbery. [The earlier acts] were done deliberately and were as much
part of the act causing death as was the pressure of the trigger which
fired the rifle. It is impossible to isolate the act of pressing the trigger
from the other circumstances and argue that it, alone, caused the
wounding and death.
71
In Windeyer Js view, an alternative explanation for rejecting Rs appeal

was that the criminal law should simply decline to attach the label
involuntary to this type of conduct (at 6045):
[Assuming] that [Rs] act was involuntary, in the sense in which the
lexicographers use the word, would that, as a matter of law, absolve
him from criminal responsibility for its consequences? I do not think
so. [Is] an act to be called involuntary merely because the mind
worked quickly and impulsively? [If R], being conscious of the
situation in which he had put himself, pressed the trigger as a result,
however spontaneous, of the man whom he was threatening making
some sudden movement, it could not be said that his action was
involuntary so as to make the homicide guiltless.
Acts
Most offences are based on the commission of an act or activity, that is, on
something actively done by the accused. This may be a simple act, such as
a blow with the hand; or it may be more complicated in nature and involve
the performance of a number of related physical acts together comprising
the prohibited activity, such as driving a motor vehicle.
The precise nature of the act or activity will not always be set out in
the statute (if the offence is statutory); often this must be determined by
applying rules of statutory interpretation and the relevant case law. Once
its nature is determined as a matter of law, it is the task of the prosecution
to adduce evidence to prove beyond reasonable doubt that the accused
performed that act or activity.
Omissions2
An omission, or failure to act, may also lead to criminal liability, although
this is less common and more problematic. Criminal liability for omissions
usually arises in two ways: an omission may itself be made the basis of an
offence, or liability may arise for causing harm by omission.
Offences of omission
Firstly, an offence may expressly impose liability for an omission, or failure
to act. Such offences are usually part of a statutory regulatory system, under
2
See generally J.C. Smith, Liability for Omissions in the Criminal Law (1984) 4 LS 88.
72
which a prescribed individual or class of persons is expressly placed under

a duty to act in a particular manner, with the failure to do so being an
offence. Examples are failure to file a tax return (section 80(1), Inland
Revenue Ordinance (cap. 112)), failure to file company accounts (section
109(4), Companies Ordinance (cap. 32)), and failure to report a motor
vehicle accident (section 56(3)(6), Road Traffic Ordinance (cap. 374)).
These offences are essentially conduct offences, and they often involve strict
liability (see Chapter 5).3
Criminal liability may also be imposed for an omission or failure to
take care in carrying out a designated activity or responsibility. An example
of this is section 27 of the Offences Against the Person Ordinance
(cap. 212) which makes it an offence for a person over the age of 16 years
who has the custody, charge or care of any child or young person under
that age [to] wilfully neglect [emphasis added] the child or young
person in a manner likely to cause or lead to suffering or injury. In this
instance, the neglect must be wilful (see Sheppard [1981] AC 394). In
other instances, liability arises simply for failing to take proper care, i.e.
negligence (see Chapter 5), as in section 38 of the Road Traffic Ordinance
(cap. 374), which provides that a person who drives a motor vehicle on a
road carelessly commits an offence (section 38(1)), carelessly being defined
as driving a vehicle without due care and attention or without reasonable
consideration for other persons using the road (section 38(2)). Like
statutory regulatory offences of omission, these offences are essentially
conduct crimes it is the neglect itself (i.e. the failure to take proper
care) that gives rise to criminal liability.
Causing harm by omission
Criminal liability may also arise for causing harm by an omission or failure
to act. This is exceptional, however, since the general rule adopted at
common law is that there is no criminal liability for mere omissions, or
failures to act. This is commonly illustrated by reference to the following
example in Stephens Digest of the Criminal Law (fourth edition, 1887):
Smith and Hogan (Criminal Law, ninth edition, 1999) note (p. 45) that offences of pure
omission are also to be found at common law, though this is rare. They give two examples,
one involving the common law liability of police officers for failing to perform their duty
to preserve the Queens peace, the other involving a citizens liability for failing to respond
to a police officers request for assistance in keeping the peace.
73
A sees B drowning and is able to save him by holding out his hand.
A abstains from doing so in order that B may be drowned, and B is
drowned. A has committed no offence.
In this illustration, A has failed to take steps to prevent the risk of harm
(death) from occurring, yet it is said that A has committed no offence (at
common law). Broadly speaking, there are three related reasons for common
laws rejection of criminal liability in this scenario: voluntariness, causation
and attribution.
Suppose, firstly, that A had not seen B drowning. In this case, no one
would suggest that A ought to be criminally liable for Bs death. A, along
with everyone else who did not see Bs distress, has failed in fact to take
steps to prevent B from drowning, but only in the most literal sense. A has
not conducted himself or herself in any way that could justifiably be used
to attribute criminal liability to A. In legal terms, it can be said that the
minimum requirement of voluntary conduct is not satisfied, and there is
therefore no actus reus for the purposes of criminal liability. Even if A had
coincidentally formed the intention to kill B, thereby satisfying the mens
rea of murder, A would not be criminally liable, since liability depends on
the concurrent existence of mens rea and actus reus; in reality, Bs death
occurred independently of As conduct.
Assuming, however, that A was present at the scene and saw B
drowning, does this make a justifiable difference? Clearly As failure to act
may now be treated as voluntary conduct, setting A apart to that extent
from the rest of the world, but it remains difficult to say that the outcome
is affected by As omission. All the factual circumstances leading to Bs
death by drowning were already in place; Bs death was caused by those
factual circumstances, not by As failure to act (voluntary or not). How
then can the fact that A saw B in distress lead to the conclusion that As
conduct As inaction caused or contributed to Bs death, especially
keeping in mind that the inaction, according to Stephens example, was in
order that B may be drowned, for this would theoretically make A liable
for murder? Obviously, As inaction in this instance may be morally
indefensible, and it may be that it should lead to criminal liability in itself,4
but this is not the same thing as holding A responsible or liable for a result
crime based on the harm purportedly caused by As conduct.
Smith and Hogan (Criminal Law, ninth edition, 1999) note (p. 52) that some jurisdictions
have enacted statutory offences to this effect, whereby criminal liability is imposed for the
failure to act itself, not for the harm following the failure to act.
74
This difficulty is more fully exposed if it is assumed that A was only

one of a crowd of observers, none of whom did anything. Can it justifiably
be said that each member of the crowd has caused Bs death by his or her
inaction, making all of them liable for murder or manslaughter (depending
on his or her intention)? Or would subtle differences between each
individuals inaction such as standing in the front or at the back
become relevant? This highlights the point that unlike liability for acts,
which can be limited to identifiable actors, the imposition of liability for
omissions cannot be so easily circumscribed.
Put differently, there is no easily identifiable feature of the conduct
itself the failure to act that can readily justify the attribution of criminal
liability to any particular person.
At the heart of this rejection of general liability for omissions is the
recognition that such liability would in effect compel all citizens to act as
good Samaritans, placing them under a general duty to prevent harm from
occurring to others. While this might be acceptable in the easy rescue
case formulated by Stephen, in other cases, it could readily lead to the
imposition of onerous civic obligations, enforceable by the state on pain of
punishment. This would involve considerable restrictions on individual
freedom of action, contrary to the liberal principle of individual autonomy
underlying much of our criminal law doctrine. This objection is heightened
if carrying out any such duty to rescue would expose the potential rescuer
to the risk of serious injury or loss.
Another difficulty is that many result crimes are defined in a manner
that effectively excludes the possibility of liability by omission, either because
the requisite conduct element is expressly stated in terms of a positive
act,5 or because the consequence itself does not readily admit of liability
by omission. However, killing, which forms the basis of the common law
offences of murder and manslaughter, does not in itself exclude liability by
omission (Hughes (1857) Dears and Bell 248). It is perfectly possible to say
that one person killed another, meaning the former caused the death of
the latter, by an omission, for example, by intentionally failing to provide
food or medical care.
However, note section 3 of the Interpretation and General Clauses Ordinance (cap. 1):
act, when used with reference to an offence includes a series of acts, an illegal omission
and a series of illegal omissions.
75
Exception where omission in breach of duty

The common law does, however, recognize exceptions to this general
antipathy towards liability for causing harm by an omission, where A, the
person alleged to have caused harm by omission, is shown or found to
have been under a pre-existing statutory or common law duty, recognized
by the criminal law, to act in a manner which, it is alleged, would have
prevented the harm giving rise to the result crime from occurring. In such
a case, As failure to act is not a mere omission, but a breach of a preexisting legal duty; and this then serves as the basis for singling out and
attributing responsibility for the occurrence of the harm to A, as against all
other persons who may have also failed to act.6
Most of these duties relate to causing death and involve liability for
manslaughter or, more exceptionally, murder. However, in Miller ([1983]
2 AC 161), however, discussed below, the House of Lords, dealing with
the statutory offence of arson (i.e. criminal damage by fire, contrary to
section 1(1)(3) of the Criminal Damage Act 1971; Hong Kong: section
60(1)(3) of the Crimes Ordinance), opened a door for what may turn out
to be a much wider application of liability by omission.
Contractual duty to act A person who contractually undertakes to do an
act or activity, which, if not done, may endanger others, may be criminally
liable for manslaughter if he or she subsequently fails to do the act or
activity, in breach of duty, causing death. This is illustrated by Pittwood
((1902) 19 TLR 37). P, a railway crossing attendant, failed to close manually
a safety gate at the railway crossing when a train was approaching. The
victim was killed while attempting to cross the railway line. P was convicted
of manslaughter on the basis that his failure to shut the gate, his failure to
act, was grossly negligent (for manslaughter by gross negligence, see Chapter
10, p. 573). Ps argument that his contractual obligation to close the safety
gate was only owed to his employers, and not to members of the public
using the crossing, was rejected.
A more familiar example today might be a lifeguard employed at a
swimming pool. If, using Stephens example, a child fell into the pool and
required assistance, the lifeguard would be under a legal duty to act. If he
It is unclear whether it is for the judge or the jury to decide whether a duty arose in the
particular case; compare Khan and Khan [1998] Crim LR 830 and Singh (Gurpal) [1999]
Crim LR 582.
76
or she failed to act and the child drowned, this might amount to
manslaughter, if that failure to act amounted to gross negligence.
Special relationship of care A person who is in a special relationship of
care for another person by virtue of his or her status vis--vis that other,
such as a parent and child or a doctor and patient, is duty-bound to provide
appropriate care. Failing to do so, resulting in death, may lead to criminal
liability for manslaughter if the failure involved gross negligence; it may
even amount to murder if it can be shown that the accused deliberately
failed to act, intending to cause death or grievous bodily harm. Gibbons
and Proctor ((1918) 13 Cr App R 134), discussed below, illustrates this
category of duty.
Undertaking to care for another A person who voluntarily undertakes to
care for another may be criminally liable for manslaughter (or murder) if
he or she subsequently fails to provide the requisite level of care, in breach
of the duty, and death results. Gibbons and Proctor ((1918) 13 Cr App R
134) illustrates this. G, who had separated from his wife, was living with
another woman, P, along with several children, including Gs daughter
Nellie, aged seven. G worked and gave his earnings to P who provided for
those living in the house, except for N whom P apparently hated and kept
apart from the others. N eventually starved to death. G and P were charged
with murder. It was alleged they had failed to provide N with food and
care, in breach of duties to ensure N was properly fed and looked after,
and to see that she had medical attention if necessary, with the intention
of causing death or serious injury. They were convicted and sentenced to
death. On appeal, the court affirmed their convictions. In relation to G, the
court held that as Ns father, he was duty-bound to provide N with care, or
at least ensure that others provided such care for N; it was therefore open
to the jury to convict G of murder if the evidence established that G failed
to ensure proper care was provided to N with the necessary intent for
murder. In relation to P, the court held that although N was not Ps own
daughter, P had voluntarily undertaken to provide care for all those in the
house, including N; it was therefore open to the jury to convict P of murder
if the evidence proved that P failed to carry out that duty with the necessary
mens rea. The court concluded that sufficient evidence had been placed
before the jury to satisfy it beyond reasonable doubt that both G and P had
breached their respective duties to N, thereby causing her death, and also
that each of them had done so with the necessary intent for murder.
Assuming a duty of care is also illustrated by R v Stone and Dobinson.
77
R v Stone and Dobinson [1977] 1 QB 354

Facts
Stone, an ex-miner in his 60s, partially deaf, almost totally blind, and
with no appreciable sense of smell, lived with Dobinson, twenty-three
years younger and his housekeeper and mistress for eight years, and
his mentally retarded son. In 1972, Ss sister, Fanny, also in her 60s,
came to live with them. F was obsessed with her weight and did not
eat properly. She would often stay in her room for extended periods,
coming out to eat only when S and D went out. In early 1975, F was
found by police wandering in the streets without knowing where she
was. S and D made some attempts to contact Fs doctor but did not
otherwise seek help. Shortly afterwards, Fs health deteriorated. By July,
she was bedridden. When a neighbour helped D wash F, it was apparent
that F had not received proper care for some time. D often expressed
concern for Fs condition when she and S went out. Eventually some
efforts were made to locate a doctor, but these were unsuccessful. In
early August 1975, D found F dead in her bed. Fs condition and that
of her bed were dreadful. Medical examination revealed F had needed
urgent medical attention for some days or even weeks.
S and D were charged with manslaughter. The prosecution alleged
that S and D had undertaken the duty of caring for F, but had been
grossly negligent in performing that duty. They were convicted and
appealed inter alia on the ground that they were under no duty to care
for F.
Decision
Appeals dismissed. On the question of whether they were under a duty
to care for F, the Court of Appeal held that on the evidence S and D
had assumed a duty to care for F. The court commented (at 361):
This was not a situation analogous to the drowning stranger. They
did make efforts to care. They tried to get a doctor; they tried to
discover the previous doctor. Dobinson helped with the washing
and the provision of food. All these matters were put before the
jury The jury were entitled to find that the duty had been
assumed. They were entitled to conclude that once Fanny became
helplessly infirm [Stone and Dobinson] were obliged either
to summon help or else to care for Fanny themselves.
S and Ds failure to act, hastening Fs death, rendered them liable for

manslaughter, once it was also shown that S and D were grossly
negligent or reckless in failing to summon help or provide care for F
(see further, Chapter 10, p. 537).
78
R v Miller: A general duty to prevent harm?

In 1983, the House of Lords, in Miller, below, held that a person may, in
certain circumstances, be liable for arson, i.e. criminal damage by fire, if he
or she intentionally or recklessly fails to take reasonable steps to prevent the
possibility of damage by fire from occurring. In reaching that conclusion,
the Lords expressed themselves in a manner that may yet give rise to a
broad duty at common law to take reasonable steps to prevent harm.
R v Miller [1983] 2 AC 161

Facts
Miller, a vagrant, had taken up residence in an unoccupied house. It
was alleged that M fell asleep one night while smoking. His cigarette
fell from either his mouth or his hand on to the mattress. M allegedly
awoke, noticed that the mattress was smouldering, but did nothing to
extinguish it. Instead, M merely moved to another room occupied by a
friend and went back to sleep. The mattress subsequently burst into
flames. M and his friend were woken and rescued from the house,
which sustained damage, by firefighters.
M was charged with arson (criminal damage by fire), contrary to
sections 1(1) and (3) of the Criminal Damage Act 1971 (Hong Kong:
section 60(1)(3) of the Crimes Ordinance). At trial the Recorder directed
the jury that a person who accidentally starts a fire is under a legal
duty to put out the fire. He further directed them that Ms failure to
take any steps to put out the fire, in breach of that duty, could lead to
liability if the jury were also satisfied that M was reckless when he
became aware of the danger that his earlier accidental conduct had
created. M was convicted and sentenced to six months imprisonment.
M appealed inter alia on the grounds that the Recorder was wrong
in saying that M was under a legal duty to take steps to put out the fire
accidentally created by him and that his failure to perform this duty
could found liability. The Court of Appeal (reported at [1982] 1 QB
532) accepted this submission in part, holding that there was neither a
statutory nor a common law duty on M to take steps to put out the fire.
Ms failure to act was prima facie a mere omission. Nonetheless, in the
view of the Court of Appeal, Ms course of conduct, beginning from
the moment when he lit the cigarette until the time he moved into the
next room after noticing the smouldering mattress, could be taken
together as one act for the purposes of establishing the actus reus of
arson. Accordingly, Ms appeal was dismissed. M appealed to the House
of Lords.
79
Decision
Appeal dismissed. Having reached the conclusion that the language of
the statutory offence recklessly damaged or destroyed property
belonging to another does not either expressly or impliedly exclude
liability for damage caused by an omission or failure to act, Lord
Diplock, delivering the judgment of the Lords, went on to conclude (at
176) that there was:
no rational ground for excluding from conduct capable of giving
rise to criminal liability [for arson] conduct which consists of failing
to take measures that lie within ones power to counteract a danger
that one has oneself created, if at the time of such conduct ones
state of mind is such as constitutes a necessary ingredient of the
offence [emphasis added].
This duty would come only into effect, he accepted, once the person
creating the danger became aware of the danger. Unlike the Court of
Appeal, Lord Diplock preferred to treat Ms conduct as a breach of a
legal duty (or responsibility) to act rather than as a course of conduct;
the reason for this, he suggested, was that the duty or responsibility
theory was the easier to explain to a jury (at 179).
This duty (or responsibility) does not readily fall within any of the
established categories of common law duty, nor did the statute in question
expressly impose liability for damaging or destroying property by omission.
The scope of this formulation of liability is uncertain. In particular, it
is unclear whether it is limited to the statutory offences of criminal damage
and arson, or whether it can be generalized and applied in other factual
situations of danger, including personal injury. It would be somewhat
anomalous, it has been suggested, if the common law should choose to
recognize a duty to take reasonable steps to prevent damage to property,
but resist its application to offences against the person.
This basis of liability does not necessarily conflict with the common
laws traditional rejection of a general duty to act (i.e. take reasonable steps)
to prevent harm, since the duty in Miller is premised on the fact that the
danger was created by Ms own earlier conduct (in addition, the accused
must become aware of the danger). This requirement effectively eliminates
the stranger who merely comes upon a scene of danger and is traditionally
under no duty to prevent harm or rescue those in danger.
This duty has the potential of expanding the scope of offences such as
assault and battery, traditionally thought to require proof of an act because
of the absence of any general common law duty to prevent harm. Applying
80
Miller, a person who inadvertantly creates a risk of another suffering personal

violence (battery) or at least apprehending immediate personal violence
(assault), would be under a duty, upon becoming aware of the danger (or
perhaps that he or she created the danger), to take reasonable steps to
prevent or minimize the occurrence of that danger. If he or she intentionally
or recklessly fails to act, and personal violence or apprehension occurs,
then this would prima facie amount to assault or battery. In theory, therefore,
a person sitting with his or her foot extended, who sees another moving
distractedly in his or her direction, would arguably be under a duty to take
reasonable steps (e.g. by moving his or her foot, or verbally warning the
other person) to prevent that person from tripping and suffering harm. If
D failed to do so and the other tripped and suffered an injury, D would
prima facie be criminally liable for battery, or perhaps even assault
occasioning actual bodily harm (if the harm were sufficient).
So far, there have been few attempts to extend the duty in Miller in
this way. One illustration may be DPP v K (a minor) ([1990] 1 WLR 1067),
in which K, a schoolboy, was held to be criminally liable for occasioning
actual bodily harm when acid, taken by K from his classroom and poured
by him into a washroom hot air dryer in an attempt to conceal his possession
of it, was blown onto the face of another boy using the dryer. Prima facie,
the harm inflicted by the acid was not caused by any act of K, especially
since the immediate cause was the act of the victim activating the dryer,
but rather by his failure to take reasonable steps to prevent the acid (poured
by him into the dryer) from being blown onto a user of the hot air dryer.
However, the judgment was not expressly formulated in this manner. More
recently, there have been occasional non-committal references to Miller in
manslaughter cases (see, for example, R v Khan [1998] Crim LR 830).
State of affairs
Some offences focus on what can be called a state of affairs. The relevant
conduct in this case is effectively being in a given state. Examples of this
include being in possession of an offensive weapon (s17, Summary Offences
Ordinance (cap. 228)), being found drunk in a public place (s26(1),
Summary Offences Ordinance), and remaining in Hong Kong having entered
illegally (s38(1)(b), Immigration Ordinance, (cap. 115)). In these cases,
liability is founded not on the accused having done any specific act, but
rather on the accused having voluntarily put himself or herself into or
created or brought about the specified set of circumstances.
On occasion, an accused has been held liable for being in a particular
81
state of affairs, even though he or she was arguably not responsible for
bringing about that state. In R v Larsonneur ((1933) 24 Cr App R 74), for
example, L was convicted on a charge that she being an alien to whom
leave to land in the United Kingdom has been refused was found in the
United Kingdom (in breach of Articles 1(3)(g) and 18(1)(b) of the Aliens
Order 1920, as amended), even though she was only found in the United
Kingdom after being extradited from the Irish Free State and handed over
to English police officers who took her there.
Characterizing conduct
Having ascertained what form or forms of conduct will lead to liability for
a given offence, it is then necessary to consider whether the accused can be
proved to have conducted himself or herself in that manner. This is not
always a straightforward exercise, since conduct usually exists on a
continuum, and a particular piece of conduct may often be capable of
characterization either as an act or as an omission, depending on the needs
of the case. If, for example, proof of an act is required for a particular
offence, and conviction is thought to be merited in the case at hand, then
an act can usually be identified or created to achieve this result; if conviction
is not merited, then what would seem to be an act may be repackaged as
simply a failure to act. This is illustrated by Airedale NHS Trust v Bland
([1993] AC 789), a civil case, which considered whether doctors would be
criminally liable (for murder) if they discontinued life-sustaining medical
care.
Airedale NHS Trust v Bland [1993] AC 789
Facts
In 1989, Bland, then aged 17, was very seriously injured in a crowd
control disaster at a football match (the Hillsborough disaster). Bs
lungs were crushed and punctured, and the oxygen flow to his brain
was interrupted, causing irreversible brain damage to the cortex and
destroying all higher brain functions. Bs brain stem remained intact,
enabling his body to continue breathing by itself, but he remained in a
state of complete unawareness known as persistent vegetative state
(PVS). B was incapable of swallowing or drinking and was artificially
fed and nourished by a machine; all his natural bodily functions had to
be operated by nursing intervention. After exhaustive medical tests, it
was accepted that there was no hope of any improvement in Bs
condition or recovery. Bs doctors proposed a course of action involving
82
the discontinuation of Bs artificial feeding and further antibiotic

treatment, which would result in B starving to death within 10 to 14
days. However, there was concern that this course of action, insofar as
it involved conduct intended to result in Bs death (either because this
was the purpose of discontinuing life support, or because this was
foreseen to be the certain result of discontinuing life support), might
amount to murder, in the same way as intentionally administering a
drug to peacefully end the life of a terminally ill patient (euthanasia)
amounts to murder. Accordingly, an application was made to the court
by the Airedale NHS Trust, with the support of Bs family, for declarations
that the doctors could lawfully discontinue all life-sustaining treatment
and other medical support measures designed to keep B alive, i.e.
disconnect B from the life-support machine, and thereafter not furnish
medical treatment, except for the sole purpose of enabling B to die
peacefully and in dignity. These declarations were granted and upheld
by the Court of Appeal. The Official Solicitor (representing Bs interests)
appealed to the House of Lords.
Decision
Appeal dismissed and declarations upheld. The Lords viewed the
proposed conduct leading to Bs death discontinuing life support
and medical support as being in the nature of an omission, not an
act. Lord Goff offered the following explanation of this analysis (at 866):
It is true that it may be difficult to describe what the doctor actually
does as an omission, for example where he takes some positive
step to bring the life support to an end. But discontinuation of life
support is, for present purposes, no different from not initiating
life support in the first place. In each case, the doctor is simply
allowing his patient to die in the sense that he is desisting from
taking a step which might, in certain circumstances, prevent his
patient from dying as a result of a pre-existing condition; and as
a matter of general principle an omission such as this will not be
unlawful unless it constitutes a breach of duty to the patient
[emphasis added].
Lord Browne-Wilkinson was of the same mind (at 881):

[It was submitted] that the removal of the nasogastric tube
necessary to provide artificial feeding and the discontinuance of
the existing regime of artificial feeding constitute positive acts of
commission. I do not accept this. Apart from the act of removing
the nasogastric tube, the mere failure to do what you previously
have done is not, in any ordinary sense, to do anything positive:
on the contrary it is by definition an omission to do what you
have previously done.
83
By classifying the doctors conduct as an omission, the focus thus shifted

from whether the conduct was intended to cause Bs death, which
would be relevant were the conduct viewed as an act, to the question
of whether or not the proposed conduct breached the doctors
undoubted duties towards B; if not, then it could not lead to criminal
liability. As Lord Goff observed (at 868):
The question is not whether the doctor should take a course which
will kill his patient, or even take a course which has the effect of
accelerating his death. The question is whether the doctor should
or should not continue to provide his patient with medical
treatment or care which, if continued, will prolong his patients
life.
This question, concluded the Lords, could be answered only by

considering the nature of a doctors duty towards his or her patient.
The Lords acknowledged the sanctity of life, but also accepted that a
doctors duty is not absolute; rather, it is only to provide treatment in
the best interests of the patient. Lord Goff emphasized (at 866):
the question is not whether it is in the best interests of the
patient that he should die. The question is whether it is in the
best interests of the patient that his life should be prolonged by
the continuance of this form of medical treatment or care.
In other words, the disconnection of the life-support machine was not

the relevant conduct in determining whether the proposed course of
action was lawful or unlawful; rather, it was the proposed failure to
continue treatment by reconnecting the life-support machine and failure
to continue medical care. Would these failures be in breach of the
doctors duty towards B? In the light of the medical evidence presented
to the court the irretrievable hopelessness of Bs condition and
what Lord Goff referred to as the futility of the treatment, the Lords
concluded that the best interests of B did not justify prolonging his life
by the continued use of life support equipment and related medical
treatment (in particular by the administration of antibiotics to treat
infection).
Indeed, once it was accepted that the continuation of treatment was

not in the best interests of B, then its continuation became unlawful, since
it depended on the use of invasive techniques without the patients consent
(normally, the use of invasive techniques in an emergency without the
patients consent is justified on the basis of medical necessity). The Lords
84
acknowledged that this semantic sleight-of-hand (omission instead of act)

enabled them to answer the issue before them without fully addressing the
ethical issues underlying the case. Lord Mustill, for example, observed (at
989) that this chain of reasoning makes an unpromising start by transferring
the morally and intellectually dubious distinction between acts and
omissions into a context where the ethical foundations of the law are already
open to question. This is heightened by the realization that the same
conduct, disconnecting a life-support machine, done by someone else, for
instance a relative, would be treated differently by the criminal law. Lord
Goff offered the following explanation of the distinction (at 866):
the doctors conduct is to be differentiated from that of, for example,
an interloper who maliciously switches off a life support machine
because, although the interloper may perform exactly the same act as
the doctor who discontinues life support, his doing so constitutes
interference with the life-prolonging treatment then being administered
by the doctor. Accordingly, whereas the doctor, in discontinuing life
support, is simply allowing his patient to die of his pre-existing
condition, the interloper is actively intervening to stop the doctor
from prolonging the patients life, and such conduct cannot possibly
be categorised as an omission.
The process of reinterpreting or recategorizing conduct can sometimes

be rendered more difficult because of the need to establish concurrence or
coincidence between the actus reus and the mens rea of an offence (for
concurrence/coincidence, see below, p. 100). If, for example, an offence
requires proof of an act, but the requisite mens rea appears to have occurred
after the initial act by the accused, perhaps at a time when the accused was
apparently doing nothing, then it may be necessary to reinterpret the later
conduct as an act if coincidence is to be established; this can result in a
strained interpretation of the facts. Fagan v Metropolitan Police Commissioner
([1969] 1 QB 439), discussed more fully below (pp. 1023), illustrates this
particular difficulty. In that case, F was charged with assaulting a police
officer in the execution of his duty (contrary to section 51 of the Police Act
1964; in Hong Kong, see section 63 of the Police Force Ordinance
(cap. 232); compare section 36(b) of the Offences Against the Person
Ordinance (cap. 212)). F had driven his car onto a police officers foot,
apparently by accident, and then refused for some time to drive the car off,
intending thereby, it was alleged, to cause pain or injury to the police
officer. Ostensibly, mens rea for the offence arose only at this later stage,
when F was physically doing nothing. Since it was clear that Fs conduct
85
had inflicted personal violence on the police officer, the central question
was whether Fs conduct could amount to an assault or battery. The defence
submitted that assault and battery require proof of an act, rather than an
omission, and that F was doing nothing when he later formed the necessary
mens rea. The majority of the English Court of Appeal accepted, without
finally deciding, that assault and battery require proof of an act, but
overcame this problem by treating Fs initial accidental act, driving onto
the police officers foot, as a continuing act, so that Fs later failure
immediately to drive off the police officers foot was said to be the
continuance of that act of inflicting personal violence. By interpreting, or
straining, the facts in this way, the court was able to satisfy the need both
for an act and for coincidence between that act and mens rea.
Bland and Fagan illustrate two points. Firstly, it is always necessary to
determine what form of conduct must be proved to found liability for a
particular offence; indeed, in some cases, this may be crucial. Secondly, the
evidence establishing just what the accused did can often be analysed in
more than one way; how it will be interpreted will then depend upon the
needs and justice of the particular case.
Circumstances
The actus reus or external elements of an offence will also usually include
one or more circumstances. These are factual matters that must be proved
to have existed at the time of the alleged conduct, whether in relation to
the accused, the surroundings, the victim, or a host of other matters, and
which make the conduct criminal.
Thus, an accused may have to belong to a particular class of persons
(e.g. being male or being married), or be under or over a particular age.
His or her conduct may have to occur in a particular place (e.g. in a public
place), or at a particular time (e.g. at night), or against a particular class
of persons (e.g. a defective or a police officer acting in execution of his
duty). The victim may have to have a particular state of mind (e.g.
believing), or be shown not to have consented to the accuseds conduct
(e.g. who at the time did not consent to sexual intercourse).
All these are examples of circumstances. Where they are made elements
of an offence, it is for the prosecution to prove their existence beyond
reasonable doubt.
86
Consequences
Many offences also require proof that a particular prohibited consequence
occurred or resulted. Indeed, some offences are essentially defined in terms
of a particular prohibited consequence, and are often referred to as result
crimes. Where liability is founded on conduct (with or without
circumstances) and there is no need to prove a consequence, the offence is
commonly called a conduct offence.
Murder is a good example of a result crime. The actus reus of murder
is essentially the unlawful killing of a human being by another human
being (see Chapter 10, p. 490). The focus of the offence is thus on the
unlawful killing, rather than on any specific form of conduct. Consequently,
it does not matter what particular method of killing the accused used. It
may have involved shooting, stabbing, beating, poisoning, running down,
starving or any of the multitude of other ways devised to kill. Rather, the
essential question is: did the accused by conduct in some relevant form
cause the victims death? Of course, as already indicated, if it is alleged
that the accused failed to act and thereby contributed to or caused the
consequence, a duty to act must also be proved.
Similarly, the statutory offence of criminal damage is expressed in terms
of destroying or damaging property belonging to another, without
specifying any particular method of destroying or damaging the property.
It has been held that this general offence may be committed by act, omission
or even continuous act (Miller [1983] 2 AC 161). The crucial question in
such cases, therefore, is not whether a particular form of conduct must be
proved, but rather whether the prohibited consequence in this case, the
damage or destruction was the result of, or caused by, the accuseds
conduct.
In other cases, both a specific consequence and a particular form of
conduct may have to be proved. An example of this is the statutory offence
of arson, i.e. criminal damage by fire, contrary to section 60(3) of the Crimes
Ordinance (cap. 200).
Whenever the actus reus of an offence includes a consequence, then
the prosecution must prove that the consequence was caused by the
accuseds conduct. Failure to do so will lead to the accuseds acquittal of
the offence charged. The accused may still be criminally liable, however, of
an alternative offence not requiring proof of causation (including an attempt)
(see, for example, R v White [1910] 1 KB 124, discussed below).
87
CAUSATION
Causation in the criminal context is concerned with the legal attribution
of criminal responsibility for consequences. Criminal lawyers speak of causal
links and chains of causation, but in doing so, they are not speaking
simply of cause and effect in a physical sense. Rather, causation is concerned
with whether the accuseds conduct contributed sufficiently to the occurrence
of the prohibited consequence to justify the possibility of criminal liability
(possibility because liability will ultimately depend on the proof of other
matters including mens rea and defences).
Criminal lawyers assess causation using the notions of factual and
legal causation. These are legal concepts for a trial judge to explain to a
jury when causation is in issue. It is then for the jury (in a trial upon
indictment, or judge or magistrate in a summary trial) to decide whether
these two tests are satisfied according to the evidence.
Factual Causation
The notion of factual causation is used to ensure that the accuseds conduct
played some minimal factual role in the occurrence of the prohibited
consequence. Factual causation requires proof that the accuseds conduct
was a sine qua non of the consequence, i.e. a necessary condition. This is
usually tested by asking a negative proposition: would the consequence not
have occurred but for the accuseds conduct? Factual causation is established
if it is correct to say that the consequence would not have occurred but for
the accuseds conduct. Care needs to be taken with this test, because it
involves a double negative (not but for ). A native English speaker
would generally answer no, the consequence would not have occurred,
meaning correct, whereas a non-native English speaker is more likely to give
the reverse answer, yes, the consequence would not have occurred but for the
accuseds conduct, also meaning correct. If the consequence would have
occurred even if the accuseds conduct had not happened, then the accuseds
conduct was not a necessary condition of its occurrence, and factual
causation is not established. In this case, the accused cannot be held liable
for an offence founded on the occurrence of the consequence in question.
The but for test can be illustrated using the following facts, derived
from Pagett (discussed below, p. 92). An accused holds a hostage in front
of him as a human shield. When police officers approach him, he fires a
shot at them. The police officers, not seeing the hostage in the dark and
88
acting in self-defence, fire shots in response. These shots hit and kill the
hostage. For the accused to be criminally liable for the hostages death, it
must be shown that his acts played some role, minimal though it may be,
in the occurrence of death. We ask: Would the hostage not have died (i.e.
still be alive) but for (i.e. if not for) the accuseds conduct? The required
answer to this is correct, or no, the hostage would not have died. The
immediate cause of the hostages death is the shots fired by the police
officers, but these were fired in self-defence (assuming it was reasonable in
the circumstances and thus lawful self-defence; see Chapter 7, p. 279) in
response to the accuseds earlier shot. If the accused had not fired first, the
police officers would not have fired their weapons. But for the accuseds
conduct, the consequence would not have occurred (i.e. the hostage would
still be alive). Factual causation is thus established.
Factual causation is not usually challenged at trial. If it is, and the
prosecution fails to prove that the accuseds conduct was a factual cause of
the prohibited consequence, then the accused cannot be liable for an offence
founded on the occurrence of that consequence, although he may still be
liable for an attempted offence. This is illustrated by R v White.
R v White [1910] 1 KB 124
Facts
Whites mother was found dead at her home. A glass of lemonade
containing a small, non-fatal quantity of cyanide was found upon a
table beside her dead body. Upon medical examination, no trace of
cyanide was found in her body; it was therefore possible that she
coincidentally died of natural causes without actually drinking any of
the mixture. White, who had purchased cyanide shortly beforehand,
was charged with murder, but acquitted at trial since the prosecution
could not prove that his actions had in any way contributed to his
mothers death. He was nonetheless convicted of an attempt to murder.
Decision
Since it was not proved that the death of Ws mother would not have
occurred but for Ws act of putting cyanide in her drink, factual causation
was not established, and White was properly acquitted of murder.
However, he was properly convicted of attempted murder, even though
the amount of cyanide in the drink was in fact non-fatal (i.e. Whites
mother would not have died even if she had drunk it). The completion
or attempted completion of one of a series of acts intended to result in
killing is an attempt to murder even though the completed act will not,
unless followed by the other acts, result in killing.
89
Legal Causation
Having determined that the consequence would not have occurred but for
the accuseds conduct, criminal lawyers then ask whether the accuseds
conduct was sufficiently connected to the occurrence of the prohibited
consequence to justify exposing the accused to criminal responsibility for
its occurrence. In R v Smith ([1959] 2 QB 35), this was tested by asking
whether the accuseds conduct was an operating and substantial cause of
the consequence at the time it occurred. As with factual causation, legal
causation operates negatively: it excludes the accuseds conduct only if it
was trivial in its contribution to the occurrence of the consequence in
question. Substantial thus essentially means not trivial.
Legal causation may be established even though the accuseds conduct
was not the only operating or effective cause of the consequence. Legal
causation merely requires that the accuseds conduct was an operating and
substantial cause. There may therefore be two or more legal causes of the
same consequence. Suppose, for instance, that three persons simultaneously
stab V, who subsequently dies from blood loss. In the eyes of the criminal
law, each of the three persons can be held to have caused the consequence
(death) since the conduct of each (stabbing V) led to blood loss and was
thus an operating, substantial and effective cause of the deceaseds death.
Each may therefore be criminally liable for manslaughter or murder, subject
to proof of all the other elements of criminal liability including mens rea
and defences.
Novus actus interveniens
The assessment of legal causation is often complicated by the need to
consider whether something that happened after the accuseds conduct
an intervening factor should be viewed as the cause of the consequence,
to the exclusion of the accuseds conduct. Assume, for example, that V,
while walking to a medical clinic after being injured by D, is struck by
lightning and dies instantly. Although V would not have been in that exact
spot at that precise time, and therefore would not have died but for Ds
conduct (so there is factual causation), it is easy to see that Ds conduct
cannot sensibly be said to have been an operating, substantial and effective
cause of Vs death: V did not die of the injuries inflicted upon him by D
(or from the consequential effects of those injuries, including the effect of
medical treatment). Consequently, D cannot be held liable for causing Vs
death (although D could of course be liable for assaulting or wounding V,
90
or even for attempted murder, depending on the exact nature of the wound
inflicted and the mens rea that could be proved against D).
Criminal lawyers call an intervening factor that breaks the chain of
causation between the accused and the consequence a novus actus
interveniens. As such, it is a legal term of art. To say an intervening factor
is a novus actus interveniens is to assert that it breaks the chain of causation.
Intervening factors may be either human or non-human and may take
many forms. Not every intervening factor will amount to a novus actus
interveniens. If, for example, one of the three assailants mentioned above
were to stab the victim after the other two, this would not necessarily make
his or her act the cause of death in the eyes of the criminal law to the
exclusion of the other two. If the cause of death were the same, namely blood
loss, it would still be possible to say that the earlier wounds inflicted by
the two assailants were also operating, substantial and effective causes of
death. This would therefore expose all three assailants to the possibility of
criminal liability. However, suppose the third assailant shot the victim in
the head at point blank range, instantly causing death. Death could more
readily be said to have been caused by this later conduct to the exclusion
of the injuries inflicted by the other two. In that case, it would amount to a
novus actus interveniens, and the earlier two could not be convicted of an
offence founded on causing the victims death (but they might be liable for
assault, or wounding, or even attempted murder, provided that the other
elements of these offences, particularly mens rea, were proved).
Deciding whether an accuseds conduct is an operating, substantial
and effective cause of the consequence, or whether there is an intervening
factor breaking the chain of causation (i.e. a novus actus interveniens), is
effectively the same question. They are opposite sides of the same coin; to
answer one is to answer the other. If there is a novus actus interveniens, this
means the accuseds conduct is not a legal cause of the consequence;
similarly, if the accuseds conduct is found to be a legal cause of the
consequence, then this means there is no intervening factor treated as
breaking the chain of causation.
For an intervening factor to be viewed by criminal lawyers as a novus
actus interveniens, it must generally be shown to be entirely independent of
the accused and his or her conduct. In the case of intervening factors
involving human conduct, it must also generally be shown that the
intervening conduct is voluntary (i.e. free, deliberate and informed; see R
v Pagett (1983) 76 Cr App R 279). These two general requirements
independent and voluntary are reflected in several more specific tests
found in the case law.
91
Naturally occurring events

Events naturally and predictably occurring as a result of the accuseds
conduct will not generally be treated as breaking the chain of causation.
Suppose, for example, the accused renders a victim unconscious and leaves
him on a beach below the high water mark. The tide comes in before the
victim recovers consciousness, and the victim consequently drowns.
Although death is caused by drowning and not any injury inflicted by the
accused, this intervening event will not amount to a novus actus interveniens.
Unlike the unpredictable lightning strike considered above, the in-coming
tide is a naturally occurring, predictable event, and its effect drowning
can therefore be said to follow naturally from the accuseds conduct.
Another illustration would be where the accused locked the victim outside
in a snowstorm without protective clothing, and the victim froze to death.
Reasonably foreseeable events
Another way of expressing the same idea employs the notion of reasonable
foresight if the occurrence of the intervening factor was reasonably
foreseeable by the accused at the time of his or her conduct, then it will not
break the chain of causation. This is an objective test; it does not require proof
the accused himself or herself actually foresaw the possible occurrence of the
intervening factor. This approach to causation is commonly used, as the
following case illustrates, in relation to intervening acts of the victim; in
general, these will not amount to a novus actus interveniens.
R v Roberts (1971) 56 Cr App R 95
Facts
Roberts gave a young woman a lift in his car late at night. She suffered
injuries when she jumped from the moving car. She alleged that she
had jumped to escape from Roberts who had indecently assaulted and
threatened her in the car. Roberts admitted they had argued, but denied
assaulting or threatening her. He was acquitted of indecent assault, but
convicted of assault occasioning actual bodily harm (contrary to section
47 of the Offences Against the Person Act 1861; in Hong Kong, section
39 of the Offences Against the Person Ordinance (cap. 212)).
Roberts appealed inter alia on the ground that he could only be
liable for the injuries suffered by the victim if they were caused by his
conduct; he argued that this would be so only if he had foreseen she
might jump as a result of his actions.
92
Decision
Appeal dismissed. The correct test was whether the victims act was
the natural result of what Roberts said and did, in the sense that it was
something that could reasonably have been foreseen as the consequence
of what he was saying or doing. He could escape liability only if the
victims act was so unexpected that no reasonable person could foresee
it; if that were so, then the injuries would have been caused by a
voluntary act on the part of the victim, and this would break the chain
of causation. On the evidence, this was not so.
In assessing whether an intervening act is or was reasonably foreseeable,

it is not necessary to atttribute characteristics of the accused (including age
and sex) to the reasonable person (Marjoram [2000] Crim LR 372).
This test can also be applied to the intervening acts of third parties, as
the following case illustrates.
R v Pagett (1983) 76 Cr App R 279
Facts
Pagett was involved with a girl, Gail, aged 16. Although six months
pregnant to him, G left P and returned to live with her parents. P
appeared one evening at the house of Gs parents with a loaded shotgun.
He fired it twice at Gs father, injuring him. P then forced Gs mother
into his car and made her take him to G. After assaulting both Gs
mother and G, P forced them into his car and drove them to his
apartment block. He let the mother go, but retreated into his first floor
apartment with G. Police officers who had been called to the scene
tried unsuccessfully to speak with P. After various incidents, some
involving shots, P began climbing the stairs towards two armed police
officers situated on an upper floor, holding G in front of him. In the
dark was not clearly visible. P allegedly threatened and then fired a
shot at the police officers, who returned fire. Their shots struck G who
was killed. P was charged with murdering G.
At trial, P was acquitted of murder but convicted of manslaughter.
On appeal, he argued that the police officers acts, allegedly performed
in the line of duty or in self-defence, broke the chain of causation
between his act and Gs death.
Decision
Appeal dismissed. There was no rule in English law that a person could
not be convicted of homicide unless either he or she or another person
acting in concert with him or her fired the shot (or struck the blow,
93
etc.) which was the immediate cause of death. If a reasonable act of

self-preservation (including an act of self-defence against an act of the
accused), or an act done in performance of a legal duty, causes the
death of a third party, that act, being non-voluntary conduct caused by
the act of the accused, will not relieve the accused from criminal
responsibility for the death of the third party. The intervening acts of
the police officers did not amount to a novus actus interveniens.
Take your victim as you find him or her

In general, an accused cannot point to some peculiarity or vulnerable
characteristic of the victim and say it was that peculiarity or characteristic
that caused the prohibited consequence. For example, the fact a victim of
a robbery has a weak heart and dies from a heart attack induced by shock
when confronted by the robber will not amount to a novus actus interveniens
so as to negate legal causation between the robbers conduct and the death
(liability will still depend upon proof of all the other elements of an offence
founded on death, and in particular mens rea; see, for example, R v Dawson
(1985) 81 Cr App R 1500).
The victim in this context means the whole person; peculiarity
includes not only physical characteristics, but also mental, emotional and
spiritual characteristics. This is illustrated by the following case.
R v Blaue [1975] 1 WLR 1411
Facts
Blaue was alleged to have stabbed an 18-year-old female four times.
Each wound was serious, but one in particular pierced her lung. By the
time the victim was taken to hospital, she had already lost a lot of
blood. She was told that surgery was required but she would first need
a blood transfusion. The victim was a Jehovahs Witness and, in
accordance with her religious beliefs, refused to have a blood
transfusion. She died the next day, as a result of blood loss and internal
bleeding. It was accepted that had she had a blood transfusion and
undergone surgery, she would not have died.
B was charged inter alia with murder; he was convicted of
manslaughter by reason of diminished responsibility. He appealed inter
alia on the ground that the victims refusal to have a blood transfusion
was unreasonable and broke the chain of causation between his acts
and her death.
94
Decision
B was properly convicted of manslaughter. Although the victims refusal
to have a blood transfusion was a cause of death, the injuries inflicted
upon her by the accused remained an operating or substantial cause of
her death. It was not open to B to assert that the victims refusal to
have a blood transfusion broke the chain of causation, as the following
excerpt states (at 1415, per Lawton LJ):
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, not just the physical man. It
does not lie in the mouth of the assailant to say that his victims
religious beliefs which inhibited him from accepting certain kinds
of treatment were unreasonable. The question for decision is what
caused her death. The answer is the stab wound. The fact that the
victim refused to stop this end coming about did not break the
causal connection between the act and death.
Blaue also reaffirmed the long-held rule that a victims failure to seek
or follow medical treatment or advice will not in general be treated as a
novus actus interveniens (applying R v Holland (1841) 2 Mood and R 351).
This is so even where the victims refusal or failure to obtain treatment
may have been unreasonable in the circumstances, as was recently affirmed
by the English Court of Appeal in Dear ([1996] Crim LR 595). Dear, who
had been convicted of murder, argued on appeal that the deceased, whom
D had attacked with a knife in the belief that the victim had sexually
assaulted Ds 12-year-old daughter, had deliberately caused his own death
(i.e. had committed suicide) by reopening the knife wounds inflicted on
him by D, or by unreasonably failing to take steps to staunch the blood
flow from a reopened artery (severed during Ds attack on him); if this
were so, it was argued, then there was a novus actus interveniens. Affirming
Ds conviction of murder, the Court of Appeal held, applying Smith and
Cheshire, that it was sufficient for the purpose of proving causation for the
prosecution to establish that that the injuries inflicted by D were an
operating and significant cause of the victims death. Not only was it not
relevant that the victim may have acted unreasonably, but there was also
no justification for introducing a test based instead on whether the victim
had treated himself negligently, or grossly negligently (with only the latter
amounting to a novus actus interveniens).
95
Improper or negligent medical treatment

Sometimes an injured or wounded person receives inadequate, improper
or even negligent medical treatment. Can an accused person point to this
fact and argue that the improper or negligent treatment amounts to a novus
actus interveniens? Generally, the answer is no. Medical treatment (even
negligent medical treatment), necessitated or administered as a result of
the accuseds infliction of injuries upon the victim, will not break the chain
of causation, so long as the accuseds conduct remains an operating, effective
and substantial cause of death. This approach was adopted in R v Smith in
1959.
R v Smith [1959] 2 QB 35
Facts
Smith, a soldier, allegedly used a bayonet to stab several soldiers from
another regiment during a barrack-room fight. One of the injured was
stabbed twice, once in the arm and once in the back. The wound in
the back pierced his lung and caused internal bleeding. On the way to
the medical station, the injured soldier was dropped several times. Once
there, he was examined hastily by the medical officer on duty who
unfortunately failed to appreciate the seriousness of the injuries and
prescribed a treatment which in fact aggravated the soldiers condition.
The soldier died. There was medical evidence that the soldier may not
have died if a different treatment had been given or if blood transfusion
facilities had been available (it was said that his chances of recovery
were as high as 75 percent).
Smith was charged with and convicted of murder. Smith appealed
inter alia on the ground that causation was not established.
Decision
Appeal dismissed. On causation, the Court ruled (at 423):
[I]f at the time of death the original wound is still an operating
and a substantial cause, then the death can properly be said to be
the result of the wound, albeit that some other cause of death is
also operating. Only if it can be said that the original wounding is
merely the setting in which another cause operates can it be said
that the death does not result from the wound. Putting it another
way, only if the second cause is so overwhelming as to make the
original wound merely part of the history can it be said that the
death does not flow from the wound.
96
In R v Jordan ((1956) 40 Cr App R 152), a few years earlier, also

involving a soldier wounded in a fight, the court exceptionally quashed a
conviction because causation may not have been established. In that case,
evidence of medical maltreatment had not been presented at trial. Had it
been, the jury might have felt precluded from finding that J caused the
victims death, since the evidence established that the deceased had more
or less fully recovered from his injuries. His death was alleged to have been
caused by hospital staff administering drugs known to cause an allergic
reaction in the deceased, and intravenously introducing abnormally large
quantities of liquid. These actions were described (at 157) as palpably
wrong. In Smith, above, it was said that Jordan was a very particular case
depending on its exact facts.
The principles laid down in Smith have generally been applied in
subsequent medical treatment cases. In R v Malcherek, R v Steel ([1981] 1
WLR 690), for example, they were applied to the termination of a lifesupport machine.
R v Malcherek, R v Steel [1981] 1 WLR 690
Facts
Steel allegedly attacked a 20-year-old female, battering her about the
head with a 50 lb stone, thereby causing multiple fractures of her skull
and severe brain damage, as well as other injuries. He allegedly left
her unconscious in a field by the road. When discovered, the victim
was taken to hospital where she was immediately placed on a lifesupport machine (a ventilator). Two days later, after a series of tests,
her doctors concluded that her brain had ceased to function (known as
brain death). The ventilator, effectively operating on a lifeless body,
was switched off and all bodily functions ceased shortly afterwards.
S was charged with murder. At trial, causation was challenged, on
the basis that the full battery of tests normally conducted before a lifesupport machine is switched off had not been conducted (i.e. it was
alleged that the cause of death may have been the action of the medical
team in switching off the life-support machine). However, the trial judge
withdrew causation as an issue from the jury. S was convicted.
In the other case, Malcherek allegedly quarrelled with his estranged
wife and then stabbed her nine times with a kitchen knife, one wound
deeply penetrating her abdomen, causing internal blood loss. She was
taken to hospital and operated on. She was expected to survive, but
subsequently suffered a massive pulmonary embolism (blood clot). She
was resuscitated and transferred for emergency treatment but deteriorated
97
several hours later. At one point, her heart stopped. She was operated
on, and a blood clot some 12 inches long was removed from her heart,
which thereupon started spontaneously. She was placed on a ventilator,
but subsequent tests showed she had suffered severe brain damage as
a result of oxygen deprivation during the 30 minutes or so when her
heart had stopped beating. Several days later, she was taken off the
ventilator, and for a while breathed adequately by herself, but she then
deteriorated and was placed back on the ventilator. After further tests
showed she had suffered irreversible brain damage, she was again
disconnected from the ventilator. She was certified dead shortly
afterwards.
M was charged with her murder. At trial, the judge similarly
withdrew the issue of causation from the jury. M was convicted.
Steel and Malcherek separately appealed against their convictions
on the ground inter alia that causation should have been left to the
jury. The appeals were consolidated.
Decision
Appeals dismissed. In each case, the initial assault caused injuries
needing medical treatment. The medical treatment given was normal
and conventional. Applying the test in Smith, there was no evidence
that at the time of conventional death (i.e. when all bodily functions,
including breathing, heart beat and brain function, came to an end
after the life-support machines were disconnected), the original wound
or injury was other than a continuing, operating and indeed substantial
cause of the death of the victim. In the ordinary case of treatment given
bona fide by competent and careful medical practitioners, evidence is
not admissible to show that the treatment would not have been
administered in the same way by other medical practitioners. The fact
that the victim died, despite or because of medical treatment for the
initial injury given by careful and skilled medical practitioners, will not
exonerate the original assailant from responsibility for the death. Further,
the discontinuance of treatment by a medical practitioner who, adopting
methods which are generally accepted, bona fide and conscientiously
reaches the conclusion that the patient is for practical purposes dead,
and that vital functions are only being maintained by mechanical means,
does not break the chain of causation between the initial injury and
the death.
The principles in Smith and Malcherek and Steel were reaffirmed and
applied in R v Cheshire (see also Mellor [1996] Crim LR 743).
98
R v Cheshire [1991] 1 WLR 844

Facts
Cheshire shot the deceased, V, twice, once in the thigh and once in
the stomach. Both bullets caused extensive injuries. V was taken to
hospital and operated on. He was then transferred to the intensive care
unit. Subsequently, V developed respiratory problems. A tube, connected
to a ventilator, was placed in his windpipe. A week later, this tube was
replaced by a tracheotomy tube. Four weeks later, Vs condition
deteriorated, and further abdominal surgery was carried out. Some six
weeks later, Vs condition had begun to improve, although he continued
to suffer respiratory problems. V was attended by various doctors who
formed the view that his respiratory problems might be caused by
anxiety. Two weeks later, V complained of further difficulty with his
breathing. He was attended by a newly qualified house surgeon who
observed his breathing difficulties for some time. When Vs condition
suddenly deteriorated, emergency measures were taken, but the
deceased died.
At the post-mortem, it was discovered that Vs windpipe had
become obstructed due to a narrowing near the site of the tracheotomy
scar, leading to asphyxiation. There was evidence that this was a rare
but not unknown complication of intubation of the windpipe. The
immediate cause of death was recorded as cardio-respiratory arrest.
Cheshire was charged with murder. Medical evidence was adduced
on his behalf to the effect that a week before his death, Vs thigh and
stomach wounds were no longer life-threatening and that Vs chances
of survival were good. The trial judge directed the jury that only
recklessness on the part of the doctors (in the sense of their not caring
for the deceaseds safety and comfort) could make their failure to
diagnose the cause of the deceaseds breathing difficulties a novus actus
interveniens. C was convicted. He appealed on the ground that the
trial judge had misdirected the jury on causation.
Decision
Appeal dismissed. Affirming Smith and Malcherek and Steel, the court
held that when a victim of a criminal attack is treated for wounds or
injuries by doctors or other medical staff attempting to repair harm
done to the victim, it will be only in the most extraordinary and unusual
circumstances that the treatment will be considered so independent of
the acts of the accused as to be regarded in law as the cause of the
victims death to the exclusion of the accuseds acts. In the normal
course, it will be sufficient for a judge to direct a jury that the conduct
of the accused must be proved by the prosecution to have caused the
99
death of the deceased, adding that the accuseds acts need not be the
sole cause or even the main cause of death, it being sufficient that his
or her acts contributed significantly to that result. Intervening medical
treatment could be regarded as excluding the responsibility of the
accused only if:
[it] was so independent of [Ds] acts, and in itself so potent in
causing death, that [the jury] regard the contribution made by
[Ds] acts as insignificant.
This approach has also been applied to the case of doctors deciding
not to carry out or administer medical procedures or treatment required to
deal with a pre-existing condition, because of complications resulting from
injuries inflicted on the victim by the accused. In McKechnie ([1992] Crim
LR 194), M inflicted head injuries on K. In hospital, it was discovered that
K was suffering from a duodenal ulcer which required an operation. Ks
doctors decided it was unsafe to operate on K while he was suffering from
the head injuries. Some five weeks later, while still recovering from the
head injuries, Ks ulcer burst, causing his death. M was convicted of murder,
it being affirmed on appeal that the decision not to operate immediately on
the ulcer did not amount to a novus actus interveniens.
The application of these principles in Hong Kong was considered in
Wong Tat Chuen ([1997] HKLRD 433). Responding to a submission that
the victims death was caused not by Ws conduct in striking the victim
about the head allegedly to knock her unconscious, but by the conduct of
an accomplice, allegedly going beyond the scope of the agreed enterprise,
Nazareth VP, for the Court of Appeal, cited (at 43a) with approval the
following two passages from Archbold (1997):
(para 196) In homicide cases, it is rarely necessary to give the jury
any direction on causation as such. When such direction is needed,
they should be told that in law it is enough that the accuseds act
contributed significantly to the death; it need not be the sole or
principal cause thereof.
And, on the issue of medical treatment:

(para 1912) It is not the function of the jury to evaluate competing
causes or to choose which is the dominant provided they are satisfied
that the accuseds acts can fairly be said to have made a contribution
to the victims death, significant meaning a contribution which is
more than negligible.
100
Quoting from Cheshire, Nazareth VP added (at 439):

[It was] pointed out that the foregoing was all said in relation to
medical treatment as the cause of death. Nonetheless, it seems to us
that in principle it must apply equally to the circumstances in this
appeal, in particular regard to the tenuous nature of the contributory
cause of death claimed to have resulted from Ah Fais blows.
Although improper or negligent medical treatment will not generally

amount to a novus actus interveniens so as to relieve the accused of liability,
this does not necessarily mean that the accused is the only party who may
be held criminally liable. There also exists the possibility of criminal liability
on the part of those administering improper or negligent treatment if their
acts can also be said to be a legal cause of the death, and if all the other
elements of liability and in particular fault, generally in the form of
gross negligence can be proved.
CONCURRENCE/COINCIDENCE OF ACTUS REUS AND MENS

REA
Where an offence requires proof of mens rea, then the prosecution must
also prove that the accused had the relevant state of mind constituting
mens rea for that offence concurrently with, i.e. at the same time as, his or
her relevant conduct. This requirement is known as concurrence or
coincidence or contemporaneity. It means, for instance, that a person
should not be criminally liable for murder if he or she only forms the
intention to kill or cause grievous bodily harm after he or she has already
accidentally injured V in a traffic accident. The fact that D, upon realizing
it is V, expresses the hope that V dies will not make D liable for murder if
V does subsequently die from the injuries, unless D does some further act
(or perhaps omission) accelerating Vs death with that state of mind.
However, the criminal courts have not always demanded strict
concurrence, often allowing a degree of elasticity in identifying the manner
and time frame within which actus reus and mens rea occur so as to satisfy
the need for concurrence.
101
Where D Changes His or Her Mind Before a Chain of Events

Reaches its Conclusion
On occasion, an alleged offender may set a chain of events into motion
with mens rea, but change his or her mind or repent before the chain of
events reaches its natural conclusion, normally the occurrence of some
consequence. So long as mens rea exists when the actus reus commences,
the alleged offender will not escape criminal liability for causing the
consequence merely because of his or her later change of heart or mind.
Suppose, for instance, D poisons V with the intention of killing V. V survives
for a time. Before Vs eventual death, D repents and prays, unsuccessfully,
that V will recover. Since D had the necessary mens rea for murder when
D poisoned V and thereby started the chain of events leading to Vs
subsequent death, concurrence is established, even though D subsequently
changed his mind.
Thus, in Jakeman ((1982) 76 Cr App R 223), J was criminally liable for
importing illegal substances into England when suitcases containing such
substances arrived in London, having been previously checked in by J for
a flight to London via Rome. The flight was diverted to Paris where the
suitcases were offloaded. J left the suitcases in Paris, but customs officials
there assumed the suitcases were misrouted and sent them on to London.
J alleged she had abandoned the suitcases in Paris and therefore did not
intend them and their contents to be imported into England. The court
rejected this argument, stating that J had a guilty mind when she booked
her luggage to London. By that act, she brought about the importation
through the instrumentation of innocent agents. There was no necessity,
in the view of Wood J, for that guilty mind to subsist at the time of
importation.
Where D Forms Mens Rea After Initiating Conduct

Continuing conduct
Some forms of conduct can be treated as continuing in nature. If D lacks
the necessary mens rea for an offence based on that conduct when the
conduct begins, concurrence may still in some cases be established by
showing that D later forms the requisite state of mind during the continuance
of the conduct, before it ends. Rape, for example, involves sexual intercourse.
It has been held that sexual intercourse is a form of continuing conduct
102
(Kaitamaki [1985] AC 147, PC on appeal from the NZCA). If D commences

sexual intercourse (i.e. penetrates), believing the female is consenting, but
then realizes while penetration continues that consent is absent, it may
amount to rape if D continues the act of sexual intercourse.
Where act occurs before mens rea
Where the conduct element of an offence involves the commission of an
act, and the necessary mens rea arises only after the commission of the act
when D is ostensibly doing nothing, then a problem of concurrence arises.
In this context, the courts have found creative ways of establishing
concurrence when a strict application of actus reus and mens rea might
initially dictate against this. This includes treating the initial act as a
continuing act, treating the initial act and the later mere omission (i.e.
not per se a breach of duty) as a course of conduct, and treating the
subsequent failure to act as a breach of duty.
The first of these, treating the act as a continuing act, is illustrated by
the decision of the English Divisional Court in Fagan.
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439s

Facts
A police officer, who had observed Fagan driving and wished to question
him, directed F to park his car at a precise spot against the kerb. F did
as directed, resulting in one of his cars wheels stopping on the police
officers foot. The police officer asked F several times to Get off my
foot! F allegedly swore and told him to wait, and then switched off the
engine. After a delay, F reversed the car off the police officers foot.
F was charged with assaulting a police officer in the execution of
his duty (contrary to section 51 of the Police Act 1964; Hong Kong,
section 63 of the Police Force Ordinance (cap. 232); compare section
36(b) of the Offences Against the Person Ordinance (cap. 212)). At
trial, the justices concluded that although F was not proved to have
intentionally driven his car onto the police officers foot, it was proved
that he knowingly, provocatively and unnecessarily allowed the wheel
to remain there. On that basis, F was convicted.
F appealed on the ground that his failure to remove the car from
the police officers foot could not be an assault at law, for assault and
battery required proof of an act. The respondent argued that Fs conduct
amounted to a continuing act; alternatively, F was under a duty to act.
103
Decision
Appeal dismissed. The Court accepted that the offence of assault,
meaning assault or battery, requires proof of an intentional act (the
Court left open the possibility that a reckless act would also suffice;
this has since been accepted, see Chapter 11, p. 554) causing another
person to apprehend immediate and unlawful personal violence or, as
in this case, to suffer the actual infliction of unlawful personal violence,
in either case without his or her consent. A mere omission to act could
not as such amount to an assault or battery (the Court left open the
question of whether a duty to act could at law be said to have arisen
on the facts).
Turning to the facts, in the view of the majority, Fs conduct
involved a continuing act and not a mere omission or inactivity. Fs
act began when he drove his car onto the police officers foot, albeit
unintentionally, and continued during the time that F remained seated
in his car, switched off the ignition, thereby keeping the wheel pressing
on the foot, and used words indicating his intention of keeping the
wheel in that position. This continuing act constituted the actus reus
of battery, becoming criminal at the moment when F formed the
necessary intention to cause apprehension or personal violence. Actus
reus (the continuing act) and mens rea (intention) thus coincided.
The dissenting judge concluded that Fs conduct after driving onto
the police officers foot could not be viewed in this way as a continuing
act; accordingly, in his view, no actus reus was proved.
In other words, having committed itself as a matter of law to the position

that assault and battery require an act, it was then necessary for the court
to be satisfied on the evidence that Fagan committed an act. The majority
held he did; the dissenting judge held he did not.
Commentators have criticized the majoritys view of Fagans conduct
as unreal and artificial. An analogy drawn by the majority to keeping a
stick pressed against a person is unsatisfactory, since F did not have to
physically exert himself in any way to keep the car on the officers foot,
unlike a person pressing a stick against another.
The second approach, course of conduct, was adopted by the English
Court of Appeal in Miller ([1982] 1 QB 532; discussed above, p. 78), in
which M was convicted of arson (criminal damage by fire) for failing to
take any steps to extinguish a fire accidentally (i.e. unintentionally) started
by him. Like Fagans conduct, Ms conduct involved an initial act followed
by an omission. Instead of treating the later failure to act as a continuance
of the earlier act, the court in Miller preferred to view Ms conduct as a
104
whole. An unintentional act followed by an intentional omission to rectify

that act or its consequences could, suggested May LJ (at 540), be regarded
in toto as an intentional act.
The third approach, the duty theory, was espoused by the House of
Lords on appeal in R v Miller ([1983] 2 AC 161). According to this approach,
a later failure to act may be treated as a breach of a duty to act arising out
of the earlier act. That being so, Ms subsequently occurring mens rea could
be said to have coincided with his subsequent failure to act, that failure
being a breach of this duty. Acknowledging that different interpretations
are available, Lord Diplock concluded (at 1789):
When applied to cases where a person has unknowingly done an act
which sets in train events that, when he becomes aware of them,
present an obvious risk that property belonging to another will be
damaged, both theories [i.e. continuous act and duty] lead to an
identical result; since what your Lordships are concerned with is
to give guidance to trial judges in their task of summing up to juries,
I would for this purpose adopt the duty theory as being the easier to
explain to a jury; though I would commend the use of the word
responsibility, rather than duty which is more appropriate to civil
than to criminal law since it suggests an obligation owed to another
person whereas a criminal statute defines combinations of conduct
and state of mind which render a person liable to punishment by the
state itself.
If Miller is taken to have laid down a general proposition that there is

a duty or responsibility to act whenever a person becomes aware that he
or she has accidentally created a danger (and is not limited to criminal
damage; see above, p. 79), then Fagans conviction could be alternatively
justified on the basis that F committed a battery when he intentionally or
recklessly failed, in breach of duty, to take reasonable steps to remove the
danger to the police officer created by his earlier accidental conduct.
These three ways of explaining similar facts can be illustrated as follows:
105
Fagan
act
> causing injury

actus reus
mens rea
intention to cause
unlawful personal
violence
Miller
[CA]
act
plus
omission
Intentional act
> causing damage

actus reus
[HL]
act creating
> duty
>
beach of duty by
failure to act
> causing damage
actus reus
mens rea
recklessness
Figure 3.2 Characterizing conduct
Exceptions for Murder/Manslaughter Where Mens Rea

Occurs Before the Immediately Relevant Conduct
Series of acts
A further variation of concurrence has been recognized in a line of cases
dealing with murder and manslaughter in which D is alleged to have done
an act with the mens rea of murder or with the necessary fault for
manslaughter, i.e. gross negligence or constructive manslaughter, but
evidence establishes that Ds act did not actually kill the victim. Instead,
mistakenly believing V to be already dead, D does a further act or acts for
the purpose of concealing his or her earlier conduct, for instance, throwing
the corpse into a river; the evidence establishes that this act actually caused
106
the victims death. Unlike Fagan and Miller, above, where there was an act
followed by an omission, Ds conduct here consists of two separate acts.
Prima facie, the later of these two acts is the one causing death and
constitutes the actus reus of murder or manslaughter. However, since D
believed the victim was already dead, he or she did not intend that later
act to kill or cause grievous bodily harm to V, and therefore appears to
lack the necessary mens rea for murder. Furthermore, although mens rea
was present at the time of Ds initial act, that act did not cause death, i.e.
it does not amount to the actus reus of murder. Seemingly, at no point are
the actus reus and mens rea of murder both present. Ostensibly, D might
be liable for attempted murder in relation to the initial act, or possibly
manslaughter in relation to the later act, if Ds belief that V was already
dead was made in a grossly negligent or perhaps reckless manner, but not
murder.
The courts have overcome this concurrence problem by treating the
initial act and the subsequent conduct as a linked series of acts; so long as
the necessary mens rea exists at some point during the series of acts, then
D may still be convicted of murder. This approach was adopted by the
Privy Council in Thabo Meli v R ([1954] 1 WLR 288), in which the accused
plotted to kill the victim, V, inside a hut and then roll his corpse over a
cliff to give the appearance of accidental death. Having attacked the victim
as planned, and believing him to be dead, the accused then pushed him
down the cliff. Medical evidence established that V was still alive when he
was rolled down the cliff, and in fact died from exposure, i.e. being left out
in the cold night air in an injured state. The Privy Council concluded that
the accused were properly convicted of murder, Lord Reid observing (at
230) that it was:
impossible to divide up what was really one series of acts in this way.
There is no doubt that the accused set out to do all these acts in order
to achieve their plan and as parts of their plan; and it is too refined
a ground of judgment to say that, because they were under a
misapprehension at one stage and thought that their guilty purpose
had been achieved before in fact it was achieved, therefore they are to
escape the penalties of the law.
The rule laid down in Thabo Meli could have been limited to cases in
which the two acts are part of a preconceived plan, but this limitation has
subsequently been rejected. In Church ([1966] 1QB 59), the English Court
of Criminal Appeal applied Thabo Meli to a charge of manslaughter even
though Cs later act causing death (throwing the victim into a river) was
107
not part of a plan, nor even contemplated by C at the time of his initial act
(beating the victim) done with the necessary mens rea for manslaughter. It
was further approved in Le Brun ([1991] 4 All ER 673). In this case B
spontaneously struck his wife about the head during an argument while
walking home one night, rendering her unconscious (clearly, he acted with
sufficient mens rea for involuntary manslaughter). Reacting to the scene,
he tried to drag her away, but dropped her (arguably lacking sufficient
mens rea for manslaughter by that act alone). She hit her head on the
pavement, causing a fracture of her skull from which she later died. Applying
Church, the court held that the initial non-fatal act (done with mens rea)
and the later act actually causing death (done without mens rea) could be
treated as parts of the same series of events, even though there was an
appreciable interval of time between the two. If a link between the two acts
were needed to bring this principle into play, the court found this link in
the fact that Bs subsequent actions, which caused death, were designed to
conceal his commission of the original assault.
Hong Kong courts have also adopted this approach. In R v Hui Yiu-fai
([1993] 1 HKC 223), H was convicted of murder, based on the application
of the rule in Thabo Meli. In this case, H, together with others, was alleged
to have kidnapped the victim. On the following day, V was strangled,
allegedly by H, and thrown into a car boot. The car was driven for about
ten minutes to the sea where V was thrown in with body-building weights
tied to his body. The cause of death was subsequently established to have
been drowning, i.e. V was still alive when he was thrown into the sea. On
appeal, H argued that the trial judge had wrongly directed the jury to treat
the initial strangulation and subsequent act of throwing V into the sea as
part of the same sequence of events. Thabo Meli should not apply where
ten minutes had passed between the two acts, the later act merely concealed
Hs earlier act, and there was no preconceived plan. Dismissing the appeal,
the Court of Appeal held that Thabo Meli applied even if there had been no
preconceived plan and, following Le Brun, that the time lapse between the
two acts was immaterial in law (see also HKSAR v Lam Chun Wah [1999]
2 HKC 731).
It is possible that these principles apply to offences other than murder
and manslaughter, but this has yet to be clearly tested in the courts.
An alternative way of explaining these cases is to treat the issue as one
of causation, not concurrence. As long as the subsequent fatal conduct can
be said to follow in a chain of events from the initial act, then the
consequential death may be said to have been caused by Ds conduct. If
the necessary mens rea accompanies the initial act, then liability for causing
108
death with mens rea may arise. Such an approach could have been used in
A-Gs Ref (No. 4 of 1980) ([1981] 1 WLR 705), in which D was charged
with manslaughter. In this case, D was alleged to have pushed V downstairs
and then, thinking that V was dead, tied a rope around her neck and dragged
her back upstairs. He then cut her throat preparatory to dismembering her
body. One of these acts caused death, but it was impossible to prove which
it was. Nonetheless, the English Court of Appeal held that for the purposes
of involuntary manslaughter, D may still be convicted if the prosecution
established that each act was accompanied by a sufficient state of mind or
fault element for that offence. If, however, it could not be proved that D
acted with a sufficient state of mind for manslaughter at each step, then it
was said that the jury should acquit of manslaughter. This was arguably
too favourable to the accused. Following Church and Le Brun, if mens rea
accompanied the initial act, then it should have been open to the jury to
treat the subsequent acts as part of a series of acts, and convict him
accordingly, regardless of whether mens rea accompanied the later acts.
Dutch courage
Another minor concurrence problem arises where D forms the intention to
kill, or commit some other offence requiring proof of intention, and then,
to give himself or herself courage to carry out the intention (so-called
Dutch courage), D becomes intoxicated. If D carries out the offence, and
then argues that he or she was intoxicated at the time of the offence and
might have lacked the necessary intention, the courts may treat this as a
concurrence issue and coincide Ds earlier mens rea with Ds later conduct.
This was the approach advocated by Lord Denning in A-G for Northern
Ireland v Gallagher ([1963] AC 349, at 382):
If a man, whilst sane and sober, forms an intention to kill and makes
preparation for it, knowing it is a wrong thing to do, and then gets
himself drunk so as to give himself Dutch courage to do the thing,
and whilst drunk carries out his intention, he cannot rely on this selfinduced drunkenness as a defence to a charge of murder, nor even as
reducing it to manslaughter. He cannot say that he got himself into
such a stupid state that he was incapable of an intent to kill. So, also,
when he is a psychopath, he cannot by drinking rely on his self-induced
defect of reason as a defence of insanity. The wickedness of his mind
before he got drunk is enough to condemn him, coupled with the act which
he intended to do and did do [emphasis added].
4
Mens Rea
INTRODUCTION
The second requirement for criminal liability is fault. Traditionally, this
involves the proof of what is called mens rea, or guilty mind, taken from
the expression actus non facit reum, nisi mens sit rea, meaning an act alone
is not criminal, unless the mind also be guilty.
At one time, mens rea meant guilt in a generalized sense, and involved
the characterization of a persons state of mind as evil or wicked. Guilt
in this sense is no longer expressly required to establish criminal liability.
Instead, one or more specific states of mind such as intention,
knowledge, recklessness, wilfulness will be expressly or impliedly
prescribed for an offence, and the proof of this state of mind will constitute
the fault element or guilty mind for that offence. The term mens rea
continues to be used, however, even though some commentators consider
it inappropriate or misleading to refer to the fault elements of an offence,
that is, all the elements relating solely to the state of mind at the time of
the conduct of the accused (R v Miller [1983] 2 AC 161, at 174, per Lord
Diplock).
This conception of fault or guilt proceeds from a philosophical view
that human beings are morally autonomous individuals whose actions are
a product of their will. According to this view, an individual may be said
to be responsible for what he or she, exercising his or her will, chooses
to do, including in this regard the intended or foreseen consequences of
110
his or her chosen actions. For the purposes of the criminal law, this leads
to the view that a person who acts in a manner which is prima facie criminal
may properly be held criminally responsible and punished, provided it is
shown that he or she had the capacity to recognize and appreciate the
nature of his or her conduct and its attendant circumstances or consequences
(thus excluding children and those suffering from mental abnormality),
and yet chose to act in that manner as an exercise of his or her will. This
manifests itself in the need to show that an alleged offenders conduct was
accompanied by mental awareness and was produced by a cognitive process.
The term mens rea is used to refer to this awareness and cognitive process,
but in itself does not identify what particular state of mind must be proved
to establish criminal liability. Instead, as stated, this is usually expressed
through concepts such as intention, knowledge, foresight and
recklessness. If the offender knew that the specified circumstances existed
and intended the consequence(s), or at least realized or foresaw that those
circumstances might exist and that those consequences might result (i.e.
was reckless), then his or her conduct can be said to be morally
blameworthy; the offenders fault or guilt, in other words, lies in acting
in that manner with that intention, knowledge or foresight. Since the
concern here is with the offenders state of mind D intended, D knew,
D foresaw mens rea is usually said to involve subjective fault and it is
proof of this subjective state of mind intention, knowledge or foresight,
that establishes the offenders criminal culpability.
This view of criminal liability, based on the proof of subjective state of
mind, does not always hold true. In particular, there are many offences
(usually statutory) which impose criminal liability on the basis of negligence,
carelessness or the failure to take reasonable steps, or even strictly on the
basis of a persons commission of the prohibited conduct, regardless of
whether he or she was subjectively at fault or even negligent. Liability in
these instances is often described as objective to emphasize that it is not
based on an individual offenders actual state of mind.
This notion of mens rea does not require proof that the offender felt a
sense of moral blame or guilt about his or her conduct at the time. Indeed,
mens rea may exist even though an offender believes that his or her actions
are proper and moral. Suppose, for example, that D, an animal rights
campaigner, breaks into a pharmaceutical companys premises, in the belief
that the company is immorally using animals to test new cosmetic products,
and releases the animals. D may feel perfectly justified in acting in this
way, and indeed, may feel that it is the only moral thing to do. However,
this is irrelevant to the question whether D possessed the necessary mens
MENS REA
111
rea for burglary (breaking in) or criminal damage. However, if convicted, it

will be relevant to sentence.
This conception of fault, or mens rea, was re-affirmed in Kingston
([1995] 2 AC 355), in which the English House of Lords was asked to
consider whether a person who forms the state of mind prescribed for an
offence, in this case indecent assault, because of the disinhibiting effects of
a secretly administered drug, may nonetheless be convicted of that offence.
It was submitted on behalf of K that he should be acquitted if there is a
possibility that although his conduct was intentional, the intent arose out
of circumstances for which he bears no blame. Rejecting this submission,
Lord Mustill reiterated the notion that a persons criminality or culpability
flows simply from proof that he or she has the stipulated state of mind at
the time of the relevant conduct, not from proof that his or her particular
act or omission is blameworthy from a societal perspective (at 3645):
Each offence consists of a prohibited act or omission coupled with
whatever state of mind is called for by the statute or rule of the
common law which creates the offence. In those offences which are
not absolute the state of mind which the prosecution must prove to
have underlain the act or omission the mental element will in
the majority of cases be such as to attract disapproval. The mental
element will then be the mark of what may properly be called a guilty
mind. The professional burglar is guilty in a moral as well as a legal
sense; he intends to break into the house to steal, and most would
confidently assert that this is wrong. But this will not always be so. In
respect of some offences the mind of the defendant, and still less his
moral judgment, may not be engaged at all. In others, although a
mental activity must be the motive power for the prohibited act or
omission the activity may be of such a kind or degree that society at
large would not criticise the defendants conduct severely or even
criticise it at all. Such cases are not uncommon. Yet to assume that
contemporary moral judgments affect the criminality of the act, as
distinct from the punishment appropriate to the crime once proved,
is to be misled by the expression mens rea, the ambiguity of which
has been the subject of complaint for more than a century. Certainly,
the mens of the defendant must usually be involved in the offence;
but the epithet mens refers to the criminality of the act in which the
mind is engaged, not to its moral character.
Determining the mens rea of an offence, therefore, involves analysing

the offence to determine what, if any, state or states of mind must be
expressly or impliedly proved to establish the offence, or whether none is
112
required, and criminal liability instead arises on the basis of Ds negligence

or carelessness, or even strictly without proof of fault at all.
Subjective versus Objective

The terms subjective and objective are commonly used in discussions of
mens rea to distinguish cases in which criminal liability depends on proving
that the offender had a particular state or states of mind subjective
fault from those cases in which criminal liability arises from the fact
that others reasonable men and women in the offenders situation
would not have acted in the same way objective fault. This distinction
is not purely descriptive, for the notion that criminal liability flows from
our exercise of will as morally autonomous individuals leads to the
normative view that an offender ought not to be criminally liable merely
because he or she was objectively at fault but rather because he or she
acted with a state of mind involving subjective fault.
In recent years, the terms subjective and objective have been used
not only to describe the general nature of criminal liability, but also to
describe particular states of mind and characterize them as sufficient or
insufficient for the purposes of mens rea. This was highlighted in discussions
of recklessness, as reinterpreted by the House of Lords in 1982 in
Metropolitan Police Commissioner v Caldwell ([1982] AC 341) under the
guidance of Lord Diplock. The Lords held that the state of mind known as
recklessness embraces, at least for the purposes of the offence of criminal
damage (contrary to section 1 of the Criminal Damage Act 1971; section
60 of the Crimes Ordinance (cap. 200)), not only foresight of an obvious
risk, but also the failure to consider the possibility of there being an obvious
risk. Opponents of this reinterpretation criticized it on the basis that the
second limb failure to consider the possibility of an obvious risk is
essentially objective in nature, contrary to the traditional subjective view
of recklessness. In the view of these critics, the Lords thereby blurred the
boundary between subjective foresight, traditionally sufficient for criminal
liability as recklessness, and negligence, traditionally insufficient. Proponents
of this reinterpretation, including Lord Diplock, responded both by
deprecating the obsessive use of the terms subjective and objective (MCP
v Caldwell [1982] AC 341, at 3534, per Lord Diplock), and also by arguing
that the criticism was ill-founded and that Caldwell recklessness involved
as much subjective fault as recklessness in its traditional sense of foresight.
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113
Mens Rea Distinguished From Knowledge of Wrongdoing:

Ignorance of the Law
Proving mens rea does not require proof that the accused knew at the time
of his or her conduct that it amounted to an offence. Correctly or not, all
persons are presumed to know the criminal law. Accordingly, so long as an
accused knew what he or she was doing at the relevant time, and possessed
the requisite state of mind required for the offence, he or she may be
criminally liable, notwithstanding his or her ignorance that such conduct
amounted to an offence. This gives rise to the saying that ignorance of the
law and in particular the criminal law is not a defence to a criminal
charge (a mistaken view of the civil law may in some circumstances provide
a defence; see below, p. 174).
Mens Rea Distinguished From Motive

Mens rea, or fault, is not the same as motive. Whereas mens rea refers to
the state of mind which an offender must be proved to have had at the
time of his or her criminal conduct, motive refers to a persons reason for
conducting himself or herself in that manner. In R v Mohan ([1976] 1 QB
1), James LJ (at 8) described motive as an emotion leading to action .
Take a simple example: D takes food belonging to another person to
give to Ds starving children. Ds reason or motive for taking the food may
be the virtuous one of feeding Ds starving children. However, this will not
of itself prevent D from being criminally liable for stealing the food (contrary
to section 9 of the Theft Ordinance (cap. 210)) if it is proved that D took
the food with the intention of permanently depriving the owner of it,
which is self-evident, and did so dishonestly, for intention and dishonesty
together constitute the mens rea of theft (as defined in section 2(1) of the
Theft Ordinance). Dishonesty is assessed by asking whether D realized
that the deliberate unauthorized taking of property belonging to another
(the food) would be considered dishonest by the ordinary honest person,
and not by asking whether D had a good or bad motive or reason for
taking the food.
Equally, a person who lacks the requisite state of mind prescribed as
the mens rea for an offence will not be criminally liable merely because he
or she had a motive for acting criminally. Suppose that D wants to get his
hands on the family fortune, but must wait until his parents die. Suppose
then that Ds parents are killed in an explosion caused by D accidentally
114
leaving the gas on. Ds conduct has caused the death of Ds parents, and D
has a reason or motive for wanting them dead. However, D will not be
liable for murder since D lacks the mens rea of murder D did not leave
the gas on with the intention of killing them or causing them grievous
bodily harm. Furthermore, unless D was grossly negligent (or perhaps
reckless) in leaving the gas on, D will also lack the necessary mens rea or
fault for manslaughter (see Chapter 10, p. 526). Since D lacks the state of
mind prescribed for murder or manslaughter, D will not be criminally liable,
despite having a motive for killing his parents.
DETERMINING THE MENS REA OF AN OFFENCE

Determining the mens rea of a particular offence is a combination of
common law (i.e. applying the relevant case law) and, in the case of statutory
offences, statutory construction. Sometimes this task is relatively easy. For
instance, section 60(1) of the Crimes Ordinance (cap. 200) provides:
A person who without lawful excuse destroys or damages any property
belonging to another intending to destroy or damage any such property
or being reckless as to whether any such property would be destroyed
or damaged shall be guilty of an offence [emphasis added].
The terms intending and reckless prescribe the state of mind that an
offender must have at the time his or her conduct destroys or damages
anothers property, and constitutes the mens rea of this offence. Proof of
either of these states of mind (intending or being reckless) will establish
fault or guilt and lead to his or her conviction of criminal damage.
Other offences present slightly more difficulty. For example, many
statutory offences, especially those in the Offences Against the Person
Ordinance (cap. 212), require proof that the offender acted maliciously.
This term (commonly used in statutory offences during the nineteenth and
twentieth centuries) is not defined in any statute, but has been held to
mean, and thus to require proof of, intention or recklessness. (See R v
Cunningham [1957] 2 QB 396; R v Savage, R v Parmenter [1991] 3 WLR
914 (HL).
In other cases, determining the mens rea of an offence may present
considerable difficulty. Manslaughter (see Chapter 10, p. 526) illustrates
this. Manslaughter, like murder, remains a common law offence; its mens
rea is therefore a matter of common law, i.e. what the judges have stated
MENS REA
115
the law to be. In recent years, however, it has been notoriously difficult to
state with any certainty the correct test of fault for manslaughter first, it
was gross negligence, then it was thought to be recklessness, then the
courts abandoned recklessness and reaffirmed gross negligence, all within
a decade or so.
Presumption of Mens Rea

In all cases, the starting point in determining the mens rea of an offence is
the presumption of mens rea. This common law presumption, which applies
both to common law and to statutory offences, stipulates that some mens
rea must be proved before an accused person can be convicted of an offence,
unless a contrary position can be justified at law.
Mens rea here is generally taken to mean subjective fault, and
encompasses subjective states of mind such as intention, knowledge or
recklessness. Thus, unless common law or statutory provisions expressly
or impliedly stipulate otherwise, intention, knowledge or recklessness must
be proved beyond reasonable doubt to establish criminal liability. Common
assault, which actually encompasses two offences at common law, assault
and battery, illustrates this. The penalty for common assault is prescribed
by statute (see section 40 of the Offences Against the Person Ordinance
(cap. 212)), but the definition of common assault i.e. the elements that
must be proved to convict someone of assault or battery remains a
matter of common law (see Chapter 11, p. 554). Applying the common
law presumption of mens rea, assault and battery should require proof of
mens rea or fault; and this fault should take the form of intention or
recklessness. Examination of the relevant case law discloses that this is
indeed the law assault requires proof that D intentionally or recklessly
caused the victim to apprehend the immediate unlawful infliction of personal
violence, whereas battery requires proof that D intentionally or recklessly
inflicted unlawful personal violence on the victim.
Not all offences follow this pattern. Some offences require proof of
intention and nothing less to establish criminal liability. Murder is an
illustration of this: at common law, malice aforethought must be proved,
and this means the prosecution must prove that D intended to kill or intended
to cause grievous bodily harm (see Chapter 10, p. 497). Other offences
may include a state of mind distinct from intention or knowledge or
recklessness as their mens rea. Manslaughter illustrates this: liability may
inter alia be based on gross negligence. Similarly, most of the offences in
116
the Theft Ordinance (cap. 210), require proof of dishonesty in addition to

or as an alternative to intention or recklessness.
Statutory offences may also impose criminal liability based upon
negligence or carelessness (e.g. careless driving, contrary to section 38 of
the Road Traffic Ordinance (cap. 374)). Fault in such cases differs from
mens rea in the sense outlined above, in that it is based on a breach of the
standards of a reasonable person and not on any actual state of mind on
the part of the accused (other than voluntariness, see Chapter 3, p. 68).
For this reason, it is sometimes said that negligence, unlike mens rea which
strictly speaking involves subjective fault, is objective in nature.
Furthermore, in some circumstances, the presumption of mens rea may
be expressly or impliedly rebutted, usually because of the subject matter of
the offence, and criminal liability may arise without proof of either mens
rea or even negligence. This is called strict liability, and it applies to a
wide range of quasi-criminal or regulatory offences.
Proving Mens Rea

One of the difficulties with mens rea lies in proving beyond reasonable
doubt that the alleged offender had the subjective state of mind prescribed
for the particular offence. On occasion, the accused may have admitted
what his or her state of mind was (I intended to kill the victim), but in
most cases, proving mens rea is primarily a matter of inference from all the
evidence. The trier of fact must decide what was done and said, and then,
using common sense, reach a conclusion as to the alleged offenders state
of mind at the time of his or her alleged criminal conduct. If the only
reasonable inference from the evidence is that the alleged offender acted
with the state (or states) of mind prescribed for the offence, then mens rea
is proved. However, if there is another reasonable inference the alleged
offender may have had some other state of mind which would not suffice
for liability then the alleged offender must be given the benefit of that
reasonable doubt and acquitted of the offence, for the mens rea or fault
elements of the offence will not have been proved beyond reasonable doubt.
Where intention or recklessness (foresight) must be proved in relation
to a consequence, regard must be had to section 65A of the Criminal
Procedure Ordinance (cap. 221), which reads:
117
MENS REA
Proof of criminal intent

(1) A court or jury, in determining whether a person has committed
an offence
(a) shall not be bound in law to infer that he intended or foresaw
a result of his acts or omissions by reason only of its being
a natural and probable consequence of those acts and
omissions; but
(b) shall decide whether he did intend or foresee that result by
reference to all the evidence, drawing such inferences from
the evidence as appear proper in the circumstances.
This reiterates that where a consequence is objectively foreseeable is

natural and probable this does not of itself establish that an accused
intended or foresaw it, for intention and recklessness are subjective states
of mind. On the other hand, the fact that a consequence is natural and
probable may be taken into account in deciding whether to infer that the
accused did intend or foresee it; but it is not conclusive. Section 65A was
enacted in 1971 in the same terms as an earlier English enactment (section
8 of the Criminal Justice Act 1967) to overturn the effect of DPP v Smith
([1961] AC 290), in which the House of Lords held that where a
consequence is natural and probable, then it must be presumed that the
person who caused the consequence intended to cause the consequence.
This was criticized for wrongly elevating a rule of evidence into a rule of
substantive law, and section 65A restored the law to its former position.
The relationship between objective foresight and intention has
nonetheless continued to trouble the criminal law, as discussed further
below (p. 122).
In many cases, the task of proving mens rea may also be complicated
by the existence of various factors affecting an alleged offenders state of
mind at the time of his or her criminal conduct such as mistake,
intoxication and mental abnormality. Not all these factors operate or affect
liability in the same way. The operation and effect of mistake will be
considered later in this chapter, the other factors in later chapters.
THE MEANING OF SPECIFIC STATES OF MIND: INTENTION

Once the mens rea of an offence has been determined, it is then necessary
to consider whether D had that mens rea, whether it is intention or
recklessness or something else. This raises a further issue what does it
118
mean to say that the accused acted intentionally or recklessly, or with

whatever other state of mind constitutes the mens rea of a particular offence?
What do these terms refer to? What state of mind must be actually proved
by the prosecution beyond reasonable doubt?
The meaning of these terms is largely a matter of common law, and is
considered further below. Unfortunately, as will be seen, there is a great
deal of uncertainty and confusion about many of these terms, including
the two most important terms, intention and recklessness.
Intention
Introduction
Some offences require proof of intention; nothing less than this state of
mind will suffice to establish liability. Examples include theft (intention of
permanently depriving the owner of his or her property (section 2(1) of
the Theft Ordinance (cap. 210)) and causing grievous bodily harm with
intent to cause grievous bodily harm (contrary to section 17(a) of the
Offences Against the Person Ordinance (cap. 212)). The paradigm case,
however, is the common law offence of murder, which requires proof that
an accused intended either to kill or to cause grievous bodily harm (see
Chapter 10, p. 497).
Intention, under our criminal system, represents or refers to the state
of mind exhibiting the highest degree of fault or wrongdoing, and is often
associated with particularly serious offences, such as murder.
Somewhat surprisingly, given the centrality of murder in our criminal
system, the meaning of intention in the criminal law remains unsettled.
There are a number of reasons for this. One is that the occasions on which
intention and nothing less must be proved are limited, since the mens rea
of most offences includes both intention and recklessness. Recklessness,
involving risk-taking and foresight of the risk in question, is a much broader
basis of liability than intention and a much less difficult state of mind for
the prosecution to prove. Accordingly, in most cases, the jury or judge
does not have to distinguish intention from recklessness; either will suffice.
A second reason lies in the fact that intention is an ordinary English
word. As such, criminal courts often prefer to let juries use their intuitive,
ordinary understanding of intention in determining liability (this applies
especially to murder, which must be tried before a judge and jury), and
this means trial judges can often avoid the need to define intention in
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119
directing juries. Allied to this is a tendency on the part of judges to say

what intention is not, rather than to explain what it is. Thus, intention is
commonly distinguished from desire, motive and foresight (except for
foresight of virtual certainty). This approach is highlighted in the following
golden rule stated by Lord Bridge in Moloney ([1985] AC 905) (at 926):
The golden rule should be that, when directing a jury on the mental
element necessary in a crime of specific intent [i.e. requiring proof of
intention], the judge should avoid any elaboration or paraphrase of
what is meant by intent, and leave it to the jurys 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 question of what circumstances may make some further explanation

or elaboration strictly necessary is addressed below (p. 125).
A third difficulty in defining intention arises from the fact that murder
is a central offence in our criminal legal system; a conviction of murder
involves moral condemnation of the killers conduct, and this is reflected
in the mandatory life sentence imposed upon conviction. As a result, courts
have tried not to restrict juries unduly in their task of condemning a
particular homicide as murder. This has sometimes encouraged judges to
adopt a broad, inclusive view of intention, thereby ensuring that murder
has a wider ambit. In the English courts, this has sometimes been promoted
by a perception that terrorist killings and bombings, especially those arising
from the troubles in Northern Ireland, need to be condemned as murder,
as shown in the following passage from Moloney, where Lord Bridge (at 927)
rejects an argument that an act must be aimed at the victim before it can
amount to murder, assuming in the process that it may therefore amount
to murder:
But what of the terrorist who plants a time bomb in a public building
and gives timely warning to enable the public to be evacuated? Assume
that he knows that, following the evacuation, it is virtually certain
that a bomb disposal squad will attempt to defuse the bomb. In the
event the bomb explodes and kills a bomb disposal expert. In our
present troubled times, this is an all too tragically realistic illustration.
More recently, this same example was referred to by the House of Lords in
Woollin ([1999] 1 AC 82) with considerably less clamour for its classification
120
as murder, perhaps reflecting recent attempts at a peace settlement in

Northern Ireland. Lord Steyn suggested (at 945):
It is true that [requiring foresight of virtual certainty] may exclude a
conviction of murder in the often cited terrorist example where a
member of the bomb disposal team is killed. In such a case it may
realistically be said that the terrorist did not foresee the killing of a
member of the bomb disposal team as a certainty. That may be a
consequence of not framing the principle in terms of risk-taking. Such
cases ought to cause no substantial difficulty since immediately below
murder there is available a verdict of manslaughter which may attract
in the discretion of the court a life sentence. In any event, to frame
a principle for particular difficulties regarding terrorism would
produce corresponding injustices which would be very hard to
eradicate.
Fourthly, intention usually arises in relation to the consequences of a

defendants conduct, such as causing death in murder. When an offence
requires proof of mens rea in relation to a circumstance, criminal lawyers
usually refer instead to the notion of knowledge or knowingly, which
expresses the equivalent high degree of moral wrongdoing raised by
intention in relation to consequences. Thus, one speaks of D knowing
the female victim did not consent in rape, or being knowingly in possession
of dangerous drugs or a weapon.
The meaning of intention
Based on Woollin, it seems that intention in relation to a consequence will
now be taken to encompass two states of mind: (1) acting with the purpose
of bringing about or causing a consequence (sometimes called direct
intention); and (2) acting with foresight that ones conduct is virtually
certain to cause a consequence (sometimes called oblique intention). In
each case, D may be said to intend the consequence, and this will be so
whether or not D desired the occurrence of the consequence.
One oft-cited judicial definition of intention, allowing for these two
states of mind, is found in R v Mohan ([1976] 1 QB 1), a case on attempted
murder, where it was said (at 11) that intention is:
a decision to bring about, insofar as it lies within the accuseds power,
[a particular consequence], no matter whether the accused desired
that consequence of his act or not.
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121
This purported definition emphasizes that intention is not normally

to be equated simply with desire no matter whether the accused desired
that consequence or not. If D does desire the consequence, then this is
normally enough to say D intended it, but desire is usually taken to be a
narrower state of mind than intention. On occasion, the courts have equated
intention with desire. A well-known illustration of this is R v Steane ([1947]
KB 997). S, an Englishman, made propaganda radio broadcasts in Germany
during the Second World War, thereby helping the German war effort. He
was charged with a statutory offence of making broadcasts with intent to
assist the enemy. It was held that the requirement of intent was not proved
since S made the broadcasts primarily to save his family from German
concentration camps, and without any proven desire to assist the enemy.
By focussing on whether S desired to assist the enemy, the court was thus
able to deal with S leniently.1
Intention and purpose
The primary meaning of intention in the criminal law, at least in relation
to consequences, is taken to be purpose. This is a simple reflection of the
ordinary, or dictionary, meaning of intention. In the Concise Oxford
Dictionary (9th edition, 1995), for example, intention is defined as a thing
intended, an aim or purpose, and its adjectival (intentional) and adverbial
(intentionally) senses are defined as done on purpose. Intent is similarly
defined as intention; a purpose. Both in ordinary use and under the criminal
law, therefore, a person intends a consequence if it was his or her purpose
or aim, object or want to bring it about or cause it. Intention in
this ordinary purposive sense is sometimes called direct intention.
The definition in Mohan, above, encompasses this purposive state of
mind, since a person who acts with the purpose of causing a particular
consequence has undoubtedly decided to bring about, insofar as it lies
within [his or her] power, that consequence. Importantly, intention in
this primary, purposive sense may exist, even though the probability of D
actually achieving his or her purpose (i.e. bringing about the consequence)
Commentators have argued that Steane could have been acquitted on the grounds of duress,
rather than on the basis that he did not intend to assist the enemy; see, for example, Smith,
John, and Hogan, Brian, Criminal Law (ninth edition, 1999), p. 57. A more recent case
adopting a similarly restrictive view of intention is Gillick v West Norfolk and Wisbech Area
Health Authority [1986] AC 112.
122
may be low; it is enough that it lies within the accuseds power. Thus, D
intends to kill another if Ds purpose is to cause the others death, even
though the method chosen by D to carry out this purpose (e.g. insufficient
poison) may be unlikely to achieve this purpose.
Intention and foresight
Prima facie, foresight e.g. D foresees his or her conduct might cause
injury is only recklessness, and therefore insufficient when intention
must be proved. Thus, a defendant should not be liable for murder, which
requires proof of intention, merely because he or she foresaw that his or
her conduct might cause death or serious injury, even if its occurrence was
highly probable.
On the other hand, foresight is undoubtedly highly relevant in assessing
whether a person intended a particular consequence, especially when
intention has to be proved primarily by way of inference from all the
admissible evidence. If the prohibited consequence was a natural and
probable, perhaps even highly probable, consequence of Ds conduct (i.e.
a reasonable person would have foreseen its occurrence), then it is a
reasonable inference that D also foresaw the consequence and, furthermore,
that he or she actually intended it. Foresight thus supports an inference of
intention, but foresight, especially objective foresight, by itself falls short
of the subjective state of mind known to the criminal law as intention.
There is a gap between the assertion that D could have and should have
foreseen the consequence (objective foresight) and the assertion that D did
foresee it, and a second gap to the assertion that D intended the
consequence. This distinction has occasionally been blurred, as in DPP v
Smith, above, in 1961, where the House of Lords laid down that intention
must be presumed as a matter of law merely from the fact that a consequence
is the natural and probable consequence of particular conduct. As has already
been mentioned, this presumption was overruled by section 65A of the
Criminal Procedure Ordinance, restating the distinction between objective
foresight (the fact that a consequence is natural and probable) on the one
hand, and subjective foresight (the fact that D foresaw the possible
occurrence of the consequence) and intention on the other hand.
What if the consequence in question is almost or virtually certain to
occur i.e. it will happen barring some unexpected intervention and it
is proved that D foresaw or realized this fact? Is this state of foresight still
only recklessness if D goes ahead and causes the consequence, or evidence
(perhaps highly persuasive evidence) supporting an inference of intention?
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123
Or should the criminal law say that a person who acts with this state of
mind will automatically be treated as intending the consequence? In Woollin
([1999] 1 AC 82), the House of Lords returned to the view that this state
of mind foreseeing a consequence as virtually certain to occur is
properly viewed as a form of intention, at least for the purposes of murder.
According to Lord Steyn (at 93), [t]he effect of the critical direction [in
Nedrick, in which the English Court of Appeal set out a model direction
based on foresight of virtual certainty] is that a result foreseen as virtually
certain is an intended result. [emphasis added]
Taking the terrorist example above, suppose the terrorist designs the
bomb with a hair trigger so that it will detonate if any attempt is made to
defuse it. His purpose in planting the bomb is to cause property damage,
but he foresees that a bomb squad officer will almost certainly try and
defuse it, inevitably resulting in the officers death or serious injury. He
may not desire anyones death or serious injury, and may say causing
either of these two consequences was not his purpose. However, the
terrorists foresight that his conduct is virtually certain to cause death or
serious injury is enough, according to Woollin, to say that he intended
death or serious injury; and this will enable him to be convicted of murder
in the event that an officer dies while trying to defuse the bomb.
The view that foresight of virtual certainty equates to intention was
generally thought to be the law prior to DPP v Smith. Professor Glanville
Williams, for example, writing in 1961 (see Criminal Law The General
Part, second edition, 1961), asserted (at 3840) that [t]here is one situation
where a consequence is deemed to be intended though it is not desired.
This is where it is foreseen as substantially certain. for the purpose of
the present rule [certainty] means such a high probability that common
sense would pronounce it certain (though he also footnoted the then-recent
decision in DPP v Smith as having possibly introduced an exception in
relation to murder).
Hyam, Moloney and Hancock and Shankland
From 1975 until Woollin in 1998, the relationship between foresight and
intention in the criminal law became much less clear. In Hyam v DPP in
1975, the House of Lords created uncertainty by appearing to say that
foresight of (high) probability, rather than virtual certainty, was enough to
establish intention. Ten years later, in R v Moloney and R v Hancock and
Shankland in 1985, the House of Lords turned away from Hyam, and took
a more limited view whereby foresight even of virtual certainty seemed
124
at best only to be evidence from which intention might be inferred, but

was not to be treated as intention itself.
In Hyam ([1975] AC 55), Mrs Hyam was convicted of murdering two
children who were asphyxiated in a fire started by H on the ground floor
of the childrens home. Hs motive in starting the fire was apparently to
scare off the childrens mother who was involved with Hs former boyfriend.
She said she just wanted to frighten the childrens mother, and never
intended to cause death or grievous bodily harm to anyone, certainly not
to the children. In affirming her conviction, the Lords upheld a trial direction
on the mens rea of murder based on foresight of death or grievous bodily
harm as a (high) probability. Unfortunately, there was little consensus
among the individual Law Lords as to why the requirement of malice
aforethought was satisfied in this case. Several of them appeared to extend
the scope of malice aforethought to include foresight that conduct might
(rather than almost certainly would) bring about or cause death or grievous
bodily harm, rather than just intention as traditionally understood. Others,
however, appeared to support Hs conviction on the basis that Hs foresight
of death or grievous bodily harm as a highly probable (or perhaps even
just probable) consequence of her conduct in itself amounted to or
established the necessary intention for the purposes of establishing malice
aforethought.
Either view was certainly out of line with traditional thinking, and
there was immediate academic criticism of Hyam, both in England where it
was in any event by no means universally followed (see, for example, R v
Mohan [1976] 1 QB 1, R v Belfon [1976] 1 WLR 741, and R v Pearman
(1985) 80 Cr App R 259) and elsewhere, for having broadened murder and
for the uncertainty engendered by the multiple judgments. The decision
was nonetheless distilled in Archbold Criminal Pleading Evidence and Practice
(forty-first edition, 1982, para 1723, p. 995) into what was called a Hyam
direction: In law a man intends the consequences of his voluntary act, (a)
when he desires it to happen, whether or not he foresees that it probably
will happen, or (b) when he foresees that it will probably happen, whether
he desires it or not; and this became the standard direction in murder
trials. In Hong Kong, the use of a Hyam direction was expressly approved
by the Privy Council in 1984 in Leung Kam Kwok ([1986] HKLR 185),
with the rider that death or grievous bodily harm must have been foreseen
by the accused as highly probable or as having a high degree of probability,
not merely probable.
In 1985, the House of Lords revisited this issue, first in R v Moloney
([1985] AC 905) and then in R v Hancock and Shankland ([1986] 1 AC
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455), and concluded that the so-called Hyam direction formulated in

Archbold was unsatisfactory and potentially misleading and one which
should no longer be used in directing juries. In coming to this conclusion,
the Lords appeared to support the view that foresight should be treated
only as evidence from which intention may be inferred, and not as intention
itself.
R v Moloney [1985] AC 905
Facts
Moloney, a young soldier at home for the holidays, was convicted of
murdering his stepfather. The two men, who were apparently on good
terms, had stayed up late at night after a party during which a
considerable amount of alcohol had been consumed. According to M,
M and his stepfather challenged each other to see who could load a
gun more quickly. M won, whereupon his stepfather dared him to pull
the trigger. M did so. The gun was pointing directly at the stepfathers
head, and he was instantly killed. When questioned, M said, I didnt
aim the gun. I just pulled the trigger and he was dead.
The trial judge inter alia directed the jury using a Hyam direction,
telling them that intention would be proved if [a man] foresees that
[a consequence] will probably happen, whether he desires it or not
. M appealed to the Court of Appeal, unsuccessfully, and then to the
House of Lords.
Decision
The House of Lords allowed Ms appeal, largely on a technicality,
quashed his murder conviction and substituted a manslaughter
conviction.
Taking the opportunity to discuss intention, Lord Bridge, speaking
for the majority of the Lords, rejected the trial judges direction on
intention (though Hyam itself was not expressly overruled). Foresight of
death or grievous bodily harm as natural and probable even as
highly probable did not, he concluded, per se establish malice
aforethought for murder. It was not an alternative to intention for the
purposes of malice aforethought, nor did it in any sense equate to
intention. Instead, according to the Lords, foresight of probability was
at best only evidence from which the distinct state of mind known as
intention may be inferred. In most cases, said Lord Bridge, it will be
unnecessary to refer at all to the relationship between foresight and
intention, instead letting the jury use their ordinary understanding of
intention. On occasion, the fact that a consequence is a natural and
126
probable consequence of the accuseds conduct may become relevant

in assessing intention, but only, suggested Lord Bridge, where the
probability of the consequence occurring is overwhelming. Since, in
his view, this was inevitably conveyed by the term natural, then an
appropriate direction to juries, in the rare cases where it becomes
necessary to direct a jury on intention by reference to foresight, would
be (at 929) to tell them to ask themselves:
(1)
(2)
Was death or serious injury in a murder case (or whatever

relevant consequence must be proved to have been intended
in any other case) a natural consequence of the defendants
voluntary act?
Did the defendant foresee that consequence as being a natural
consequence of his or her act?
Lord Bridge added, in relation to this direction (a Moloney direction),

that:
The jury should be told that if they answer yes to both questions
it is a proper inference for them to draw that he intended that
consequence.
The Lords thus reaffirmed the distinction between intention and foresight;
proof of foresight is only evidence from which intention, a distinct state
of mind, may be inferred. According to this, intention would mean
something akin to purpose.
However, Lord Bridge clouded the simplicity of this distinction earlier
in his judgment when he discussed what he called a homely example of
how the distinction between intention and motive or desire may be
explained. He stated (at 926):
A man who, at London airport, boards a plane which he knows to be
bound for Manchester, clearly intends to travel to Manchester, even
though Manchester is the last place he wants to be and his motive for
boarding the plane is simply to escape pursuit. The possibility that
the plane may have engine travel and be diverted to Luton does not
affect the matter. By boarding the Manchester plane, the man
conclusively demonstrates his intention to go there, because it is a moral
certainty that that is where he will arrive [emphasis added].
The clear import of the words in italics is that a person who foresees that
his or her conduct is morally certain to cause a consequence, can properly
be said to intend it the man conclusively demonstrates his intention.
This appears to be inconsistent with Lord Bridges later analysis drawing a
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distinction between foresight and intention. However, there is an alternative

explanation of this passage: Lord Bridge was simply saying that in such a
case, there would normally be no other reasonable inference from the evidence
of foresight except that the man intended to go to Manchester, thus
maintaining the view that foresight is only evidence. This would keep
intention itself separate as a state of mind from that of foresight.
The correctness of a Moloney direction was almost immediately
challenged, and the relationship between foresight and intention once again
re-examined by the House of Lords in R v Hancock and Shankland ([1986]
1 AC 455). The Lords largely affirmed Moloney, but conceded that Lord
Bridges two-step direction was itself deficient and needed to be modified
by the inclusion of a reference to probability.
R v Hancock and Shankland [1986] 1 AC 455
Facts
Hancock and Shankland were coalminers taking part in a long drawn
out, very bitter coal strike. In an attempt to discourage a scab miner
(i.e. one choosing to work despite the strike) from working, they dropped
a 65-pound lump of concrete from a motorway over-bridge just as a
convoy of vehicles ferrying the miner to work was approaching the
over-bridge. H and S alleged that they believed the concrete would fall
harmlessly onto the centre strip. Instead, it fell through the windscreen
of the taxi carrying the miner, killing the taxi driver. H and S were
willing to plead guilty to manslaughter, but were charged with murder.
At trial, the judge directed the jury on intention using Lord Bridges
then recently stated two-step direction from Moloney. H and S were
convicted and appealed.
The Court of Appeal allowed the appeal. Lord Lane CJ suggested
that much of Lord Bridges judgment in Moloney was obiter and
erroneous. Lord Lane CJ proposed another set of guidelines on the
meaning of intention and the relationship of foresight to intention. The
prosecution appealed to the House of Lords.
Decision
Appeal dismissed. The House of Lords affirmed Moloney and Lord
Bridges comments therein on the meaning and proof of intention. Lord
Lane CJs alternative guidelines were disapproved.
However, Lord Scarman, delivering the judgment of the Lords,
conceded that Lord Bridges two-step direction in Moloney was deficient.
In particular, Lord Scarman considered that the word natural applied
to a consequence did not necessarily carry the meaning that the
128
probability of the consequence occurring was overwhelming, as Lord

Bridge had suggested; this, he accepted, did not accord with the ordinary
use of the term natural. Lord Scarman accordingly concluded that in
those cases where a judge might feel compelled to direct a jury on the
meaning of intention and its relationship to foresight, probability should
be added to each of Lord Bridges questions. The jury should expressly
consider the degree of probability, since (at 473):
the greater the probability of a consequence the more likely it is
that the consequence was foreseen and if that consequence
was foreseen the greater the probability is that that consequence
was also intended.
Lord Scarman also expressed considerable reluctance about laying down

any model direction on intention, observing (at 474) that:
The laying down of guidelines for use in directing juries in cases
of complexity is a function which can be usefully exercised by
the Court of Appeal. But it should be done sparingly, and limited
to cases of real difficulty. If it is done, the guidelines should avoid
generalisation so far as is possible and encourage the jury to
exercise their common sense in reaching what is their decision
on the facts.
Moloney and Hancock and Shankland thus asserted that while intention
is distinct from foresight, proof of a state of foresight is nonetheless highly
relevant evidence in determining whether a state of intention can be
inferred, especially where it appears that the defendants immediate purpose
was not to cause the consequence.
Although this returned the law, practically speaking, to a similar
position to that prior to 1975, this was not entirely so. At a substantive
level, Moloney and Hancock and Shankland left a number of theoretical issues
unresolved:2
(1) Is intention in reality proved by foresight of virtual certainty, or is
foresight still only evidence from which a distinct state of mind
(characterized as oblique intention) may be inferred?
For further discussion and criticism, see inter alia: J. Dine, Intention: History and Hancock
[1987] Jnl of Cr Law 72; G. Orchard, Criminal Intention [1986] New LJ 208; A. K. W.
Halpin, Intended Consequences and Unintentional Fallacies (1987) 7 Oxford Jnl of Legal
Studies 104; L. H. Leigh and J. Temkin, The Kindergarten Area of the Law [1986] New
LJ 851; A. K. W. Halpin, Good Intentions [1987] New LJ 696.
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(2) May this state of oblique intention be inferred from foresight of less
than virtual certainty (e.g. high probability) (as Lord Scarman in
Hancock and Shankland would appear to suggest), or must there be
foresight of virtual certainty or overwhelming probability (as Lord
Bridge in Moloney perhaps thought) before this is permissible? How,
in any event, does one draw the line between high probability and
virtual certainty?
(3) If intention does not mean desire, but is neither limited to its direct
or purposive sense nor equal to foresight of virtual certainty, what
state of mind does oblique intention actually refer to? What state of
mind is inferred from foresight of virtual or moral certainty?
Nedrick and Woollin
The English courts subsequently returned to these issues, most significantly
in R v Nedrick ([1986] 1 WLR 1025) and in R v Woollin ([1999] 1 AC 82).
In Nedrick, the facts were much the same as those in Hyam. N poured
flammable liquid through the front door letterbox of a house and set it
alight, causing the death of a child in the house. Ns purpose was to burn
out the childs mother, against whom he bore a grudge. N was charged
with and convicted of murder after the jury was given a Hyam direction,
i.e. N could be said to have intended serious bodily harm if he foresaw that
there was a high probability that his conduct would cause such injury. By
the time Ns appeal to the English Court of Appeal was heard, the Lords
had decided Moloney and disapproved of the Hyam direction; consequently,
the Court of Appeal quashed Ns conviction and substituted a conviction
of manslaughter. Having been rebuffed in Hancock and Shankland for
attempting to restate the law, Lord Lane CJ, in a passage subsequently
cited by the House of Lords in R v Woollin, crystallised the effect of the
speeches in Moloney and Hancock and Shankland and set out the following
model direction based on foresight of virtual certainty (at 1028):
(A)3 When determining whether the defendant had the necessary
intent, it may be helpful for a jury to ask themselves two
questions. (1) How probable was the consequence which resulted
from the defendants voluntary act? (2) Did he foresee that
consequence?
The paragraph references, (A), (B) and (C), are taken from Lord Steyns citation of this
passage in R v Woollin [1999] 1 AC 82, at 96.
130
If he did not appreciate that death or serious injury was likely

to result from his act, he cannot have intended to bring it about.
If he did, but thought that the risk to which he was exposing the
person killed was only slight, then it may be easy for the jury to
conclude that he did not intend to bring about that result. On
the other hand, if the jury are satisfied that at the material time
the defendant recognised that death or serious injury would be
virtually certain (barring some unforeseen intervention) to result
from his voluntary act, then that is a fact from which they may
find it easy to infer that he intended to kill or do serious bodily
harm, even though he may not have had any desire to achieve
that result.
(B) 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 they feel sure
that death or serious bodily harm was a virtual certainty (barring
some unforeseen intervention) as a result of the defendants actions
and that the defendant appreciated that such was the case.
(C) Where a man realises that it is for all practical purposes inevitable
that his actions will result in death or serious harm, the inference
may be irresistible that he intended that result, however little he
may have desired or wished it to happen. The decision is one for
the jury to be reached upon a consideration of all the evidence.
Importantly, in stating this, Lord Lane CJ seemed to accept that foresight,

even of virtual certainty or overwhelming probability, remains only evidence
from which intention can be inferred though this inference may be
irresistible. Furthermore, the model direction makes it clear that intention
may be inferred only from foresight of virtual certainty; nothing less than
this, such as foresight of high probability, will suffice.
Nedrick did not settle matters, however. For example, in Walker and
Hayles ((1989) 90 Cr App R 226), an attempted murder case, the English
Court of Appeal departed from Nedricks model direction, upholding a
conviction based on a direction speaking of foresight and intention in terms
of a very high degree of probability, ostensibly on the basis that this was
effectively the same as virtual certainty.
Similarly, in Woollin, the English Court of Appeal upheld Ws conviction
of murder, despite the Recorders use of substantial risk rather than foresight
of virtual certainty. However, Woollin appealed to the House of Lords.
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R v Woollin [1999] 1 AC 82
Facts
Woollin was convicted of murdering his baby son. The prosecution
alleged that W had lost his temper and thrown the three-month-old
boy against a hard surface, causing a skull fracture and death. The
prosecution accepted that W may not have desired his sons death or
even serious injury at the time of his actions, but argued that W
nonetheless acted with intention to cause serious injury to the baby.
In his defence, W both denied intention, asserting that he never thought
about the consequences of his conduct in throwing the baby, and also
asserted provocation (for provocation, see Chapter 10, p. 502).
The Recorder initially directed the jury in accordance with Lord
Lane CJs guidelines in Nedrick, but later directed the jury that they
should convict W of murder if they were satisfied that W must have
realised and appreciated when he threw [the] child that there was a
substantial risk that he would cause serious injury to it .
W appealed to the House of Lords after the Court of Appeal had
earlier dismissed his appeal, contending that Lord Lane CJ correctly
stated the law in Nedrick in stipulating that intention could be inferred
only from foresight of virtual certainty, and not from mere foresight of
substantial risk.
Decision
The Lords quashed Ws murder conviction and substituted a conviction
of manslaughter (remitting W back to the Court of Appeal for sentencing).
The Recorder had wrongly departed from the Nedrick direction by using
substantial risk, thereby [blurring] the line between intention and
recklessness, and hence between murder and manslaughter (at 95).
Lord Steyn, giving the unanimous judgment of the Lords, made
several preliminary points, including (1) the appeal related to the
meaning of intention for the purposes of murder, and it does not follow
that intent necessarily has precisely the same meaning in every context
in the criminal law (at 90); and (2) although trial judges commonly
deflect questions regarding the meaning of intention by stating that
intention is an ordinary word in the English language, this is not always
helpful. In the circumstances, it was, in his view, entirely understandable
that the Court in Nedrick felt compelled to provide a model direction
for the assistance of trial judges, despite Lord Scarmans misgivings in
Hancock and Shankland about model directions.
Turning then to the crucial question of whether the Nedrick
direction was correct, Lord Steyn re-examined Moloney and Hancock
and Shankland and observed (at 93) that:
132
It is obvious that [paragraph B] contains the critical direction. The

effect of the critical direction is that a result foreseen as virtually
certain is an intended result.
Lord Steyn considered various criticisms of Nedrick, but concluded

(at 95):
I am satisfied that the Nedrick test, which was squarely based on
the decision of the House of Lords in Moloney, is pitched at the
right level.
He added that a Nedrick direction should not always be given,

being appropriate only in any case in which the defendant may not
have desired the result of his act, but that this is ultimately a matter for
a trial judge who is best placed to decide what direction is required by
the circumstances of the case.
Lord Steyn added three qualifications in affirming the Nedrick
direction (at 96):
First, I am persuaded that it is unlikely, if ever, to be helpful to
direct the jury in terms of the two questions set out in [A]. I agree
that these questions detract from the clarity of the critical direction
in [B].
Secondly, [writers have] observed that the use of the words
to infer in [B] may detract from the clarity of the model direction.
I agree. I would substitute the words to find.
Thirdly, the first sentence of [C] does not form part of the
model direction. But it would always be right for the judge to say,
as Lord Lane put it, that the decision is for the jury upon a
consideration of all the evidence in the case.
Intention in Hong Kong

In recent times, the Hong Kong courts have generally applied Moloney and
Hancock and Shankland, as interpreted in Nedrick, adopting the rule that
intention is not equal to but may be inferred from foresight if it is proved
that the defendant foresaw the consequence in question as virtually certain
to occur. This is illustrated by R v Wong Tak Sing in 1989 (earlier decisions
include Lo Yung-kan [1985] 1 HKC 302, CA, and Li Shu-ling Cr App No. 103
of 1986, CA).
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R v Wong Tak Sing [1989] 2 HKC 94

Facts
Wong was convicted of murder. The prosecutions case was that W
fatally cut the deceaseds throat when he held a knife to her throat
during an altercation. It was alleged that W subsequently cut up the
deceaseds body to dispose of it.
At trial, the judge directed the jury that the necessary intent for
murder would be established if it were proved that grievous bodily
harm or death was the probable consequence of Ws actions. W
appealed, inter alia, on the ground that the judge had misdirected the
jury on intent.
Decision
The appeal was allowed. Ws murder conviction was quashed, and a
manslaughter conviction substituted.
Silke VP, delivering the judgment of the majority, emphasized that
on the facts of the case, there was probably no need for a foresight
direction to have been given at all, but that the trial judge, having
chosen to give such a direction, had misdirected the jury. Foresight of
probability alone was clearly insufficient. Silke VP concluded (at 101):
While the expression natural consequences was used in Moloney
this, it was made clear, meant that the consequences must be
overwhelming. In Hancock and Shankland the expression high
probability was used which became, in Nedrick virtually certain
and this is now the correct phrase and emphasis if a direction
on foresight is to be given at all. A jury should be told that a
result is intended when it is the doers purpose and they should
be directed, if necessary, that they may infer that a result is
intended, though it is not desired, when the result is a virtually
certain consequence of the act and the doer knows that it is a
virtually certain consequence .4
Bewley J, though dissenting on the question of whether there was a

miscarriage of justice, agreed with this direction on intention (at 102).
No doubt the Hong Kong courts will now apply the judgment of the
Lords in Woollin, above, to the effect that, apart from the ordinary meaning
of intention (i.e. purpose, as noted by Silke VP in Wong Tak Sing, above),
intention will also be established, or found, if it is proved beyond reasonable
doubt that D foresaw the consequence in question as virtually certain to
4
See also Silke VP in R v Chan Chi-wah [1992] 1 HKCLR 1, at 8.
134
occur, whether or not he or she desired its occurrence, at least for the
purposes of the offence of murder. Where this is proved, then Ds foresight
is no longer simply evidence from which intention may be inferred, perhaps
irresistibly inferred; as Lord Steyn observed in Woollin, a result foreseen as
virtually certain is an intended result.
Reform proposals
The difficulties and uncertainties created by judicial indecisiveness have
encouraged some commentators to suggest that the courts are no longer
the appropriate forum in which to seek definitions of terms such as
intention, and that this task should be taken up by the legislature by the
enactment of a clear and certain criminal code. An example of such a code
is found in the English Law Commissions 1989 Report and Draft Criminal
Code, in which the Commission proposed the inclusion of a provision to
the effect that a person acts intentionally with respect to a result when
he acts either in order to bring it about or being aware that it will occur in
the ordinary course of event (The Law Commission, A Criminal Code for
England and Wales (1989, Law Comm. No. 177), Vol. I, Draft Code, section
18, p. 51; see also Commentary, Vol. II, pp. 1904). The adoption of such
a code has been considered in Hong Kong, but as in England, this has not
yet happened. For the time being, therefore, resort must be had to the
relevant case law, with all its attendant problems.
Ulterior, specific and basic intent
One of the problems with intention is that the use of the term is not
restricted to discussions of the states of mind outlined above. Intent, for
example, is often used to mean mens rea generally, i.e. intention and
recklessness. It has also been used in other contexts, including in the
expressions ulterior intent, specific intent and basic intent.
Specific and basic intent
The expressions specific intent and basic intent are commonly used in
determining whether a state of voluntary intoxication may be relied upon
by an accused to negate criminal liability. Usually it is said that voluntary
intoxication may be relied upon to negate the mens rea of an offence if the
offence in question is a specific intent offence, but not if the offence is a
basic intent offence (see Chapter 6, p. 257).
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135
Various attempts have been made to ascribe precise meanings to the

expressions specific and basic intent to explain this distinction, but none
has been completely successful, largely because the distinction is essentially
a rather crude attempt to reflect a policy that offenders who become
voluntarily intoxicated should not in general be able to avoid criminal
liability for the predictable consequences of their self-induced state of
intoxication. One such attempt at definition holds that an offence is a basic
intent offence if its definition expresses or, more often, implies, a mens rea
which does not go beyond the actus reus (DPP v Morgan [1975] AC 182,
at 216, per Lord Simon); whereas it is specific intent if the prosecution must
in general prove that the purpose for the commission of the act extends to
the intent expressed or implied in the definition of the crime (DPP v
Majewski [1977] AC 443, at 479, per Lord Simon). According to these
definitions, the statutory offence of criminal damage, contrary to section 60
of the Crimes Ordinance (cap. 200), is a basic intent offence, since the mens
rea stipulated by section 60(1), i.e. intention or recklessness, relates to and
does not go beyond the destruction or damaging of property belonging to
another which constitutes its actus reus. Theft, on the other hand, which
requires proof that the accused dishonestly appropriated property belonging
to another with the intention of permanently depriving the other of it
(section 2(1), Theft Ordinance), is a specific intent offence, since it requires
proof of an intention or purpose going beyond the act of appropriating
property belonging to another, which needs only to be dishonest.
An alternative definition rests specific and basic intent (and thus the
question of whether an accused may or may not rely on voluntary
intoxication to negate mens rea) on whether or not an offences mens rea
includes recklessness in addition to any other state of mind, including
intention. If so, then it is basic intent, but if intention and nothing less
must be proved, then it is a specific intent offence (MCP v Caldwell [1982]
AC 341) and evidence of a defendants self-induced state of intoxication
may be admitted to negate the allegation that D intended to cause the
consequence.
Neither explanations is entirely satisfactory, and one well-known pair
of commentators, Smith and Hogan (Criminal Law, ninth edition, 1999),
have suggested (p. 222):
the only safe conclusion seems to be that crime requiring specific
intent means a crime where evidence of voluntary intoxication
negativing mens rea is a defence; and the designation of crimes as
requiring, or not requiring, specific intent is based on no principle
136
but on policy. In order to know how a crime should be classified for

this purpose we can look only to the decisions of the courts.
Ulterior intent
The expression ulterior intent serves a different function. It is used in
relation to offences that require proof of a state of mind contemplating
consequences beyond those defined in the actus reus (DPP v Majewski
[1977] AC 443, at 478, per Lord Simon) to describe that additional, or
ulterior, state of mind. An illustration of an ulterior intent offence is
malicious wounding with intent contrary to section 17(a) of the Offences
Against the Person Ordinance (cap. 212). This reads:
Any person who
(a) unlawfully and maliciously, by any means whatsoever, wounds
any person; with intent to maim, disfigure, or disable
any person, or to do some other grievous bodily harm to any
person or with intent to resist or prevent the lawful apprehension
or detainer of any person, shall be guilty of an offence triable
upon indictment, and shall be liable to imprisonment for life
[emphasis added].
Section 17(a) requires proof of wounding, and also mens rea in relation to
this consequence, namely that D maliciously wounded. However, D will
be liable under section 17(a) only if one of the additional intents specified
in section 17(a) is proved, i.e. D acted with the intent of causing serious
physical injury, or of resisting lawful arrest or detainer. This additional
purpose goes beyond the consequence of wounding itself, and is an example
of an ulterior intent offence. Other examples of ulterior intent offences
include burglary (contrary to section 11 of the Theft Ordinance (cap. 210)),
and assault with intent to rob (contrary to section 10(2) of the Theft
Ulterior intent has been said to be merely one type of specific intent
(DPP v Majewski [1977] AC 443, at 478, per Lord Simon).
KNOWLEDGE
If the definition of an offence includes the existence of specified
circumstances, then knowledge of those circumstances on the part of the
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137
accused may have to be proved. Knowledge in this sense may be expressly

required, as when a statutory offence uses terms such as knows, knowingly
or to his knowledge. An example is section 34 of the Crimes Ordinance,
which provides:
any person who (1) for the purpose of procuring a marriage, or a
certificate or licence for marriage, knowingly and wilfully makes a false
oath or makes or signs a false declaration, notice or certificate required
under any enactment for the time being in force relating to marriage
shall be guilty of an offence and shall be liable on conviction on
indictment to imprisonment for 7 years and to a fine [emphasis added].
Alternatively, a requirement of knowledge may be implied as an aspect of

the presumption of mens rea (see, for example, Devlin J in Roper v Taylors
Central Garages [1951] TLR 284).
It is commonly said there are three degrees of knowledge. The first is
termed actual knowledge. This refers to knowledge as a fact that a
circumstance(s) exists. Knowledge in this sense is equivalent in mens rea
terms to intention.
The second is what is termed wilful blindness. This refers to the state
of mind of a person who suspects that a circumstance exists but deliberately
or wilfully closes his eyes to the evidence so as not to confirm his or her
suspicions. Although wilful blindness is in truth a form of recklessness,
since it entails a deliberate or intentional failure to determine the truth, it
is often treated for the purposes of satisfying mens rea as equal to actual
knowledge and thus intention. (This may be so even if knowingly is
expressly used in a statutory provision; see, for example, Westminster City
Council v Croyalgrange Ltd [1986] 1 WLR 674, HL.)
The third degree of knowledge is constructive knowledge. This refers
to knowledge that an accused ought to have had, but which he or she
unreasonably, though not deliberately, failed to find out. Knowledge of
this type will not generally suffice where intention or recklessness must be
proved as to the existence of the relevant circumstance, but it will suffice
in offences of negligence and where expressions such as reasonable cause
to believe are used in statutory provisions.
A requirement of knowledge is often linked alternatively with a second
state of mind, that of belief. An illustration of this is found in section 24
of the Theft Ordinance (cap. 210), providing for the offence of handling:
(1) A person handles stolen goods if (otherwise than in the course of
the stealing) knowing or believing them to be stolen goods he
138
dishonestly receives the goods, or dishonestly undertakes in their

retention, removal, disposal or realization by or for the benefit of
another person, or if he arranges to do so [emphasis added].
Belief is usually defined as being the state of mind of a person who does
not know as a fact that a circumstance exists, but realizes there can be no
substantial doubt that it does (e.g. Hall (1985) 81 Cr App R 260, CA). It
differs, therefore, both from actual knowledge and also from wilful blindness.
Where knowledge or belief must be proved, the accused must normally
be proved to have possessed the requisite degree of knowledge or belief at
the time when the offence was committed. Thus a person who once knew
something, but has forgotten it by the time of the alleged offence, may be
able as a result to avoid liability (see, for example, R v Russell (1984) 81 Cr
App R 315. This is not always the case. Some decisions have continued to
hold the accused liable provided that he or she had the capacity to remember
the relevant fact or circumstance. Compare R v Bello (1978) 67 Cr App R
288).
RECKLESSNESS
The third state of mind generally amounting to mens rea or fault (after
intention and knowledge) at common law is recklessness. Recklessness
usually involves consequences (D recklessly caused death/damage), but it
may also concern the existence of prohibited circumstances (D was reckless
whether the victim was consenting). Exceptionally, recklessness may also
describe conduct itself, as in the (now repealed) offence of reckless driving
(formerly section 37 of the Road Traffic Ordinance (cap. 374); now replaced
by dangerous driving), where recklessness related to both the manner of
driving and also the drivers state of mind while driving in that manner.
The Meaning of Recklessness

According to the dictionary, reckless (and likewise recklessness and
recklessly) in ordinary speech may refer to a range of mental states,
including disregarding the consequences or danger; lacking caution; rash
(The Concise Oxford Dictionary, 9th edition, 1995). For the purposes of
criminal liability, recklessness has traditionally been conceived more
MENS REA
139
narrowly than this, usually in terms of advertant or conscious risk-taking

(i.e. taking a known risk) what the dictionary refers to as rashness.
This state of mind satisfies the presumption of mens rea because a person
who decides or chooses to take a known risk may be readily described as
morally guilty or blameworthy. The same is not true if D merely failed to
recognize the risk; this may be negligent, but, traditionally, it does not
suffice for the purposes of criminal responsibility.
In 1981, the House of Lords, led by Lord Diplock, in two decisions,
MPC v Caldwell ([1982] AC 341) and R v Lawrence ([1982] AC 510)
(reinforced in a further judgment of Lord Diplock in Miller ([1983] 2 AC
161), reviewed this traditional understanding, and controversially concluded
that a requirement of recklessness is equally satisfied where Ds conduct
creates an obvious risk, but D fails to give any thought to the possibility of
there being such a risk. Lord Diplock felt that this reformulation should be
universally adopted, but this has not happened. Instead, the unhappy legacy
of these two cases is that recklessness in Hong Kong, as in England,
presently means different things in different contexts. Furthermore, Lord
Diplocks reformulation has been repeatedly criticized for blurring the
traditional distinction between recklessness, as a subjective state of mind
satisfying the presumption of mens rea at common law, and negligence, as
an objective assessment of fault that is generally insufficient at common
law to attract criminal liability.
Presently, these different conceptions of recklessness, often identified
as Cunningham recklessness (for the traditional formulation based on
awareness of risk) and Caldwell recklessness, are part of the criminal law
of Hong Kong, as also of England. This means that whenever the mens rea
of an offence expressly or impliedly includes recklessness, it is necessary
to determine which, if any, of these formulations of recklessness must be
used for the particular offence. This is further qualified by the fact that in
some instances (e.g. rape, contrary to section 118 of the Crimes Ordinance,
and deception offences, contrary to the Theft Ordinance), a different
formulation again, appropriate to the particular offence, has been adopted.
These different formulations, and the question of when each applies, are
discussed more fully below.
Unjustified risk-taking
In addition to showing that an alleged offender knowingly took a risk or
failed to consider the possibility of risk, recklessness requires proof that
the alleged offender was not justified in taking the risk in the circumstances
140
of the particular case. Normally this is not in issue; where it is, then it
must be shown that it was unreasonable for the alleged offender to take the
risk, i.e. a reasonable person in the alleged offenders situation would not
have taken the risk. This requires a balancing of the possible harm(s) if the
risk in question eventuates, against the possible social benefits of the conduct
in question. Medical situations provide an illustration. Suppose a surgeon
performs a potentially life-saving operation on a patient with a terminal
illness. At the time of performing the operation, the surgeon appreciates
that it carries a high risk of hastening or even causing the patients death.
Nonetheless, the operation is the only method of staving off death. In this
situation, the social benefits for the individual and society at large of a
successful operation will normally be taken to outweigh the attendant risks
to the patient. Taking the risk of causing death will therefore be reasonable
or justified, and the surgeon will not be said to have recklessly caused
death. On the other hand, if the probability of success is low, and the
likelihood of causing death is very high, then the surgeon may not be
justified in carrying out the operation. Doing so might be characterized as
recklessly causing death, and this might give rise to criminal liability by
way of manslaughter (see Chapter 10, p. 526).
Another example relating specifically to the now repealed offence of
reckless driving is that of driving recklessly in an emergency. This was
adverted to by several of the Law Lords in R v Reid ([1992] 1 WLR 793).
Lord Goff, for example, observed (at 813): Likewise , if a driver takes
evasive action in an emergency, his action may involve the taking of a risk
which is regarded as justified in the special circumstances, so that he cannot
be described as driving recklessly.
Awareness of risk
As already mentioned, prior to 1981, the generally received view of
recklessness in Hong Kong, as in England, was that recklessness required
proof that an alleged offender appreciated, realized or foresaw his or her
conduct might take place in prohibited circumstances (i.e. there was a risk
of this), or might cause a prohibited consequence (i.e. there was a risk of
this) (see, for example, Chan Chan-yi v Yip Kim-ming [1964] HKLR 722, at
7289, per Scholes J). If the alleged offender took the risk with that
awareness or foresight, then he or she was reckless. If the risk eventuated
(the circumstances existed, or the consequence resulted), then the alleged
offender would prima facie be criminally liable (subject to possible
exculpatory issues), unless the offence, like murder, required proof of
141
MENS REA
intention and nothing less (see, for example, G Williams, Criminal Law
The General Part, second edition, 1961, Stevens, para 24).
Cunningham Recklessness
This formulation of recklessness, based on conscious or advertant risktaking, was endorsed by the English Court of Appeal in R v Cunningham
([1957] 2 QB 396), and is commonly known as Cunningham recklessness.
In this case, the Court of Appeal held that the term maliciously, used in
the Offences Against the Person Act 1861 in accordance with nineteenth
century legislative drafting practices, did not simply mean wickedness, as
the trial judge had directed, but rather incorporated intention and
recklessness. In so ruling, the court held that the following statement of
law by Professor Kenny in an academic treatise in 1902 (Professor S.C.
Kenny, Outlines of Criminal Law, edited by J.W. Cecil Turner, first edition,
1902, sixteenth edition, 1952, p. 186) accurately stated the common law:
in any statutory definition of a crime, malice must be taken not in
the old vague sense of wickedness in general but as requiring either
(1) an actual intention to do the particular kind of harm that in fact was
done; or (2) recklessness as to whether such harm should occur or not
(i.e. the accused has foreseen that the particular kind of harm might be
done and yet has gone on to take the risk of it) [emphasis added].
Byrne J added (at 400): In our opinion, the word maliciously in a statutory
crime postulates foresight of consequence [emphasis added].
According to this, an alleged offender is not reckless, at least for the
purpose of establishing that he or she acted maliciously, merely because
he or she took a risk that a reasonable person would have foreseen and not
taken (unless justified). Such risk-taking merely involves objective fault
D ought not to have taken the risk unlike Cunningham recklessness
which requires proof that the alleged offender subjectively i.e. actually
foresaw the possible existence or occurrence of the circumstances or
consequence(s) in question.
Disregarding a foreseen risk/indifference to risk
This formulation of recklessness is not limited to those who foresee a risk
and then decide to go ahead and take that risk. Once the risk has been
foreseen, taking it may amount to advertant recklessness, even though D
142
may have disregarded its existence (I put it out of my mind) rather than
decided to take it, or may have been indifferent to the possibility of the
risk eventuating (who cares whether she is consenting or not) (Briggs
[1977] 1 All ER 475, Stephenson [1979] QB 695). Equally, once a risk has
been foreseen, a person may be reckless for the purposes of criminal
liability, even though he or she may not want the risk to occur, perhaps
even hopes it will not materialize.
Caldwell Recklessness
Pre-1981: Reckless criminal damage
In 1972, Hong Kong, following the enactment of the Criminal Damage Act
1971 in England, similarly enacted new offences of criminal damage and
arson (contained in Part VIII, Crimes Ordinance (cap. 200)). These offences
replaced earlier provisions based on the Malicious Damage Act 1861, and,
departing from the language of those earlier provisions which (like the
Offences Against the Person Act 1861) generally required proof that the
defendant acted maliciously, expressly required proof that the property
was intentionally or recklessly damaged or destroyed. It was generally
thought that this did not change the mens rea required for the offences;
the intention of the draftsman in using intentionally or recklessly was
simply to reproduce Cunninghams interpretation of maliciously (this was
also assumed by the UK Law Commission in several of its law reform reports;
see, for example, Working Papers Nos. 23, 31). It was also assumed that
the requirement of recklessness would be given the same subjective
formulation, involving actual foresight of risk, established in Cunningham.
This was how the term was interpreted by the English courts on a number
of occasions in the 1970s (see, for example, Briggs (Note) [1977] 1 WLR
605, R v Parker [1977] 1 WLR 600, and R v Stephenson [1979] QB 695).
In R v Stephenson, for example, it was held that S, who started a fire
inside a haystack, causing damage to the haystack, was wrongly convicted
of arson (criminal damage by fire; section 1(1)(3) of the Criminal Damage
Act 1971, section 60(1)(3) of the Crimes Ordinance), because S suffered
from mental illness (schizophrenia) and this condition raised a reasonable
doubt, not disproved by the prosecution, about Ss actual foresight of the
possible result of lighting the fire, i.e. damaging the haystack. The fact that
this risk would have been obvious to a reasonable person was not enough
to impose liability on S.
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143
Failing to think of the possibility of risk 5

In 1981, the meaning of reckless as used in the offences of arson (i.e.
criminal damage by fire) and aggravated arson in the Criminal Damage Act
1971 came before the House of Lords in MPC v Caldwell ([1982] AC 341).
Contemporaneously, the meaning of reckless driving came before the Lords
in R v Lawrence ([1982] AC 510). Departing from the established view,
the Lords, under the guidance of Lord Diplock, formulated an alternative,
more expansive notion of recklessness, commonly known as Caldwell (or
Lawrence) recklessness. It includes failing at the time of acting to consider
the possibility of there being a risk, when the existence of the risk is objectively
obvious (or obvious and serious for the purposes of Lawrence
recklessness), as well as the traditional state of mind of taking a foreseen
risk.
Caldwell
Caldwell started a fire in the basement of a hotel building. He was charged
with arson (criminal damage by fire, contrary to section 1(1)(3) of the
Criminal Damage Act 1971) and aggravated arson (arson endangering life,
contrary to section 1(2)(3) of the Criminal Damage Act 1971). Although
the central issue in the case concerned Cs entitlement to rely on evidence
of self-induced intoxication to negate the mens rea of the aggravated arson
charge (see Chapter 6, p. 264), the meaning of the term reckless in the
Criminal Damage Act 1971 was extensively discussed. Responding to this
discussion, Lord Diplock, leading a majority, rejected the view adopted in
authorities such as Stephenson, above, that recklessness as used in the
Criminal Damage Act 1971 was limited to actual foresight of the risk of
causing property damage or destruction, or rashness as Lord Diplock called
it. In Lord Diplocks view, the requirement of recklessness in the Criminal
Damage Act 1971 is satisfied by proof that the alleged offender, without
justification, took an obvious risk of causing damage (by fire, for arson),
having failed to think about the possibility of there being any such risk.
According to Lord Diplock, this state of mind, described by him as
heedlessness to distinguish it from rashness, is just as blameworthy, or
culpable, as that of a person who takes a known or foreseen risk. In his
view, recklessness had to be treated as an ordinary English word without
5
See J. Brabyn, A Sequel to Seymour, Made in Hong Kong: The Privy Council Decision of
Kong Cheuk-kwan [1987] Crim LR 84.
144
an established legal meaning (unlike maliciously), and, as noted in the

dictionary definition above, its ordinary meaning would include
heedlessness. In Lord Diplocks view, there was no acceptable reason not
to characterize this further state of mind as recklessness at common law,
and he set out (at 354) a model direction on recklessness (known as a
Caldwell direction), at least for the purposes of the Criminal Damage Act
1971, incorporating this additional state of mind:
A person is reckless as to whether or not any property would be
destroyed or damaged if (1) he does an act which creates an obvious
risk that property will be destroyed or damaged and (2) when he does
the act he either has not given any thought to the possibility of there
being any such risk or has recognised that there was some risk involved
and has none the less gone on to do it.
This further state of mind failing to give any thought to the possibility
of there being any such risk is not merely failing to recognize or foresee
an obvious risk. If it were, an alleged offender would be criminally liable
because he or she ought to have recognized the risk and not taken it an
entirely objective formulation of liability. Rather, failing to give any thought
to [i.e. to consider] the possibility of risk is concerned with the person
who, before acting, never even asks himself or herself: Is this risky? Might
I cause harm/damage? In Lord Diplocks view, the failure to ask this question
to address the possible risks associated with intended conduct involves
moral guilt or blame analogous to that of the person who asks that question,
recognizes the risk and yet still goes ahead. Importantly, this would mean
that a person who asks himself or herself that question and answers it
wrongly, concluding that there is no risk, is not reckless according to
Lord Diplocks formulation. This latter state of mind mistakenly thinking
that there is no risk has been called a lacuna (or gap) in Caldwell
recklessness, and is discussed further below (p. 152).
Lawrence
Consolidating this restatement of recklessness, that same day, in Lawrence
([1982] AC 510), Lord Diplock, this time leading a unanimous bench,
adopted Caldwell recklessness for the purposes of the (now repealed)
statutory offence of causing death by reckless driving (in Hong Kong, section
36 of the Road Traffic Ordinance (cap. 374); since replaced with an offence
of causing death by dangerous driving). As in Caldwell, Lord Diplock set
MENS REA
145
out (at 526) a model direction suitable for use in reckless driving cases.
This direction (called a Lawrence direction) was based on the direction in
Caldwell, but included a requirement that the risk in question be not just
obvious, but obvious and serious. Serious was added because driving is
an activity that by its nature involves and requires risk-taking; accordingly,
risk-taking in itself cannot amount to reckless driving. Instead, the level
of risk-taking must exceed that normally associated with the activity, or
with careless driving (contrary to section 38 of the Road Traffic Ordinance).
As Lord Diplock explained in Lawrence (at 5256):
One does not speak of a person acting recklessly even though he
has given no thought at all to the consequences of his act, unless the
act is one that presents a real risk of harmful consequences which anyone
acting with reasonable prudence would recognise and give heed to.
[for reckless driving] it must be such as to create a real risk of
causing physical injury to someone else who happens to be using the
road or damage to property more substantial than the kind of minor
damage that may be caused by an error of judgment in the course of
parking ones car [emphasis added].
According to this, serious relates to the likelihood of the conduct

causing the relevant consequence or the likelihood of the relevant
circumstance existing, not to the nature of the risk itself (i.e. real risk of
harm, not risk of serious harm).
Lord Diplock also emphasized (at 527) that there is a direct evidential
relationship between the first limb of his reformulation of recklessness
(obvious risk) and the second limb (incorporating two states of mind):
If satisfied that an obvious [and serious] risk was created by the
[defendants conduct], the jury [is] entitled to infer that [D]
was in one or other of the states of mind required to constitute
[recklessness] and will probably do so; but regard must be given to
any explanation [D] gives as to his [or her] state of mind which
may displace the inference.
According to this, once it is shown that the risk taken by the alleged offender
was obvious (or obvious and serious), a wholly objective assessment, then
it will generally follow that he or she is to be treated as reckless, in the
sense that he or she acted with one or other of the two states of mind
identified by Lord Diplock. This inference cannot so readily be made where
only the traditional test based on foresight of the risk must be proved.
146
Criticisms
Lord Diplocks reformulation of recklessness attracted immediate criticism.6
In the first place, critics argued that Lord Diplock was wrong in asserting
that recklessness had no established legal meaning and therefore could be
given its ordinary meaning. All the evidence, it was said, pointed to the
fact that the draftsman had used the term reckless deliberately with the
existing case law in mind.
Secondly, and more significantly, critics remonstrated that Caldwell
and Lawrence by including an essentially objective form of fault, namely,
failing to consider or give thought to the possibility of risk, had
fundamentally undermined the established view that recklessness is
subjective in nature and attaches blame to an accused because of his or her
actual awareness of risk. This, it was contended, would lead to the
imposition of criminal liability primarily because of a persons failure to
meet the standards of the reasonable person, i.e. negligence, and thus blurred
one of the most important distinctions drawn at common law, between
recklessness, which generally suffices as mens rea, and negligence, which
traditionally is not enough to make a person criminally liable.
Lord Diplock anticipated this criticism and attempted to refute it in
Caldwell both by disparaging the use of the terms subjective and objective,
and also by suggesting (at 3534) that failing to think of the possibility of
risk or heedlessness is just as much concerned with an alleged
offenders state of mind as the traditional subjective notion of recognizing
a risk. This response has been echoed on a number of occasions, including
Reid ([1992] 1 WLR 793), in which the House of Lords itself was invited
to reconsider the correctness of its earlier decision in Lawrence. Rejecting
criticism of Lawrence, Lord Browne-Wilkinson, for example, stated (at 818):
Non-advertance is characterized by the critics as being not subjective. In
my judgment, this is to confuse the issue; both advertance and nonadvertance to risk are states of mind of the defendant himself. Therefore,
the test is, on my terminology, subjective in both cases.
See, for example, G Williams, Recklessness Redefined (1981) 40 Camb LJ 25283,

Divergent Interpretations of Recklessness I, II, III [1982] New LJ 28990, 314, 3368;
RA Duff, Caldwell and Lawrence: The Retreat from Subjectivism (1983) 3 Oxford Jnl of
Legal Studies 7798. Some maintain that taking an obvious risk without giving any thought
to the possibility of there being any such risk is not the same as negligence, insofar as it
still requires the prosecution to prove that D did in fact act without the requisite degree of
thought (i.e. Ds state of mind must be investigated and proven as a fact), unlike negligence
where Ds state of mind is simply irrelevant (unless mental abnormality is alleged).
MENS REA
147
It is true that Lord Diplocks reformulation does not simply abandon

the need to prove the alleged offenders state of mind the alleged offender
must either foresee the risk or fail to consider the possibility of there being
any such risk. In this respect, recklessness will not be established merely
because a risk existed and the alleged offender ought to have appreciated
or foreseen it. However, the assertion that non-advertance is also a state
of mind and thus a form of subjective fault is misleading since, as Lord
Diplock acknowledged, once it is proved that an obvious risk existed or
was created by the alleged offenders conduct, this being an objective
question, then it would normally be inferred that the alleged offender acted
with one or other of the two states of mind incorporated in Caldwell
recklessness. The primary issue, therefore, is whether there was an obvious
risk; the alleged offender may then be found guilty because the only sensible
explanation is that he or she took the risk either having foreseen it and yet
still choosing to act, or having never foreseen it even though it was obvious
because he or she never bothered to consider whether there was any such
risk. The objective assessment that the risk is obvious essentially drives the
determination of subjective fault.
This view was certainly entertained by the Hong Kong Court of Appeal
in Chau Ming-cheong ([1983] HKLR 187) when it was submitted in a
manslaughter case that Stone and Dobinson ([1977] QB 354), which the
prosecution relied on to argue that C was criminally liable for the death of
his four-year-old daughter from beatings by his wife because of his gross
inadvertance or indifference, wrongly adopted an objective test of liability.
McMullin VP, responding to this submission, observed (at 1934):
Professor Glanville Williams suggests that an accumulation of recent
authority in England tends to approve the notion of a subjective
meaning for recklessness. It is clear however that very recent authority
binding upon this court has decisively come down, in terms
similar to those used in Stone and Dobinson, upon the side of objective
considerations as constituting the test of criminal liability.
We have authoritative pronouncements from the House of Lords
on this topic in Caldwell and Lawrence Lord Diplock is clearly
unhappy with what he regards as an obsessive concern on the part of
lawyers with the distinction between the terms subjective and objective,
but nevertheless the distinction remains and these decisions are firmly
in favour of the objective test.
Although in Caldwell and Lawrence the word reckless occurred
in a statutory provision, it is clear that the opinions expressed in the
speeches of all those who favoured this view, employ the term with
its normal connotations as a term of familiar speech.
148
Explaining why a risk was taken

Lord Diplock himself emphasized that a conclusion of recklessness would
not follow if there is some other explanation as to the alleged offenders
state of mind when he or she took the risk, such as to displace this
inference. However, the way in which this has been applied merely serves
to emphasize that an alleged offenders actual state of mind is less important
under Caldwell recklessness. This may be illustrated by Stephenson, above.
Stephenson, it will be recalled, was held to be not reckless because his
mental illness created a reasonable doubt, which the prosecution did not
disprove, as to whether he actually foresaw the risk of causing property
damage at the time of starting the fire inside the haystack. However, by
applying Caldwell recklessness, S would be liable because his mental illness
meant he had actually failed to consider the possibility of damaging the
haystack, within Lord Diplocks additional limb. Common sense might
suggest that Ss mental problems constituted an explanation as to his state
of mind displacing the inference of recklessness, and that therefore he
lacked the necessary subjective state of mind required for guilt. However,
this view was rejected by Lord Diplock who was of the view (at 3534)
that Stephenson had been wrongly decided.
This point is further highlighted by R v Bell ([1984] 3 All ER 842).
Like Stephenson, Bell had a history of mental problems; in particular, he
tended to react abnormally in situations of stress. On one such occasion,
responding, he said, to voices in his head, B got into his car and drove it at
various objects gates, cars, signposts thereby causing property damage.
He was charged with reckless driving, contrary to section 2 of the Road
Traffic Act 1972 (now repealed in UK; section 36 in Hong Kong, amended
in 2000 to dangerous driving). Although B appeared to have been conscious
of his actions (several times he took steps to avoid other persons on the
road) so he could not raise involuntariness as a defence, he claimed that he
was possessed and offered this as an explanation to rebut the inference of
recklessness. The trial judge refused to put this to the jury, ruling that B
could only tender this evidence in support of an insanity defence, whereupon
B pleaded guilty. The Court of Appeal upheld the trial judges ruling. Goff
LJ stated (at 847):
But when [Lord Diplock] said that regard must be given to any
explanation the defendant gives as to his state of mind, he was referring
only to such an explanation as might displace that inference. If, in the
present case, the jury concluded that [Bell] did not give any thought
to the possibility of there being any risk of the relevant kind, his
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149
explanation that he was driven on by God could not displace an

inference to that effect. It would merely explain how it came about
that he was in fact in one of the states of mind necessary to constitute
the offence.
It is difficult to see how moral blame or guilt can sensibly be attributed

to either Stephenson or Bell, or that the ordinary person would inevitably
describe them as reckless, except in the sense that each of them objectively
took a risk that a reasonable person would not have taken. Neither can
easily be said to have been heedless to the risk of causing damage if, as
asserted, each was suffering from mental illness at the time. Yet these two
cases illustrate that unless the accused can assert that he or she was in fact
acting involuntarily at the relevant time, then the fact that he or she did
not consider the possibility of risk will condemn him or her. This equates
failing to foresee with did not foresee, whereas it is at least arguable that
a person should be said to have failed to consider the possibility of risk
only if he or she had an opportunity and the mental capacity at the time to
consider this question. Lord Diplocks approach would equally condemn
a person who fails to consider whether his or her conduct involves risk,
when obviously it does, because he or she is suddenly afflicted by a physical
illness and is suffering from nausea.
This point of objection was acknowledged by the Law Lords in Reid
([1992] 1 WLR 793; compare Coles [1994] Crim LR 820), where several of
the Law Lords allowed that factors such as understandable and excusable
mistake, or illness or shock impairing a persons capacity to address his or
her mind to the possibility of risk, may dictate against a finding of
recklessness. Lord Goff, for example, the judge in Bell, observed in Reid (at
813) that:
it is not every case where the defendant is in fact driving dangerously
that he should be held to be driving recklessly, although in most cases
the two will coincide. Another example where they may not coincide
could occur where a driver who, while driving, is afflicted by illness
or shock which impairs his capacity to address his mind to the
possibility of risk; it may well not be right to describe him as driving
recklessly in such circumstances, although he added that such cases
are likely to be rare.
One area in which the courts have been willing to say a defendant was
not reckless concerns driving recklessly in an emergency situation (R v
Willer [1987] RTR 22, R v Denton [1987] RTR 129, R v Conway [1988] 3
150
All ER 1025, R v Martin [1989] 1 All ER 652, and DPP v Bell [1992] RTR
335; see further, Chapter 7, p. 316), or as a means of self-defence or crime
prevention (R v Renouf [1986] 2 All ER 449; see Chapter 7, p. 297).
However, these cases can also be explained on the basis that the defendants
conduct was reasonable or justified because of special circumstances, not
on the basis that he or she lacked the necessary state of mind.
Clarifying Caldwell/Lawrence recklessness
Lord Diplocks initial reformulation of recklessness left a number of points
uncertain. Several of these have since been judicially considered and, in
some instances, clarified.
Obvious risk
Initially, it was unclear whether obvious means obvious to the reasonable
person, or obvious to the accused, i.e. the accused would have foreseen the
risk if he or she had considered whether there was any possibility of risk.
Caldwell and Lawrence contain passages supporting both views, although
Lord Diplock seemed to have an objective test in mind. Thus, in Lawrence,
he stated (at 5256) that a risk would be not obvious only if there was
nothing in the circumstances to alert an ordinary prudent individual to the
existence of the risk, or if the risk was so slight that an ordinary prudent
individual would feel justified in treating it as negligible and paying no
heed to it.
In the immediate aftermath of Caldwell and Lawrence, critics argued
strenuously for the latter, subjective view, in an attempt to make Lord
Diplocks extended test conform more closely to prevailing notions of
subjective criminal liability. However, the case law subsequently favoured
the former, objective sense; obvious means foreseen by the ordinary
prudent individual the reasonable person. Thus, in Elliot v C (A Minor)
([1983] 1 WLR 939), it was held that the question of whether or not
throwing a lighted match onto highly flammable white spirit on the floor
of a shed created an obvious risk of causing property damage was to be
assessed objectively not by asking whether the risk would have been
foreseen by the accused, who was a 15-year-old girl lacking in understanding
or experience of white spirit and suffering from physical and mental
exhaustion, had she addressed her mind to the question.
Similarly, obviousness is assessed without ascribing particular
characteristics of the accused, such as youth or inexperience, to the
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reasonable person. An argument to the contrary, based on principles to

this effect in the law of provocation, was rejected in R v R (Stephen Malcolm)
((1984) 79 Cr App R 334). This was affirmed in Coles ([1994] Crim LR
820), in which the English Court of Appeal upheld a trial judges refusal to
admit the expert evidence of a psychologist as to the defendants mental
state, such evidence being irrelevant to the objective criterion used in
assessing whether a risk is obvious.
Likewise, obviousness is assessed having regard to the circumstances
known at the time when the risk was taken. Thus, a risk of, say, causing
property damage by fire is obvious if it would have been recognized by a
reasonable person at the time of the defendants act and not treated as
negligible, even though information subsequently available may establish
that the risk was in fact non-existent or negligible (R v Sangha [1988] 1
WLR 519).
What if an alleged offender foresees that his or her conduct might
cause a prohibited consequence (such as property damage) or that prohibited
circumstances (such as there being no consent) might exist, but this would
not be similarly appreciated by the ordinary prudent individual? Strictly
applied, he or she is not Caldwell reckless, since the first limb of Lord
Diplocks test requires proof that the risk was obvious, whether reliance is
placed on foresight or failure to consider the possibility of risk. However,
in Reid, Lord Goff suggested that this apparent anomaly was a product of
Lord Diplocks desire for brevity in formulating a model direction, and
that Lord Diplocks requirement that the risk must be obvious must logically
relate only to his [failing to consider the possibility of risk] category of
recklessness; it cannot be relevant where the defendant is in fact aware that
there is some risk of the relevant kind (Lord Goff suggested reformulating
the model direction in Lawrence; below, p. 152).
Some risk versus such risk
A further query concerned the difference between some risk and such
risk in the two limbs of Caldwell/Lawrence recklessness, and whether this
meant the two limbs were unjustifiably inconsistent. This question arose
particularly in relation to Lawrence recklessness, and involved an assertion
that the reference to such risk refers back to and requires proof that the
accused failed to consider the possibility of there being an obvious and
serious risk, whereas foresight of some risk could be proved without
showing that the accused foresaw the risk was serious.
This argument, and a submission that Lawrence recklessness should be
152
overturned because of this alleged inconsistency, was rejected by the House

of Lords in Reid ([1992] 1 WLR 793), ruling that there was no such
inconsistency. For the purposes of the offence of reckless driving, such
risk and some risk both referred to the same thing, namely the risk of
causing physical injury or doing substantial damage to property. In each
case, the risk of these consequences occurring had to be not so slight that
an ordinary prudent individual would feel justified in treating it as negligible;
seriousness, they concluded, related only to the actual degree of risk, not
to the accuseds foresight of risk or lack thereof.
Necessity of using exact words of model directions
What if a trial judge does not use the exact words of the model directions
in Caldwell and Lawrence in directing a jury on the meaning of recklessness?
Some cases have suggested that the exact wording must be used, at least in
those cases where it is appropriate to use Caldwell/Lawrence recklessness
(e.g. R v Madigan (1982) 75 Cr App R 145), but this approach has now
been rejected. In Reid, above, the Law Lords held that while the model
directions were useful, they were not to be followed slavishly. In some
instances, they observed, it may be unnecessary to give any direction on
the meaning of recklessness; and in others, the model directions may have
to be modified or adapted to suit the exigencies of the case. In an attempt
to simplify the law, Lord Goff went further and suggested reformulating
the model direction from Lawrence along the following lines which he felt
would be more easily understood by juries (at 816):
[A] jury should only convict a defendant of driving recklessly if they
are sure of the following: (i) that he was in fact driving in such a
manner as to create a serious risk of causing physical injury to some
other person who might happen to be using the road, or doing
substantial damage to property; and (ii) either (a) that he recognised
that there was some risk of that kind involved, but nevertheless went
on to take it; or (b) that, despite the fact that he was driving in such
a manner, he did not even address his mind to the possibility of there
being any such risk, and the risk was in fact obvious.
Mistakenly thinking there is no risk the gap or lacuna in

Caldwell recklessness
Lord Diplocks formulation of recklessness is not all embracing; it
incorporates a gap or lacuna, whereby a defendant may theoretically take
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153
an obvious risk with neither of the states of mind required for a finding of
recklessness. This arises as follows. Suppose D, before acting, addresses his
or her mind to the question whether his or her proposed conduct entails
any risk, in circumstances where there is an obvious risk. D mistakenly
concludes that there is no risk, goes ahead and acts, and the prohibited
consequence occurs. Since D has taken an obvious risk, his or her actions
are to that extent negligent D ought to have foreseen the risk and acted
differently. However, D seems not to be reckless D neither recognized
that there was some risk (for D concluded, wrongly, that there was none),
nor did D fail to give thought to the possibility of there being any such
risk (for D did in fact consider that question). Accordingly, Ds state of
mind does not fall within either of the two limbs of Caldwell recklessness
(nor, of course, would D be reckless according to Cunningham recklessness);
D may be negligent, but not reckless. But is Ds state of mind any different,
in terms of blame, from that of an accused who never addressed his or her
mind at all to the question of whether his or her actions might involve
risk? Arguably, both are simply negligent; yet Caldwell characterizes the
latter failing to consider whether there is risk as reckless.
Suppose instead, that when D addresses his or her mind to whether
his or her actions entail risk, D recognizes some risk and therefore takes
steps that he or she believes will prevent the risk from occurring. If the
risk occurs, is D reckless? The consistent view of the courts has been that
this amounts to recklessness.7 In Chief Constable of Avon and Somerset
Constabulary v Shimmen ((1986) 84 Cr App R 7), Shimmen kicked at a
plate glass shop window in the belief that his martial arts training would
enable him to stop short of making contact with the window. His belief
proved unfounded, his foot struck and broke the window, and he was
charged with criminal damage. At trial, S argued that he fell within the
lacuna referred to above he had considered the possibility of risk but
concluded, wrongly, that there was none. The justices accepted this
argument and dismissed the charge. On appeal, the Divisional Court, while
not rejecting the possibility of a lacuna, held that it did not apply to S
whose state of mind fell within Caldwells definition of recklessness. Taylor
J for the Court concluded (at 112):
See further: E. J. Griew, Reckless Damage and Reckless Driving: Living with Caldwell and
Lawrence [1981] Crim LR 743; D. J. Birch, The Foresight Saga: The Biggest Mistake of
All? [1988] Crim LR 4.
154
[in] the present case, it seems to me that on the findings of the

justices this defendant did recognise the risk. It was not a case of
his considering the possibility and coming to the conclusion that there
was no risk.
this defendant did perceive, which is the same as Lord Diplocks
word recognise, that there could be a risk, but by aiming off rather
more than he normally would in this sort of display, he thought he
had minimized it and therefore no damage would result. In my
judgment, that is far from saying that he falls outside the state of
mind described by Lord Diplock in these terms, has recognised
that there was some risk involved and has nonetheless gone on to do
it.
Shimmen, then, was reckless because he actually recognized the risk

associated with his conduct, yet chose to go on and take it, a manifestation
of recklessness in its traditional subjective sense, equally falling within
Caldwell recklessness for the purposes of the offence of criminal damage.
In Merrick ([1995] Crim LR 802), the English Court of Appeal similarly
rejected a submission that the lacuna applies where an alleged offender,
anticipating that his or her conduct may create a risk of harm, takes steps
immediately upon the risk arising to eliminate the possibility of any actual
harm occurring. M was charged with criminal damage, being reckless
whether life was thereby endangered, contrary to section 1(2) of the
Criminal Damage Act 1971 (Hong Kong: section 60(2) of the Crimes
Ordinance). The charge arose out of an incident in which M, providing
do-it-yourself television cabling services to householders, with their
consent, removed certain equipment which was attached to the main
electrical cable. M knew that removing the equipment would interfere with
and briefly expose the live cable, in this case for about six minutes. M
came prepared for this contingency with materials to wrap the cable in
plastic, bury it under rubble and cement over it. At trial, M argued that
although his actions briefly exposed the live cable, he believed that there
was never any risk of life being endangered, since he immediately insulated
and covered up the live cable. The trial judge ruled that any precautions
taken to prevent the risk of endangering life must be taken before the
damage was done, not afterwards. M pleaded guilty and then appealed,
arguing that he was not reckless, having regard to his belief that there was
no risk of endangering life. The Court of Appeal, dismissing Ms appeal,
held that a clear distinction must be drawn between taking steps which
effectively prevent a foreseen harm which in this case was the risk
itself of endangering life from arising at all, and, as M had done, merely
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155
taking steps to remedy a harm i.e. the risk of endangering life once
it has already occurred. M had clearly foreseen that by interfering with and
damaging the main cable, he would create a risk of endangering life.
Although he took steps to prevent any actual harm, the fact was that he
had gone ahead with foresight that his conduct might expose the live cable
and thereby endanger life. This amounted to recklessly causing harm
(i.e. the risk of endangering life), for the purposes of the Criminal Damage
Act 1971.
Since the prohibited result in Merrick was merely endangering life
and not causing any actual harm, care must be taken with this case. It may
be that, for a case in which liability requires the occurrence of actual harm,
there is still room for a defendant to argue that he or she is not reckless if
steps were taken after the creation of a risk of harm but before the harm
actually occurs in the belief that they will effectively eliminate the possibility
of any actual harm occurring. This arguably falls within the first category
of case recognized by the Court of Appeal, since D believes that the steps
taken by him or her mean that there is no risk of the harm occurring.
Responding to a risk created by another
The model directions set out in Caldwell and Lawrence speak in terms of
the accuseds advertance and inadvertance to risks created by his or her
own conduct. What if the risk in question is initially created by the conduct
of another person? This question was raised by Lord Roskill in R v Kong
Cheuk Kwan ([1986] HKLR 648, at 656), but was left unanswered. Similarly,
what if the risk created by the accused is created in an attempt to avoid a
risk previously created by another? Can the accuseds risky response be
the basis for a finding of recklessness? For example, if a driver makes a
risky manoeuvre in an attempt to avoid a child who has suddenly run out
onto the road in front of his or her car, is that reckless driving? Several of
the Law Lords in Reid ([1992] 1 WLR 793) suggested that the answer
should be no; the driver may realize that his or her reaction involves
risks, but taking the risk may be reasonable, or justified, in the
circumstances.
This assumes, however, that the accused is conscious of and responsive
to the risk created by another. What if, instead, the accused failed to respond
to an obvious risk, because he or she failed to consider the possibility of
there being any risk? One answer might be to say that the accused is under
no duty to respond in such a case, since the risk is not created by his or
her own conduct, and that he or she is not criminally liable merely because
156
the harm occurred or was aggravated in some way by his or her mere
omission. The reckless tramp in Miller ([1983] 2 AC 161; discussed above,
Chapter 3, p. 78), for example, would not have been liable for criminal
damage if the risk of damage by fire that he did nothing to reduce was
initially created by the act of another person, rather than by his own
inadvertant act. He would not, in that instance, have been under any legal
responsibility or duty to act. On the other hand, a driver, who is
automatically under a duty towards other road-users, can more easily be
said to have recklessly allowed the risk created by the conduct of others
to occur; it is presently unclear whether his or her failure to respond in an
appropriate way to this risk created by another may amount to reckless
driving.
When does Caldwell / Lawrence recklessness apply?
Hong Kongs courts quickly recognized and assimilated the broader notion
of recklessness advocated by Lord Diplock in Caldwell and Lawrence. An
early illustration of this is Chau Ming-cheong ([1983] HKLR 187), a decision
of the Hong Kong Court of Appeal, in which reliance was placed on Caldwell
and Lawrence in upholding Chaus conviction of manslaughter of his fouryear-old daughter, who died from injuries inflicted by Cs wife during the
course of repeated beatings. C himself never took part in these beatings,
but it was alleged that he was aware of his wifes actions, did nothing to
prevent them, and was thereby in gross dereliction of his duties as a parent.
On appeal, C argued that he had pleaded guilty upon mistaken legal advice
that the agreed summary of facts disclosed a proper basis for a conviction
of manslaughter. The agreed facts, it was argued, disclosed no more than a
case of reckless disregard by C for the health and welfare of the deceased
on the basis of an objective test of recklessness laid down by the English
Court of Appeal in Stone and Dobinson ([1977] QB 354). Rejecting the
appeal, McMullin VP endorsed the test of recklessness in Stone and Dobinson,
noting (at 1934) that very recent authority, i.e. Caldwell and Lawrence
which he asserted was binding on the court, had decisively come down
upon the side of objective considerations as constituting the test of
criminal liability. McMullin VP noted that, Although in Caldwell and
Lawrence the word reckless occurred in a statutory provision, it is clear
that the opinions expressed in the speeches of all those who favoured this
view, employ the term with its normal connotations as a term of familiar
speech. He concluded that Cs reckless disregard for the health and welfare
of his daughter established by the agreed facts disclosed a proper legal
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157
basis for Cs conviction of manslaughter (for the current law relating to

manslaughter, see Chapter 10, p. 526).
During the 1980s, in step with the English courts, Hong Kongs courts
proceeded to adopt Caldwell and Lawrence recklessness, at least for some
offences. Most obviously, this occurred in relation to Hong Kongs equivalent
statutory offences to those considered in Caldwell and Lawrence, namely:
reckless driving (contrary to section 37 of the Road Traffic Ordinance
(cap. 374); since amended to dangerous driving) (see, for example, R
v Chu Cheuk-keung (1986) Mag App No. 1063 of 1985, HCt),
causing death by reckless driving (contrary to section 36(1) of the
Road Traffic Ordinance; now repealed and replaced by causing death
by dangerous driving) (see, for example, Dennis Chiu Tat-shing (1984)
Cr App No. 238 of 1984, CA; Lai Kwai Hing v R (1985) Mag App No.
384 of 1985, HCt), and
criminal damage, arson and aggravated criminal damage and arson
(contrary to section 60(1)(2)(3) of the Crimes Ordinance) (see, for
example, HKSAR v Ng Chung Wai [1998] 4 HKC 219).
The House of Lords itself affirmed Caldwell/Lawrence recklessness on
several occasions. One year on, for example, Lord Diplock, in R v Miller
([1983] 2 AC 161), affirmed the application of Caldwell recklessness in a
case dealing with arson, this time by omission. Similarly, Lawrence (and
indirectly Caldwell) was several times affirmed in the face of direct
challenges, most significantly in 1992 in Reid ([1992] 1 WLR 793), though
not without some restatement and despite the fact that the English statutory
provisions dealing with reckless driving had by then been repealed.
Nonetheless, for a time, it appeared that Lord Diplocks reformulation
of recklessness might come to be applied generally, perhaps even exclusively.
Lord Roskill became an advocate for this cause, advancing it (as Lord
Diplock had done with Caldwell, Lawrence and Miller) through a trilogy of
cases dealing with a special category of manslaughter, motor manslaughter
(i.e. manslaughter by driving). Firstly, in United States of America Government
v Jennings ([1983] 1 AC 624), an extradition case, and then again in Seymour
([1983] 2 AC 493), Lord Roskill in the House of Lords held that the
Lawrence direction on recklessness, which had been formulated for the
statutory offence of causing death by reckless driving, applied equally to
motor manslaughter at common law. He added, in Seymour, obiter (at 506),
that there was a need:
to prescribe a simple and single meaning of the adjective reckless
and the adverb recklessly throughout the criminal law unless
158
Parliament has otherwise ordained in a particular case. That simple

and single meaning should be the ordinary meaning of those words as
stated in this House in R v Caldwell and in R v Lawrence.
Then, in Kong Cheuk-kwan ([1986] HKLR 648), Lord Roskill in the Privy
Council on appeal from Hong Kong, in a manslaughter case concerning
death arising from a collision between two hydrofoils plying the waters
between Hong Kong and Macau, reaffirmed Seymour and the use of a
Lawrence direction, even though the hydrofoil death was not strictly
speaking motor manslaughter.
The attempt to prescribe a simple and single meaning for recklessness
did not take hold, either in England or in Hong Kong. Even before Seymour,
courts continued to use Cunningham recklessness, except in dealing with
statutory offences expressly referring to recklessness. In relation to offences
against the person, including assault occasioning actual bodily harm
(contrary to section 39 of the Offences Against the Person Ordinance) and
malicious wounding/infliction of grievous bodily harm (contrary to section
19 of the Offences Against the Person Ordinance), attempts were made to
apply Caldwell recklessness (see, for example, DPP v K (a Minor) [1990] 1
WLR 1067), but these were ultimately rejected by the House of Lords in R
v Savage, R v Parmenter ([1992] 1 AC 699; discussed below, Chapter 11,
p. 581), reaffirming Cunningham recklessness as the test of recklessness.
Furthermore, despite Lord Roskills injunction in Seymour, the courts
had already begun to depart from a strict application of Caldwell
recklessness, even in relation to statutory offences expressly referring to
recklessness. This is illustrated by rape, which was a common law offence
in Hong Kong until 1978 when statutory provisions enacted two years
earlier in England (Sexual Offences (Amendment) Act 1976, section 1)
were adopted in Hong Kong. Section 118(3) of the Crimes Ordinance (cap.
200), which defines rape, expressly provides that a man commits rape if he
has sexual intercourse with a woman without her consent and he is
reckless [emphasis added] as to whether she consents to it. The question
of whether the requirement of recklessness in rape should be formulated
in accordance with Caldwell was considered by the Hong Kong Court of
Appeal in 1983 in Shing Hing-sang v R ([1983] HKLR 1). Earlier English
authority, Pigg ([1982] 1 WLR 762 CA; revised on other grounds [1983] 1
WLR 6 HL), had purported to adopt Caldwell recklessness in rape, holding
that a defendant would be reckless if:
either he was indifferent and gave no thought to the possibility
that the woman might not be consenting in circumstances where if
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159
any thought had been given to the matter it would have been obvious
that there was a risk she was not, or, that he was aware of the possibility
that she might not be consenting but nevertheless persisted regardless
of whether she consented or not.
The Hong Kong Court of Appeal adopted this view, concluding (at 5, per
Roberts CJ) that:
The views expressed by the English Court of Appeal in Pigg go no
further than to require the trial judge to ensure that the jury should
be told that a man is reckless either if he is indifferent or if he is
aware of a possibility of the woman not consenting but nevertheless
persists.
This purports to apply Caldwell recklessness, but the addition of the

reference to indifference appears to change substantially the nature of what
must be proved, for it seems that it is not enough just to show the accused
failed to consider whether the woman was not consenting when there was
an obvious risk she was not. Instead, it must be proved that he was actually
indifferent he could not care less whether she was consenting. This
state of mind is arguably more akin to the traditional, subjective formulation
of recklessness in Cunningham, than Caldwells failing to consider the
possibility of there being any such risk.
Subsequently, the English Court of Appeal in Satnam ([1983] 78 Cr
App R 149) endorsed this view, retreating from the suggestion that Caldwell
and Lawrence had any relevance to the meaning of reckless in rape. Instead,
adopting the common law view of recklessness advocated in Morgan
([1976] AC 182), the Court of Appeal reaffirmed that D is reckless for the
purposes of rape if he could not care less whether [the woman] wanted [to
have sexual intercourse or not], but pressed on regardless . This
formulation essentially requires proof that D actually recognized or foresaw
that the victim may not be consenting, but pressed on regardless because
he could not care less.8
Another illustration involves the deception offences in the Theft
Ordinance (cap. 210) sections 17, 18, 18A, 18B and 18D. Deception is
defined in section 17(4) as being any deception (whether deliberate or
8
See also Khan [1990] WLR 813: the English Court of Appeal, in holding that the mens rea
of attempted rape is the same as that of rape itself, stated, at 819, that it must be proved
that D either knows [the woman is not consenting] or could not care less about the absence
of consent.
160
reckless) . Since the deception offences require proof of dishonesty,

reckless here is presumably to be given a subjective interpretation, for a
person is unlikely to have dishonestly deceived another if he or she is not
aware that his or her statements are false, or at least might be false.
Accordingly, even statutory offences expressly using the terms reckless
and recklessly have not been uniformly taken to refer to Caldwell/Lawrence
recklessness. This was conceded by the House of Lords in Reid. Lord Ackner,
for example, stated (at 805):
Much as it may be desirable that the adjective reckless or the adverb
recklessly should have the same meaning in whatever statute it may
appear, the context in which a word appears may modify its ordinary
meaning.
Lord Goff agreed (at 807):

I think it wise to bear in mind the possibility that words such as
reckless or recklessly, which can be used in a number of different
contexts, may not necessarily be expected to bear the same meaning
in all statutory provisions in which they are found.
In England, the use of Lawrence recklessness as the test at common

law for manslaughter was finally disapproved of by the House of Lords in
Adomako ([1995] 1 AC 171), consequent upon the repeal of the statutory
offences of reckless driving and causing death by reckless driving. In Hong
Kong, these two driving offences have similarly been repealed, in 2000,
and replaced with offences of dangerous driving (section 37 of the Road
Traffic Ordinance) and causing death by dangerous driving (section 36 of
the Road Traffic Ordinance). This severely undermines the authority of
Kong Cheuk-kwan, since Lord Roskill in that case proceeded in his analysis
from the position that the law of manslaughter in Hong Kong is essentially
the same as that in England. Since Adomako now represents the law on this
aspect of the law of manslaughter in England, then it must be assumed
that the Hong Kong courts will abandon reckless manslaughter as
formulated by Lord Roskill, and return to the more traditional test of gross
negligence manslaughter.
The result, nonetheless, is that for the time being, two (or more)
formulations of recklessness Cunningham recklessness and Caldwell
recklessness continue to be recognized in Hong Kong, as in England.
On the other hand, whereas at one time it seemed that Caldwell (and
Lawrence) recklessness might come to be applied generally, the courts have
161
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demonstrated their unwillingness to perpetuate this development; the

general trend, it must be said, has been to reaffirm Cunninghams subjective
formulation of recklessness in terms of awareness and foresight of risk.
TRANSFERRED MALICE
What if the actual victim or object of criminal conduct differs from the
intended victim or intended object? Suppose D strikes at X, but misses or
stumbles and instead strikes Y, causing injury; or D sets out to destroy
property belonging to X, but succeeds only in damaging Ys property. Will
D still be criminally liable for the injury to Y or damage to Ys property?
The criminal law answers this yes, by deeming Ds state of mind or
malice towards Ds intended victim or object to be transferred to the
actual victim or object.
This principle, or fiction as it has recently been called (A-Gs Ref (No.
3 of 1994), discussed below), is known as the doctrine of transferred malice.
It enables the actus reus and mens rea of an offence to be established and
treated as coincident, even though this would appear, at first sight, not to
be so (for coincidence, see Chapter 3, p. 100). Apart from some ancient
authorities (see Saunders and Archer (1573) 2 Plow 473, Gores Case (1609)
9 Co Rep 81), the doctrine is usually based on Pembliton ((1874) LR 2
CCR 119, [187480] All ER Rep 1163), in which P was acquitted of criminal
damage arising when a stone thrown by P at another person missed and
broke a window, and Latimer ((1886) 17 QBD 359, [188690] All ER Rep
386; see also Mitchell [1983] 2 All ER 427), in which L was convicted of
malicious wounding after he swung his belt at one person but struck instead
the victim, wounding her severely.
The doctrine was recently considered by the House of Lords in A-Gs
Reference (No. 3 of 1994) ([1998] AC 245) where Lord Mustill, delivering
the judgment of the Lords, affirmed the principle in the following terms
(at 253):
If the defendant does an act with the intention of causing a particular
kind of harm to X, and unintentionally does that kind of harm to Y,
then the intent to harm X may be added to the harm actually done to
Y in deciding whether the defendant has committed a crime towards Y.
This rule is usually referred to as the doctrine of transferred
malice, a misleading label but one which is too firmly entrenched to
be discarded. Nor would it be possible now to question the rule itself
162
An illustration of the application of this doctrine in Hong Kong is Lau

Pui ([1966] HKLR 201). In this murder case, the prosecution alleged that
L obtained a bomb from the second appellant and left it on certain premises
with the intention of killing or seriously injuring C, who had previously
given information to the police leading to the arrest and imprisonment of
several of Ls fellow triad members. Three persons were killed and twenty
others injured when the bomb detonated, but not C. L was convicted of
murder, and the second appellant was convicted as an accessory to murder.
On appeal, the second appellant inter alia argued that he did not have the
necessary state of mind to make him liable as an accessory to murder because
C was the only victim he had contemplated. Rejecting this argument, Hogan
CJ concluded (at 214):
From the nature of the bomb as well as from the circumstances in
which it was made and delivered, the jury could unquestionably draw
the inference that it was intended to be used for the purpose of killing
or causing grievous bodily harm to a human being and the evidence
for the prosecution showed that this was the very crime that came to
be committed, even if the victims of his crime were not those persons
against whom [L] entertained enmity [emphasis added].
[T]he jury could properly infer that when [L] left the house
of the second appellant with the bomb the second appellant knew of,
and shared with [L], a murderous intent.
In A-Gs Ref (No. 3 of 1994), Lord Mustill cast doubt on how far this
doctrine could be extended, in particular, whether it could be relied on to
establish murder where D unlawfully and intentionally inflicts serious injury
on a pregnant woman, causing the premature birth and then death of her
unborn child. Since the foetus or unborn child is not a human being until
it is born alive (see Chapter 10, p. 491), Ds conduct can be treated as
murder only if Ds intention towards the pregnant woman is transferred
to the unborn child after its birth.
Lord Mustill, for the Lords, rejected this extension of the doctrine.
Referring (at 25961) to Pembliton and Latimer, and to Glanville Williams
description of the doctrine of transferred malice as rather an arbitrary
exception to general principles, Lord Muskill observed (at 261) that the
doctrine is useful enough to yield rough justice, in particular cases, and it
can sensibly be retained notwithstanding its lack of any sound intellectual
basis. However, he concluded, this did not justify its extension to enable
Ds assumed intent towards the mother to be treated as equivalent to the
same intent directed to the foetus or unborn child (at 2612):
MENS REA
163
To give an affirmative answer requires a double transfer of intent:

first from the mother to the foetus and then from the foetus to the
child as yet unborn. Then one would have to deploy the fiction (or at
least the doctrine) which converts an intention to commit serious
harm into the mens rea of murder. For me, this is too much.
To make any sense of [the process of transferring intention
from the intended to the actual victim] there must be some
compatibility between the original intention and the actual occurrence
. There is no such compatibility here. [D] intended to commit and
did commit an immediate crime of violence to the mother. He
committed no relevant violence to the foetus, which was not a person,
either at the time or in the future, and intended no harm to the foetus
or to the human person which it would become. If fictions are useful,
as they can be, they are only damaged by straining them beyond their
limits. I would not overstrain the idea of transferred malice by trying
to make it fit the present case.
In reaching this conclusion, the Lords differed from earlier thoughtful

Hong Kong authority to opposite effect, Kwok Chak Ming ([1963] HKLR
226) and Kwok Chak Ming (No. 2) ([1963] HKLR 349), in which the Full
Court affirmed the ruling of Jennings J that the death of an unborn child
after birth could properly be charged as murder (at 355):
It is, in our view, immaterial that the malice aforethought may
have been directed against the mother rather than the child. The
principle that where A, intending to kill or seriously injure B,
unintentionally but, in pursuit of that purpose, kills C may be indicted
for the murder of C, applies, we think, with equal force even where
C was only an embryo or foetus at the time when the malice was
manifested and the injury inflicted but is subsequently born alive and
dies of the injury.
In any event, for the doctrine to apply, the actus reus and the mens rea
of the same offence must coincide, though they apply to different victims
or objects (the charge should state that D caused harm to V, with intent to
cause such harm to X; see Monger [1973] Crim LR 30, Slimmings [1999]
Crim LR 69). Thus in Pembliton, above, P was acquitted of criminal damage
because mens rea and actus reus did not relate to the same offence: Ps
state of mind was directed at a human victim, whereas his actions established
the actus reus of criminal damage (though the court acknowledged that P
could have been convicted of criminal damage if it were proved that he
was reckless, when he threw the stone at his intended victim, as to breaking
the window).
164
MISTAKE
What happens if a defendant claims to have acted in the manner alleged to
be criminal because of a mistake? Suppose, for example, D damages
property, mistakenly believing that it was his or her own. If it were his or
her own, D would not be liable for the offence of criminal damage, contrary
to section 60(1) of the Crimes Ordinance, since section 60(1) requires D
to have intentionally or recklessly destroyed or damaged property belonging
to another; neither actus reus nor mens rea could be proved. If D is mistaken
and the property actually belongs to another person, then the actus reus of
criminal damage does exist D has damaged property belonging to
another. However, since D mistakenly believes it was his or her own
property, it cannot be said that D intended to damage property belonging
to another, or even to have damaged the property being reckless whether
it belonged to another (in Ds mind, it was Ds property, so there was no
risk of damaging the property of another). The mens rea of the offence
cannot be proved; Ds mistake, it can be said, negates the mens rea of the
offence, i.e. prevents the prosecution from proving mens rea beyond
reasonable doubt. Accordingly, D should not be liable and ought to be
acquitted.
For this to apply, however, several conditions must be satisfied: the
offence must be one requiring proof of mens rea (but see Re B (A Minor)
[2000] 2 WLR 452, discussed in Chapter 5, p. 206, in which the House of
Lords held that an honest mistake as to the age of the victim may provide
a defence even to a strict liability offence), Ds mistake must be a mistake
of fact (for mistakes of law, see below, p. 174), and the mistake must
negate the state of mind required to be proved as mens rea.
A mistake may also be relevant because it provides the basis for a
criminal defence. Consider, for example, Ds liability for using reasonable
force on V to defend himself. If V were actually attacking D, then Ds use
of force would prima facie amount to lawful self-defence, and D would be
entitled to be acquitted of battery because of this justificatory defence (see
Chapter 7, p. 279). Suppose, however, that V is not actually attacking D; D
merely believes, mistakenly, that this is so. Ds use of force in this case is
prima facie unlawful as an intentional battery. However, Ds intention in
using force against V is only to use lawful force, i.e. only such force as is
reasonable in the circumstances as D (mistakenly) believes them to be
(i.e. assuming V were attacking D). Can D rely on this mistake of fact to
obtain an acquittal? The general answer is (once again) yes, since Ds
mistake of fact is relevant, for reasons to be discussed below, to the mens
MENS REA
165
rea that the prosecution must prove beyond reasonable doubt to convict D
of battery. In other words, Ds mistake once again negates the mens rea of
the offence charged against D.
Suppose instead that D carries out a robbery in the mistaken belief
that his or her life is in danger from X who ordered D to commit the
robbery. In this case, assuming D commits the robbery, D may wish to rely
on the excusatory defence of duress (by threats) (see Chapter 7, p. 300).
Assuming there is no actual threat, D will need to rely on his mistaken
belief to raise duress. Here, Ds mistake of fact does not negate the mens
rea of robbery; instead, Ds mistaken state of mind provides the platform or
foundation for an excusatory defence, in this case duress. For a mistake to
be relevant in this way, the defence in question must be one which involves
or may be based on Ds state of mind. If so, then Ds mistake may be relied
on to raise the defence, subject to a further qualification as to whether the
mistake has to be reasonable (at present, this seems to be necessary for
duress, but not for self-defence).
If the offence does not require proof of mens rea, and Ds state of mind
cannot be relied on to give rise to a defence, then any mistake by D will
prima facie be irrelevant to the determination of liability (though it will
remain relevant to sentencing). Likewise, making a mistake about
circumstances should not assist D if proof of mens rea as to those
circumstances is not required to establish criminal liability. Suppose, for
example, D has consensual sexual intercourse with a girl aged 15, mistakenly
believing she is over the age of 16. Under section 124 of the Crimes
Ordinance, it is an offence for a man to have sexual intercourse with a girl
under the age of 16; consent is irrelevant to liability under this section. This
offence is traditionally taken to impose strict liability as to the girls age
that is, D is liable if the girl is in fact under 16, regardless of his state of
mind regarding her age. If this is still correct (Re B (A Minor) [2000] 2 AC
428, discussed in Chapter 5, p. 206, suggests it may now need to be viewed
differently), then there is no need for the prosecution to prove mens rea as
to her age, and D may be convicted even though he neither knew the girl
was aged under 16, nor was reckless as to her age, nor was even negligent.
Traditionally, Ds mistaken belief that the girl was 16 neither negates
mens rea, nor gives rise to any defence and, as such, should be treated as
simply irrelevant to the determination of liability. If, instead, D asserts that
the girl consented and he mistakenly thought her consent would prevent
criminal liability, then his mistake is a mistake of law, not of fact: as a matter
of law, consent is irrelevant to liability under section 124, and Ds mistaken
belief to the contrary will likewise be irrelevant.
166
An offence may be strict liability as to some but not all elements of the
actus reus; in this case, a mistake in respect of an element for which mens
rea is required may be relied on to negate mens rea (see Blackburn v Bowering
[1995] Crim LR 38). In addition, an honest and reasonable belief may
bring a defendant within the implied due diligence defence recognized in
Hong Kong in relation to strict liability offences (see Chapter 5, p. 201).
What if a mistake is relevant, but is an unreasonable mistake (i.e. a
reasonable person in Ds position would not have made the same mistake)?
May D still rely on it? At one time, the answer would have generally been
no, but in DPP v Morgan, discussed below, the House of Lords reviewed
the law and concluded that a mistake negating mens rea may be relied on
even though it may have been unreasonable. The position is less clear where
Ds mistaken state of mind is relied on to raise a defence. At present, the
case law seems to draw a distinction according to whether the defence can
be said to negate an essential or definitional element of the offence (as
self-defence does), in which case the mistake may be relied on even though
it may have been unreasonable, or involves a separate defence (such as
duress), in which case it may be that the mistake must be reasonable before
it may be relied on to found the defence. However, this distinction is now
not easily maintained in the light of Re B (A Minor) ([2000] 2 AC 428) in
which the House of Lords strongly reaffirmed the presumption of mens
rea, and held that where belief (including mistaken belief) is raised by the
defendant, the prosecution must prove the absence of a genuine belief, not
simply the absence of any reasonable grounds for the (mistaken) belief.
Mistakes of Fact
Mistakes negating mens rea
A defendant who acts under a mistake of fact relating to an actus reus
element of the offence charged against him or her, whereby the mens rea
of the offence relating to that actus reus element is negated, is entitled to
be acquitted. This is so even if the mistake was an unreasonable one. The
rationale for this latter rule is essentially that where an offence requires
proof of mens rea, i.e. intention or recklessness in relation to the actus
reus elements, it is not enough for the prosecution to prove only that D
acted on the basis of an unreasonable mistake or belief. This merely
establishes that D acted negligently and this is not sufficient (unless
negligence suffices for liability, in which case making an unreasonable
167
MENS REA
mistake may constitute the necessary negligence for liability). This rule
was considered by the House of Lords in 1976 in DPP v Morgan ([1976]
AC 182) concerning rape.
DPP v Morgan [1976] AC 182
Facts
Morgan, an airforce officer, invited three junior officers to go with him
to his home and have sexual intercourse with Ms wife. The codefendants alleged that M had induced them to have sexual intercourse
with his wife by telling them that she was kinky and enjoyed rough,
violent sex. The co-defendants alleged that they believed Ms wife was
only play-acting when she physically and verbally resisted them, and
further alleged that she willingly co-operated after initial resistance.
The co-defendants were charged with rape, and also, along with M,
with aiding and abetting rape. At the time, there was no statutory
definition of rape.
At trial, the judge directed the jury to consider whether Ms wife
was not in fact consenting. If they were satisfied that she was not, then
they should consider the defendants allegation that they believed she
was consenting. He directed the jury to convict if satisfied that the
defendants had no reasonable grounds for so believing. The defendants
were convicted, and appealed unsuccessfully to the Court of Appeal,
and then to the House of Lords.
Decision
Appeals dismissed. The trial judge misdirected the jury in telling them
to convict the defendants if they were satisfied that the defendants had
no reasonable grounds for believing that Ms wife was consenting; it
is sufficient that the defendants may have honestly (i.e. actually or
genuinely) believed they had consent. Nevertheless, the Lords affirmed
the convictions, on the basis that the jury, in convicting the defendants,
had clearly done so because they rejected entirely the defendants
assertion that they believed Ms wife was consenting, rather than
because any such belief was unreasonable.
Dealing with the trial judges direction, Lord Hailsham explained
why, in a case of rape, a mistake as to consent may be relied on to
secure an acquittal, even though it may be unreasonable (at 214):
Once one has accepted, what seems to me abundantly clear, that
the prohibited act in rape is non-consensual sexual intercourse,
and that the guilty state of mind is an intention to commit it, it
seems to me to follow as a matter of inexorable logic that there is
no room either for a defence of honest belief or mistake, or of
168
a defence of honest and reasonable belief and mistake. Either the

prosecution proves that the accused had the requisite intent, or it
does not. In the former case it succeeds, and in the latter it fails.
Since honest belief clearly negatives intent, the reasonableness or
otherwise of that belief can only be evidence for or against the
view that the belief and therefore the intent was actually held
A failure to prove [the mental element for rape] involves an
acquittal because the intent, an essential ingredient, is lacking. It
matters not why it is lacking if only it is not there, and in particular
it matters not that the intention is lacking only because of a belief
not based on reasonable grounds [emphasis added].
According to Morgan therefore, an honestly held mistake negating

mens rea may be relied on at common law, even though it may be
unreasonable.
The reasonableness of a mistake negating mens rea remains relevant,
nonetheless, in determining whether D ever actually held the belief, i.e.
made the mistake. The burden of proof in relation to a mistake negating
mens rea is on the prosecution. Therefore, the prosecution must disprove
Ds alleged mistake beyond reasonable doubt, i.e. prove that D did not
make the mistake in question. In assessing this, the more unreasonable the
mistake is, the more likely it is that the accused will be disbelieved.
The decision of the Lords in Morgan attracted trenchant criticism. Critics
argued that Morgan effectively granted rapists a charter, or licence, to rape,
since a man who asserts that he acted in the belief that all woman consent,
even if they say or act otherwise is purportedly protected from liability, no
matter how mistaken and unreasonable his belief may be. If the jury
considers that D may have honestly (i.e. actually) acted with this state of
mind, then D will lack the necessary mens rea for rape and must be
acquitted. Of course, the jury may conclude, as the House of Lords found
in Morgan, that the defendant never made the mistake alleged, but the
argument remains that Morgan may have disregarded social justice in the
name of inexorable logic.
Despite this criticism, this common law rule was codified in relation
to rape in 1978. Section 118(4) of the Crimes Ordinance reads:
It is hereby declared that if at a trial for a rape offence 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.
MENS REA
169
This subsection applies to rape, attempted rape, aiding, abetting, counselling

or procuring rape or attempted rape, and incitement to rape (see rape
offence, section 117(1) of the Crimes Ordinance).
Although Morgan dealt only with rape, adherence to the inexorable
logic of the analysis adopted by the Lords demands that the principle should
apply generally at common law to all offences requiring proof of mens rea.
In Phekoo ([1981] 1 WLR 1117), the court tried to restrict Morgan to rape,
but subsequent case law has not adopted this restriction, and the principle
has been applied generally. In Kimber ([1983] 1 WLR 1118), for example,
the English Court of Appeal held that an honest, though mistaken, even
unreasonable, belief in the victims consent likewise negated liability for
indecent assault.
A mistake of fact will negate mens rea in this way only if the mistake
relates to the existence of an actus reus element, and not merely to an
incidental quality or feature of an actus reus element. Thus, a mistake as to
the nature of stolen goods (e.g. thinking the goods are VCRs rather than
radios) will not lead to an acquittal on a charge of handling stolen goods
(contrary to section 26 of the Theft Ordinance (cap. 210)) if it is proved
that D knew or believed that the goods (whatever they may be) were
stolen (McCullum (1973) 57 Cr App R 645). Similarly, a defendants
mistaken belief that he or she is importing pornography, not drugs, will
not assist him or her if it is proved he or she knew that the importation of
such goods (pornography) is prohibited (Ellis, Street and Smith (1986) 84
Cr App R 235).
Mistakes Giving Rise to a Defence

As already outlined, D may also rely on a mistake of fact to found a criminal
defence. The two examples mentioned above are of a person who defends
himself or herself against another in the mistaken belief that the other is
attacking him or her (self-defence), and a person who commits a robbery
in the mistaken belief that another has threatened his or her life if he or
she does not do so (duress by threats). Morgan left open the question of
whether such mistakes, unlike those directly negating mens rea, could also
be relied on even if they are unreasonable. Previous authority, referred to
in Morgan, supported the view that only a reasonable mistake could be
relied on to raise defences, and this was followed by the English Divisional
Court in Albert v Lavin ([1982] AC 546) in relation to self-defence
(overruled on appeal on different grounds).
170
Later cases, however, adopted a different position, allowing a mistake

of fact to be relied on to raise a defence even if it is unreasonable, at least
if the defence raised negates a definitional element of the offence charged
against D; if it does not have this effect and operates independently of
actus reus and mens rea, then it seems that the mistake may still have to be
reasonable. This distinction appears to reflect a theoretical difference
between defences which operate as justifications for Ds conduct (e.g. selfdefence) and negate the elements of the offence itself, and defences which
merely provide D with an excuse for what is prima facie criminal (e.g.
duress).
Mistakes as to definitional elements
If the defence negates a definitional element of the offence, then a mistaken
state of mind giving rise to that defence may prima facie be relied on even
if it is unreasonable.
This is illustrated by self-defence. Suppose, for example, D uses
reasonable force to defend himself or herself from an attack. Prima facie, D
commits no offence, since offences against the person, such as battery,
require proof that the intentional or reckless use of force also involves
unlawful force, i.e. there are no circumstances entitling D to use force
(see Chapter 11, p. 559). This element of unlawfulness may be viewed
either as part of the actus reus or as a separate element. However, either
way, it is something that must be proved, once raised, by the prosecution
and is therefore a definitional element of the offence. Accordingly, Ds use
of reasonable force in the circumstances will amount to lawful force, and
will negate the definitional element of unlawfulness, leading to an acquittal.
In the eyes of criminal lawyers, this acquittal reflects the view that a person
is fully justified in using reasonable force to defend himself or herself, and
is not merely excused in the particular circumstances.
If D uses force to defend himself or herself when there is no actual
attack, then Ds defensive action prima facie involves the intentional use
of force without justification, and the definitional element of unlawfulness
is thus satisfied. If, however, D uses reasonable force in the mistaken belief
that he or she is under attack, then Ds intention is only to do what he or
she would be entitled to do were he or she actually under attack; in other
words, D intends only to use lawful force. If unlawful force is a definitional
element of the offence, and mens rea must be proved in relation to this
element, then unless the law requires the mistake to be reasonable, D ought
to be acquitted, since Ds mistake gives rise to a state of mind intention
MENS REA
171
to use force lawfully in self-defence which negates the assertion that D

intends to use unlawful force or is reckless as to using such force.
The question of whether a mistake of this nature must be reasonable
was considered in Williams (Gladstone) ([1987] 2 All ER 411). W was
charged with assault occasioning actual bodily harm after he used force on
M who was struggling with V, to protect V from what W mistakenly
believed was an unlawful beating by M. Ws intention in using force on M
was to act in accordance with and prima facie for a lawful purpose, i.e.
crime prevention or self-defence. However, M was in fact lawfully using
force on V to arrest him for an earlier robbery. Accordingly, Ws use of
force on M was prima facie unlawful. On the question of whether W could
still rely on crime prevention or self-defence if it was based on a mistake,
the jury were directed that Ds mistake would be relevant if it was honest
and based on reasonable grounds. The English Court of Appeal quashed Ds
conviction. In its view, the mens rea of battery intention or recklessness
relates not only to the use of force itself, but also to the unlawfulness
of that use of force. Unlawfulness is therefore a definitional element of the
offence, and the prosecution must prove mens rea in relation to it. In other
words, the prosecution must prove that D used force knowing there was
no lawful basis for doing so in the circumstances, or being reckless whether
the circumstances entitled him or her to use such force. Ws mistaken state
of mind negated this mens rea requirement, since his intention was only
to use lawful force in crime prevention or self-defence. It then followed,
applying the inexorable logic espoused in Morgan, that such a mistaken
state of mind may be relied on to raise self-defence, even though it may
have been an unreasonable mistake. Lord Lane CJ observed (at 281):
[t]he reasonableness or unreasonableness of [Ds] belief is material to
the question of whether the belief was held by [D] at all. If the belief
was in fact held, its unreasonableness, so far as guilt or innocence is
concerned, is neither here nor there. It is irrelevant. Were it otherwise,
[D] would be convicted because [D] was negligent in failing to
recognize that the victim was not consenting or that a crime was not
being committed and so on. The jury should be directed first of all
that the prosecution have the burden or duty of proving the
unlawfulness of the defendants actions; secondly, if the defendant
may have been labouring under a mistake as to the facts, he must be
judged according to his mistaken view of the facts; thirdly, that is so
whether the mistake was, on an objective view, a reasonable mistake
or not.
172
According to Lord Lane CJ, this applies equally, so far as offences against
the person are concerned, to mistakes relating to consent, self-defence, and
crime prevention and lawful arrest (under section 101A of the Criminal
Procedure Ordinance), each of which is to be treated as a definitional
element of the offence.
In some statutory offences, the definitional elements include the absence
of any lawful excuse. Where this is so, D ought to be entitled to rely on a
mistaken view of facts giving rise to the lawful excuse, even though the
mistake may be unreasonable. In some instances, the statute itself may
make this clear. An example of this is criminal damage, contrary to section
60(1) of the Crimes Ordinance. Section 64(2) expressly sets out several
beliefs which may be relied on as lawful excuses for causing damage to
anothers property, and subsection (3) states: For the purposes of this
section, it is immaterial whether a belief is justified or not if it is honestly
held.
Mistakes as to non-definitional elements
If D relies on a mistake of fact to raise an excusatory defence, such as
duress (by threats), then it may be that the mistaken state of mind must be
reasonable.
This follows from the view that excusatory defences do not negate the
definitional elements of an offence. Instead, they involve an assertion by D
that he or she may have committed the actus reus of the offence with mens
rea, but nonetheless should be acquitted because of particular mitigating
circumstances accompanying the commission of the offence. In the case of
duress, for example, D asserts that he or she was compelled by threats to
Ds life or physical well-being to act in the criminal manner alleged. Suppose,
using the example above, D raises duress (by threats) by asserting that he
or she was compelled to commit a robbery to escape what he or she
mistakenly believed was a threat to Ds life. The mistake here is said to
relate to the elements of the defence of duress, not to the elements of the
offence of robbery. And, since Ds mistaken state of mind does not negate
the mens rea of robbery, the inexorable logic of Morgan does not have to
be applied. Requiring a mistake giving rise to duress to be reasonable does
not, accordingly, impose liability on D for his or her negligence, but rather
sets the conditions on raising duress as an excusatory defence where D has
admittedly committed the actus reus of the offence with mens rea. This
difference, however, does not necessarily lead to the conclusion that a
mistake giving rise to an excusatory defence must be reasonable, only that
MENS REA
173
requiring reasonableness is not in conflict with the position demanded by

inexorable logic. Some commentators have queried the justification for
imposing a requirement of reasonableness (e.g. Elliot, Necessity, Duress
and Self-defence ([1989] Crim LR 611)), and the English Law Commission
in its draft Criminal Code has proposed, in clause 41, a general provision
stating that a person who acts in the belief that a circumstance exists has
any defence that he would have if the circumstance existed, without
stipulating that the belief must be in some circumstances reasonable.
Nonetheless, reasonableness has been required in the case law, at least
in relation to duress. Thus, in Graham ((1982) 74 Cr App R 235), Lord
Lane CJ in the English Court of Appeal laid down a test for duress which
stipulates that a defendant may rely on a mistaken belief (that he or she
would be killed or seriously injured if he or she did not commit the offence)
for the purposes of duress only if the mistake is a reasonable one (see
Chapter 8, p. 303). This test, incorporating a requirement of reasonableness,
was subsequently adopted by the House of Lords in Howe ([1987] 1 AC
417).
Bigamy and Tolson
The offence of bigamy presently stands as an anomalous case having regard
to the above rules. Pursuant to section 45 of the Offences Against the Person
Ordinance (cap. 212) (section 57 of the Offences Against the Person Act
1861), a person commits bigamy, punishable by seven years imprisonment,
if he or she, being married, marries any other person during the life of the
former husband or wife [emphasis added]. A proviso to section 45 states
that it does not extend to a person entering a second marriage after being
divorced from his or her first marriage partner, or if the first marriage has
been annulled, or if the first spouse has been continually absent for seven
years and has not been known to be living within that time. Suppose then
that D remarries within seven years of last seeing his or her spouse in the
mistaken belief that the spouse is dead, i.e. believing D is no longer married.
This was considered in Tolson ((1889) 23 QBD 168), in which a wife
remarried five years after last seeing her husband, believing (reasonably in
the view of the jury) that he had been lost at sea. When he later turned up
alive, she was charged with bigamy. Her conviction of bigamy was quashed
on appeal, on the basis that her reasonable belief in her husbands death
provided her with a defence to the charge. In Gould ([1968] 2 QB 65), it
was held that a reasonable belief in the dissolution of a persons first marriage
may likewise amount to a defence to bigamy (see also King [1964] 1QB 285).
174
In Morgan, above, it was submitted that this line of cases was wrong to
require reasonable grounds before a belief in a first spouses death or in the
dissolution of the first marriage could provide a defence, since the effect
of the mistaken belief is to negate the mens rea of the offence as it relates
to Ds state of being married. But the House of Lords was unwilling to
reconsider or disapprove of this line of authority, with Lord Fraser going
so far as to state that bigamy does not involve any intention except the
intention to go through a marriage ceremony. If this is right, then mens
rea, in the sense of either knowledge or recklessness, is not required as to
the element of being married; negligence (i.e. Ds honest but unreasonable
belief) will be enough to make D liable. This does not fit well with the
general principle that mens rea is required as to all the elements of the
actus reus of an offence unless excluded expressly or by necessary
implication, nor with the potential penalty that can be imposed on the
bigamist, and it has been argued that the principle adopted in Tolson should
therefore be limited to bigamy. It has been suggested that Tolson is now
likely to be overruled in the light of Re B (A Minor) ([2000] 2 AC 428) (see
Commentary, [2000] Crim LR 403, at 406).
Mistakes of Law9
As a general rule, ignorance of, or a mistake as to, the criminal law is
irrelevant ignorantia juris non excusat since everybody is presumed
to know the criminal law (Reid [1973] 3 All ER 1021). Thus, it is no
defence for a visitor or newly arrived immigrant in Hong Kong to assert
that he or she did not know that a particular act was an offence under
Hong Kong law. He or she will be liable if the prosecution proves that he
or she committed the actus reus of the charged offence with the requisite
mens rea, without also having to prove that the visitor or immigrant knew
that his or her conduct was contrary to the criminal law.
Exceptionally, a mistaken view of Ds rights under the civil law or of
Ds legal entitlement to act may be relied upon by D to avoid or deny
criminal liability. Suppose, for example, that D mistakenly believes that he
or she owns certain property, which he or she removes or damages. Ds
belief in this case may give rise to a claim of right if D were charged with
See further: A. J. Ashworth, Excusable Mistake of Law [1974] Crim LR 652; I.H.E. Patient,
Mistake of Law A Mistake? (1987) 51 Jnl of Crim Law 326.
MENS REA
175
theft or criminal damage. In Smith (David) ([1974] QB 354), for example,

S was charged with criminally damaging fixtures installed by S in his rented
flat to cover wiring to his stereo equipment. When he was given notice to
quit, S removed the wiring, thereby damaging the fixtures. Under the civil
law, these fixtures became the property of the landlord; S said that he
believed they were his own property. Since S did not therefore intend to
damage property belonging to another, his conviction was quashed (see
also Secretary of State for Trade and Industry v Hart [1982] 1 WLR 481;
compare Barrett v Barrett (1980) 72 Cr App R 212).
5
Negligence and Strict Liability
INTRODUCTION
Despite the presumption of mens rea, it is not always necessary for the
prosecution to prove mens rea in order to establish criminal liability. Firstly,
negligence alone may suffice. Secondly, criminal liability for statutory
offences may arise without regard to whether the defendant acted
intentionally, knowingly or recklessly, or even, in more exceptional cases,
negligently; that is, without proof of either subjective or objective fault in
any form on the part of the defendant (beyond the fact that the conduct
was voluntary). Offences of this nature are known as strict liability offences.
NEGLIGENCE
Meaning
Negligence involves the failure to comply with the standards of conduct
and care expected of a reasonable person. It is objective in nature, meaning
that it can be established without requiring proof of any actual state of
mind on the part of the defendant other than that his or her conduct was
voluntary. Because of this, negligence is often distinguished from the
178
traditional notion of mens rea which requires proof of subjective fault

intention, knowledge or recklessness on the part of the defendant.
This distinction was blurred in Caldwell ([1982] AC 341) when the
House of Lords introduced a basis of liability known as Caldwell
recklessness, involving proof that D failed to consider even the possibility
of risk associated with his or her conduct when the risk was objectively
obvious (above, Chapter 4, p. 143). This comes very close to imposing
liability on D simply because he or she ought to have recognized the risks
associated with his or her proposed conduct, i.e. liability on an objective
basis, although the fact that D is entitled to show that his or her state of
mind was not reckless to explain, as Lord Diplock recognized in
Lawrence ([1982] AC 510, at 527) means that Ds actual state of mind
remains relevant to Ds criminal liability, and Caldwell recklessness is still
at least to this extent theoretically subjective in nature, unlike the purely
objective standard entailed in negligence.
Liability for Negligence

At common law
Historically, the common law did not impose criminal liability upon persons
who were merely negligent. Such individuals were left to be dealt with
under the civil law, principally the law of tort. The one clear exception to
this is manslaughter which at common law may arise upon proof of gross
negligence on Ds part (see below, p. 537). This is objective liability,
although it is not mere negligence; gross negligence is commonly said to
require proof of fault equating more closely to recklessness.
By statute
Liability
Criminal liability for negligence may be imposed by statute. This can be
done in two broad ways. Firstly, negligent conduct may be made the basis
of liability. An example of this is the offence of careless driving in section
38 of the Road Traffic Ordinance (cap. 374):
(1) A person who drives a motor vehicle on a road carelessly commits
an offence and is liable to a fine of $4,000 and to imprisonment
for 6 months.
NEGLIGENCE AND STRICT LIABILITY
179
(2) A person drives carelessly within the meaning of this section if

on a road he drives a vehicle without due care and attention or
without reasonable consideration for other persons using the road
[emphasis added].
The expressions without due care and attention and without reasonable
consideration for other persons using the road prescribe objective standards
of conduct for road-users, as Lord Hewart CJ stated in McCrone v Riding
([1938] 1 ALL ER 157, at 158):
That standard [careless driving] is an objective standard, impersonal
and universal, fixed in relation to the safety of other users of the
highway. It is in no way related to the degree of proficiency or degree
of experience to be attained by the individual driver.
Failing to drive in accordance with these objective standards driving

carelessly or negligently is the basis of liability under section 38.
Other examples include:
section 48 of the Road Traffic Ordinance (cap. 374): pedestrian
negligently endangering their own safety or that of others;
section 4(14) of the Summary Offences Ordinance (cap. 228):
negligently discharging a firearm to the damage or danger of any person;
sections 14H(1)(3), 23D(1)(3) and 18(1)(3), respectively of the Peak
Tramway Ordinance (cap. 265), MTR Corporation Ordinance (cap.
270) and Kowloon-Canton Railway Corporation Ordinance (cap. 372):
all of which impose liability in similar terms upon employees for
negligent acts or omissions; and
section 5(2) of the Monetary Statistics Ordinance (cap. 356): negligently
making a false return to the Monetary Authority.
Defence of reasonableness
Secondly, reasonableness (that is, the absence of negligence) may provide
D with a statutory defence to criminal liability. Expressions such as without
reasonable excuse operate in this way. In general, where an expression
such as this is used in a criminal statute, then it will be for the defendant
to prove on the balance of probabilities that he or she acted reasonably in
the circumstances, i.e. without objective fault, to avoid liability. This burden
of proof may be expressly imposed on D by the particular statute, or by
some other general statutory provision such as section 94A of the Criminal
Procedure Ordinance (cap. 221), or even impliedly on the basis that the
180
matter to be proved is in the nature of a negative averment (see above,

p. 37). If D fails to prove that he or she had a reasonable excuse or acted
reasonably in the circumstances or made a reasonable mistake, i.e. acted
without objective fault, then D will be liable upon proof of the elements of
the offence (which may or may not require proof of mens rea).
An example of this is section 19(1) of the Summary Offences Ordinance
(cap. 228) which makes it an offence for any person to have in his or her
possession, custody or control any simulated bomb without lawful authority
or reasonable excuse. Prima facie, D will be liable upon proof that D
possessed a simulated bomb. However, D may avoid liability by proving,
for example, that the bomb was a movie prop possessed by D during the
course of making a movie, unless this excuse is not objectively acceptable
in the circumstances, in which case Ds defence will fail and D may be
liable.
Another example is section 122 of the Crimes Ordinance (cap. 200)
which, in subsection (1), makes it an offence for one person to indecently
assault another person. Subsection (2) provides that a victim aged under
16 years cannot validly consent to a battery which would otherwise amount
to an indecent assault. However, section 122(3) recognizes a matrimonial
exception:
A person [D] is not, by virtue of subsection (2), guilty of indecently
assaulting another person [V], if that person [D] is, or believes on
reasonable grounds that he or she is, married to that other person [V].
Thus, D will not commit indecent assault by virtue of acts done to Ds 15year-old wife with her consent, nor will D be liable if the parties are not in
fact married, but D mistakenly believed that they were and D has reasonable
grounds for this belief. If Ds grounds are not objectively acceptable, then
D may be liable provided that Ds conduct otherwise amounts to an indecent
assault.
A defence of reasonable mistake may also exist at common law, even
for offences not otherwise requiring proof of mens rea to establish liability,
i.e. strict liability offences (discussed below, p. 201).
181
STRICT LIABILITY
Nature of Strict Liability1
Although criminal liability is generally said to require proof of both actus
reus and mens rea, this presumption is not universally applied to all statutory
offences. The necessity for the prosecution to prove mens rea (in the sense
of intention, knowledge or recklessness, or some other statutory state of
mind involving mens rea), or even negligence, in respect of all the actus
reus elements of a statutory offence is often dispensed with, either expressly
or impliedly. Where this is so, liability is said to be strict, and the offence
in question is described as a strict liability offence (or sometimes, absolute
liability).
Strict liability may arise either by the application of common law rules
or by express statutory provision. It is generally confined to statutory
offences, since common law offences have been almost invariably held to
require proof of mens rea, in accordance with the common law presumption
of mens rea, the only clear exception being criminal contempt of court.2
When an offence is said to impose strict liability, this may not mean
that no mens rea at all needs to be proved. Firstly, it will still generally be
necessary to prove that Ds conduct was voluntary (see below, p. 182).
Secondly, it is often only one of the actus reus elements usually the
central element of the criminal prohibition that does not require proof
of mens rea.
The question of whether a statutory offence imposes strict liability,
and the actus reus elements affected, is primarily a matter of interpreting
or construing the particular statutory provision.
Exceptionally, a statutory offence may expressly impose liability without
proof of mens rea as to any actus reus element. An example of this is
section 10 of the Water Pollution Control Ordinance (cap. 358) which
reads:
In any proceedings for an offence under section 8(1) [which prohibits
the discharge of any waste or polluting matter into the waters of Hong
Kong in a water control zone] it shall not be necessary for the
1
See generally, Leigh, Leonard Herschel, Strict and Vicarious Liability: A Study in
Administrative Criminal Law, London: Sweet & Maxwell, 1982; P. Wesley-Smith, Strict
Liability in the Hong Kong Courts (1994) 24 HKLJ 40.
Other possible common law exceptions are public nuisance and criminal libel. See Smith,
John, and Hogan, Brian, Criminal Law (ninth edition, 1999), pp. 1023.
182
prosecution to prove that the acts or omissions in question were

accompanied by any intention, knowledge or negligence on the part
of the defendant as to any element of the offence [emphasis added].
Necessity for voluntary conduct

Even where an offence is strict liability, an element of mens rea in the limited
sense that Ds conduct must be voluntary will still generally need to be proved
if challenged by D. If the conduct was involuntary, then D will generally be
entitled to be acquitted even of a strict liability offence (unless Ds involuntary
state was self-induced or caused by insanity; see Automatism below, p. 237).
This is usually explained on the basis that either voluntariness is part of the
conduct element of the actus reus or it constitutes a minimum mens rea
requirement which must be proved even in respect of strict liability offences.3
However, the necessity for the prosecution to prove that D acted
voluntarily usually arises only when D asserts that his or her conduct was
involuntary or that D was in a state of automatism at the relevant time. In
either case, a proper evidential basis for involuntariness or automatism
must be established; only then does it become necessary for the prosecution
to prove beyond reasonable doubt that D was acting voluntarily at the
material time (see Chapter 6, p. 236).
Exceptionally, criminal liability may be imposed even though Ds
conduct was to all intents and purposes involuntary. Such liability is
sometimes referred to as absolute liability, and the offence in question is
termed an absolute liability offence (although absolute liability has another
meaning referred to below (pp. 2023) relating to whether or not a defence
of due diligence is available). R v Larsonneur ([1933] 24 Cr App R 74) is
often cited as an example of an absolute offence. Larsonneur was convicted
of being found in the United Kingdom as an illegal immigrant, despite the
fact that her presence in the United Kingdom occurred when she was
taken there by English police officers who had previously travelled to the
(then) Irish Free State, arrested her and taken her back against her wishes,
pursuant to a request for her extradition from the Irish Free State. Her
presence in the United Kingdom could not readily be said to have been
voluntary; nonetheless, she was convicted.
There has been considerable debate as to the correct explanation for requiring proof of
voluntariness. See, for example, Smith and Hogan, Criminal Law (ninth edition, 1999),
pp. 3940. In a sense, it does not matter, so long as it is recognized that involuntariness
may negate liability even for a strict liability offence.
183
Another example is Winzar v Chief Constable of Kent ([1983] The Times,

28 March 1983), in which Winzar was convicted of being found drunk in
a public place, despite evidence that his presence in the public place was
a result of being taken there by the arresting police officers.
Strict liability as to central element
When strict liability is imposed, this usually means that mens rea does
not have to be proved as to the essential or central elements of the actus
reus, rather than that no mens rea at all (beyond voluntariness) needs to
be proved for the offence. One of the classic cases on strict liability, R v
Prince ([187480] All ER 881), illustrates this, although doubt has recently
been cast upon this decision (see Re B (A Minor) [2000] 2 AC 428; discussed
below, p. 206). Prince was charged with unlawfully [taking] [an]
unmarried girl, being under the age of sixteen years out of the possession
of her parents against their will (contrary to what was then section 55 of
the Offences Against the Person Act 1861, now found in section 126 of the
Crimes Ordinance), an offence described by Blackburn J as one of a series
of enactments forming a code for the protection of women under the
age of consent 16 years from sexual predators. The girl being under
16 in this case, she was not yet 14 was therefore essential to criminal
liability. The question was: did P have to know she was under 16, or at
least realize there was a risk of that being so? According to the evidence, P
neither knew this nor foresaw the risk of it. Instead, he believed that she
was aged 18, partly because she had led him to believe this, and also because
she apparently looked considerably older than her actual years. Although
this belief was apparently reasonable in the circumstances, P was convicted.
This was affirmed on appeal. Reasoning from the nature of the offence
(this approach was questioned in Re B (A Minor) v DPP, discussed below),
the court concluded that the legislative intent was that liability should
depend simply upon whether the girl was in fact younger than 16 years,
not upon whether this was known by the defendant.
In reaching this conclusion, the court effectively held that neither
knowledge, nor recklessness, nor even negligence as to the girls age (none
of which was provable against Prince) was required. The prosecution was
entirely relieved of the burden of proving any mens rea or fault in respect of
this particular essential actus reus element. Prince was thus strictly liable
for this offence, but this did not necessarily mean that mens rea or fault was
equally irrelevant in respect of all the other actus reus elements of the offence.
In Hibbert ([1869] LR1 CCR 184), six years earlier, H was acquitted of the
184
same statutory offence, despite having taken a girl of 14 years from the street
to a place where he had sexual intercourse with her, because the prosecution
failed to prove that H knew the girl was in the custody of her father.
A determination that a statutory offence imposes strict liability as to a
particular actus reus element, i.e. that the prosecution is relieved of the
burden of proving mens rea as to that actus reus element, may not mean
that the defendants state of mind in relation to that particular element is
entirely irrelevant, for the question then arises: may the defendant seek to
prove that he or she was innocent of blame in relation to that element,
thereby avoiding liability? As is discussed below (p. 204), the courts of
Hong Kong, following precedents from several overseas jurisdictions, have
accepted that a defendant should generally be entitled at common law to
avoid liability by proving, on the balance of probabilities, that he or she
acted in the mistaken belief (reasonably held) that the particular factual
circumstance (not otherwise requiring proof of mens rea by the prosecution)
did not exist (in Re B (A Minor) v DPP, discussed below, it was held that a
mistaken belief may be relied upon even if it was not reasonably held).
What is less clear is whether a defendant is also entitled to argue and
prove that he or she did the best they could took all reasonable
steps to comply with the relevant statutory provision, i.e. acted with
due diligence (see below, p. 206).
Development and Scope of Strict Liability

Strict liability is usually regarded as a nineteenth century common law (i.e.
judicial) innovation designed to assist governmental authorities in enforcing
the burgeoning body of regulatory and public welfare offences enacted in
response to industrialization.4
By the latter part of the nineteenth century, strict liability had become
very well established, having been applied (as Prince shows) to offences
considerably removed from those of a purely regulatory or public welfare
nature, although judges also occasionally attempted to limit the expansion
of strict liability by judicial reaffirmation of the importance of the
presumption of mens rea. One early example of this is Sherras v De Rutzen
in 1895. The licensee of a bar served alcohol to a police constable who was
4
Leigh has argued that strict liability was in fact recognized much earlier, but the nineteenth
century saw its use expanded in response to the weight of new regulatory and public welfare
legislation. See L. H. Leigh, Strict and Vicarious Liability (1983), p. 2 et seq.
185
on-duty, apparently believing (reasonably it was accepted) that the constable

was off-duty. Wright J affirmed that mens rea, an evil intention, or a
knowledge of the wrongfulness of the act, is an essential ingredient in every
offence, but accepted that it could be displaced either by the words of the
statute creating the offence or by [its] subject-matter. Describing cases
such as Prince as isolated and extreme cases, Wright J then identified what
he characterized as the three principal classes of exception to the
presumption of mens rea: (1) acts which are not criminal in any real sense,
but are acts which in the public interest are prohibited under a penalty; (2)
public nuisances; and (3) cases in which, although the proceeding is criminal
in form, it is really only a summary mode of enforcing a civil right. Since
the case before him did not fall within any of these classes, Wright J
concluded that mens rea had to be proved against the licensee of the public
house in relation to whether the officer was on- or off-duty; his bona fide
belief that the police constable was off-duty consequently prevented
conviction.
More recently, the House of Lords, in B (A Minor) v DPP; discussed
further below), strongly reaffirmed the centrality and importance of the
presumption of mens rea, emphasizing that strict liability should be imposed
only if, in the words of Lord Scarman in Gammon (Hong Kong) Ltd, below,
this is clearly or by necessary implication the effect of the statute.
Determining Whether a Statutory Offence Is Strict Liability

The question of whether a statutory offence requires proof of mens rea or
is strict liability is treated as a matter of statutory construction: the statutory
provision enacting the offence must be construed to determine the legislative
intention. The general approach to this task was summarized by Lord
Scarman in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong
([1985] 1 AC 1, [1985] 2 HKC 661), a Privy Council decision on appeal
from the Hong Kong Court of Appeal. He stated (at 14):
In their Lordships opinion, the [relevant] law may be stated in the
following propositions (1) there is a presumption of law that mens
rea is required before a person can be held guilty of a criminal offence;
(2) the presumption is particularly strong where the offence is truly
criminal in character; (3) the presumption applies to statutory
offences, and can be displaced only if this is clearly or by necessary
implication the effect of the statute; (4) the only situation in which
the presumption can be displaced is where the statute is concerned
186
with an issue of social concern, and public safety is such an issue; (5)
even where a statute is concerned with such an issue, the presumption
of mens rea stands unless it can also be shown that the creation of
strict liability will be effective to promote the objects of the statute by
encouraging greater vigilance to prevent the commission of the
prohibited act [emphasis added].
Presumption of mens rea

The first of Lord Scarmans propositions emphasizes that the starting point
in any discussion of mens rea must be the common law presumption of
mens rea. Lord Scarmans third proposition reiterates that although this
presumption is a product of the common law, nonetheless it applies equally
to statutory offences; so unless it is rebutted, or displaced, the presumption
will apply, requiring proof of mens rea in some form (usually intention,
knowledge or recklessness) in respect of statutory offences.
Rebutting or displacing the presumption of mens rea
Determining whether the presumption has been rebutted or displaced is
treated as a matter of determining the legislative intention. This begins
with an examination of the relevant statutory provision. The legislature
may, for example, have made it clear that mens rea must be proved, as in
section 60 of the Crimes Ordinance (cap. 200), enacting the offence of
criminal damage:
(1) A person who without lawful excuse destroys or damages property
belonging to another intending to destroy or damage such property or
being reckless as to whether any such property would be destroyed or
damaged shall be guilty of an offence [emphasis added].
In other cases, the legislature may have made its intention clear by
expressly using some other term usually a verb or phrase commonly
understood or interpreted as requiring proof of mens rea in some form
(e.g. maliciously, wilfully, permits and allows).
However, in each case whether intention, knowledge, recklessness
or some other term is requiring mental fault is expressly used in the statute
it may still be necessary to determine whether that form of mens rea
must be proved in relation to each actus reus element of the offence.
If there is no express indication in the statutory provision that mens
rea is required, then it is necessary to determine whether mens rea is
187
impliedly required. If not, then the offence may be held to impose strict
liability, but only if, as Lord Scarmans third proposition states, this is
clearly or by necessary implication the effect of the statute. It is not enough,
as was emphasized in B (A Minor) ([2000] 2 AC 428), that this is a
reasonable implication.
The following matters may be relevant in determining the intended
effect of a statute:
Statutory wording
The wording of the relevant statutory provision (whether an ordinance or
subsidiary legislation), both generally and also in the specific section or
subsection under consideration, must be considered. If, for example,
expressions commonly understood as requiring mens rea are used in some
parts of the relevant piece of legislation, but not in the particular section
under consideration, this may be an indication that the legislature did not
intend mens rea to be proved in respect of the latter. However, this will
not always be the case, as was emphasized by Lord Reid in Sweet v Parsley
([1970] AC 132, at 149):
It is fully established that the fact that other sections of the Act
expressly require mens rea is not itself sufficient to justify a decision
that a section which is silent as to mens rea creates an absolute offence.
Subject-matter and purpose of the legislation

The subject-matter of the ordinance or subsidiary legislation and its social
or other purpose must be considered with a view to determining whether
the statutory offence under consideration is truly criminal in nature, or
merely concerns matters of social concern or public welfare, for it is
generally only in the latter case that strict liability is likely to arise. This is
encompassed in the second and fourth of Lord Scarmans propositions:
(2) the presumption [of mens rea] is particularly strong where the
offence is truly criminal in character; (4) the only situation in
which the presumption can be displaced is where the statute is
concerned with an issue of social concern .
It is not always easy to determine whether an offence is truly criminal

or is a matter of social concern or public welfare. Truly criminal offences
usually include those dealing with violence against persons or property,
188
whereas offences of social concern, or quasi-criminal offences as they have

been commonly called, cover a wide range of social, administrative and
business activities. Strict liability has been imposed, for example, in respect
of offences dealing with matters of public safety (HKSAR v China Road
Engineering & Investment Co Ltd [1998] 4 HKC 722: failing to take measures
to prevent workers from being endangered by a live electric cable), revenue
collection, licensing, food and drug controls, and pollution and the
environment. In the following case, the Hong Kong courts had to consider
whether the employment of children in industrial undertakings merited
the imposition of strict liability.
A-G v Demand Enterprises Ltd [1987] HKLR 195
Facts
The respondent, an industrial company, employed a 13-year-old girl as
a summer job worker. When interviewed for the job, the girl had stated
that she was 15 years old and produced an identity card to confirm
this. The girl apparently looked similar to the person in the photograph
on the identity card. The girl was discovered at work in the companys
factory during a Labour Department inspection. The company was
charged under Regulation 4(1)(b) of the Employment of Children
Regulations (enacted under the Employment Ordinance (cap. 57)) which
provides: No person shall employ a child [a person under the age of
15 years] or cause or permit a child to be employed: (b) in any
industrial undertaking. The company pleaded not guilty, relying on
the fact that the girl had produced an identity card apparently showing
her to be 15. At trial, the magistrate acquitted the company on the
basis that mens rea knowledge that the girl was under 15 years
had not been proved. The Attorney-General appealed by way of case
stated, contending that the offence was strict liability as to the girls
age.
Decision
Appeal allowed. Mens rea in this case, knowledge did not have to
be proved on a charge of employing a child contrary to Regulation
4(1)(b). The regulations were intended to secure the safety, health and
welfare of children. These objectives would be furthered by a prohibition
of an absolute nature against the employment of children under certain
ages in certain kinds of activity. Although the respondent company had
acted reasonably and taken the precautions expected of a sensible
prospective employer, this was relevant to sentencing, not to whether
liability was strict. The creation of strict liability in this case would be
189
effective in promoting the objects of the regulation since it would help

persuade employers to be extra careful not to employ children in industrial
undertakings and make it less likely that the regulation would be infringed.
The court acknowledged that, in contrast, the reference to
permitting employment in Regulation 4(1) might import a degree of
knowledge in relation to that particular form of the offence, but this did
not necessitate proof of mens rea in relation to the phrase no person
shall employ. The offence created by Regulation 4(1) could be
committed in various ways, some of which required proof of mens rea,
but others which were absolute (in the sense of strict liability) in
nature.
The classification of an offence as truly criminal (requiring proof of

mens rea) or as a matter of social concern (facilitating the imposition of
strict liability) may change over time, as is often illustrated by Warner v
Metropolitan Police Commissioner ([1969] 2 AC 256) and Sweet v Parsley
([1970] AC 132) two contrasting decisions of the House of Lords within
a year of each other dealing with the English criminal law relating to
dangerous drugs.
In Warner, W was convicted, under section 1(1) of the Drugs
(Prevention of Misuse) Act 1964, of having a scheduled drug 20,000
amphetamine sulphate pills in his possession without having been duly
authorized, and was sentenced to two years imprisonment. W alleged that
he had picked up several boxes, including that in which the pills were
found (in a plastic bag) by the police officer, from a caf, without checking
their contents, believing as on past occasions that they contained scent
(one of the boxes did contain scent). On appeal, W argued that possession
required proof he knew he had prohibited drugs in his possession, or at
least, where, as here, the drugs were in a plastic bag in a box, he either
knew the box contained prohibited drugs or had a suspicion to that effect,
but deliberately closed his eyes to the truth so his possession was not
innocent. Dismissing his appeal, the Lords (Lord Reid dissenting)
concluded that possession merely required proof that W physically
possessed the drugs knowing that he possessed in the sense that he
had control over something, but not knowledge of the precise nature
of the thing in his possession.5 In reaching their conclusion, the Lords
effectively adopted the view that the problem addressed by the legislation
5
The Lords described liability as absolute, but this term was used in the sense of strict
liability. It still had to be proved that Warner knew he possessed something, but not that
it was prohibited drugs and this was the essential feature of the offence.
190
drug use and drug-users was in the nature of a social, rather than a
truly criminal, problem, as is evident from the tone of the following passage
in Lord Morris speech (at 295):
In considering these questions the wording in the Act must be regarded.
It is a declared purpose of the Act to prevent the misuse of drugs. If
actual possession of particular substances which are regarded as
potentially damaging is not controlled there will be a danger of the
misuse of them by those who possess them. They might be harmfully
used: they might be sold in most undesirable ways. Parliament set out
therefore to penalise possession. That was a strong thing to do.
Parliament proceeded to define and limit the classes and descriptions of
people who alone could possess. All the indications are that save in the
case of such persons Parliament decided to forbid possession absolutely.
By viewing the subject-matter of the legislation in this way as the

misuse of drugs which might otherwise be harmfully used or sold in
most undesirable ways the Lords, in this, their first decision on strict
liability, were thereby able to justify the imposition of strict liability.
In Sweet v Parsley ([1970] AC 132), the Lords significantly reversed
their thinking. Sweet was convicted, under section 5(b) of the Dangerous
Drugs Act 1965, of being concerned in the management of premises which
were used for the purpose of smoking cannabis or cannabis resin. She was
the sub-tenant of a farmhouse, in which she had sublet several of the rooms.
She kept a room for herself, but had moved out, only returning occasionally
to collect letters and rent. Quantities of drugs, including cannabis resin,
were found in the premises when the police searched the house. S appealed
on the grounds that she did not know the house was being used in the
manner prohibited. She failed in the Divisional Court, which held that the
offence created by section 5(b) was an absolute [i.e. strict liability] offence,
but appealed successfully to the House of Lords. The Lords concluded that
the offence was not an absolute offence, and that the words used for the
purpose, in section 5(b), referred to the purpose of those alleged to be
managing the premises and not those using the premises. Consequently,
mens rea had to be proved against those managing the premises; specifically,
it had to be proved that they were managing the premises with knowledge
of their use for a prohibited purpose.
This case displays a different perception on the part of the Lords of both
the nature of dangerous drug offences, even though this was not expressly
acknowledged by all of them, and also the presumption of mens rea. Lord
Reid, who had dissented in Warner, makes this very clear (at 151): offences
191
of this kind are very far removed from those which it is proper to hold to be
absolute offences. In saying this, he was particularly alert to the consequences
of strict liability, a matter which is more fully referred to below.
On the general issue of how to determine whether the presumption of
mens rea has been displaced, Lord Diplock added the following useful
comments (at 163):
where the subject-matter of a statute is the regulation of a particular
activity involving potential danger to public health, safety or morals
in which citizens have a choice as to whether they participate or not,
the court may feel driven to infer an intention of Parliament to impose
by penal sanctions a higher duty of care [than reasonableness] on
those who choose to participate and to place upon them an obligation
to take whatever measures may be necessary to prevent the prohibited
act, without regard to those considerations of cost or business
practicality which play a part in the determination of what would be
required of them in order to fulfil the ordinary common law duty of
care. But such an inference is not lightly to be drawn, nor is there any
room for it unless there is something that the person on whom the
obligation is imposed can do directly or indirectly, by supervision or
inspection, by improvement of his business methods or by exhorting
those whom he may be expected to influence or control, which will
promote the observance of the obligation.
The latter part of this quotation raises the question of whether imposing
strict liability will promote greater effectiveness of the law, a matter referred
to below.
Penalties
The greater the potential penalties that may be imposed upon conviction,
in particular, the higher the potential term of imprisonment, the less likely
it is that the legislature intended to displace the presumption of mens rea
and impose strict liability. However, heavy penalties alone will not
necessarily compel a finding that an offence is not strict liability, as Gammon,
discussed below, shows.
Effective compliance and deterrence
The imposition of strict liability must contribute towards ensuring
compliance with the statutory provision and its effective enforcement. If not,
then it will usually be assumed that the legislature did not intend to displace
192
the presumption of mens rea and impose strict liability. This is recorded in
Lord Scarmans fifth proposition (in Gammon (Hong Kong) Ltd):
(5) even where a statute is concerned with an issue [of social
concern], the presumption of mens rea stands unless it can also be
shown that the creation of strict liability will be effective to promote
the objects of the statute by encouraging greater vigilance to prevent
the commission of the prohibited act.
This particular limitation was approved in an earlier decision of the

Privy Council in Lim Chin Aik v R, on appeal from Singapore.
Lim Chin Aik v R [1963] AC 160
Facts
Lim, whose family lived in Singapore, had resided with them prior to
1954, but had then left Singapore. In 1959, he began revisiting his
family daily, returning each night to his residence in the then Federation
of Malaya. Some time before June 1959, L started residing with them
again. On 28 May 1959, a ministerial order was made against L under
Singapores Immigration Ordinance prohibiting him from entering
Singapore. When L was arrested on 29 June 1959 in relation to another
matter, the prohibition order was discovered. There was no evidence
that L had been notified of its existence, nor that it had been publicly
gazetted.
L was convicted of an offence against the Immigration Ordinance
of remaining in Singapore [having entered] when prohibited from
entering by a ministerial order. Both the trial court and the High
Court of Singapore on appeal rejected Ls argument that knowledge of
the prohibition order had to be proved. L appealed to the Privy Council.
Decision
Appeal allowed. The presumption of mens rea may be displaced either
by the words of the statute creating the offence or by the subject-matter
with which it deals. Both must be considered. In this case, the language
used in the statute did not exclude the ordinary presumption. Further,
even where a statute dealt with a grave social evil, as was the case
here, if it could be shown that the imposition of strict liability would
result in the prosecution and conviction of a class of persons whose
conduct could not in any way affect the observance of the law, then
strict liability was not likely to be intended. Since there was nothing
that L could have done to determine whether a ministerial order had
193
been made against him and thus ensure compliance with the relevant
legislation, the presumption of mens rea had not been ousted either by
the wording or by the subject-matter of the legislation.
Lim Chin Aik shows how a court will shy away from holding that mens
rea does not have to be proved if the imposition of strict liability is unlikely
to ensure observance of the law or render the statutory provision more
effective.
On the other hand, the mere fact that it may be difficult for a person
to comply or ensure compliance with a statutory provision will not
necessarily dissuade a court from holding that it imposes strict liability.
This is illustrated by Smedleys Ltd v Breed ([1974] AC 839) in which the
House of Lords upheld a food manufacturing companys conviction for
selling food not of the substance demanded by the purchaser (contrary to
section 2(1) of the Food and Drugs Act 1955) because of the presence of
caterpillars in four (allegedly out of 3.5 million) tins of peas. Although the
company already had controls in place, the Lords effectively held that a
visual inspection (which would have detected the presence of the
caterpillars) could and should have been added. The fact that this might
effectively set an impossibly high standard of compliance did not in the
circumstances dissuade the Lords from imposing strict liability or rejecting
the companys submission that it came within a statutory defence.6
The fact that the imposition of strict liability will enhance the
effectiveness of the legislation is commonly expressly adverted to in support
of the imposition of strict liability, as can be seen, for example, in Demand
Enterprises Ltd above.
The difficulty of policing an activity or proving a breach of the
regulatory provisions may also be of considerable influence in deciding
whether or not a statutory provision was intended to impose strict liability.
Other factors
In Warner, above, Lord Reid (at 149) referred to two further factors which
may influence a court in deciding whether or not the legislature intended
to impose strict liability, particularly where the subject-matter of the offence
would at first sight be said to be truly criminal:
6
Section 3(3) provided a defence if it could be shown that the presence of the unacceptable
matter was an unavoidable consequence of the manufacturing process. The Lords concluded
that the presence of the caterpillars could have been avoided.
194
when one comes to acts of a truly criminal character, it appears to

me that there are at least two other factors which any reasonable
legislator would have in mind. In the first place a stigma still attaches
to any person convicted of a truly criminal offence, and the more
serious or more disgraceful the offence the greater the stigma. So he
would have to consider whether, in a case of this gravity, the public
interest really requires that an innocent person should be prevented
from proving his innocence in order that fewer guilty men may escape.
And equally important is the fact that fortunately the Press in this
country are vigilant to expose injustice and every manifestly unjust
conviction made known to the public tends to injure the body politic
by undermining public confidence in the justice of the law and of its
administration.
Additionally, it has been judicially observed that statutory offences

directed at regulating a particular activity involving potential danger to
public health, safety or morals, in which citizens have a choice of whether
they participate or not, are more readily treated as strict liability than those
penal provisions of general application to all citizens (see Sweet v Parsley
[1970] AC 132 at 163 per Lord Diplock). This is true, for example, of
statutory provisions regulating the sale of food, pharmaceuticals and the
conduct and management of licensed premises.
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong
Gammon concerned construction site safety and maintenance, usually seen
as being of considerable social importance in Hong Kong.
Gammon (Hong Kong) Ltd v Attorney-General of
Hong Kong [1985] AC 1
Facts
The first defendant Gammon, a building contractor, had delegated
responsibility for construction on a particular site to the second and
third defendants, the project manager and site agent respectively. During
construction, part of a temporary lateral support system which had been
erected on the site in the interests of safety was removed.
G was charged with deviating in a material way from the approved
plans, contrary to section 40(2A)(b) of the Buildings Ordinance (cap.
123), and with carrying out the works in a manner likely to cause risk
of injury or damage, contrary to section 40(2B)(b). It accepted that it
was vicariously liable for the acts of the second and third defendants.
195
The second and third defendants were charged under section 40(2B)(b),
respectively with carrying out the works and permitting the works to
be carried out, in each case in a manner likely to cause risk of injury
or damage. The ordinance provided for a fine of HK$250,000 and
three years imprisonment.
At trial, the magistrate ruled that mens rea had to be proved as to
all the elements of these offences, necessitating proof against G that it
had knowingly or intentionally deviated from the plans, and against
the second and third defendants that they had knowingly or
intentionally caused the likelihood of risk of injury or damage. He
held that these requirements had not been proved and dismissed the
charges, without ruling whether the deviation was in fact material (for
the purposes of section 40(2A)(b)) or whether the works were in fact
carried out or permitted to be carried out in a manner likely to cause
risk (for the purposes of section 40(2B)(b)).
The prosecution appealed by way of case stated to the Court of
Appeal against the magistrates ruling that mens rea had to be proved.
The Court of Appeal ruled that mens rea was not necessary. The
defendants appealed to the Privy Council.
Decision
Appeal dismissed. The offences in question were strict liability offences.
Accordingly, it was not necessary for the prosecution to prove knowledge
or intention as to the materiality of the deviation or the likelihood of
risk caused by the removal of the lateral support system.
Lord Scarman, giving the judgment of the Privy Council, considered
the leading English and Commonwealth cases on strict liability and
summarized the relevant principles in the passage quoted above
(pp. 1856). He then turned to consider the Buildings Ordinance and
sections 40(2A)(b) and 40(2B)(b). Firstly, considering the Building
Ordinance as a whole, he concluded: its purpose was to regulate the
planning, design and construction of building works in Hong Kong
with a view to ensuring public safety, a matter which was consistent
with the imposition of strict liability; public safety was in the first instance
to be ensured by a system of registration, but criminal sanctions were
also integral to the effective operation of the ordinance; there was
nothing specific in the ordinance necessitating proof of mens rea in
respect of every offence created by it; indeed, the imposition of strict
liability would clearly help to promote greater vigilance and (at 15)
emphasise to those concerned the need for high standards of care in
the supervision and execution of work. Turning then to sections
40(2A)(b) and 40(2B)(b), specifically he concluded: neither provision
was absolute for each required a degree of mens rea; the question was
196
whether mens rea had to be proved as to the materiality of the deviation

under section 40(2A)(b) and the likelihood of risk under section
40(2B)(b); neither the fact that other offences appearing in the same
section clearly required full mens rea, nor the fact that the penalties for
breach were severe, necessarily determined the question of whether
liability for breaches of subsections (2A)(b) and (2B)(b) should be strict;
the imposition of severe penalties would be entirely consistent with the
imposition of strict liability. At the end of the day, the effectiveness of
the ordinance in general and these provisions in particular in promoting
public safety would be seriously weakened if mens rea had to be proved
as to the materiality and likelihood of risk. Consequently, the offences
were strict liability to the extent that mens rea did not have to be proved
as to these two matters.
Challenging Strict Liability

Justifying the imposition of strict liability
Strict liability can often appear to operate harshly, even unjustly. Why, for
example, it might be asked, should a person receive a criminal record,
even though he or she took all reasonable steps to ensure compliance with
relevant criminal legislation? How can this result stand with the joint
presumptions of innocence and mens rea underlying our system of criminal
law?
Two responses are commonly given. Firstly, it is said that the imposition
of strict liability encourages greater observance of and compliance with the
law, and this is particularly important where matters of public safety, public
health and public welfare are concerned. High standards can be achieved
and maintained only if those conducting activities involving risks to safety,
health, the environment and so on are made to feel that it is not enough
just to take reasonable care; they must take all possible care. However, is
this really so? For example, is a factory owner likely to spend thousands of
dollars improving sewage treatment facilities when the likely penalty for
any occasional lapse, assuming that it is detected and successfully
prosecuted, may be only a small fine, as is commonly the case?
Secondly, it is said that strict liability, by relieving the prosecution of
the task of investigating and proving mens rea against an alleged offender,
enhances the efficiency of our administrative and judicial systems. Again,
this may be queried. The question of whether the defendant took all
reasonable steps may still be relevant, for example, to sentencing. Thus, it
197
may still be necessary to investigate the extent of the defendants knowledge

of the true circumstances surrounding the offence.
Strict liability and Hong Kongs Bill of Rights
The enactment of the Hong Kong Bill of Rights Ordinance (cap. 383) has
had a significant impact on the recent development of the law relating to
strict liability offences in Hong Kong. Firstly, the Bill of Rights has been
used to mount general challenges to the whole notion of strict liability in
the criminal law. Secondly, it has been relied on to challenge specific
statutory provisions placing on the defendant the burden of proving certain
matters leading to an acquittal or presuming certain matters to exist unless
the contrary is proved by the defendant, some of which arise in relation to
strict liability offences. Finally, it has been relied on to justify the recognition
of a halfway house defence of reasonable mistake and possibly a further
defence of due diligence (or reasonable steps).
Challenging the notion of strict liability
It has been argued that the very notion of strict criminal liability infringes
Hong Kongs Bill of Rights. This argument is usually based on Article 5(1),
which provides that no one shall be subjected to arbitrary arrest or
detention or deprived of liberty except on such grounds and in
accordance with such procedures as are established by law. It relies in part
on Canadian case law holding that absolute offences by which the
Canadian courts mean offences with no implied halfway house defence of
mistaken belief or reasonable steps may infringe the equivalent provision
of the Canadian Charter of Rights, at least where there is the possibility of
imprisonment upon conviction (see Reference re section 94(2) Motor Vehicle
Act (1985) DLR (4th) 536; R v Wholesale Travel Group Inc (1991) 84 DLR
(4th) 161).
So far, this challenge has been rejected in Hong Kong. In R v Hui Lanchak ([1992] DCt, Case No. 556 of 1992, 8 September 1992), for example,
concerning offences against sections 37C(1)(a) and (2)(b) of the
Immigration Ordinance (cap. 115), Judge Lugar-Mawson in the District
Court held that the Bill of Rights does not per se prohibit the creation of strict
liability offences in Hong Kong, nor does the notion of strict liability itself
infringe Article 5(1). He also held that section 37C(2)(b), which expressly
enacts a due diligence defence to be proved by the defendant, does not
infringe the presumption of innocence in Article 11(1) of the Bill of Rights,
198
although he reached this conclusion in part on the basis that the burden
placed on the defendant was to be treated as only an evidential burden (see
also R v Lau Wan-chung [1992] DCt, Case No. 450 of 1992, 10 August 1992).
Commentators were quick to point out analytical weaknesses in these
decisions, 7 but this particular challenge to strict liability was more
authoritatively rejected by the Hong Kong Court of Appeal in R v Wang
Shih-hung, R v Fong Chin-yue ([1995] 1 HKCLR 193). In this case, the
Court of Appeal concluded that strict liability is not per se inconsistent
with the Bill of Rights. Bokhary JA, speaking for the Court, observed (at
200):
an offence is not automatically open to challenge under the Bill
of Rights merely because it is an offence of strict liability. Of course,
that is not to say that the express wholesale abolition of each and
every mental element in our criminal law would be consistent with
the Bill of Rights. If effective, such a measure would leave no one
with liberty or security of person. And of course the right to liberty
and security of person is a right secured for everyone under Article
5(1) of the Bill of Rights. But where the conclusion that a statutory
offence is an offence of strict liability is a conclusion arrived at by
a process of construction, then there would be no room left for an
argument that the statutory provision creating that offence is
inconsistent with the Bill of Rights.
That is because of the high human rights content of the rules of
construction which the courts apply to determine what a penal provision
really means. Those rules were summarised by Lord Scarman in
Gammon [emphasis added].
At the same time, the court simultaneously recognized an implied

halfway house defence of reasonable mistaken belief, discussed further
below (p. 204).
For example, they were based on a misunderstanding of the notion of strict liability under
Canadian case law (such offences impliedly incorporate a due diligence defence) as against
absolute liability (where no such defence is to be implied). Further, they wrongly assume
a distinction between offence and defence elements, an approach which has been expressly
disapproved in several more recent decisions by the Hong Kong Court of Appeal: see
Attorney-General v Lee Kwong-kut [1992] 2 HKCLR 76; R v Wong Hiu-chor (1992) CA,
Mag App No. 227 of 1992; R v Yeung Chu-tim (1992) CA, Mag App No. 718 of 1992, 4
December 1992.
199
Challenging presumptions and related statutory provisions

This is the area in which the Hong Kong Bill of Rights Ordinance had the
most immediate impact. Numerous statutory provisions in Hong Kong,
including some strict liability offences, place upon the defendant the burden
of proving certain matters relating to innocence. Where this is so, then the
statutory provision may be open to challenge for breaching the presumption
of innocence in Article 11(1).
Protecting the innocent from the harshness of strict liability
Since strict liability creates the possibility of morally blameworthy or
innocent individuals being convicted, both the legislature and judiciary
have increasingly sought ways to protect those who can demonstrate their
innocence from the harshness of strict liability.
Legislative measures
Several methods have been adopted by the legislature in an attempt to
mitigate the apparent injustice or harshness of strict liability and thereby
lessen some of the criticism.
Firstly, the legislature may expressly enact a no fault defence. Thus,
although the prosecution will not have to prove mens rea to establish
liability, D may escape from liability by establishing that he or she was
morally innocent of fault. An example of this can be found in section 22 of
the Crimes Ordinance (cap. 200) which reads:
(1) Any person who is found within Hong Kong on board any vessel
equipped for the purposes of piracy, shall be guilty of an offence
and shall be liable on conviction upon indictment to imprisonment
for 3 years.
(2) It shall be a defence to a charge under subsection (1) if the person
charged proves
(a) that he was not on board the vessel willingly; or
(b) that he did not know that the vessel was equipped for the
purposes of piracy [emphasis added].
Secondly, the legislature may require proof of a degree of mens rea

e.g. knowledge of essential matters but at the same time expressly provide
both that such knowledge may be presumed or deemed upon proof of
certain other matters, and that the defendant may rebut this presumption
200
on the balance of probabilities. Strictly speaking, the offence is not then

one of strict liability, although the effect of the statutory provisions is similar.
Statutory presumptions of this type are common in Hong Kong; as
mentioned above, they are open to challenge for inconsistency with the
presumption of innocence in Article 11(1) of the Bill of Rights.
Thirdly, the legislature may recognize a defence of (mistaken) belief
(usually expressed as based on reasonable grounds) in the existence of
facts central to liability. For example, section 124(1) of the Crimes
Ordinance makes it an offence for a man to have unlawful sexual intercourse
with a girl under the age of 16, punishable on conviction on indictment to
imprisonment for five years. Section 124(2) provides:
(2) Where a marriage is invalid under section 27(2) of the Marriage
Ordinance (Cap. 181) by reason of the wife being under the age
of 16, the invalidity shall not make the husband guilty of an
offence under this section because he has sexual intercourse with
her, if he believes her to be his wife and has reasonable cause for the
belief [emphasis added].
Finally, the legislature may expressly enact a defence of due diligence,

enabling a defendant to show that he or she took all reasonable or
practicable steps in the circumstances to comply with the statutory
prohibition. An illustration of this type of halfway house defence is provided
in section 38A of the Immigration Ordinance (cap. 115), which was recently
considered in R v China State Construction Engineering Corp. ([1995] 5 HK
PLR 421). Sections 38A(2) and (3) read:
(2) Where it is proved that [an illegal immigrant] was on a
construction site, the construction site controller of that
construction site commits an offence and is liable to a fine of
$350,000.
(3) It is a defence in proceedings for an offence under sub-section (2)
for the person charged to prove that he took all practicable steps
to prevent [illegal immigrants] from being on the construction
site [emphasis added].
The court concluded, applying Gammon and Wang Shih-hung/Fong Chinyue, that section 38A(2) imposed strict liability. However, section 38A(3)
established a defence of practicable steps which, although placing on D the
burden of proving innocence, did not breach Article 11(1) of the Bill of Rights.
A further example of this type of statutory defence is found in section
38(4) of the Immigration Ordinance (cap. 115):
201
(4) If a person [who is unauthorized to land in Hong Kong] lands

from a ship in contravention of subsection (1)(a)
(a) the captain of the ship; and
(b) the owner of the ship and his agent,
shall be guilty of an offence and shall be liable
(i) on conviction on indictment, to a fine of $600,000 and to
imprisonment for 7 years; and
(ii) on summary conviction, to a fine of $600,000 and to imprisonment
for 3 years,
unless he proves that all reasonable steps had been taken to ensure that
persons did not land from the ship in contravention of subsection (1)
[emphasis added].
Judicial recognition of absence of fault defences

Absence of fault defences have also been recognized at common law,
although different approaches have been taken in different jurisdictions. In
essence, such defences involve an assertion that the defendant, D, acted
reasonably in performing the conduct on which liability is founded, either
because D acted on the basis of an honest and reasonable mistake, or because
D took all reasonable care to comply with the relevant prohibition.
England The foundations for this type of defence were laid in Tolson
((1889) 23 QBD 168). In this case, the court quashed Ts conviction of
bigamy (in Hong Kong: contrary to section 45 of the Offences Against the
Person Ordinance (cap. 212)) on the grounds that she reasonably, though
mistakenly, believed that her first husband was dead at the time when she
remarried, even though it was accepted that the offence did not require the
prosecution affirmatively to prove that she knew her husband was alive to
secure a conviction, i.e. was strict liability as to this circumstance.
This principle was acknowledged by the House of Lords in Sweet v
Parsley ([1970] AC 132), where Lord Diplock, for example, stated (at 163):
[Tolson gave rise to] a general principle of construction of any
enactment, which creates a criminal offence, that, even where the words
used to describe the prohibited conduct would not in any other context
connote the necessity for any particular mental element [i.e. impose
strict liability], they are nevertheless to be read as subject to the
implication that a necessary element in the offence is the absence of a
belief, held honestly and upon reasonable grounds, in the existence of
facts which, if true, would make the act innocent [emphasis added].
202
However, at the same time, the Lords declined an invitation to recognize a

general common law halfway house defence based on this principle, because
such a defence, they observed, would involve placing the burden of proof
on the defendant, and this was seen to be inconsistent with the presumption
of innocence laid down in Woolmington ([1935] AC 462) (seemingly
ignoring the fact that their decision effectively denied a defendant any
opportunity at all to exculpate himself or herself once an offence was held
to be strict or absolute liability in nature). Lord Pearce, for example,
concluded (at 1578):
If it were possible in some so-called absolute [meaning strict] offences
to take this sensible half-way house, I think that the courts should do
so. I see no difficulty in it apart from Woolmington. But so long
as [the principle in Woolmington] is maintained, I see difficulty.
The Australian High Court founding on Tolson have evolved a
defence of reasonable mistake of fact, and the burden of proving this on
a balance of probabilities rests upon the defendant. Howard
[discussing the Australian law] cites Maher v Musson (1934) 52 CLR 100
. That decision was before Woolmington I should be happy to be
persuaded either that [Woolmington] does not prevent us from adopting
such a satisfactory concept as the Australian courts have evolved or that
its wide effect should be limited. But is has not been necessary for the
purposes of the present case to go fully into that aspect of the matter.
Although, as Lord Pearce pointed out, the matter had not been finally
decided by the Lords, the effect of their decision, until the recent
reconsideration of the issue by the Lords in Re B (A Minor) ([2000] 2 AC
428, discussed below), was that English courts viewed offences either as
requiring mens rea (in which case, in accordance with DPP v Morgan [1976]
AC 182, an honest mistake, even if unreasonable, could be relied on to
negate mens rea), or as strict or absolute liability in nature (in which
case no absence of fault defence was seemingly available; see further
Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR 903).
Canada, New Zealand and Australia In other common law jurisdictions
the law developed differently.8 In Canada, the Supreme Court of Canada
in R v City of Saulte Ste Marie ([1978] 85 DLR(3d) 161) adopted a distinction
between offences requiring mens rea, offences of strict liability, and
absolute offences. The distinction between the last two, concluded Dickson
8
See further: G Orchard, The Defence of Absence of Fault in Australasia and Canada in
Criminal Law Essays in Honour of JC Smith (1987, P Smith, ed.), p. 114.
203
J, lay in the existence or absence of a common law defence of absence of

fault. Strict liability offences, he concluded (at 3724), were:
[o]ffences in which there is no necessity for the prosecution to prove
the existence of mens rea; the doing of the prohibited act prima facie
imports the offence, leaving it open to the accused to avoid liability by
proving [on a balance of probabilities] that he took all reasonable care.
This involves consideration of what a reasonable man would have
done in the circumstances. The defence will be available if the accused
reasonably believed in a mistaken set of facts which, if true, would
render the act or omission innocent, or if he took all reasonable steps
to avoid the particular event [emphasis added].
This recognizes both defences mentioned above: mistaken belief and due
diligence.
Absolute offences, in contrast, were [o]ffences where it is not open
to the accused to exculpate himself by showing that he was free of fault, a
much more exceptional category of offence.
Accordingly, under Canadian law, most defendants charged with a strict
liability offence can avoid liability by proving on the balance of probabilities
either that they acted pursuant to a reasonable mistake or that they took
all reasonable steps (due diligence).
In New Zealand, the courts chose to follow Sault Ste Marie, similarly
adopting a distinction between strict liability offences (in respect of which
the defendant may prove, on the balance of probabilities, that he or she
acted without fault, i.e. acted on the basis of a reasonable mistake or took
all reasonable steps) and absolute offences (Civil Aviation Department v
MacKenzie [1983] NZLR 78; Millar v MOT [1986] 1 NZLR 660).
Australian courts, as noted by Lord Pearce in Sweet v Parsley above,
also chose to recognize the existence of a general defence of honest and
reasonable mistake, dating from Proudman v Dayman ((1941) 67 CLR 536).
Significantly, however, and contrary to Lord Pearces explanation, in He
Kaw The ((985) 157 CLR 523), the High Court of Australia went further
than the Canadian and New Zealand courts, concluding that the burden of
proof on this issue should lie not on the defendant, but on the prosecution.
It was held that:
An honest and reasonable mistake of fact will be a ground of
exculpation in cases in which guilty knowledge is not required as an
element of an offence. Provided there is evidence which raises the
question, the jury cannot convict unless they are satisfied that the
accused did not act under an honest and reasonable mistake.
204
Hong Kong The Hong Kong courts have presently recognized a partial
absence of fault defence to strict liability offences. The principal authority is
R v Wang Shih-hung, R v Fong Chin-yue ([1995] 1 HKCLR 193),9 which dealt
with alleged breaches of the Dutiable Commodities Ordinance. The defendants
were alleged to have committed various acts in relation to goods in respect of
which duty had not been paid. The Court of Appeal applied the rules of
construction set out in Gammon, and concluded that the offences in question
were strict liability, at least so far as knowledge of whether duty had been paid
was concerned (the court held that it was still necessary for the prosecution
to prove beyond reasonable doubt that the goods were of the kind to which
the ordinance applied, i.e. were dutiable). Bokhary JA stated (at 205):
We are satisfied that vigilance of the kind spoken of in [Lord
Scarmans] fifth proposition [in Gammon] would be promoted by strict
liability in the sense of it being unnecessary for the prosecution to
prove knowledge that duty was outstanding.
However, the Court of Appeal then went on to consider whether or

not the defendants were entitled to rely on the fact that they believed, for
good and sufficient reason, although erroneously, that the provisions of
the [ordinance] had been complied with (i.e. that duty had been paid),
particularly since the ordinance has expressly enacted such a defence in
respect of an alternative offence (which the defendants were not charged
with),10 and, if so, where the burden of proof lay.
The Court concluded, as a matter of construction, that a defence of
this nature was excluded neither by the language of the statutory provisions
10
The point had been left open in Attorney-General v Shun Shing Construction & Engineering
Co Ltd [1986] HKLR 311, in which D, the head contractor responsible for a construction
site, was charged with failing to ensure that certain site machinery was used in accordance
with relevant regulations (Reg 37(1) of the Construction Sites (Safety) Regulations). On
the Attorney-Generals appeal against Ds acquittal, D argued that it should not be liable if
it had taken all reasonable steps to ensure compliance. The Court of Appeal, in allowing
the appeal and remitting the case to the magistrate to enter conviction, decided that it was
not necessary to decide the interesting question whether the law of England and of
Hong Kong recognizes what Dr Glanville Williams described as a halfway house between
mens rea and strict responsibility.
Section 17(2) of the Dutiable Commodities Ordinance reads: No person shall have in his
possession, custody or control any goods knowing that in respect thereof an offence against
this Ordinance has been committed: Provided that no person shall be convicted of an offence
against this subsection if he proves that when such goods came into his possession, custody
or control he had good and sufficient reason to believe that the provisions of this Ordinance
relating to the goods had been complied with [emphasis added].
205
under which D was charged, nor by the express inclusion of such a statutory
defence in relation to an alternative offence. Bokhary JA reasoned (at 204):
We are equally satisfied that it would do that objective [of ensuring
that duty is paid] absolutely no harm at all for it to be a defence if the
accused proves on a balance of probabilities that he believed for good and
sufficient reason that the provisions of the [Dutiable Commodities
Ordinance] had been complied with. Indeed, we would go on to
say that, quite plainly, the availability of such a defence would actually
advance that objective. It would advance it by permitting it to be
attained without convicting blameless persons [emphasis added].
After noting (at 205) that the case law of Australia, Canada and New
Zealand:
all supported the proposition that a position under which the
prosecution does not have to prove guilty knowledge, but it is a defence
for the accused to prove on the balance of probabilities that he
reasonably though incorrectly held an honest belief, is a position which
can be arrived at by way of construction
and that the Lords in Sweet v Parsley were equally supportive of such a
defence (save for their concern about breaching Woolmington), Bokhary
concluded (at 2089):
If the necessary implication is that knowledge [of whether duty
payable under the ordinance was outstanding] is excluded as an
element which the prosecution has to prove, there is no reason in
principle why proof by an accused on a balance of probabilities of [a
reasonable (although erroneous) belief that the provisions of the statute
had been complied with] cannot be inferred as a defence.
So the prosecution does not have to prove that the accused knew
that duty on the goods was outstanding. But it is a defence for the
accused to prove on a balance of probabilities that he believed for good
and sufficient reason, although erroneously, that the provisions of the
DCO relating to the goods had been complied with, which compliance
of course includes duty having been paid [emphasis added].
This, he further remarked:

represents the true and Bill consistent position: arrived at by a process
of construction which has built into it conformity with the Bill of Rights
and the meeting of the criteria laid down in AG v Lee Kwong-kut for
justifying any onus being placed on the accused.
206
The court thus adopted a position akin to that in Canada, whereby a

defendant may exculpate himself or herself by proving, on the balance of
probabilities, that he or she reasonably believed that the requirements of
the ordinance had been complied with.
What was not clearly decided, however, is whether a defence along
these lines is to be prima facie implied into every strict liability offence, or
whether it is something that must be determined individually for each
offence. In several cases since Wang, the courts seem to have taken the
former view (see, for example, HKSAR v Paul Y-ITC Construction Ltd [1998]
3 HKC 189; Uniglobe Telecom (Far East) Ltd v HKSAR [1999] 2 HKC 389;
HKSAR v Pat Kim Por [1999] 4 HKC 840), rather than construing the
language of the particular statutory offence. This would seem to be more
consistent with the underlying premise of Wang, that the imposition of
strict liability is consistent with the human rights concerns underlying the
Bill of Rights only if an absence of fault defence is implied, but this has yet
to be expressly decided.
Another outstanding issue is whether the second form that the absence
of fault defence has taken in Canada that D took all reasonable care,
i.e. due diligence is also available at common law in Hong Kong. In
HKSAR v Leighton Contractors (Asia) Ltd ([2000] 1 HKLRD 787), Suffiad J
in the Court of First Instance took the view that neither Wang nor Paul YITC, in which the Court of Appeal applied Wang, was authority for the
recognition of such a defence in Hong Kong. In his opinion (at 793), short
of appropriate words in the Ordinance (which create a strict liability offence)
allowing for the defence of due diligence, I take the view that that would
not be a defence open to a defendant. It remains open for a higher court to
consider this proposition.
Re B (A Minor)
In Re B (A Minor) v DPP ([2000] 2 AC 428), the House of Lords revisited
the question of whether a defendant charged with a strict liability offence
may at common law rely on a defence of mistaken belief and, if so, whether
the belief needs to be reasonable. The case concerned a charge of inciting
a girl under the age of 14 to commit an act of gross indecency with the
defendant (contrary to section 1(1) of the Indecency with Children Act
1960), an age-based sexual offence, of the type which, following Prince
((1875) LR 2 CCR 154; discussed above, p. 183), has generally been treated
as involving strict liability as to age, i.e. the prosecution is not required to
prove Ds knowledge or recklessness as to the victims age. Doubting the
207
correctness of the reasoning in Prince, the Lords reaffirmed the importance

of the presumption of mens rea, concluding that a defendant is entitled to
raise and rely on a defence of mistaken belief unless, as a matter of
construction of the statutory provisions creating the offence, this is otherwise
excluded expressly or by necessary implication. Furthermore, the Lords
concluded: (1) that the traditional formulation whereby a mistake of fact
must be based on reasonable grounds, as stated in Sweet v Parsley ([1970]
AC 132), could no longer be upheld, and (2) that the burden of proving
whether the defendant made a mistake lay not on the defendant, but on
the prosecution, i.e. the prosecution must prove beyond reasonable doubt
that D was not acting under the alleged mistaken belief at the relevant
time. Lord Nicholls (at 463) stated that Lord Diplocks dictum in Sweet v
Parsley must in future be read as though the reference to reasonable grounds
were omitted.
As such, Re B neither adopts the halfway house position established
under Canadian and New Zealand law (whereby D may avoid liability for
a strict liability offence by proving that he or she was acting under an
honest and reasonable mistaken belief), nor the Australian position (whereby
D may raise a defence of honest and reasonable mistake and the prosecution
must then disprove it beyond reasonable doubt). Instead, strongly
reaffirming the presumption of mens rea, the Lords have, in the words of
one commentator, gone the whole way. 11 Not only did they remove the
need for the mistaken belief to be reasonable, but they went on to require
the prosecution to prove beyond reasonable doubt the absence of any honest
mistake as to the relevant circumstance. In Re B, this meant that although
the prosecution at the outset did not have to prove mens rea beyond
reasonable doubt as to the victims age (i.e. knowledge or recklessness as
to the victim being under-age), once the defendant alleged that he mistakenly
believed that the victim was over the relevant age, then the prosecution
had to disprove this mistaken belief. However, to disprove an honest
mistaken belief beyond reasonable doubt requires proof that the defendant
knew the victim was under-age, or was at least reckless as to this. The fact
that D ought to have known or realised (i.e. negligence) will not suffice,
for this would rest liability upon whether the mistake was reasonable, and
this was expressly rejected by the Lords in Re B.
It remains to be seen whether the courts of Hong Kong will follow Re
B (A Minor), or re-affirm the half-way house position adopted in Wang.
11
Commentary by Professor J. C. Smith, B (A Minor) v DPP [2002] Crim LR, 403, at 405.
PART III
Defences
6
Capacity and Incapacitating
Conditions
INTRODUCTION
Criminal liability presupposes that the person who is being held liable is
responsible for his or her actions. Some defences challenge this assumption,
asserting that D does not (or did not) possess the necessary mental capacity
to be held criminally responsible. This assertion may be based on the
defendants youth giving rise to the defence of infancy or on the fact
that the defendant is (or was) suffering from mental abnormality giving
rise to the general common law defences of insanity and automatism, and,
in the case of murder, the special statutory offence of diminished
responsibility. These defences are outlined in this chapter, along with two
related questions: whether the defendant is fit to plead, and how to deal with
or dispose of someone found to be mentally abnormal. In addition, the
defence of intoxication will be considered here, although strictly speaking it
does not operate by depriving D of criminal capacity or responsibility.
INFANCY
Infancy, or young age, may affect criminal proceedings in a number of
ways. Of principal concern here is its effect on criminal responsibility, but
a childs youth may also affect:
212
DEFENCES
the nature of the proceedings a special court, the Juvenile Court,1

established pursuant to section 3A of the Juvenile Offenders Ordinance
(cap. 226) (JOO), exists to hear and determine charges (other than
murder) laid against a child (under 14 years section 2 of the JOO)
or a young person (aged 14 years or older but under 16 years
section 3A(3) of the JOO).2 The special procedures to be followed in
Juvenile Courts are set out in section 8 of the JOO;
his or her sentence upon conviction there are, for example, restrictions
on the imprisonment or detention of children and young persons (see,
for example, section 11(1)(2) of the JOO; unless the court considers that
no other method in which the case may be dealt with is suitable
(section 14(1) of the JOO) (see also section 109A of the Criminal
Procedure Ordinance (cap. 221) (CPO) re offenders aged 16 to 21 years)).
Section 15 of the JOO sets out in general terms the methods of dealing
with children and young persons found guilty of any offence; and
the giving of evidence prior to 1995, children under the age of
seven were prima facie incompetent to give sworn evidence unless it
was shown that they were capable of giving reliable factual testimony
(section 3(a) of the Evidence Ordinance; repealed on 28 July 1995),
and understood the nature of an oath. Since 1995, pursuant to section
4 of the Evidence Ordinance (cap. 8), the evidence of a child under 14
years of age in criminal proceedings shall be given unsworn. Under
section 79A of the CPO, children (under 17 years, in the case of an
offence of sexual abuse; under 14 in any other case) are vulnerable
witnesses and are entitled to special protection in giving evidence.
Criminal Responsibility and the Presumption of Incapacity

Two ages are relevant for the purposes of criminal liability: 7 years and 14
years.
1
By virtue of the Protection of Children and Juveniles Ordinance (PCJO) (cap. 213, Laws
of Hong Kong), the Juvenile Court also has exclusive jurisdiction to hear and determine
care and protection proceedings brought in relation to persons aged under 18 (the PCJO
recognizes a third category of young offender, in addition to child and young person,
namely juvenile. In section 2, this is defined as a person who is, in the opinion of a court
or a person exercising any power under this Ordinance, 14 years of age or upwards and
under the age of 18 years.).
Note that, in addition to child, young person and juvenile, under general Hong Kong
law, the terms infant and minor refer to a person who has not attained the age of 18
years (see section 3 of the Interpretation and General Clauses Ordinance (cap. 1)).
CAPACITY AND INCAPACITATING CONDITIONS
213
Children under seven

The minimum age for criminal responsibility in Hong Kong is presently set
at seven years. Formerly a matter of common law, this rule is now stated in
section 3 of the JOO, which reads: it shall be conclusively presumed that
no child under the age of 7 years can be guilty of an offence. Children
under seven are said to be dolix incapax (not capable of crime). This means
not only that the child cannot be convicted, but also that no crime is
committed by the child, even though he or she may have committed the
actus reus of an offence.3 This can affect the liability of others. Suppose,
for example, a child under seven years takes property belonging to another;
this does not amount to theft (contrary to section 9 of the Theft Ordinance
(cap. 339)), and the property is not stolen. Consequently, someone else
subsequently receiving the property does not handle stolen goods for the
purposes of section 24 of the Theft Ordinance (Walters v Lunt [1951] 2 All
ER 645).
However, since a child under seven years is physically capable of
committing acts constituting the actus reus of an offence, the law may
choose to treat such a child as the innocent agent of another, who may be
liable either as a principal offender, or on the basis that he or she procured
the child to commit the actus reus of an offence, as in DPP v K & B ([1997]
1 Cr App R 36; discussed below, Chapter 8, p. 357).
In many jurisdictions, the minimum age of criminal responsibility is
set considerably higher than seven years: for example, 10 (England and
Wales, Australia), 12 (Canada), 14 (Germany, Japan and the PRC). Research
suggests that autonomous morality, which forms the basis of criminal
responsibility, in a child does not truly begin to develop until he or she is
12 or 13 years old, and a number of bodies in Hong Kong concerned with
childrens rights have recently advocated the case for raising the minimum
age in Hong Kong to 14 to reflect this (see, for example, Hong Kong
Committee on Childrens Rights, Position Paper: The Age of Criminal
Responsibility (December 1997)).
Children aged 7 to 14 years
At common law, children aged 7 years or older but under 14 years are also
presumed to be dolix incapax incapable of committing an offence (R v
3
A child under seven years may, however, be the innocent agent of another, who may be
liable as a principal offender; see below, p. 331.
214
DEFENCES
Owen (1830) 4 Car & P 236). However, this common law presumption is
rebuttable; to rebut it, the prosecution, in addition to proving actus reus
and mens rea, must prove beyond reasonable doubt that D knew his or her
acts were seriously wrong and not merely naughty or mischievous (Gorrie
(1918) 83 JP 136; JM (a minor) v Runeckles (1984) 79 Cr App R 255). This
additional mental element is traditionally known as mischievous discretion.
It is not necessary to prove that D knew his or her actions were morally
wrong, although this would provide evidence that D knew his or her actions
were seriously wrong.
The need for this presumption has been queried in recent years. It was
reaffirmed as a rule of the common law by the House of Lords in C (a
minor) v DPP ([1996] 1 AC 1), although the Lords also recognized (at 39
40, per Lord Lowry) that:
the time has come to examine further a doctrine which appears to
have been inconsistently applied and which is certainly capable of
producing inconsistent results, according to the way in which courts
treat the presumption and depending on the evidence to rebut it which
is available in each case Whatever change is made, it should come
only after collating and considering the evidence and after taking
account of the effect which a change would have on the whole law
relating to childrens anti-social behaviour. This is a classic case for
parliamentary investigation, deliberation and legislation.
Subsequently, the presumption was abolished in the UK (see section 34

of the Crime and Disorder Act 1998). It remains part of the law of Hong Kong.
The presumption does not always require proof that a child knew his or her
actions were morally wrong, though proof of this would generally provide
strong evidence that D knew his or her actions were seriously wrong. On
the other hand, it is not enough simply to prove the intentional commission
of the acts alleged to constitute the offence (C (a minor) v DPP, above).
It is more difficult to prove mischievous discretion in a child aged near
seven years (B v R (1958) 44 Cr App R 1) than in a child near 14 years (C
(a minor) v DPP, above; Sheldon [1996] 2 Cr App R 50). In Chan Chi Wah
([1967] HKLR 241), a Hong Kong court convicted a girl aged 13 years and
8 months of two charges of possession of, and dealing in, dangerous drugs
under the Dangerous Drugs Ordinance (cap. 134). Pickering J concluded
that there was ample evidence before the magistrate to rebut the
presumption; using a phrase quoted by Parker LCJ in B v R, above, he
concluded (at 249), that there was strong and pregnant evidence that [D]
understood what she did.
215
Evidence tendered by the prosecution to establish mischievous

discretion may relate to the childs home life and upbringing (e.g. that D
was from a respectable family and well brought-up; B v R, above); Ds
behaviour both after the offence (e.g. running away) and while being
questioned by the police (e.g. lying; see T v DPP [1989] Crim LR 498,
where T was charged with theft and his honesty was in issue; IPH v Chief
Constable of South Wales [1987] Crim LR 42); Ds demeanour in court and
his or her mental capacity (JM (a minor) v Runeckles, above; JBH and JH
(minors) v OConnell [1981] Crim LR 632), and even previous convictions
if they are relevant to Ds knowledge of right and wrong (R v B, R v A
[1979] 1 WLR 1185). It is not enough simply to show that D appreciated
what the consequences of his or her behaviour would be (IPH v Chief
Constable of South Wales, above), or that any normal child of Ds age would
have known that the acts were seriously wrong, for this would undermine
the presumption of incapacity itself (JBH and JH (minors) v OConnell, above).
In general, it is not necessary for the prosecution to call the evidence of
independent sources (such as a psychiatrist or teacher or someone who
knows the defendant well) to attest to the defendants knowledge and
perception of the seriousness of his or her actions (L & Others v DPP [1996]
2 Cr App R 501).
If mischievous discretion is proved, then the child may be convicted of
any offence proved by the prosecution, including murder.
Fourteen years or older
Persons aged 14 years or older are treated as having full criminal
responsibility and therefore may be charged with and convicted of any
offence (Smith (1845) 1 Cox CC 260).
Determination of age
Where it is material, a persons age may be determined by a court, after
considering any available evidence (section 106A of the CPO).
Presumption of Sexual Incapacity

The common law irrebuttably presumes males under 14 years of age to be
incapable of sexual intercourse or buggery (Eldershaw (1828) 3 C & P
398; Groombridge (1836) 7 C & P 582; Philips (1839) 3 C & P 736; Waite
216
DEFENCES
[1892] 2 QB 600; Williams [1893] 1 QB 320; evidence of physical capacity

to commit these acts is not admissible). Boys younger than 14 therefore
cannot be convicted, as a principal, of any offence requiring proof of sexual
intercourse (such as rape), or buggery. They may, however, be liable as a
secondary party for aiding, abetting, counselling or procuring such acts, or
for common assault or indecent assault arising out of such acts, and possibly
also for attempting to commit an offence involving sexual intercourse.
This presumption was statutorily abolished in England in 1993 (see
section 1 of the Sexual Offences Act 1993), but presently remains part of
the criminal law of Hong Kong.
MENTAL ABNORMALITY
Introduction4
Mental abnormality may affect criminal proceedings in several ways:
Liability
Firstly, it may be relevant to the determination of liability itself. A person
suffering from mental abnormality5 may lack the necessary mental capacity
to understand the nature, circumstances and consequences of his or her
actions. If so, then he or she may be neither a rational actor, nor morally
culpable or responsible for his or her actions and, as such, ought not to be
made criminally liable or responsible (unless perhaps the abnormality or
incapacity was self-induced). At the same time, the mere fact that D is
suffering from a degree of mental disorder in the eyes of doctors or
psychiatrists may not necessarily mean that he or she lacks sufficient legal
responsibility to bear criminal liability for his or her actions.
Hong Kongs criminal law recognizes three defences based on mental
abnormality: insanity and automatism at common law, and the special
statutory defence to murder of diminished responsibility (provided for in
See generally: N. Walker, Crime and Insanity in England, Vol. 1 (Edinburgh University Press,
1968), Vol. 2 (Edinburgh University Press, 1993); R. D. Mackay, Mental Condition Defences
in the Criminal Law (Clarendon Press, 1995).
See generally Butler Committee, Report on Mentally Abnormal Offenders (1975) Cmnd 6244.
217
section 3 of the Homicide Ordinance (cap. 339)). These three defences,

which are considered in detail below, operate in different ways.
Automatism (or specifically, non-insane automatism, to distinguish it
from those cases of automatism arising from a condition amounting to
insanity) involves an assertion that D was unconscious or suffering from
impaired consciousness at the time of the alleged offence, and therefore
was acting involuntarily. If properly raised, and not negated by the
prosecution, (non-insane) automatism leads to a complete acquittal (unless
the state of automatism was self-induced).
Insanity (including cases of insane automatism) involves proof that D
was suffering from a defect of reason, from disease of mind, as not to
know the nature and quality of the act he was doing or [that it] was wrong.
This test, discussed below, derives from MNaghten in 1843. Pursuant to
section 74(1) of the CPO, a finding of insanity leads to a special verdict
of not guilty by reason of insanity, rather than a simple acquittal. Pursuant
to section 76, the judge hearing the case must then decide whether it is
necessary to order that D be admitted into a mental hospital for treatment
(a hospital order), or dispose of D in one of several other ways (see further,
below, pp. 2356).
Diminished responsibility is a special defence to murder only. It requires
proof that D was suffering from an abnormality of mind (arising from one
or more specific categories of cause, or aetiology) substantially impairing
(i.e. diminishing) Ds mental responsibility for his or her acts. It leads to
only a partial acquittal: D will be acquitted of murder but convicted instead
of manslaughter (section 3(3) of the Homicide Ordinance (cap. 339)). Like
insanity, the burden of proving the defence of diminished responsibility
lies on D, on the balance of probabilities. Where D successfully raises
diminished responsibility, resulting in a conviction of manslaughter, the
trial judge may, in addition to the normal sentencing discretion, make a
hospital order, pursuant to section 45 of the Mental Health Ordinance (cap.
136) (MHO), for a specified or indefinite period (section 45(1) of the MHO).
Section 76A of the CPO provides that on a trial for murder, if D raises
either insanity or diminished responsibility, the prosecutor may adduce
evidence tending to prove the other defence. This enables a prosecutor to
prove insanity and secure a special verdict of not guilty by reason of insanity
(giving rise, in a murder case, to a mandatory hospital order), rather than
leaving disposal to the discretion of the sentencing judge.
218
DEFENCES
Non-prosecution and fitness to plead

Secondly, mental abnormality may affect the commencement or continuation
of criminal proceedings in two ways: non-prosecution and fitness to plead.
Non-prosecution
From the outset, the fact that a defendant is suffering from mental
abnormality may mitigate against his or her prosecution. This is recognized
in the Prosecution Policy Guidance for Crown Counsel of the Department
of Justice, which states (p. 13):
Where there is evidence to establish that an accused or a person under
investigation was suffering from a mental disorder at the time the
offence was committed, Government Counsel may conclude that
prosecution will not be appropriate in the circumstances, unless it is
overridden by the wider public interest, including in particular the
gravity of the offence.
Murder, for example, would generally be prosecuted in the wider public

interest, although the prosecution may choose to accept a plea of guilty to
manslaughter on the basis of diminished responsibility, pursuant to section
3 of the Homicide Ordinance, in a clear case.
Fitness to plead6
If a person suffering from mental abnormality is prosecuted, but appears to
be under disability at the beginning of or during the trial, it may become
necessary, independently of the effect of mental abnormality on liability, to
determine whether D is fit to plead, i.e. fit to stand trial. In R v Leung Takchoi ([1995] 2 HKCLR 32), Chan J, following English case law, defined
under disability as the lack of ability to understand the charge against
[D], to give instructions to [Ds] lawyers, to challenge jurors, to understand
the evidence against him, and to give evidence in defence (at 42).
When it becomes necessary to determine whether D is under disability
(section 75(1) of the CPO: under any disability such that apart from this
6
7
The law was substantially changed in 1999. For discussion of the prior law, see J. Chan,
Fitness to Plead (1988) 18 HKLJ 256.
Note 39 in J. Chan, Fitness to Plead (1988) 18 HKLJ 256, remarks that there appear to be
very few cases in which fitness to plead has been raised by D.
219
Ordinance would amount to a bar to his being tried),7 the procedures

to be followed are set out in sections 75 and 75A of the CPO (as amended
by sections 3 and 4 of the Criminal Procedure (Amendment) Ordinance,
No. 37 of 1996).
Section 75(3) of the CPO provides that the question of Ds fitness to
be tried shall prima facie be determined by a jury (in the Court of First
Instance; otherwise, District Court Judge or magistrate; section 75(7) of
the CPO) as soon as it arises. However, the court (meaning the Court of
First Instance or District Court acting in the exercise of its criminal
jurisdiction, or a magistrate section 75(6) of the CPO) has the discretion
under section 75(2) of the CPO to postpone consideration of this question
up to the opening of the case for the defence if, having regard to the
nature of the supposed disability, the court is of the opinion that it is
expedient to do so and in the interests of D. This gives an accused an
opportunity of obtaining an outright acquittal (rather than a special verdict
pursuant to section 74 on a finding of insanity at trial; see section 75(6) of
the CPO), on any of the counts on which D is being tried, if the evidence
adduced by the prosecution fails to establish a prima facie case (Leung Takchoi [1995] 2 HKCLR 32: it was held that the mandatory requirement for
the making of a hospital order in relation to a person found to be under
disability (now in effect mandatory in relation only to murder) was not in
breach of the provisions of Hong Kongs Bill of Rights).
The question of whether D is under disability must be based on the
written or oral evidence of two or more medical practitioners (section 75(5)
of the CPO). If the question of disability falls to be determined before or at
the time of arraignment, then a jury must be empanelled specifically to
decide this issue (section 75(4) of the CPO). If the question arises after
arraignment, it may be determined by a separate jury or by the jury by
whom the accused person is being tried, as the court may direct (section
75(4)(b)(i) of the CPO). Where the question arises in the District or
Magistrates Court, it is determined by the same judge or magistrate by
whom D is being tried (sections 75(4)(a)(ii) and (b)(ii) of the CPO).
The burden of proving whether D is under disability lies on D on the
balance of probabilities, except where the issue is, exceptionally, raised by
the prosecution or by the trial judge (Robertson, above). If raised by the
prosecution, it must prove Ds unfitness to plead beyond reasonable doubt.
If raised by the trial judge, the burden of proof is less clear. In Jimmy
Johnson ([1983] HKLR 344), the Court of Appeal suggested that if insanity
or diminished responsibility is raised by the prosecution or judge, the burden
is only on the balance of probabilities; this may also apply to unfitness to
220
DEFENCES
plead. However, a trial judge should raise the issue only if he or she
considers that there is a real and substantial question as to Ds fitness to
plead (Keung Sai-chung [1986] HKLR 833). If necessary, the trial judge
may allow D to receive treatment for a temporary indisposition, without
requiring Ds fitness to plead to be determined.
If D is found to be fit to be tried, the trial should proceed, even though
D may not be able to act in his or her best interests (Robertson [1968] 1
WLR 1767). In Podola ([1960] 1 QB 325), P was found to be fit to plead,
and the trial proceeded even though he was suffering from a state of
hysterical amnesia, preventing him from remembering events at the time
of the alleged offence, since his mind was normal in other respects. Where
a trial on indictment proceeds after a finding that D is fit to plead, then it
may be necessary to empanel a separate jury from that which decided Ds
fitness to plead to hear the trial (section 75(4)(a)(i) of the CPO); in the
District Court or Magistracy, the judge or magistrate that determined Ds
fitness to plead may continue to hear the trial.
If D is found to be under disability, then, pursuant to section 75A(1)
of the CPO (as introduced in 1996: see section 4, No. 37 of 1996), the
trial shall not proceed or further proceed, and the court (i.e. the jury (or
judge or magistrate) that found D to be under disability; section 75A(2) of
the CPO) must go on and decide whether it is satisfied on each count that
D did the act or made the omission charged against him as an offence (see
further below). This is to be determined according to the evidence (if any)
already (or further) adduced by the prosecution, or (since D is under
disability and therefore unable to instruct counsel, etc., in his or her own
defence) by a person appointed by the court for the purpose of this section
to put the case for the defence (section 75A(1)(b)(ii) of the CPO). In Egan
([1997] Crim LR 225), the English Court of Appeal took the view that a
court is under a duty to appoint someone for this purpose, and that the
failure to do so, though a matter of form rather than substance, may
constitute a material irregularity. If not satisfied of this as respects any
count or counts, then the jury shall acquit D on that (or those) count(s)
(section 75A(1)(d) of the CPO; see also ODonnell [1996] Crim LR 121).
Where the jury is satisfied that D is under disability but it is proved by
the prosecution that D did the act or made the omission, then pursuant to
section 76(2), the court (section 75A(5) of the CPO) may act as follows.
Firstly, pursuant to section 76(2)(a) of the CPO, it may (must in the case
of murder section 76(3) of the CPO) make an order (called a hospital
order section 2(1) of the MHO) that D be admitted to the Correctional
Services Department Psychiatric Centre or a mental hospital, if the court is
221
satisfied on written or oral medical evidence of two or more registered

medical practitioners (at least two of whom must have special expertise in
the diagnosis or treatment of mental disorder section 2(2) of the MHO)
that it is necessary in the interests or the welfare of the accused person or
for the protection of other persons. Pursuant to Para 2, Schedule 4, CPO,
a person who is admitted under section 76(2)(a) shall be treated for the
purposes of the [MHO] as if he had been so admitted in pursuance of a
hospital order made under section 45 [of the MHO] without an
endorsement under [section 45(1A)]. D is thereby governed by the
provisions of the MHO.
Alternatively, pursuant to section 76(2)(b), the court may make one of
three other orders set out in section 76(2)(b) as it thinks most suitable in
all the circumstances of the case: (1) a guardianship order (under Part IIIA
of the MHO); (2) a supervision and treatment order (under Part IIIB of the
MHO); or (3) an order for Ds absolute discharge. Guardianship orders and
supervision and treatment orders may be made only on the written or oral
evidence of two or more registered medical practitioners (approved under
section 2(2) of the MHO).
Did the act or made the omission charged The meaning of the expression
did the act or made the omission charged may not be finally decided (see
R.D. Mackay and G. Kearns, The Trial of the Facts and Unfitness to Plead
[1997] Crim LR 644). The general view is that it refers solely to the actus
reus of the offence charged against D and that it is unnecessary to consider
the effect (if any) of Ds mental abnormality on mens rea. This was the
view of the Hong Kong Court of Appeal in Tang Yau-chi ([1988] 1 HKLR
416; see also Huang Chen Sheng [1988] HKC 544) in relation to the use of
this expression in section 45(1)(a)(iii) of the MHO. Rejecting a submission
that act requires proof of some mens rea, Power JA concluded (at 419):
We are satisfied that the legislature when it referred to the act in
s.45(1)(a)(iii) must have been referring to the actus reus and must
have intended that the magistrate have power to deal with a mentally
disordered person where no mens rea was proved.
However, in R v Egan ([1997] Crim LR 225), the English Court of Appeal

concluded that the phrase in the equivalent English Act means neither
more nor less than proof of all the ingredients of what would otherwise be
an offence . On a charge of theft, this meant that the prosecution had to
prove D had acted dishonestly and with intent to permanently deprive the
victim.
222
DEFENCES
If the narrower interpretation is adopted, then the only course open to

a defendant who wishes to challenge mens rea is to request the court to
postpone consideration of the issue of unfitness to plead until after the
prosecution case.
If condition improves and rights of appeal If a defendant is found unfit to
plead but to have done the act or made the omission, and is dealt with by
way of a hospital order, guardianship order or supervision and treatment
order, and his or her condition later improves so that he or she is no
longer considered to be under disability and can properly be tried (4th
Schedule of the CPO), then he or she may be brought back to court for the
trial to continue.
There is a general right of appeal against a finding that D is unfit to be
tried, pursuant to section 83M of the CPO.
Disposal hospital and other orders
Thirdly, mental abnormality may affect the question of how to dispose of
the defendant. This issue may arise not only where D successfully raises
insanity (or insane automatism), discussed below, or is found to be unfit
to plead, above, but also where D is convicted of an imprisonable offence
despite raising mental abnormality (including a conviction of manslaughter
by virtue of diminished responsibility; discussed below, p. 255). In each
case, the court must decide whether Ds mental condition necessitates
detention in a mental hospital, or continuing care or supervision and
treatment.
Until recently, the principal means of achieving control over mentally
disturbed offenders was by way of a hospital order, made either under Part
IV of the MHO or pursuant to section 76 of the CPO.8 However, amendments
to sections 7477 of the CPO (enacted by the Criminal Procedure
(Amendment) Ordinance, No. 37 of 1996), along with amendments to the
MHO (enacted by the Mental Health (Amendment) Ordinance, No. 38 of
1996), following earlier English legislation (Criminal Procedure (Insanity
and Unfitness to Plead) Act 1991), conferred broader powers of disposal on
judges and magistrates upon conviction, including the power to make noncustodial orders. Under section 44D of the MHO (added by section 2, No. 38
See generally, I. G. Cross and P. W. S. Cheung, Sentencing in Hong Kong (third edition,
2000, Butterworths), Chapter 27.
223
of 1996), for example, a judge may in some circumstances order Ds

supervision and treatment for a specified period of not more than two years,
rather than his or her detention in a mental hospital.
Pursuant to section 45 of the MHO, a judge or magistrate may, upon
the conviction of an offender for any imprisonable offence (other than one
with a sentence fixed by law, e.g. murder), make a hospital order against
him or her (section 45(1)(a)(i) of the MHO). Pursuant to section 45(1)(a)(ii)
of the MHO, this power may also be exercised in relation to a person
merely charged9 before a magistrate with an act or omission punishable
by imprisonment provided that the magistrate is satisfied that such person
did the act or made the omission (Tang Yau-chi [1988] 1 HKLR 416; Tam
Kit-nin [1982] HKC 40: satisfied means beyond reasonable doubt).10
The judge or magistrate may make a hospital order only if he or she is
satisfied by the written or oral evidence of two registered medical
practitioners (at least one of whom must be a medical officer section 2(1)
of the MHO), firstly, that D is a mentally disordered person (section
45(1)(b)(i) of the MHO), and secondly, that the nature or degree of the
mental disorder from which [D] is suffering warrants his detention in the
Correctional Services Department Psychiatric Centre or a mental hospital
for treatment (section 45(1)(b)(ii) of the MHO). Mental disorder is defined
for this purpose in the MHO as mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or
disability of mind (section 2(1); psychopathic disorder means a persistent
disorder or disability of mind (whether or not including significant
impairment of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the person concerned
section 2(1) of the MHO).11 Having satisfied himself or herself on these
two matters, the judge or magistrate may then, pursuant to section 45(1)(c)
of the MHO, make a hospital order if he or she is of the opinion that:
10
11
In Tang Yau-chi [1988] 1 HKLR 416, it was held that under section 45(1)(a)(iii) of the
MHO, a magistrate may even make a hospital order against someone who has been
acquitted, provided that he or she is satisfied, as stated, that the person did the act or
omission giving rise to the charge.
It has been held that if a magistrate makes an order under section 45 of the MHO, this
effectively terminates the criminal proceedings Tam Kit-nin (1982) H Ct, Cr App
No. 1123 of 1981.
Note also section 2(5): Nothing in subsection [2](1) shall be construed as implying that
a person may be dealt with under this Ordinance as suffering from mental disorder, or
from any form of mental disorder described in that subsection, by reason only of
promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.
224
DEFENCES
having regard to all the circumstances including the nature of the offence
and the character and antecedents of such person, and to the other
available methods of dealing with him, the most suitable method of
disposing of the case is by means of an order [under section 45].12
Where D is merely suspected of being a mentally disordered person, a

court or magistrate may remand that person to a suitable place for
observation, investigation and treatment for an initial period up to 14
days which, with seven-day extensions, may last up to 42 days (section
51(1)(a) of the MHO). During this period, medical reports in support of
an application under section 45 may be prepared.
A hospital order made under section 45 may be for a specified period,
in which case it must not exceed the maximum term of imprisonment that
the judge or magistrate could have imposed in respect of the offence (section
45(1) of the MHO), or for an indefinite period (which may exceed the
maximum term of imprisonment) if psychiatrists cannot predict with
confidence how long D needs to be treated before he or she can be safely
released back into the community (Lung Fan-wa [1994] 3 HKC 106).
Where a hospital order has been made against a person under section
45 of the MHO, no additional sentence of imprisonment or fine or probation
order shall be made or imposed on that person (section 45(3) of the MHO).
A person who is serving a term of imprisonment may be transferred to
a mental hospital for treatment if it appears to the Chief Executive from
the report of a medical officer (section 2(1) of the MHO) that the prisoner
is mentally disordered and that the nature or degree of the mental
disorder warrants his detention in a mental hospital for treatment
(section 52(1) of the MHO). A decision must be made within 14 days after
transfer as to whether to receive the prisoner into the mental hospital,
pursuant to the provisions of section 36 of the MHO (sections 52(2) and
(3) of the MHO).
There is a general right of appeal against a hospital order by any person
who is aggrieved by the making of the order (section 48 of the MHO).
12
Section 45(2) of the MHO prohibits the making of a hospital order unless the judge or
magistrate is also satisfied that arrangements have been made for admission within 28
days of the making of the order.
225
Insanity
Introduction
A person suffering from mental abnormality or disability at the time when
he or she allegedly committed an offence13 may raise the defence of insanity.
A successful plea of insanity does not lead to a simple acquittal; instead, if
the jury trying the issue finds that D is legally insane but did the act or
made the omission charged, then pursuant to section 74 of the CPO, it
must return a special verdict of not guilty by reason of insanity.14 Pursuant
to section 76 of the CPO, the judge (or magistrate; section 76(5) of the
CPO) must then make either an order authorizing Ds admission into a
mental hospital for detention and treatment (i.e. hospital order) (this is
mandatory where the offence carries a fixed sentence, e.g. murder), or
one of the three other orders mentioned in section 76(2)(b): (1) a
guardianship order, (2) a supervision and treatment order, or (3) an order
for Ds absolute discharge.
Prior to 1996, insanity automatically led to a hospital order. For that
reason, and also because of the narrowness of the definition of insanity in
the criminal law, insanity was only rarely raised as a defence.15 Prior to
1963, insanity was most often raised in murder cases, principally as a means
of avoiding the (then) mandatory death penalty that murder carried upon
conviction, but even this limited use declined with the enactment in that
year of the special statutory defence of diminished responsibility (section 3
of the Homicide Ordinance; section 2 of the Homicide Act 1957 (UK)).
Insanity remains important, nonetheless, because it overlaps with and
operates as a significant limitation on the related defence of automatism
(below, p. 237).
The MNaghten Rules
Hong Kongs present law on insanity as a criminal defence is based on
MNaghten ((1843) 10 Cl & Fin 200; [184360] All ER Rep 229) in which
the Law Lords laid down (at 210) that for the purposes of the criminal law:
13
14
15
If D were to become insane after conviction, this would affect sentencing. A judge may
then make a hospital order under section 45 of the MHO, discussed above, p. 222.
Prior to 1972, the special verdict was guilty but insane. However, this was treated as an
acquittal; see Felstead [1914] AC 534.
One English study found that between 1975 and 1990, a special verdict was returned in
only 49 cases; see R. D. Mackay, Fact and Fiction about the Insanity Defence [1990] Crim
LR 247. See also J. Chan, Fitness to Plead (1988) 18 HKLJ 256.
226
DEFENCES
[E]very man is presumed to be sane and to possess a sufficient

degree of reason to be responsible for his actions, until the contrary
be proved ; and to establish a defence on the ground of insanity,
it must be clearly proved that, at the time of the committing of the
act, the party accused was labouring under such a defect of reason,
from disease of the mind, as not to know the nature and quality of the
act he was doing; or, if he did know it, that he did not know he was
doing what was wrong.
This view of mental abnormality and its effect on legal responsibility remains
the basis of the criminal defence of insanity in Hong Kong, despite obvious
advances in medicine and psychiatry over the past 150 years.
The presumption of sanity
MNaghten laid down the common law presumption of sanity. This is a
rebuttable presumption of law. If D alleges insanity, then D exceptionally
bears the legal burden of rebutting the presumption of sanity and proving
his or her insanity on the balance of probabilities (Woolmington [1935] AC
462).
The issue of insanity may also be raised by the prosecution or the trial
judge. Firstly, section 76A of the CPO provides that if D asserts in answer
to a murder charge that he or she was suffering from diminished
responsibility, the prosecution may instead seek to prove insanity, and may
adduce or elicit evidence for this purpose. Further, as a matter of common
law, it appears that if D puts his or her mental state in issue at trial without
raising insanity, for example by pleading automatism, then the prosecution
may raise insanity (or diminished responsibility, on a murder trial) and if
necessary call evidence (see Lord Denning in Bratty v A-G for Northern
Ireland [1963] AC 386, at 4112; cf. Dickie [1984] 1 WLR 1031). This was
also the view of the Court of Appeal in Jimmy Johnson ([1983] HKLR 344,
at 34950). So far as the trial judge is concerned, the Court of Appeal in
Jimmy Johnson held that the trial judge may raise insanity (or diminished
responsibility) and leave it to the jury, calling witnesses if necessary, not
only where D puts his or her mental state in issue at trial and there is medical
evidence supporting insanity (or diminished responsibility), but also where
D may have chosen not to put his or her mental state in issue in this way,
and even against Ds express wishes (Jimmy Johnson, above; following Chan
Ming-luk [1962] HKLR 651 (FCt); Lo Tin [1963] HKLR 903; cf. Kooken
(1982) 74 Cr App R 30 and Thomas (Sharon) [1995] Crim LR 314). The
standard of proof remains on the balance of probabilities (Jimmy Johnson).
227
Even so, it would only be in exceptional circumstances that a trial

judge would adopt this course, when the interests of justice outweigh the
rights of the individual to insist upon his or her own line of defence.
The elements of insanity
In accordance with the MNaghten Rules, insanity requires proof of three
matters: defect of reason, disease of mind and ignorance of the nature
and quality of Ds act or that it is wrong.
Defect of reason
It must be proved that D was suffering from a defect of reason. Prima
facie, this is a broad concept; it is narrowed down for the purposes of
insanity by the additional requirement that the defect of reason have one
of the two specified effects: D did not know the nature and quality of his
or her act, or did not know that it was wrong. This excludes conditions
such as irresistible impulses, where D is aware of what he or she is doing
and knows it is wrong, but cannot stop himself or herself. In Clarke ([1972]
1 All ER 219), it was held that D must prove actual impairment of Ds
powers of reasoning; mere confusion or absent-mindedness at the time of
the alleged offence would not suffice. D may thus rely on evidence of
confusion or absent-mindedness to negate mens rea without being at risk
of an insanity verdict. Clarke, for example, negated the mens rea of theft
by calling medical evidence showing that she was suffering from diabetes
and depression, resulting in absent-mindedness.
Defect of reason includes the absence of reason, such as when D is
unconscious or suffering from automatism. For this reason, a state of
automatism arising from a disease of mind is treated as insanity and called
insane automatism, to distinguish it from automatism strictly speaking
(called non-insane automatism).
Disease of mind
The defect of reason must arise from a disease of mind. Disease of mind
is a legal, not a medical, concept. It is not enough simply to ask whether D
was suffering at the time of the alleged offence from mental disorder or
disability. Instead, the question is whether the particular mental abnormality
or disorder relied on by D amounts to a disease of mind, and this is initially
a question of law for a trial judge to decide. If, in his or her view, it qualifies
228
DEFENCES
as a disease of mind, the jury (in a jury trial) or judge must then decide
whether it has been proved on the balance of probabilities that D was in
fact suffering from that condition at the time of the alleged offence.
The meaning of disease of mind remains a matter of common law.
There are various criteria, some of which focus on the nature and origins
of Ds mental abnormality, and others which instead reflect the policy of
the criminal law that those suffering from mental abnormality should not
be held criminally responsible but at the same time should be subject to
continuing state control by hospitalization and treatment. Four English
cases set the parameters of disease of mind: R v Kemp ([1957] 1 QB 399),
Bratty v A-G for Northern Ireland ([1963] AC 386), R v Quick & Paddison
([1973] QB 910) and R v Sullivan ([1984] AC 156).
In Kemp ([1957] 1 QB 399), K, for no apparent reason, hit his wife
over the head with a hammer. Charged with causing grievous bodily harm,
K raised automatism, asserting that he was suffering from the on-set of
arteriosclerosis (hardening of the arteries), a condition which could cause
congestion of blood in the brain, resulting in a blackout, i.e. temporary
unconsciousness. It was submitted that since arteriosclerosis was physical,
not mental, in nature, and since it had not yet caused physical degeneration
of Ks brain, it did not amount to a disease of mind. Devlin J rejected
these submissions. Ruling that disease of mind is concerned with the mind,
not the brain, and that mind is used in the sense that [the term] is
ordinarily used, [meaning] the mental faculties of reasoning, memory and
understanding, he stated (at 407) that, [t]he condition of the brain is
irrelevant and so is the question of whether the condition of the mind is
curable or incurable, transitory or permanent. What matters, he concluded,
is whether the condition is capable of affecting the mental faculties of
reasoning, memory and understanding. This may be so whether the condition
is physical (or organic) in nature, or mental (or functional), permanent or
transitory.
Arteriosclerosis, although a physical disease, was said (at 408) to be
capable of affecting the mind in such a way as to cause a defect, temporarily
or permanently, of its reasoning [and] understanding, and was therefore
held to amount to a disease of mind. If Ks arteriosclerosis had caused a
blackout as alleged by K, this defence of reason arose from a disease of
mind and therefore amounted at best to insane automatism, rather than
simple automatism. A verdict of insanity was duly returned by the jury
(compare Charlson [1955] 1 WLR 317).
In Bratty ([1963] AC 386), B was alleged to have strangled an 18-yearold female to death. Charged with murder, B adduced evidence that he
229
suffered from psychomotor epilepsy and may have been in a state of

automatism at the time of the killing. Only insanity was left to the jury;
this was rejected and B was convicted of murder. B appealed, contending
that automatism, which would have entitled him to an absolute acquittal,
should have been left to the jury. The House of Lords rejected this
contention, holding that a defendant cannot raise non-insane automatism
where, as here, the only alleged cause of the state of automatism is a disease
of mind. The only defence that B was entitled to raise based on his
psychomotor epilepsy was insanity (or insane automatism).
One of the Law Lords, Lord Denning, applying Kemp, also offered an
alternative view of disease of mind (at 412):
It seems to me that any mental disorder which has manifested itself
in violence and is prone to recur is a disease of the mind. At any rate
it is the sort of disease for which a person should be detained in
hospital rather than be given an unqualified acquittal.
This test puts the issue of social protection in the forefront in defining
disease of mind. While it represents in many respects the prevailing policy
of the criminal law relating to mental abnormality, it is far from satisfactory
as a test, for there are many conditions which qualify as diseases of mind
but do not, even when they have manifested themselves in violence,
necessitate compulsory detention in a mental hospital for treatment. A
glaring example of this is diabetes.16 An insulin-dependent diabetic who
fails to inject insulin (resulting in high blood-sugar hyperglycaemia) or
who, having injected insulin, fails to eat properly (resulting in low bloodsugar hypoglycaemia) may suffer a diabetic (hyperglycaemic or
hypoglycaemic) coma or state of unconsciousness, during which involuntary
physical acts may occur (these may appear to be of an aggressive nature, as
where the diabetic involuntarily lashes out at a person seeking to administer
treatment). Despite the possibility of recurrence, it is unlikely that a mental
hospital would consider it necessary to detain a diabetic for treatment. By
Lord Dennings test, a diabetic coma should not constitute a defect of reason
from disease of mind yet hyperglycaemia has been held to amount to a
disease of mind (Hennessy [1989] 1 WLR 287). In contrast, hypoglycaemia
16
In 1994, it was estimated that more than 250,000 persons in Hong Kong suffered from
diabetes (Experts Call for Diabetes Fight to be Stepped Up, South China Morning Post, 25
January 1994).
230
DEFENCES
(caused by the administration of insulin) has been held not to amount to a

disease of mind, since it is caused by an external, not internal, factor.17
A distinction between internal and external causes was introduced in
Quick & Paddison ([1973] QB 910). Quick, a male diabetic working as a
nurse in a psychiatric hospital, was charged with assaulting a disabled patient
occasioning actual bodily harm (contrary to section 47 of the Offences
Against the Person Act 1861; Hong Kong: section 39 of the Offences Against
the Person Ordinance). Q called medical evidence establishing his diabetes
and that he had been admitted on several occasions to hospital suffering
from hypoglycaemia. Q submitted that he had not eaten properly on the
day of the assault, and suggested that his conduct may have occurred while
he was suffering from an episode of hypoglaecemia. The trial judge ruled
that this amounted to a disease of mind, and that Qs only defence was
insane automatism (or insanity). To avoid a special verdict and (the then)
mandatory hospital order, Q pleaded guilty and then appealed. The English
Court of Appeal quashed his conviction on the ground that a distinction
needs to be drawn between internal and external causes of mental
abnormality. Only internal causes, it was said, could constitute a disease of
mind for the purposes of the law of insanity (at 922):
In our judgment, the fundamental concept is of a malfunctioning of
the mind caused by disease. A malfunctioning of the mind of transitory
effect caused by the application to the body of some external factor
such as violence, drugs, including anaesthetics, alcohol and hypnotic
influences cannot fairly be said to be due to disease.
Hypoglycaemia, it was held, is caused not by diabetes itself, but by a

diabetics injection of insulin an external factor; it may therefore be
relied on to raise (non-insane) automatism (subject to whether Qs alleged
coma was self-induced; discussed below, p. 245).
This distinction between internal and external factors has become of
considerable significance, for it is usually this aspect of the meaning of
disease of mind that is crucial in deciding whether D may raise (non-insane)
automatism, rather than insanity. Hennessy, above, illustrates this. H, an
insulin-dependent diabetic, alleged that he had failed to take either insulin
or food, leading to hyperglycaemia, aggravated by stress, anxiety and
depression caused by recent events in his life. These latter matters, he
17
It is, therefore, necessary for a judge to direct a jury on the distinction between
hyperglycaemia and hypoglyecemia Bingham [1991] Crim LR 433.
231
argued, were external factors. While in this state, it was asserted, he hit
the victim over the head with a VCR. The trial judge ruled that neither
hyperglycaemia nor these additional factors gave rise to non-insane
automatism, whereupon H pleaded guilty. On appeal, the English Court of
Appeal affirmed that Hs hyperglycaemic state was caused by an internal,
not external, factor and amounted to a disease of mind. In relation to the
proposed external factors, the Court concluded (at 294):
Stress, anxiety and depression can no doubt be the result of the
operation of external factors but they are not, it seems to use, in
themselves separately or together external factors of 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. They lack the
feature of novelty or accident, which is the basis of the distinction
drawn by Lord Diplock in Sullivan.
A similar view that stress and such like are not generally external
factors was adopted in an earlier Canadian case, Rabey ((1977) 37 CCC
(2d) 461), where it was stated (at 482, per Martin JA) (subsequently
approved by a majority in the Supreme Court of Canada: [1980] 2 SCR
513, at 51920):
[T]he ordinary stresses and disappointments of life which are the
common lot of mankind do not constitute an external cause
constituting an explanation for a malfunctioning of the mind which
takes it out of the category of a disease of the mind.
This view was subsequently referred to with approval in Burgess ([1991] 2

QB 92), in which the English Court of Appeal held that sleepwalking is a
malfunctioning of mind caused by internal, not external, factors and
therefore amounts to a disease of mind. Accordingly, the only defence open
to Burgess based on sleepwalking was insanity.
In 1983, in R v Sullivan ([1984] AC 156), the House of Lords was
invited to reconsider the meaning of disease of mind. Sullivan, like Bratty,
suffered from psychomotor epilepsy; in Ss case, he suffered seizures once
or twice a week. During one such seizure, he struck an elderly male friend.
The trial judge ruled, following Bratty, that the only defence open to S was
insane automatism, i.e. insanity; thereupon, S pleaded guilty to assault
occasioning actual bodily harm. On appeal to the House of Lords, Lord
Diplock, delivering the judgment of the Lords, rejected the opportunity to
restate the law and reaffirmed both the MNaghten Rules and the policy of
232
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social protection entailed in the current definition of insanity. On disease

of mind, he concluded (at 172):
[T]he meaning of the expression disease of the mind as the cause of
a defect of reason remains unchanged for the purposes of the
application of the MNaghten Rules. I agree with what was said by
Devlin J. in Kemp that mind in the MNaghten Rules is used in the
ordinary sense of the mental faculties of reason, memory and
understanding. If the effect of a disease is to impair these faculties so
severely as to have either of the consequences referred to in the latter
part of the rules, it matters not whether the aetiology of the impairment
is organic, as in epilepsy, or functional, or whether the impairment
itself is permanent or is transient and intermittent, provided that it
subsisted at the time of commission of the act. The purpose of the
legislation relating to the defence of insanity, ever since its origin in
1880, has been to protect society against recurrence of the dangerous
conduct. The duration of a temporary suspension of the mental
faculties of reason, memory and understanding, particularly if, as in
[Sullivans] case, it is recurrent, cannot on any rational ground be
relevant to the application by the Courts of the MNaghten Rules,
though it may be relevant to the course adopted by the Secretary of
State to whom the responsibility for how the defendant is to be dealt
with passes after the return of the special verdict of not guilty by
reason of insanity.
Referring to Quick & Paddison, he added (at 172):

I do not [exclude] the possibility of non-insane automatism (for
which the proper verdict would be a verdict of not guilty), in cases
where temporary impairment (not being self-induced by consuming
drink or drugs) results from some external physical factor such as a
blow on the head causing concussion or the administration of an
aesthetic for therapeutic purposes.
Acknowledging reluctance about labelling S as insane, Lord Diplock

nonetheless concluded (at 173) that it does not lie within the power of the
courts to alter [the label of insanity]. Only Parliament can do that. It has
done so twice; it could do so once again.
Not knowing the nature and quality of the act or that it is wrong
The defence of insanity is established only if the defect of reason suffered
by D causes him or her not to know either the nature and quality of the act
that he or she was doing, or that it was wrong.
233
If Ds conduct occurs while D is unconscious or in a state of automatism,

then this requirement will necessarily be satisfied; a person who is
unconscious clearly does not know what he or she is doing, or that it is
wrong. On the other hand, if D knew what he or she was doing and knew
that it was wrong, but could not stop himself or herself from acting in that
manner what is called an irresistible impulse this in itself would not
give rise to the defence of insanity. In Pang Bing-yee ([1984] HKLR 298),
for example, the defence unsuccessfully attempted to call psychiatric
evidence to establish that P, who was charged with murdering a child in
her care, herself had been beaten as a child causing her psychological damage
and giving rise to a personality disorder (called battered baby syndrome),
giving rise to uncontrollable behaviour. Ps appeal against conviction on
the grounds that this evidence should have been admitted to challenge
mens rea was rejected by the Court of Appeal (at 304):
The applicant was fully aware of the nature of her acts, there was no
suggestion of any recklessness, mistake or lack of a conscious mind.
It is the ability to appreciate the effect of those acts which she attempted
to call into question. The acts were clearly voluntary ones. The issue
of intent was intermingled with that of credibility in that both lay for
the consideration of the jury. Murder being a crime of specific intent,
uncontrollable impulse, if it exists, does not go as far as a defect of
reason sufficient to negative intent by rebutting the presumption of
insanity.
An irresistible impulse may, in some cases, be shown to be a symptom

of an underlying condition capable of impairing a persons knowledge or
ability to distinguish between right and wrong, in which case reliance may
be placed on the underlying condition.
Nature and quality In Codere ((1916) 12 Cr App R 21), nature and quality
was taken to refer to the physical nature of the act, not its moral character.
It covers, for example, the case of a madman who cut a womans throat
under the idea that he was cutting a loaf of bread (Kenny, Outlines, 76).
Wrong In MNaghten itself, there are suggestions that wrongfulness would
not be established if it is shown either that D knew his or her actions were
legally wrong, or that D knew other persons would generally consider his
or her actions wrongful, whether or not D knew they were legally wrong.
However, in Windle ([1952] 2 QB 826), the English Court of Criminal
Appeal appeared to restrict wrong to only the first of these two meanings
234
DEFENCES
legally wrong. W induced his wife, who was considered certifiably insane
and suicidal, to kill herself by taking 100 aspirins. On trial for murder,18 W
called medical evidence that he was suffering from a condition known as folie
a deux, a form of communicated insanity. However, there was no suggestion
that W did not know his acts were legally wrong, W himself having said to
the police, I suppose they will hang me for this. The trial judge ruled that
insanity could not be left to the jury, and W was accordingly convicted of
murder. His appeal was dismissed, the court ruling (at 8334) that:
Courts of law can only distinguish between that which is in accordance
with the law and that which is contrary to law . The law cannot
embark on the question and it would be an unfortunate thing if it
were left to juries to consider whether some particular act was morally
right or wrong. The test must be whether it is contrary to law. In
the opinion of the Court there is no doubt that in the MNaughten
Rules wrong means contrary to law and not wrong according to
the opinion of one man or a number of people on the question whether
a particular act might or might not be justified.
This view has not been universally adopted. In Stapleton ((1952) 86 CLR
358), for example, the High Court of Australia held that wrong includes
morally wrong and declined to follow Windle. The effect of the ruling in
Windle is to widen the defence of insanity, since a person who knows that
his or her conduct is morally wrong (i.e. wrongful in the eyes of ordinary
people) but does not know that it is legally wrong is still entitled to raise
insanity.
Insane delusions
If D acts under the partial influence of an insane delusion (i.e. a mistaken
idea or belief arising because of Ds mental abnormality), D may still be
able to raise the defence of insanity. In MNaghten itself, the Lords expressed
the view (at 211) that:
[this] must depend on the nature of the delusion: but making the
same assumption as we did before, namely that [D] labours under
such a partial delusion only, and is not in other respects insane, we
think [D] must be considered in the same situation as to responsibility
18
Prior to 1967, suicide was an offence in the nature of self-murder; someone who assisted
another to commit suicide was therefore liable as a party to murder; discussed below, see
Chapter 10, p. 525.
235
as if the facts with respect to which the delusion exists were real. For
example, if under the influence of his delusion [D] supposes another
man to be in the act of attempting to take away his life, and he kills
that man, as he supposes in self-defence, he would be exempt from
punishment. If [Ds] delusion was that the deceased has inflicted a
serious injury to his character and fortune and he killed him in revenge
of such supposed injury, he would be liable to punishment.
In certain respects, this was unnecessary, for a person who acts under
an insane delusion as to the facts would not generally know the nature and
quality of his or her act, thereby fitting within the test of insanity. In other
respects, it is inadequate. For example, if D insanely thinks that he is
Ghengis Khan and is thereby entitled to rape and kill at will, even though
he knows that these acts are legally wrong, D is neither insane within the
MNaghten Rules, for he knows the nature and quality of his acts and that
they are wrong, nor suffering from such an insane delusion as would afford
him a defence. This seems wrong, highlighting one of the many perceived
deficiencies in the criminal laws present treatment of insanity.
Verdict and appeal
Special verdict and hospital order
Pursuant to section 74 of the CPO, where evidence is given at trial that D
was insane and the jury (or District Court Judge or Magistrate;19 section
75(6) of the CPO) is satisfied that D did the act or made the omission
charged as the offence (this is for the prosecution to prove beyond
reasonable doubt) but was insane in MNaghtens sense at the time of those
actions (this is for the defence to prove on the balance of probabilities),
then it must return the special verdict of not guilty by reason of insanity.20
19
20
It is unclear whether the defence of insanity is available in England before justices in the
Magistrates Court; see Horseferry Rd Magistrates Court, ex p. K [1996] 3 All ER 769, DPP
v Harper (1997) The Times, 2 May; discussed in T. Ward, Magistrates, Insanity and the
Common Law [1997] Crim LR 796.
Section 75 of the CPO: Where in an indictment any act or omission is charged against
any person as an offence, and it is given in evidence on trial of such person for that offence
that he was insane, so as not to be responsible according to law for his actions at the time
when the act was done or the omission made, then, if it appears to the jury before whom
such person is tried that he did the act or made the omission charged, but was insane as
aforesaid at the time when he did or made the same, the jury shall return a special verdict
that the accused person is not guilty by reason of insanity.
236
DEFENCES
This verdict is not a complete acquittal. Pursuant to section 76 of the

CPO, the judge or magistrate hearing the case must then act as follows:
either (1) make an order authorizing Ds admission into a mental hospital
for detention and treatment (i.e. hospital order) (this is mandatory where
the offence carries a fixed sentence, e.g. murder), or (2) make one of
three other orders mentioned in section 76(2)(b)(i)(ii)(iii): a guardianship
order, a supervision and treatment order, or an order for Ds absolute
discharge.
If D raises insanity, and the jury is satisfied that D is insane, but it is
not proved that D did the act or made the omission charged in accordance
with section 74(1) of the CPO, then D is entitled to an outright acquittal
(section 75A(1)(b) of the CPO; see also ODonnell [1996] Crim LR 121).
Where an order is made under section 76(2)(a) of the CPO, then D
must be admitted into either the Correctional Services Department
Psychiatric Centre or a designated mental hospital within 28 days of a
hospital order being made. Admission thereunder is treated as an admission
under section 45 of the MHO, and Ds detention and treatment thereafter
are subject to the provisions of the MHO (section 76(2), Fourth Schedule,
Para. 2, CPO).
An order for Ds admission pursuant to section 76 is indefinite in
operation in the sense that D may be detained until such time as he or she
is discharged (or removed out of jurisdiction; see section 44 of the MHO)
in accordance with the provisions of the MHO (section 43). The general
power to discharge a patient lies in the hands of the medical superintendent
of the mental hospital in which D is detained (see sections 4242B of the
MHO).
Appeal
There is a general right of appeal against a special verdict, pursuant to
section 83J of the CPO. If an appeal against a special verdict under this
section is allowed, the Court of Appeal may substitute a conviction (section
83K(4)(a) of the CPO), acquit D (section 83K(4)(b) of the CPO), or, if it
considers that D was under disability at trial or is suffering from mental
disorder requiring detention in a mental institution, acquit D but make a
hospital order (section 83L(1)(2) of the CPO).
237
Automatism
Introduction
Ds conduct must generally be voluntary before it will lead to criminal
liability (above, Chapter 3, p. 68). It follows that D ought to be acquitted
if his or her conduct was involuntary, since neither mens rea nor actus
reus can be proved. Involuntary conduct may result from the effect of
outside forces, such as a push, or from Ds lack of conscious control over
his or her own conduct, as where D acts while suffering concussion after
being hit over the head. Involuntary conduct, or automatism as it is
commonly known, was explained by Lord Denning in Bratty v A-G for
Northern Ireland [1963] AC 386 (at 409):
An involuntary act in this context some people nowadays prefer to
speak of it as automatism means an act which is done by the
muscles without any control by the mind, such as a spasm, a reflex
action or a convulsion; or an act done by a person who is not conscious
of what he is doing such as an act done whilst suffering from
concussion or whilst sleepwalking [emphasis added].
Automatism overlaps with insanity when Ds lack of conscious control

or unconsciousness is caused by a disease of mind (above, p. 227). It is
common, therefore, to distinguish between a state of automatism caused
by a disease of mind, which is called insane automatism and treated in
the same way as insanity, and automatism strictly speaking, called noninsane automatism.
Once automatism is properly raised, the prosecution bears the legal
burden of disproving involuntariness, i.e. it must prove beyond reasonable
doubt that Ds conduct was voluntary.
Necessity for total lack of control or unconsciousness
According to Bratty, a plea of automatism may arise only where D had no
conscious control at all over his or her actions, or was unconscious. Mere
failure to remember doing the act, and conduct caused by an irresistible
impulse will not in themselves amount to automatism.
On occasion, it has been suggested that something less than total lack
of control, what can be called no effective control, and something less
than unconsciousness, i.e. impaired consciousness, may also suffice. In
Burgess ([1991] 2 QB 92), for example, B raised automatism based on
238
DEFENCES
sleepwalking, one of the conditions noted by Lord Denning in Bratty, above.

Rejecting this submission on the basis that Bs sleepwalking was caused by
internal factors and could therefore give rise only to a defence of insane
automatism, the English Court of Appeal commented (at 98) that:
[Burgess] plainly suffered from a defect of reason from some sort of
failure (for lack of a better term) of the mind causing him to act as he
did without conscious motivation. His mind was to some extent
controlling his actions which were purposive rather than the result
simply of muscular spasm, but without his being consciously aware
of what he was doing.
In general, however, the authorities support the necessity for a total

lack of conscious control or unconsciousness (see, for example, Isitt [1978]
RTR 211: not automatism merely because Ds mind was not working in
top gear; Broome v Perkins [1987] RTR 321: partial control of a vehicle
negated automatism; see also Hill v Baxter [1958] 1 QB 277 and Roberts v
Ramsbottom [1980] 1 All ER 7). This was affirmed by the English Court of
Appeal in A-Gs Reference (No. 2 of 1992) ([1993] 2 WLR 982).21 In this
case, D, a professional heavy goods lorry driver, was charged with two
offences of causing death by reckless driving (contrary to section 1 of the
Road Traffic Act 1972 (now amended); Hong Kong: section 36 of the Road
Traffic Ordinance (now amended)). Ds vehicle crashed into a stationary
van displaying its hazard lights, crushing the two deceased between the
van and another vehicle in front of it. D admitted having seen the flashing
lights, but argued that he had been driving for six out of the preceding 12
hours, and called medical evidence in support of a condition described as
driving without awareness. According to this evidence, a driver experiencing
repetitive stimuli on long journeys on straight flat featureless motorways
may unknowingly enter a trance-like state in which forward vision becomes
focussed just ahead of his or her window screen, although peripheral vision
continues to send signals which are dealt with subconsciously, enabling
the driver to steer within highway lanes. The appearance of an obstruction
in front of the vehicle would usually cause the driver to regain full
awareness. It was conceded that the driver would still be in control of the
vehicle, and there would be subconscious motivation to his or her steering;
21
Sullivan states that the English Court of Appeal re-asserted that a state of automatism
consists of the absence of consciousness or a consciousness so vestigial or distorted as to
render D an instrumentality rather than an agent (G.R. Sullivan, Involuntary Intoxication
and Beyond [1994] Crim LR 273, note 7).
239
unawareness was therefore not total. D was acquitted at trial, but on appeal,
the Court of Appeal held that non-insane automatism ought not to have
been left to the jury in this case. In the view of the Court, automatism can
arise only where there is a total destruction of voluntary control on the
drivers part; impaired, reduced or partial control is not enough. Since
driving without awareness amounted only to reduced or imperfect
awareness, no proper evidential foundation for automatism had been laid.
This view of automatism has been adopted in Hong Kong (R v Chan
Tak Kwong [1997] 1 HKC 478).
Raising automatism
Where automatism is raised by the defendant, three questions arise for
consideration. Two of these fall to be decided by the judge before the defence
can be left to the jury and were set out by Lord Lane CJ in Burgess, above
(at 96):
The first is whether a proper evidential foundation for the defence of
automatism has been laid. The second is whether the evidence shows
the case to be one of insane automatism, that is to say, a case which
falls within the MNaghten Rules, or one of non-insane automatism.
The third question, which arises only in a case of non-insane automatism,

is whether the state of automatism was self-induced.
The burden of disproving automatism, once there is a proper evidential
foundation for it, lies on the prosecution beyond reasonable doubt (Bratty
v A-G for Northern Ireland [1963] AC 386, followed in Fung Mui Lee [1996]
1 HKC 72).
Proper evidential foundation
A claim of automatism is easily made and difficult to disprove. For this
reason, the courts have held that automatism should be put to the jury as
an issue only if D has established a proper evidential foundation for the
claim of involuntariness. This is consistent with the presumption of mental
capacity, which, in the normal course, the prosecution will rely on to
presume that Ds actions were both conscious and voluntary (Bratty, above;
Hill v Baxter, above; see also Yeung Pak-lun (1982) Crim App No. 782 of
1981).
In general, this evidential burden will not be satisfied simply by
testimony from D that he or she was unconscious, or had a blackout, or
240
DEFENCES
does not remember the events in question. Normally, medical evidence

must be adduced to satisfy this burden, but regard may also be had to
other evidence, such as Ds general behaviour, and Ds character and mental
capacity (Yeung Pak-lun, above).
It is for the trial judge to determine whether the necessary evidential
foundation has been laid before leaving automatism to a jury (Burgess,
above, at 96, per Lord Lane CJ).
The nature of this evidential burden was fully considered by the Hong
Kong Court of Appeal in Mohammad Hussain.
Mohammad Hussain [1993] 1 HKCLR 1
Facts
Hussain was convicted by a jury of attempted rape, and sentenced to
four years imprisonment. The prosecution alleged that H, aged 33,
had accosted the complainant, a woman aged 74, one morning, pulled,
pushed and dragged her against her will for a distance of between 800
and 1000 metres, to a place under a traffic flyover where he threw her
to the ground, pulled down both her trousers and underwear and his
own and lay on top of her. The complainant alleged that H had tried
unsuccessfully to insert himself into her, and to kiss her. When two
passers-by approached and shouted at H, H allegedly got to his feet,
pulled up his trousers, pointed to the woman and said friends. H was
pinned to the ground when he tried to escape, and was tied up until
police assistance was obtained. H smelt of alcohol.
H, unmoving, was carried to a police vehicle and taken to, first, a
police station and then, after banging his head five or six times against
the wall, to a hospital. The examining doctor did not consider him to
be under the influence of alcohol, and there were suggestions that Hs
behaviour after arrest might have been play-acting.
In evidence, H said that he remembered consuming about four
cans of beer that morning before going for a walk, but had no memory
of events thereafter until coming to in hospital. H called medical
evidence in an attempt to show that he may have suffered a
hypoglycaemic coma, i.e. a state of (non-insane) automatism, though
his behaviour (especially a number of seemingly purposeful, motivated
acts) was said to be more consistent with simple intoxication than with
hypoglycaemia (H did not rely on intoxication as such, since attempted
rape has been held to be a basic intent offence for which self-induced
intoxication is no defence; see below, p. 257). A medical witness called
by the prosecution strongly rejected the suggestion that H may have
been suffering from automatism.
241
The trial judge, after hearing argument, ruled (in the absence of
the jury) that a proper evidential foundation for automatism had not
been laid and refused to leave automatism to the jury. H appealed
against this ruling.
Decision
Appeal dismissed. Having considered the medical evidence, the Court
of Appeal agreed that it fell far short of laying a proper foundation for
the issue of automatism to be left to the jury. The trial judge had correctly
withdrawn the issue of automatism from the jury.
Fuad VP, giving the judgment of the Court of Appeal, emphasized
that, unlike insanity, a defendant carries no burden of proof in relation
to automatism (at 7):
It is well settled that where the defence put forward arises not
from a disease of the mind but is based upon what is sometimes
called non insane automatism, no burden is assumed by the
defendant to establish automatism; rather the burden is on the
prosecution to negative such a defence. But there is an evidential
burden on the defendant in that he must lay a proper foundation
for that defence and thus be able to point to evidence from
which it may reasonably be inferred that his act was not voluntary.
The question whether such a foundation has been laid is a question
of law for the judge.
After considering the relevant authorities and the medical evidence,

Fuad VP continued (at 17):
It is, of course, a serious matter to withdraw an issue of fact from
the jury and it is only when it is demonstrably justified that an
appeal court will endorse such a course. However, we accept the
point made by [counsel for the prosecution] that the authorities
impose a duty upon the judge not to allow the issue of automatism
to be left to the jury unless the evidential burden has been
discharged. When the evidence as a whole is, in the opinion of
the judge, insufficient for that purpose, it would not be right for
him to allow the issue to go to the jury because he was confident
that on the strong direction he intended to give, the jury would
reject it. It is not surprising that in the real world, the courts
have insisted upon an adequate foundation of evidence before a
defence which could so easily be feigned warrants consideration.
He concluded (at 18):

When one examines the evidence of the lay witnesses, the picture
given is that of a man, who, although he might well have been
242
DEFENCES
under the influence of alcohol to a certain degree (and who

probably would not have acted as he did had he not been) was
fully conscious, or at least very much more than dimly aware, of
what he was doing . [T]he fact that a doctor who has been
told the relevant facts and the apparent state of [H] is not able to
exclude the remote possibility that [H] was hypoglycaemic, and
that this state led to automatism, cannot, in our judgment, amount
to medical evidence from which it might reasonably be inferred
that [Hs] acts at the material time were involuntary to the extent
which would found the defence of automatism. The harsh truth
was that the medical evidence was adverse to the defence sought
to be advanced. We reached the conclusion, as a matter of law,
that the medical evidence, when considered with the rest of the
testimony the jury heard, fell far short of laying a proper foundation
for the issue of automatism to be left to the jury.
Insane versus non-insane automatism

In Bratty ([1963] AC 386), the House of Lords held that where the cause
of an alleged state of automatism is a disease of mind within the MNaghten
Rules (above, p. 227), then the only defence that D may raise based on that
alleged state of automatism is insane automatism, i.e. insanity. D cannot
choose to treat it as non-insane automatism. Applying the insanity rules,
the burden of proving insane automatism rests upon the defendant, on the
balance of probabilities, and, if proved, leads to the same result, namely, a
special verdict of not guilty by reason of insanity (section 74 of the CPO)
and the same consequential orders (above, p. 235).
If the state of automatism is not caused by a disease of mind within
the MNaghten Rules, or if there is more than one cause, one or more of
which does not constitute a disease of mind, D may properly raise (noninsane) automatism and may be entitled to an absolute acquittal.
In determining whether the cause of the state of automatism is a disease
of mind, the distinction between internal and external factors is usually
crucial (discussed above, p. 230). Non-insane automatism will usually be
traced to external factors. Examples of this include: (1) concussion, resulting
from a blow to the head (Budd [1962] Crim LR 49); (2) hypoglycaemia
this condition, involving abnormally low levels of blood-sugar, arises when
an insulin-dependent diabetic injects insulin and then fails to eat adequately,
and is treated as the result of an external factor, the injection of insulin,
not diabetes itself (Quick & Paddison, above; Bailey [1983] 1 WLR 760,
discussed below, p. 246); and (3) the administration of a prescribed
anaesthetic (Quick & Paddison, above, at 356).
243
By contrast, states of automatism resulting from epilepsy, as in Bratty

and Sullivan, or arteriosclerosis, as in Kemp, or hyperglycaemia, as in
Hennessy, are all treated as insane automatism, since they are all taken to
be caused by internal factors, and thus amount to a disease of mind.
It is not always easy to make this determination, or to justify why one
state of automatism and not another may be relied on as non-insane
automatism. Diabetic comas provide the clearest example of this:
hyperglycaemia is treated as insane automatism because it results from the
failure of the diabetics body to produce insulin (i.e. diabetes), whereas
hypoglycaemia is treated as non-insane automatism because it arises from
the injection of insulin (which D needs to do only because he or she is a
diabetic). Sleepwalking, which was referred to by Lord Denning in Bratty
(at 409) is another example. In Parks, a decision of the Canadian courts, it
was held that sleepwalking is not necessarily a disease of mind if it is
caused merely by the fact of sleep, rather than by some other internal
disorder. Parks was charged with murder after he allegedly drove a car 23
kilometres at night along a busy highway to his in-laws house where he
entered, climbed the stairs and fatally stabbed his mother-in-law and
seriously injured his father-in-law. He then drove to a police station and
handed himself in. Evidence that P suffered from sleepwalking was left to
the jury as non-insane automatism, and P was acquitted of murder and
attempted murder. On appeal by the prosecution, the Ontario Court of
Appeal concluded ((1990) 56 CCC (3d) 449, at ) that sleep is a normal
condition and that the impairment of [Ps] faculties of reason, memory
and understanding was caused not by any disorder or abnormal condition
but by a natural, normal condition sleep.
A contrary view was taken by the English Court of Appeal in Burgess,
above (at 100), on the basis that although sleep is a normal condition, the
evidence in [this] case indicates that sleep-walking, and particularly violence
in sleep, is not normal.
Burgess was then cited by the prosecution to the Supreme Court of
Canada in appealing Parks ([1992] 2 SCR 871, (1992) 95 DLR (4th) 27),
but the Supreme Court dismissed the appeal, taking the view that the
medical evidence adduced at Ps trial was different in nature to that adduced
in Burgess. Whereas Ps dissociative state was said to be caused by sleep,
not some other internal condition, and was said to be unlikely to recur, the
medical evidence in Burgess suggested that Bs sleepwalking was likely to
recur (echoing Lord Dennings view of disease of mind in Bratty, above,
p. 229). The Supreme Court therefore did not exclude the possibility that
sleepwalking could be treated as a disease of mind, but this was not so, in
244
DEFENCES
its view, in Ps case. P was therefore entitled to an absolute acquittal (this

despite the degree of control in Ps conduct which would generally make it
inconsistent with the requirement in the English and Hong Kong cases
that there be a total absence of control).
Psychological trauma and its consequential dissociative states also pose
difficulties. In general, such states are viewed as internally caused and give
rise only to insane automatism (or possibly diminished responsibility; see
below, p. 250). In Rabey ((1977) 37 CCC (2d) 461), also a Canadian case,
R alleged that he was in a dissociative state caused by the psychological
trauma or blow of being rejected by a girl with whom he was infatuated.
At trial, he was acquitted of causing bodily harm with intent to the girl on
the ground of automatism. On appeal, it was held that Rs dissociative state
could not be treated as the result of external factors and therefore could
not be treated as non-insane automatism. The Supreme Court of Canada
approved the view of Martin J in the Ontario Court of Appeal that the
ordinary stresses and disappointments of life which are the common lot of
mankind do not constitute an external cause. Rs extreme reaction his
dissociative state to these events had to be treated, said the court, as
having its source primarily in [his] psychological or emotional makeup; as
such, this amounted only to insane automatism, or insanity. This view was
adopted and endorsed by the English Court of Appeal in Burgess, above (at
98):
the possible disappointment or frustration caused by unrequited love
is not to be equated with something such as concussion
and also in Hennessy, ([1989] 1 WLR 287, at 294):

although stress, anxiety and depression could undoubtedly result from
external factors, thus giving rise to a case of automatism, stress, anxiety
and depression in themselves were not separately or together external
factors of the kind capable in law of causing or contributing to a state
of automatism.
These conditions, it was suggested, lacked the feature of novelty or accident,

a criterion suggested by the House of Lords in Sullivan, above, as being of
importance in determining whether a condition should be viewed as a
disease of mind.
This feature of novelty or accident was found to exist in R v T ([1990]
Crim LR 256) in which T was charged with robbery (contrary to section 8
of the Theft Act 1968; Hong Kong: section 10 of the Theft Ordinance
245
(cap. 210)), and assault occasioning actual bodily harm (section 47 of the
Offences Against the Person Act 1861; Hong Kong: section 39 of the
Offences Against the Person Ordinance). There was evidence that at the
time of her arrest, T was in a dissociative state. T alleged that she had been
raped three days previously. Medical and psychiatric evidence was presented
at trial to the effect that T was suffering from post traumatic stress disorder,
caused by the rape. The English Court of Appeal held that Ts dissociative
state in this case had been caused by an external factor the rape and
therefore did not amount to disease of mind. Accordingly, it was held,
non-insane automatism could properly be left to a jury in this case.
Self-induced automatism
Even if there is a proper evidential foundation for non-insane automatism,
automatism may still fail to assist a defendant if, like intoxication, it was
self-induced. This was recognized in Quick & Paddison, above, by Lawton
LJ who stated (at 922):
A malfunctioning of the mind of transitory effect caused by the
application to the body of some external factor such as violence, drugs,
including anaesthetics, alcohol and hypnotic influences cannot fairly
be said to be due to disease. Such malfunctioning, unlike that caused
by a defect of reason from disease of mind, will not always relieve an
accused from criminal responsibility. A self-induced incapacity will not
excuse nor will one which could have been reasonably foreseen as a
result of either doing, or omitting to do something, as, for example,
taking alcohol against medical advice after using certain prescribed
drugs, or failing to have regular meals while taking insulin [emphasis
added].
This statement is too wide in two respects, mirroring the law relating to
voluntary intoxication. Firstly, D may rely on self-induced automatism if D
is charged with a specific intent offence. Secondly, even where D is charged
with a basic intent offence (the meaning of specific and basic intent is
discussed below in relation to voluntary intoxication, p. 257), D may still
rely on a state of non-insane automatism unless it results from the use of
alcohol or dangerous drugs, or was otherwise recklessly induced by D.
These two qualifications were recognized by the English Court of Appeal
in Bailey ([1983] 1 WLR 760; subsequently applied to intoxication in Hardie,
below, p. 267).
246
DEFENCES
Bailey [1983] 1 WLR 760

Facts
Bailey, a diabetic, was charged alternatively with wounding with intent
(contrary to section 18 of the Offences Against the Person Act 1861;
Hong Kong: section 17(a) of the Offences Against the Person Ordinance),
and malicious wounding (contrary to section 20 of the Offences Against
the Person Act 1861; Hong Kong: section 19 of the Offences Against
the Person Ordinance). Both charges related to injuries inflicted by B
when he struck his ex-girlfriends new boyfriend on the head with an
iron bar. At trial, B called medical evidence in an attempt to establish
that he may have had a sudden, brief hypoglycaemic attack, resulting
from his failure to eat sufficient food to counteract the effects of an
earlier insulin injection. However the medical evidence did not fully
support this defence, for it was to the effect both that B during 30 years
as a diabetic had never suffered a hypoglycaemic coma, and also that
such comas do not come and go in the sudden, brief manner alleged
by B, particularly when it was admitted that B had drunk sugar-water
shortly before the alleged onset of the hypoglycaemic coma. At trial,
the Recorder, relying on Quick & Paddison, ruled that automatism was
not available as a defence to B since any such state of automatism was
self-induced by Bs failure to take sufficient food after taking insulin. B
appealed.
Decision
The Recorder had misdirected the jury in two respects. Firstly, it was a
misdirection not to draw a distinction between specific intent and
basic intent offences. Automatism may be relied upon to negate liability
for a specific intent offence such as wounding with intent, even if it is
self-induced. Automatism, self-induced or not, should have been left to
the jury provided that a proper evidential foundation for it had been
laid.
Secondly, there was a misdirection even in relation to malicious
wounding. Although this is a basic intent offence, and voluntary
intoxication prima facie cannot be relied on to negate mens rea for the
reason recognized in Majewski ([1977] AC 443; discussed below,
p. 261), namely, that the conduct of the accused is reckless and
recklessness is enough to constitute the necessary mens rea in assault
cases where no specific intent forms part of the charge, nonetheless,
this does not apply if the state of automatism is not caused by the
voluntary consumption of alcohol or dangerous drugs. Here, the cause
of the alleged state of automatism was Bs failure to take sufficient food
after injecting insulin, and this could be raised to negate liability even
247
for malicious wounding, unless the prosecution proved beyond

reasonable doubt that B was reckless in doing, or failing to do, the
acts leading to the state of automatism.
Griffiths LJ explained this on the basis that (at 7645):
It is common knowledge that those who take alcohol to excess or
certain sort of drugs may become aggressive or do dangerous or
unpredictable things; they may be able to foresee the risks of
causing harm to others, but nevertheless persist in their conduct.
But the same cannot be said, without more, for a man who fails
to take food after an insulin injection. If he does appreciate the
risk that such a failure may lead to aggressive, unpredictable and
uncontrollable conduct and he nevertheless deliberately runs the
risk or otherwise disregards it, this will amount to recklessness.
Accordingly, provided that a proper evidential foundation had been

laid, B was entitled to rely on the possibility of a hypoglycaemic episode
to negate liability for malicious wounding, unless the prosecution proved
that B was subjectively reckless as to the consequences of failing to eat
properly after injecting insulin. On this, Griffiths LJ concluded (at 765):
[W]e certainly do not think it is common knowledge, even
among diabetics, that aggressive, unpredictable and
uncontrollable conduct is a consequence of a failure to take food;
and there is no evidence that it was known [to Bailey]. Doubtless
he knew that if he failed to take his insulin or proper food after it
he might lose consciousness, but as such he would only be a
danger to himself unless he put himself in charge of some machine
such as a motorcar, which required his continued conscious
control.
Despite these misdirections, Bs appeal was dismissed. Having regard

to the medical evidence, the Court of Appeal concluded (at 765) that it
was:
very doubtful whether [Bailey] laid a sufficient basis for the defence
to be considered by the jury at all. But even if he did we are in
no doubt that the jury properly directed must have rejected it.
If D is charged with a specific intent offence, and D negates liability

for that offence by relying on non-insane automatism, D may still be
convicted of any underlying basic intent offence if the prosecution proved
that the state of automatism was caused by alcohol or dangerous drugs, or
that D was reckless when he or she did the acts leading to the state of
automatism.
248
DEFENCES
Where there are two or more possible causes for a state of automatism,
one of them being alcohol or dangerous drugs, it appears that reliance may
still be placed on the other cause, even perhaps if it is itself a result of Ds
voluntary intoxication (Stripp (1978) 69 Cr App R 318: D successfully
relied on concussion caused by a blow to Ss head, even though D suffered
this blow only because he was drunk and fell over).
Diminished Responsibility
Introduction
In addition to the general defences of insanity and automatism, a person
charged with murder may raise the special statutory defence of diminished
responsibility. Diminished responsibility results in an acquittal of murder
but conviction instead of manslaughter.
The defence of diminished responsibility was enacted in Hong Kong in
1963 in section 3 of the Homicide Ordinance (cap. 337) (following the
enactment of a similar defence in England in section 2 of the Homicide Act
1957). It was introduced partly to alleviate some of the restrictions on the
defence of insanity, and also to enable a person charged with murder to
avoid the then mandatory death penalty upon a conviction of murder.
Diminished responsibility, like insanity, has been criticized in recent
years,22 and there have been some calls for its abolition.23
Pursuant to section 3(2) of the Homicide Ordinance, the burden of
proving diminished responsibility lies upon D. The standard of proof is on
the balance of probabilities (Dunbar [1958] 1 QB 1).
Where there is clear evidence that D was suffering from mental
abnormality within the scope of the defence of diminished responsibility,
22
23
See, for example, Butler Committees Report on Mentally Abnormal Offenders (1975, Cmnd
6244) which considered that the expressions abnormality of mind and mental
responsibility in section 2(1) of the Homicide Act 1957 (Hong Kong: section 3(1) of the
Homicide Ordinance) were imprecise and caused difficulties for doctors, judges and juries.
The Butler Committee (Report on Mentally Abnormal Offenders (1975, Cmnd 6244))
recommended that the mandatory sentence of life imprisonment for murder should be
abolished and a trial judge given a sentencing discretion, in which case diminished
responsibility could be abolished. However, the Criminal Law Revision Committee, in its
fourteenth report on Offences Against the Person, recommended that diminished
responsibility should not be abolished, despite the imprecision noted by the Butler
Committee. In its view, a person suffering from diminished responsibility should not suffer
the stigma of a murder conviction.
249
then the prosecution may accept a plea of guilty to manslaughter, rather

than compel D to defend himself or herself at trial.24 However, this should
be done only when there is clear evidence of mental imbalance (Cox (1968)
52 Cr App R 130, Vinagre (1979) 69 Cr App R 104).
Section 3(2) of the Homicide Ordinance refers only to the defence
raising diminished responsibility, but it appears that both a trial judge and
the prosecution may also raise the issue in certain circumstances. This at
least was the view of the Court of Appeal in Jimmy Johnson ([1983] HKLR
344; see also Chan Ming-luk [1962] HKLR 651 and Lo Tin [1963] HKLR
903; compare Kooken (1981) 74 Cr App R 30), concluding that if the
interests of justice demand it, a trial judge may raise diminished
responsibility (or insanity) of his or her own motion and call medical or
psychiatric witnesses to give evidence as to Ds mental state. It appears that
this discretion may be exercised even if D has not expressly put his or her
mental state in issue (e.g. by pleading automatism), and even against Ds
express objections (compare Campbell (1987) 84 Cr App R 255: the English
Court of Appeal suggested that a judge cannot raise or leave diminished
responsibility to a jury without Ds consent; see also Weekes [1999] Crim
LR 907: leave to adduce pre-existing psychiatric evidence on appeal). In
considering the interests of justice, a matter of prime importance is whether
a decision to call evidence concerning Ds mental state against Ds wishes
may impinge on the possibility of D securing an outright acquittal,
particularly where D has given exculpatory evidence and evidence as to Ds
mental state might undermine Ds credibility (Jimmy Johnson, at 353).
It is less clear whether the prosecution may raise diminished
responsibility. Certainly, if D raises insanity in a murder trial, the
prosecution may, if it wishes, lead evidence to prove that D was in fact
suffering from diminished responsibility, and vice versa (section 76A(1) of
the CPO; UK: section 6 of the Criminal Procedure (Insanity) Act 1964).
Where diminished responsibility is raised by the trial judge or
prosecution, it seems that the evidence called in support must prove
diminished responsibility on the balance of probabilities (Jimmy Johnson, at
357).
Nature of the defence
Section 3(1) of the Homicide Ordinance states:
24
This is common practice in England; see S. Dell, Diminished Responsibility Reconsidered

[1982] Crim LR 809.
250
DEFENCES
Where a person kills or is a party to the killing of another, he shall

not be convicted of murder if he was suffering from such abnormality
of mind (whether arising from a condition of arrested or retarded
development of mind or any inherent causes or induced by disease or
injury) as substantially impaired his mental responsibility for his acts
and omissions in doing or being a party to the killing.
Diminished responsibility may be raised by both the actual killer and a

person who was a party to the killing of another. Where there is more
than one person charged with murder, whether as a principal or party, the
fact that one of them successfully pleads diminished responsibility, thereby
reducing that partys liability to manslaughter, will not affect the liability
of the other parties for murder (section 3(4) of the Homicide Ordinance).
Diminished responsibility requires proof of three elements: abnormality
of mind, the cause (aetiology) of the abnormality, and substantial
impairment of mental responsibility.
Abnormality of mind
The meaning of abnormality of mind was considered in Byrne in 1960.
Byrne [1960] 2 QB 396
Facts
Byrne was convicted of murdering a young woman whom he had
strangled and mutilated. At trial, medical evidence was adduced to the
effect that B was a sexual psychopath, who suffered from violent
perverted sexual desires which he found difficult, perhaps even
impossible, to control, but that otherwise he was more or less normal.
The jury were directed that such perverted sexual desires did not
fall within the scope of the (then new) defence of diminished
responsibility. B appealed.
Decision
Appeal allowed. A verdict of manslaughter was substituted, but Bs life
sentence was confirmed.
The court held (at 403) that abnormality of mind means a state
of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal. Abnormality of mind, it was
said, is:
wide enough to cover the minds activities in all its aspects, not
only the perception of physical acts and matters and the ability to
251
form a rational judgment whether an act is right or wrong, but

also the ability to exercise will power to control physical acts in
accordance with that rational judgment.
Accordingly, Bs difficulty in controlling his violent sexual impulses

could amount to an abnormality of mind, and diminished responsibility
should have been left to the jury.
Diminished responsibility thus has a broader scope than insanity since

insanity does not include an inability to exercise self-control.
Abnormality of mind has also been held to cover such conditions as
obsessive jealousy (Gomez (1964) 48 Cr App R 310) and battered woman
syndrome (Ahluwalia [1992] 4 All ER 889).
The expressions partial and borderline insanity have sometimes been
used to explain abnormality of mind, but this has also been criticized. In
Seers ((1984) 79 Cr App R 261), medical evidence was adduced to show
that S suffered from chronic reactive depression. On appeal, the English
Court of Appeal accepted that this psychiatric condition, though nothing
like insanity in a popular sense, could constitute an abnormality of mind
for the purposes of diminished responsibility, and held that the trial judge
had wrongly undermined Ss plea of diminished responsibility by referring
to partial or borderline insanity. Ss conviction of murder was set aside
and a verdict of manslaughter substituted.
Similarly, in Chiu Cheung ((1986) Cr App No. 119 of 1986), the trial
judge rather unfortunately told the jury that D did not have to be a raving
lunatic in order for him to establish diminished responsibility. The Court
of Appeal upheld Ds conviction, though noting (at 3) that this was not a
felicitious expression:
there is danger in suggesting, as is sometimes done, that diminished
responsiblity is on the borderline of insanity, for that phrase is not in
the statute and may not be understood by everyone in the same sense.
The Court of Appeal also rejected a submission that the trial judge had
erred by referring only to Ds ability to control his acts and not also Ds
difficulty in controlling them. This, it was held (at 3), was merely a
matter of degree.
It is for the trial judge to determine whether, on the medical evidence
adduced, D may be suffering from a condition amounting to an abnormality
of mind and, if so, leave it to the jury to determine whether the defendant
was in fact suffering from such an abnormality of mind (Byrne, above).
252
DEFENCES
A temporary loss of control arising from intense passion, such as would

equally give rise to the defence of provocation, will not suffice (HKSAR v
Leung Wai Chung [1999] 2 HKC 471, CA).
Medical cause or aetiology of the abnormality
The abnormality of mind must arise from one of the causes specified in
section 3(1): a condition of arrested or retarded development of mind,
any inherent cause, or induced by disease or injury.
It has been argued that these expressions are grounded in legal, rather
than psychiatric, concepts (see RD Mackay, The Abnormality of Mind Factor
in Diminished Responsibility [1999] Crim LR 117), though the Hong Kong
Court of Appeal thought otherwise, at least in relation to inherent causes,
in Lo Pun-man ((1986) Cr App No. 320 of 1986). The medical expert called
by the defence in this case drew on both genetic and environmental factors
in assessing whether D suffered from an abnormality of mind arising from
inherent causes. The Court rejected an argument that the trial judge ought
to have directed the jury on the legal meaning of inherent causes (at 6):
the words inherent causes are ordinary English words which have
not been given any specific overlay of legal meaning and must be
given their ordinary meaning by the jury. This being so, it was
unnecessary for the Judge to have given any explanation as to the
words themselves.
Accordingly, it was open to the jury to accept and act upon the medical
evidence as they saw fit, and environmental or external factors could
therefore be relied on if they were proved to have caused a specific medical
or psychiatric condition (see also Chan Yu-keung [1987] HKLR 276).
Necessity for medical evidence In general, expert evidence must be adduced
of the medical cause, or aetiology, of Ds abnormality of mind, establishing
that Ds case fits within one or more of the specified causes (Byrne, above;
also Lai Kuen [1972] HKLR 442, Ho Wai-Leung [1977] HKLR 93). In Lau
Man-cheung ([1986] HKLR 1172), the Court of Appeal upheld this view, in
accepting that the question of whether D is suffering from an abnormality
of mind is a question for the jury, but that its aetiology is a matter for
expert evidence (see HKSAR v Tsang Chin Tak [1999] 4 HKC 845: in general,
this means psychiatric evidence; a psychologist may not be acceptable for
this purpose). The Court further held (at 1176) that although section 3
does not stipulate that medical or other expert evidence must be adduced:
253
as a matter of common sense and practicality, a jury cannot in the

absence of medical evidence reasonably find in favour of an accused
in relation to the cause of any mental abnormality as required by the
words appeared in parenthesis in [section 3(1)].
Where medical evidence has been adduced, the jury is bound to consider
it, together with all other evidence, including the nature of the killing, Ds
conduct before, at the time of and after the killing, and any history of
mental abnormality. Having considered all the evidence, including the
medical evidence, in a broad common sense way, the jury is entitled to
reject the medical evidence unless the medical evidence is all one way and
there is nothing in the evidence as a whole to cast any doubt upon the
medical evidence (Walton [1977] 3 WLR 902, Chiu Sau Wah (1997) Crim
App No. 182 of 1996, CA).
Inherent causes Inherent causes include not only functional mental
illness arising from genetic or hereditary conditions, but also, in exceptional
cases, personality or psychiatric disorders caused by external or
environmental factors (Sanderson (1994) 98 Cr App R 325).
In Ahluwalia ([1992] 4 All ER 889), for example, medical evidence
(not adduced at trial) was produced on appeal to show that years of marital
violence and abuse may have caused A, an Asian woman, to suffer from a
psychiatric condition commonly known as battered woman syndrome. The
English Court of Appeal was willing to allow such a condition to be brought
within the scope of the defence of diminished responsibility and quashed
As conviction of murder. At As retrial, the prosecution accepted As plea
of guilty to manslaughter on the grounds of diminished responsibility.
Other similar conditions relied on in this way include premenstrual
tension (Coles [1980] 144 JPN 528), jealousy (Miller Times, 16 May 1972;
Asher Times, 9 June 1981) and rage (Byrne, above; compare HKSAR v Leung
Wai Cheung [1998] 1 HKLRD 196).
Intoxication and diminished responsibility In general, an abnormality of
mind arising from mere intoxication will not give rise to a claim of
diminished responsibility, since the use of alcohol or drugs does not fall
within any of the conditions specified in section 3(1) of the Homicide
Ordinance (Inseal [1992] Crim LR 35, Tandy [1989] 1 WLR 350, HKSAR v
Leung Wai Chung [1998] 1 HKLRD 961; in OConnell [1997] Crim LR 683,
the English Court of Appeal similarly rejected a submission that reliance
could be placed on the effects of a sleeping pill).
254
DEFENCES
However, alcoholism may be relied on if, as stated in Tandy, above, it

has reached a level at which Ds brain has been injured or diseased (at
356) by the repeated insult from intoxicants so that there is gross
impairment of judgment and emotional responses, or if the alcoholism
has reached a level where, although the brain has not been damaged to the
extent stated, [Ds] drinking has become involuntary, that is to say, [D] is
no longer able to resist the impulse to drink (see also Lo Pun-man
(1986) Cr App R 320 of 1986: the Court of Appeal referred to Tandy and
acknowledged (at 8) that a case might arise where an accused would
establish that a craving for drink or drugs was such as to produce in itself
an abnormality of mind). In this second situation, it must be proved that
D is compelled by his or her alcoholism to drink (e.g. while suffering
withdrawal symptoms). If D can resist the impulse to drink but chooses
not to, then diminished responsibility will not be available; any abnormality
in this situation is produced not by Ds alcoholism, but by the intoxicating
substance itself (see further: G.R. Sullivan, Intoxicants and Diminished
Responsibility [1994] Crim LR 156).
On occasion, the evidence may show that D was both intoxicated and
also suffering from some other medical condition relevant to diminished
responsibility. The attitude of the courts in this situation has been to direct
a jury to disregard the effect of the intoxicating substance(s) and consider
only the remaining condition(s) in assessing whether diminished
responsibility has been proved (Gittens [1984] 3 WLR 377; Lo Pun-man,
above, at 8). In Egan ([1992] 4 All ER 470), the English Court of Appeal
emphasized (at 478) that the vital question [is whether Ds] abnormality
of mind was such that he would have been under diminished responsibility
drink or no drink. The court approved a direction to this effect (proposed
by Professor J.C. Smith in a commentary on Gittens in [1984] Crim LR
554) in the following terms (see also Atkinson [1985] Crim LR 314):
have the defence satisfied you on the balance of probabilities that if
the defendant had not taken drink (i) he would have killed as he in
fact did? and (ii) he would have been under diminished responsibility
when he did so?
In Egan, the claim of diminished responsibility by a mentally subnormal

defendant failed on the basis that it was not at all clear that E, who had
been drinking heavily prior to the brutal killing, would have acted likewise
if he had not been drinking.
255
Substantial impairment
The abnormality of mind must substantially impair Ds mental
responsibility for his acts and omissions in doing or being a party to the
killing. This is a question of degree and is for the jury to decide (Chiu
Cheung, above). Impairment need not be total, but it must be more than
trivial or minimal (Lloyd [1967] 1 QB 175).
Although the determination of whether D is substantially impaired is
a question for the jury, in practice, it is common for medical experts to be
asked whether in their opinion the mental abnormality discussed in their
evidence can substantially impair mental responsibility.
Disposal
If diminished responsibility is successfully raised, D will be convicted of
manslaughter. The trial judge, in addition to his or her normal sentencing
discretion, has the power, under section 45 of the MHO (discussed above,
pp. 2224), to make a hospital order against the defendant if this is the
most suitable method of disposing of the case having regard to Ds proven
mental abnormality. There is a general right of appeal under section 48 of
the MHO.
INTOXICATION
Intoxication refers to the mental and physical condition brought about by
the consumption of alcohol or drugs or related substances (e.g. glue) (or a
combination of these), whereby a persons cognitive faculties (i.e. a persons
higher mental processes such as thought, reasoning and perception) may
be impaired, or a persons mood may be altered, for example by a loosening
of normal inhibitions or self-control.
In some instances, intoxication may constitute an element of an offence.
For example, section 39 of the Road Traffic Ordinance (cap. 374) creates
an offence of driving a motor vehicle while under the influence of drink or
drugs. Similarly, section 28 of the Summary Offences Ordinance (cap. 228)
creates two offences, one of being found drunk in any public place (section
28(1); liable to a fine of HK$50), and a second of being drunk and
disorderly in any public place (section 28(2); liable to a fine of HK$250 or
imprisonment for two months).
256
DEFENCES
More commonly, intoxication is raised as a defence. Correctly speaking,

intoxication is not per se a defence; a defendant cannot simply say: I only
committed the offence because I was drunk [or drugged] and would never
have acted in that way if I had been sober. (R v Kingston [1995] 2 AC
355). Rather, intoxication operates by challenging mens rea: D asserts that
he or she lacked the necessary mens rea for the alleged offence because his
or her mind was affected by alcohol or drugs so as not to know what he or
she was doing, or not appreciate or intend the likely consequences or
circumstances attending Ds conduct.25 Related to this, D may assert that
he or she acted in the manner constituting the alleged offence because of a
mistaken view of relevant facts or circumstances, this mistake arising because
of Ds intoxicated state of mind. This may essentially involve a denial of
mens rea, as where D asserts that he or she drunkenly took the wrong
bicycle, thereby lacking the necessary dishonesty and intention to
permanently deprive for theft (contrary to sections 9 and 2(1) of the Theft
Ordinance). Alternatively, it may involve the assertion of a defence such
as self-defence or duress, as where D asserts that he or she used force
because he or she drunkenly (but mistakenly) thought that V was attacking
or threatening D. Ds conduct is prima facie intentional, but his or her
intoxicated mistake is relied on to raise self-defence or duress.
D may also assert the reverse, that the consumption of alcohol or drugs
caused D to blackout, i.e. to lose conscious control over his or her actions.
This involves a denial of actus reus as well as mens rea, and overlaps with
and may be alternatively viewed as automatism rather than intoxication
(above, p. 245). In either case, the rules, particularly those applying to
evidence of a self-induced state, are broadly the same.
Exceptionally, intoxication may be relevant and give rise to insanity
(above, p. 227) or diminished responsibility (above, p. 253). This will
usually be where D is an alcoholic or drug addict, and prolonged use of
alcohol or drugs has caused physical damage to Ds brain or other organs
causing a malfunctioning of the mind, amounting to a disease of mind for
the purposes of insanity under the MNaghten Rules, or perhaps an
abnormality of mind for the purposes of diminished responsibility within
section 3(1) of the Homicide Ordinance.
25
If D is in fact an alcoholic, this may give rise instead to the defence of insanity or, in a
murder case, diminished responsibility.
257
Intoxication and Mens Rea

The law relating to intoxication in the criminal law is primarily concerned
with the effect of voluntary intoxication on mens rea. The law in this area,
which allows evidence of voluntary intoxication to be adduced in some
cases but not in others, is far from straightforward, as was recently
acknowledged by the House of Lords in Kingston ([1995] 2 AC 355) where
Lord Mustill observed (at 369): This area of the law is controversial, as
regards the content of the rules, their intellectual foundations, and their
capacity to furnish a practical and just solution.
Voluntary intoxication
A state of intoxication is voluntary, or self-induced, if D knowingly
consumes or uses alcohol, drugs (other than on prescription which is treated
as involuntary intoxication; see below, p. 268) or other intoxicating
substances (e.g. glue). This is so even if D did not know the precise nature,
or strength, or likely effect of the intoxicating substance (Allen [1988] Crim
LR 698).
The rules that have developed to deal with voluntary intoxication rely
on a number of incompletely drawn distinctions in particular, specific
versus basic intent offences, and alcohol and dangerous drugs versus nondangerous drugs to determine in which cases evidence of voluntary
intoxication may be adduced and in which cases it cannot.26 Summarizing
these rules, voluntary intoxication may not be relied on to negate mens rea
(and thus negate criminal liability) unless:
(1) the offence charged against D is a specific intent offence (following
Majewski, below), or requires proof of intention (following the
alternative approach adopted by the House of Lords in Caldwell, below).
If it is a basic intent offence or may be proved by recklessness, then
evidence of Ds self-induced state of intoxication may not be relied on.
If D is charged with a specific intent offence or one requiring proof of
intention, and successfully relies on voluntary intoxication to negate
26
In 1993, the English Law Commission released a consultation paper on Intoxication and
Criminal Liability (Law Commission, Paper No. 127, 1993) with various suggestions for
reform. For commentary, see G. Virgo, The Law Commission Consultation Paper on
Intoxication and Criminal Liability (1) Reconciling Principle and Policy [1993] Crim
LR 415. See also G. Orchard, (2) Surviving without Majewski A View from Down Under
[1993] Crim LR 426.
258
DEFENCES
the mens rea of the offence, D may still be convicted (subject to (2)
below) of any underlying basic intent offence; or
(2) Ds state of intoxication is caused by the consumption or use of
something other than alcohol or dangerous drugs (dangerous drugs
for this purpose are drugs generally known to cause aggressive,
unpredictable or uncontrollable behaviour. In this case, D may adduce
evidence of his or her state of intoxication to negate mens rea, except
where the offence is a basic intent or recklessness offence, and the
prosecution proves beyond reasonable doubt that D was reckless in
taking or using the intoxicant. This rule, derived from Hardie ([1985]
1 WLR 64) is discussed below (p. 267).
Development of the rules
Prior to the early nineteenth century, in England, voluntary intoxication
was never an excuse for criminal misconduct; [it was] rather an
aggravation than a defence (Beard [1920] AC 479, at 494, per Lord
Birkenhead LC). By the beginning of the twentieth century, this attitude
had softened, allowing voluntary drunkenness to be raised as a defence
for some offences, but not others. In Beard, this was explained by the House
of Lords, quashing Bs conviction of murder and substituting a conviction
of manslaughter, on the basis that Bs self-induced state of drunkenness
was relevant where a specific intent is an essential element in the offence,
but not otherwise. From this arose the purported distinction between
specific and basic intent offences, with voluntary intoxication being
relevant to the former, but not to the latter. Further, as Beard illustrated,
successfully raising voluntary intoxication to negate liability for a specific
intent offence (e.g. murder or wounding with intent, contrary to section
17(a) of the Offences Against the Person Ordinance) does not also negate
liability for any underlying basic intent offence (e.g. manslaughter, or, in
the case of wounding with intent, malicious wounding, contrary to section
19 of the Offences Against the Person Ordinance).
In Lipman ([1970] 1 QB 152), in 1970, the English Court of Appeal
confirmed that these rules applied not only to voluntary drunkenness, but
also to a state of intoxication caused by the voluntary consumption of drugs.
Accordingly, L, who killed his girlfriend while suffering hallucinations after
taking LSD, was entitled to rely on his drugged state to avoid liability for
murder but not to avoid a conviction of manslaughter.
This approach to voluntary intoxication was affirmed by the House of
Lords in 1975 in DPP v Majewski ([1977] AC 443), despite their
259
acknowledgement of the difficulty of defining specific and basic intent

consistently with the practical treatment of various offences in the courts.
Several of the Lords emphasized that judicial policy underlies this approach.
Lord Salmon, for example, stated (at 482) that the present rules are
founded on common sense and experience rather than strict logic, and
Lord Elwyn-Jones LC observed (at 474):
If a man of his own volition takes a substance which causes him to
cast off the restraints of reason and conscience, no wrong is done to
him by holding him answerable criminally for any injury he may do
while in that condition.
This was re-emphasized in Kingston ([1995] 2 AC 355) by Lord Mustill

who stated (at 369) that such evidence [of self-induced intoxication] is
excluded as a matter of policy.
Various explanations have been offered to justify this policy. One offered
by Lord Elwyn-Jones LC in Majewski (at 4745) is that:
[Ds] course of conduct in reducing himself by drugs and drinks to
that condition supplies the evidence of mens rea, of guilty mind
certainly sufficient for crimes of basic intent. It is a reckless course of
conduct and recklessness is enough to constitute the necessary mens
rea in assault cases . The drunkenness is itself an intrinsic, an
integral part of the crime [of assault], the other part being the evidence
of the unlawful use of force against the victim. Together they add up
to criminal recklessness.
Lord Mustill in Kingston observed (at 369) that this was one of two different
rationalizations for the present law:
[The first is] that the absence of the necessary [intent] is cured by
treating the intentional drunkenness (or more accurately, since it is
only in the minority of cases that the drinker sets out to make himself
drunk, the intentional taking of drink without regard to its possible
effects) as a substitute for the mental element ordinarily required by
the offence. The intent is transferred from the taking of drink to the
commission of the prohibited act. The second rationalisation is that
the defendant cannot be heard to rely on the absence of the mental
element when it is absent because of his own voluntary acts. it
may be said that [D] is estopped from relying on his self-induced
incapacity.
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The notion that a defendant should not be able to adduce evidence of

intoxication where it is self-induced because the act of consuming or using
alcohol or drugs is intrinsically reckless was taken one step further in
MPC v Caldwell ([1982] AC 341). There, the House of Lords used
recklessness as the basis of the rules excluding evidence of voluntary
intoxication, not merely as the rationale for the rules. Classification into
offences of specific and basic intent, said Lord Diplock for the majority (at
356), is irrelevant where being reckless whether a particular harmful
consequence will result from ones act is a sufficient alternative mens rea.
According to this, voluntary intoxication will be relevant and admissible in
evidence only where the prosecution must prove intention as the mens rea
of the offence, for example, in murder. If recklessness suffices, then Ds
voluntary state of intoxication will be treated as irrelevant to the
determination of liability.
When evidence of intoxication is admissible, it is not necessary to show
that D was so intoxicated as to be incapable of forming any intent at all
(although this was how the test was formulated in Beard). Instead, in most
cases, the correct question is simply whether the prosecution has proved
the relevant mens rea against D, despite the evidence of Ds intoxication
(voluntary or involuntary) (Cole [1993] Crim LR 300; this approach was
correctly followed in Ip Chong Fun [1996] 1 HKC 597, CA: unfortunately,
the head note wrongly asserts both that the question is whether D was so
intoxicated as to be unable to form the requisite specific intent and that
the defendant bears the onus of proving this). If the prosecution proves
that D had the requisite intent, then D may be liable despite his or her
state of intoxication. This is encapsulated in the expression, a drunken
intent is nevertheless an intent (Sheehan & Moore [1975] 1 WLR 739;
Fung Chun-wai [1982] HKLR 302; Yeung Ka Wah (1992) Cr App No. 306
of 1991), recently reaffirmed by the House of Lords in Kingston, above, in
which K was convicted of indecent assault despite evidence that K had
been surreptitiously drugged by his co-defendant.
Specific versus basic intent
The rule that voluntary intoxication is only admissible to negate a specific
intent offence was suggested in Beard ([1920] AC 479, in 1920. Lord
Birkenhead LC, delivering the judgment of the House of Lords, reviewed
the authorities, and concluded that B was entitled to adduce evidence of
his self-induced intoxication on a murder charge because (at 499):
261
These decisions establish that where a specific intent is an essential

element in the offence, evidence of a state of drunkenness should
be taken into consideration in order to determine whether he had in
fact formed the intent necessary to constitute the particular crime.
It is not entirely clear what Lord Birkenhead LC meant here by the

term specific intent, but it was applied by the court to quash Bs conviction
of murder and substitute a conviction of manslaughter. The term basic
intent was subsequently adopted to describe offences such as manslaughter
not requiring proof of a specific intent, and in relation to which voluntary
intoxication is treated as irrelevant.
This approach to voluntary intoxication was affirmed by the House of
Lords in DPP v Majewski in 1976.
DPP v Majewski [1977] AC 443
Facts
Majewski was convicted of six counts of assault occasioning actual
bodily harm (contrary to section 47 of the Offences Against the Person
Act 1861; Hong Kong: section 39 of the Offences Against the Person
Ordinance) and assaulting a police officer in the execution of duty
(Hong Kong: contrary to section 36(b) of the Offences Against the Person
Ordinance). The assaults giving rise to these charges had variously
occurred in a bar and later at the police station after arrest. M wished
to rely on evidence that he was intoxicated at the time as a result of
taking a mixture of barbiturates, amphetamines and alcohol. At trial,
the judge directed the jury that Ms intoxication was irrelevant if the
jury were of the view that it was self-induced. M appealed, relying in
particular on section 8 of the Criminal Justice Act 1967 (Hong Kong:
section 65A of the CPO) which, he contended, required all evidence
relating to his state of mind, including, it was submitted, evidence of
intoxication whether voluntary or involuntary, to be taken into account.
Ms appeal was dismissed by the Court of Appeal, and he further
appealed to the House of Lords.
Decision
Appeal dismissed. The Lords held that there is a substantive rule of
common law that voluntary intoxication is only relevant in respect of
specific intent offences. If D is charged with a basic intent offence,
such as assault occasioning actual bodily harm or assaulting a police
officer in the execution of duty, then voluntary intoxication cannot be
relied upon to avoid or negate liability. This rule, it was held, is
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unaffected by section 8 [section 65A], which impliedly requires only

relevant evidence to be considered; since voluntary intoxication is
irrelevant in assessing liability for a basic intent offence, section 8 does
not require the evidence to be considered. Accordingly, the trial judge
had correctly directed the jury.
The meaning of specific and basic intent was considered at some

length in Majewski. Lord Simon, for example, suggested (at 479) that a
specific intent offence is one which requires the prosecution in general to
prove that the purpose for the commission of the act extends to the intent
expressed or implied in the definition of the crime. An example of this is
the offence of maliciously wounding with intent to cause grievous bodily
harm, contrary to section 17(a) of the Offences Against the Person
Ordinance (section 18 of the Offences Against the Person Act 1861). This
offence requires proof not only that D maliciously (i.e. intentionally or
recklessly; see below, Chapter 11, p. 595) by his or her conduct (the
commission of the act) wounded the victim, but also that Ds purpose in
committing the act causing the wound was the purpose or intent expressed
in the offence, namely, that D intended to cause grievous bodily harm. D
would not, for example, be liable under section 17(a) if his or her purpose
or intent in doing the act causing the wound was merely to push forcefully
and recklessly past the victim in a queue.
Section 17(a) involves what is known as an ulterior intent the offence
expressly requires two elements of mens rea, the first, maliciously, relating
to the actus reus (wounding), and the second being additional or ulterior,
i.e. intent to cause grievous bodily harm. Offences requiring proof of an
ulterior intent are commonly classified as specific intent offences, but Lord
Simon emphasized that this is not necessarily so (as illustrated by aggravated
arson, contrary to section 60(2) of the Crimes Ordinance, discussed in
Caldwell below); ulterior intent and specific intent are not the same.
Lord Simon contrasted this with the various assault charges laid against
Majewski, which were basic intent offences as previously explained by
him in DPP v Morgan ([1976] AC 182, at 216):
By crimes of basic intent I mean those crimes whose definition
expresses (or, more often, implies) a mens rea which does not go
beyond the actus reus. The actus reus generally consists of an act and
some consequence. The consequence may be very closely connected
with the act or more remotely connected with it; but with a crime of
basic intent the mens rea does not extend beyond the act and its
consequence, however remote, as defined in the actus reus.
263
Common assault, he explained, qualifies as a basic intent offence because

the mens rea of assault, namely, intention or recklessness, extends only to
Ds act and its consequences, i.e. Ds physical act causing the victims
apprehension; or in Lord Simons words (at 216), The actus reus of assault
is an act which causes another person to apprehend immediate and unlawful
violence. The mens rea corresponds exactly.
In reality, these definitions are flawed. For example, murder the
original specific intent offence considered in Beard could be said to be
a basic intent offence: its mens rea (intention to kill or to cause grievous
bodily harm) corresponds exactly with its actus reus (conduct causing
death, or the killing).
Some commentators have therefore argued that the search for a
theoretically sound distinction is illusory. Smith and Hogan, for example,
have suggested (Criminal Law, ninth edition, p. 222) that:
The only safe conclusion seems to be that crime requiring specific
intent means a crime where evidence of voluntary intoxication
negativing mens rea is a defence; and the designation of crimes as
requiring, or not requiring, specific intent is based on no principle
but on policy. In order to know how a crime should be classified for
this purpose we can look only to the decisions of the court.
In practice, many offences have been judicially considered and classified

into specific and basic intent offences. Specific intent offences include, for
example, theft, burglary, wounding or causing grievous bodily harm with
intent to cause grievous bodily harm, handling stolen goods, murder, and
some categories of attempt.
The category of basic intent offences includes unlawful wounding,
common assault and battery, indecent assault (at least where Ds conduct
is unambiguously indecent), assault occasioning actual bodily harm, rape
(in Khan [1990] 1 WLR 813, it was held that attempted rape is also a basic
intent offence), and criminal damage. It also includes manslaughter, whether
of the voluntary or involuntary type.
Furthermore, in practice, evidence of voluntary intoxication is often
adduced as part of the surrounding circumstances in which the alleged
offence occurred, especially if there is any issue as to whether Ds
intoxication was voluntary or involuntary. How is this to be reconciled
with the rule that voluntary intoxication is irrelevant to the determination
of liability for a basic intent offence? One view is that having heard such
evidence, the jury or judge should then disregard it in determining whether
the prosecution has proved the mens rea of the basic intent offence beyond
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reasonable doubt (this was the view adopted in relation to a charge of rape
in Woods (1982) 74 Cr App R 312, at 314, per Griffiths LJ). Another view
is that this creates a highly artificial situation, in which a jury or judge is
obliged to draw inferences as to Ds state of mind on the assumption that
D was sober, when there has been evidence that D was in fact intoxicated.
It is also difficult to see why this is not a breach of section 65A of the CPO,
despite Majewski to the contrary.
According to a second view, the substantive rule of law affirmed in
Majewski has the effect of relieving the prosecution, once evidence of
voluntary intoxication is adduced in relation to a basic intent offence, of
the burden of proving the mens rea that would normally have to be proved
for that offence; all that the prosecution has to prove is the commission of
the actus reus elements (i.e. the offence is effectively treated as a strict
liability offence). Proponents of this view maintain that since the prosecution
no longer has to prove mens rea (intention or foresight), and the evidence
of Ds voluntary intoxication is relevant only to that issue, there is no breach
of section 65A. On this view, D would be better off by not introducing
evidence of intoxication at all, for the prosecution would then be obliged
to prove mens rea beyond reasonable doubt in the normal way; of course,
D would then have no ready defence to challenge the inference that he or
she possessed the necessary mens rea.27
Intention versus recklessness
In 1982 in MPC v Caldwell ([1982] AC 341), the House of Lords proposed
an alternative formulation of these rules relating to voluntary intoxication,
based on whether the offence in question may be proved by recklessness,
rather than according to whether it is a specific or basic intent offence. C
was charged with two offences, arson and aggravated arson (respectively
contrary to sections 1(1)(3) and 1(2) of the Criminal Damage Act 1971;
Hong Kong: sections 60(1)(3) and 60(2) of the Crimes Ordinance). At
trial, C accepted that his self-induced state of intoxication could not be
relied on in relation to arson, since this was undoubtedly a basic intent
offence. However, he argued that aggravated arson requires proof of an
additional purpose, namely, that he caused criminal damage by fire, with a
view to intentionally or recklessly endangering life, that this was an ulterior
27
For a discussion of Commonwealth approaches, see S. Gough, Surviving without

Majewski? [2000] Crim LR 719.
265
intent, and that aggravated arson was therefore a specific intent offence.
This argument was rejected by the House of Lords on the basis that the
mens rea of both arson and aggravated arson expressly includes both
intention and recklessness. Accordingly, C could be convicted of aggravated
arson, along with arson, upon proof beyond reasonable doubt that C was
reckless. Recklessness, the Lords concluded, may be established for this
purpose by Cs recklessness in making himself intoxicated, as recognized
in Majewski (provided that a defendant is charged alternatively on the basis
of intention or recklessness; if the charge states merely that D intended to
cause property damage or intended thereby to endanger life, then unless
amended, intention would have to be proved; voluntary or self-induced
intoxication could then be raised to challenge the prosecutions assertion
that D acted with intention). Formulating this as a simple rule, the Lords
concluded (at 355) that self-induced intoxication is no defence to a crime
in which recklessness is enough to constitute the necessary mens rea. Since
this applied to aggravated arson, subject to the qualification below relating
to intoxication by non-dangerous drugs, C was not entitled to rely on the
evidence of his self-induced intoxication.28
According to this formulation, voluntary intoxication may be adduced
in evidence to negate mens rea only if the offence in question requires
proof of intention or knowledge, as with murder. Ds recklessness in
becoming intoxicated cannot in such a case in itself be said to establish the
mens rea of the offence, i.e. intention or knowledge.
It is not entirely clear from Caldwell whether this formulation, based
on the distinction between offences requiring proof of intention and those
which may be proved by recklessness, is to be viewed as an alternative to
Majewskis rules based on specific and basic intent, or is meant to replace
those rules. Lord Diplock in Caldwell (at 355) appeared to favour the former
view:
[The question of whether an offence is to be classified as one of
specific intent] is not, in my view, a relevant enquiry where being
reckless as to whether the life of another would be thereby endangered
is an alternative mental state that is capable of constituting the
necessary mens rea of the offence with which [D] is charged.
This suggests that the two approaches may both still be part of the
law. An example of this would be the offence of manslaughter: it cannot be
28
See also P. W. Ferguson, Reckless Intoxication (1985) 49 Jnl of Crim Law 295.
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simply said that recklessness is always enough to constitute the offence of

manslaughter. This may be so in the case of constructive manslaughter
where the prosecutions case is based on Ds commission of an assault or
battery, both of which may be proved by recklessness. However, this may
not be so in a gross negligence case. Accordingly, it may be necessary to
fall back on the accepted classification of manslaughter as a basic intent
offence to conclude that evidence of Ds voluntary intoxication should be
excluded from consideration.
Intoxication other than by alcohol or dangerous drugs
In Majewski and Caldwell, the defendants states of intoxication were caused
by the voluntary consumption or use of alcohol, or of drugs generally known
to cause aggressive, unpredictable or uncontrollable behaviour dangerous
drugs. What if intoxication arises from the consumption or use of other,
non-dangerous drugs or substances, such as a sedative or sleeping pill?
Case law has recognized a limited exception for this type of case, whereby
evidence of intoxication may be adduced to negate liability regardless of
whether the offence is a basic intent offence or may be proved by
recklessness, unless the prosecution proves that D was reckless in taking
or using the intoxicating substance.
This exception is founded on an assumption that whereas everyone
knows or is taken to know the risks associated with alcohol and dangerous
drugs, this is not necessarily true of other substances. Recklessness in
taking the substance cannot therefore be assumed, but must be proved by
the prosecution before the rule excluding evidence of voluntary intoxication
applies. This exception was recognized in Bailey ([1983] 1 WLR 760;
discussed above, p. 246), in connection with automatism. In that case, the
English Court of Appeal accepted that a diabetic should be allowed to raise
the possibility that he suffered a hypoglycaemic coma arising from his failure
to eat adequately after injecting insulin, even in relation to a basic intent or
recklessness offence, unless the prosecution can prove that the diabetic
appreciated or realized his failure to eat adequately might lead to aggressive,
unpredictable and uncontrollable conduct and deliberately ran that risk or
otherwise disregarded it. In Hardie, this approach was adopted by the English
Court of Appeal in relation to voluntary intoxication.
267
R v Hardie [1985] 1 WLR 64

Facts
Hardie was convicted of aggravated arson (contrary to section 1(2) of
the Criminal Damage Act 1971; Hong Kong: section 60(2) of the Crimes
Ordinance). It was alleged that H lit a fire in his room in an apartment,
knowing that the woman he had recently broken up with and her
daughter were in another room.
H sought to rely on evidence that he had taken several tablets of
valium, a sedative drug, belonging to the woman, before starting the
fire and therefore may not have appreciated the risks associated with
his conduct. The trial judge, following Caldwell, ruled that since the
valium was self-administered, the evidence relating to its effect on H
was irrelevant and ought to be disregarded. H appealed.
Decision
Appeal allowed. Hs conviction of aggravated arson was quashed. The
Court of Appeal accepted that although valium is a drug and was
deliberately taken by H other than on prescription, nonetheless (at 70):
the drug is wholly different in kind from drugs which are liable
to cause unpredictability or aggressiveness. It may well be that
the taking of a sedative or soporific drug will, in certain
circumstances, be no answer, for example in a case of reckless
driving, but if the effect of the drug is merely soporific or sedative
the taking of it, even in some excessive quantity, cannot in the
ordinary way raise a conclusive presumption against the admission
of proof of intoxication for the purposes of disproving mens rea in
ordinary crimes, such as would be the case with alcoholic
intoxication or incapacity or automatism resulting from the selfadministration of dangerous drugs.
Accordingly, ruled the Court (at 70), the jury should have been directed:
that if they came to the conclusion that, as a result of the valium,
[H] was, at the time, unable to appreciate the risks to property
and persons from his actions they should then consider whether
the taking of the valium was itself reckless.
Since there was no evidence that it was actually known to H, or

even generally known, that the consumption of valium in the quantity
taken might make a person aggressive or incapable of appreciating
risks to others, it was not possible for the Court of Appeal to conclude
that H had been reckless in taking the valium.
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Recklessness in this context appears to mean subjective recklessness.

D either must have foreseen that he or she might become aggressive,
uncontrollable or unpredictable as a result of taking the substance in
question, yet deliberately took that risk or disregarded it, or, where D finds
himself or herself in charge of something requiring continual conscious
control, e.g. a motor vehicle, must have foreseen that he or she might lose
consciousness as a result of taking the substance, yet deliberately took that
risk or disregarded it.
For this purpose, risk appears to be general in nature; it is not necessary
to prove that D foresaw the particular risk required for the offence in
question (e.g. risk of causing property damage, risk of inflicting unlawful
personal violence, etc.). The burden of proving recklessness is on the
prosecution.
Like the general rule itself, this exception poses a considerable problem.
It requires the jury to hear evidence showing that D was intoxicated, while
also considering whether D was reckless when he or she took the
intoxicating substance. If so, how is a judge to direct the jury? One response
is that having decided that D was recklessly intoxicated, the jury must
then entirely exclude the evidence of Ds intoxication from its mind in
assessing whether the necessary mens rea of the offence is proved beyond
reasonable doubt. This requires a jury to determine whether D may have
been intoxicated at the time of the alleged offence, and then assess liability
as if D were sober, a somewhat artificial solution. The alternative view,
mentioned above, is that if the jury find that D was recklessly intoxicated,
it must then find D guilty of any offence proved by recklessness, so long as
the prosecution has proved the actus reus elements beyond reasonable doubt
in other words, mens rea becomes irrelevant (compare Woods (1982)
74 Cr App R 314).
If a defendant chooses not to raise the issue of self-induced intoxication
when charged with a specific intent offence because it would be incompatible
with another defence that he or she wishes to raise, for example, self-defence,
there may be no need for the trial judge to give directions on the issue of
self-induced intoxication (Groark [1999] Crim LR 669).
Involuntary intoxication
Intoxication is involuntary if (1) it arises from the use of a prescription
drug in accordance with the prescription, or (2) D is unaware that he or
she is taking an intoxicating substance, as where Ds food or drink is secretly
spiked or laced with alcohol or drugs. The mere fact that D was involuntarily
269
intoxicated does not necessarily entitle D to be acquitted: if the prosecution

can prove beyond reasonable doubt that D acted with the necessary mens
rea for the offence charged, then D may still be convicted a drunken
intent is still an intent. This view of involuntary intoxication was recently
affirmed by the House of Lords in Kingston, prior to which there was only
limited authority for the second of the above categories of involuntary
intoxication principally, a dicta in Pearsons case ((1835) 2 LEW 144, at
145): voluntary drunkenness is no excuse for crime. If a party be made
drunk by stratagem or the fraud of another, he is not responsible.
R v Kingston [1995] 2 AC 355
Facts
Kingston and a co-defendant, both of whom had paedophiliac
homosexual tendencies, were jointly convicted of indecent assault on
a 15-year-old boy. Ks defence was that he had been secretly drugged
by his co-defendant and then taken into a bedroom where the victim,
previously drugged by the co-defendant, was asleep. The co-defendant
invited K to abuse the boy sexually, which K did. Unknown to K, his
actions were photographed and audio-taped by his co-defendant, with
a view to blackmailing K later.
In the light of the taped evidence, K accepted that he had acted
with what appeared to be the necessary intent for indecent assault, but
he argued that since this intention was formed because of and while he
was under the intoxicating influence of the secretly administered drugs,
it should not suffice as mens rea. The trial judge rejected this submission
and directed the jury that a drugged intent is still an intent. K appealed
successfully to the English Court of Appeal which held ([1993] 3 WLR
676, at 683, per Lord Taylor CJ) that Ks intent did not amount to a
criminal intent. The Court of Appeals rationale for this was that:
the purpose of the criminal law is to inhibit, by proscription and
by penal sanction, anti-social acts which individuals may otherwise
commit. Its unspoken premise is that people may have tendencies
and impulses to do those things which are considered sufficiently
objectionable to be forbidden. Having paedophiliac inclinations
and desires is not proscribed; putting them into practice is. If the
sole reason why the threshold between the two has been crossed
is or may have been that the inhibition which the law requires
has been removed by the clandestine act of a third party, the
purposes of the criminal law are not served by nevertheless holding
that the person performing the act is guilty of an offence. A man
is not responsible for a condition produced by stratagem, or the
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fraud of another. If therefore drink or drugs, surreptitiously

administered, cause a person to lose his self-control and for that
reason to form an intent which he would not otherwise have
formed, it is consistent with the principle that the law shall
exculpate him because the operative fault is not his. The law
permits a finding that the intent formed was not a criminal intent
or, in other words, that the involuntary intoxication negatives the
mens rea [emphasis added].
The Crown appealed to the House of Lords.
Decision
Appeal allowed. Lord Mustill, delivering the unanimous judgment of
the Lords, emphasized that the case concerned disinhibition (i.e. it
was alleged that the effect of the drugs was to reduce Ks ability to
resist temptation, to the point where through no fault of his own Ks
desires overrode his ability to control them), rather than an assertion
that K was so intoxicated that he lacked intent. The issue, therefore,
was whether a defendant who is disinhibited and forms an intent as a
result of being secretly intoxicated, can rely as the Court of Appeal had
concluded on his or her absence of moral fault or blame to obtain an
acquittal (rather than merely as a mitigating factor in sentencing), either
on general principles (i.e. mens rea presupposes or equates to moral
fault), or specifically in relation to an intent induced by involuntary
intoxication.
Rejecting the argument from general principle, Lord Mustill
concluded (at 366) that the absence of moral fault on the part of [the
defendant] [is not] sufficient in itself to negative the necessary mental
element of the offence.
Turning to the specific argument that a defendant is entitled to be
acquitted if he or she was involuntarily intoxicated, Lord Mustill (noting
the lack of modern authority specifically on involuntary intoxication)
concluded (1) that involuntary intoxication is not recognized under
the common law as a defence in itself entitling a defendant (including
one who forms intent because of disinhibition) to an acquittal, and (2)
that it was not appropriate for the Lords to create any such new defence
in this case. Instead, involuntary intoxication operates within and as an
aspect of the general law of intoxication, with the important qualification
that the rules recognized in Majewski restricting reliance on self-induced
intoxication are irrelevant. Lord Mustill observed (at 370):
Once the involuntary nature of the intoxication is added the two
theories of Majewski [as to why self-induced intoxication cannot
be relied on] fall away, and the position reverts to what it would
271
have been if Majewski had not been decided, namely that the
offence is not made out if the defendant was so intoxicated that
he could not form an intent. Thus, where the intoxication is
involuntary Majewski does not subtract the defence of absence of
intent; but there is nothing in Majewski to suggest that where
intent is proved involuntary intoxication adds a further defence.
The essential issue therefore, when D asserts that he or she was involuntarily
intoxicated and calls evidence to that effect, is whether D nonetheless had
the relevant mens rea for the offence in question, something which the
prosecution must prove beyond reasonable doubt.
Intoxication and Mistake

Apart from affecting the ability to form, or the actual formation of, the
necessary state of intention or recklessness required for an offence,
intoxication may also affect Ds mind by making D believe, mistakenly,
that there is something in the circumstances which would justify or excuse
D in acting in a manner which might otherwise amount to an offence. D
may, for example, mistakenly believe that another person is threatening to
kill D if D does not beat up someone; in other words, a mistake giving rise
to duress (for duress, see Chapter 7, p. 300). Or D may use force against
another in the mistaken belief that the other is about to attack D a
mistaken belief giving rise to self-defence (for self-defence, see Chapter 7,
p. 279). Can D rely on such a mistake to raise a defence, if the mistake is
caused by Ds intoxication?
If it is a case of involuntary intoxication, then D ought to be entitled to
rely on the mistake and any defence founded on it.
If Ds mistake is caused by voluntary intoxication, the legal position is
less clear. In the first place, the particular defence may require Ds mistake
to be a reasonable mistake (e.g. duress or necessity). In this case, D will
not be entitled to rely on a mistaken belief caused by intoxication since the
mistake would obviously not have been made by a sober person and is
therefore unreasonable.
If the defence raised by D may be founded on an honest mistaken
belief, even an unreasonable mistake, as is true of self-defence, the position
is more controversial. In principle, the rules should be the same as those
for voluntary intoxication negating mens rea, i.e. evidence of Ds intoxicated
mistaken belief ought to be admissible on the question of whether D may
have made the mistake alleged, giving rise to a defence, if the offence
272
DEFENCES
allegedly committed by D is a specific intent offence, but not if basic intent,

or, applying Caldwell, if intention and not merely recklessness must be
proved, or if the intoxicating substance is a sedative or other non-dangerous
drug (unless D was reckless in taking the drug).
Present authority based on the decision of the English Court of Appeal
in OGrady has taken a contrary view, wholly excluding reliance on an
intoxicated mistake to found a defence, regardless of the offence.
OGrady [1987] QB 995
Facts
OGrady was charged with the murder of a male friend. O accepted
that he had killed the deceased, but adduced evidence that he had
gotten into a drunken fight with the deceased and, mistakenly believing
that he was in danger, fatally struck the deceased.
At trial, the jury were directed that Os intoxicated mistaken belief
was relevant to murder, but not to manslaughter, whereupon O was
convicted of manslaughter. O appealed, contending that Williams
(Gladstone) ([1987] 3 All ER 411) obliged the jury to take his mistaken
beliefs both as to whether there was an attack and also as to the severity
of the attack into account in deciding whether he acted in lawful selfdefence, even if the mistake was made because of his drunken state.
Decision
Appeal dismissed. On the question of whether O could rely on his
drunken mistake, Lord Lane CJ, delivering the judgment of the Court,
concluded (at 999):
We have come to the conclusion that where the jury are satisfied
that the defendant was mistaken in his belief that any force or the
force which he in fact used was necessary to defend himself and
are further satisfied that the mistake was caused by voluntarily
induced intoxication, the defence must fail. We do not consider
that any distinction should be drawn on this aspect of the matter
between offences involving what are called specific intent, such
as murder and offences of so called basic intent, such as
manslaughter and (at 1001). [W]e have therefore come to the
conclusion that a defendant is not entitled to rely, so far as selfdefence is concerned, upon a mistake of fact which has been
induced by voluntary intoxication [emphasis added].
In relation to manslaughter, a basic intent offence, this is

uncontroversial: voluntary intoxication would not be admissible in evidence
273
to negate liability for manslaughter, nor, applying OGrady, would D be

entitled to rely on self-defence founded upon an intoxicated mistake.
However, Lord Lane CJ in the above passage suggested that this would
also apply for specific intent offences, such as murder (and that the trial
judges direction was in effect too favourable to D). This is difficult to
understand. Not only was it unnecessary to the actual decision, but it creates
anomalous results. If D asserts that he never formed the requisite intention
to kill or cause grievous bodily harm for murder, D would be entitled to
support this assertion with evidence of voluntary intoxication and, unless
intention is proved beyond reasonable doubt, must be acquitted of murder,
though he will be convicted instead of the underlying basic intent offence
of manslaughter. Why then should it be, as Lord Lane CJ asserts, that if D
accepts that he intended to cause grievous bodily harm but only because of
his mistaken belief (caused by intoxication) that the deceased was trying
to kill him, D may not rely at all on this mistake to found self-defence and
avoid liability for murder? Perhaps Lord Lane CJ was concerned that the
law would be unworkable if the jury were entitled to hear about and consider
Ds intoxicated belief in assessing Ds assertion of self-defence on a charge
of murder, but then exclude the same evidence from their minds in assessing
Ds liability for manslaughter. One response to this arguably lies in the
view that mens rea becomes irrelevant and need not be proved in relation
to a basic intent offence once evidence of Ds intoxication is adduced.
According to Williams (Gladstone) ([1987] 3 All ER 411), an assertion of
self-defence based on a mistake effectively involves a denial that D intended
to use unlawful force, an aspect of mens rea in offences against the person.
If D adduces evidence that he made a mistake because he was intoxicated,
then this relieves the prosecution of the burden of proving mens rea; the
jury need decide only whether Ds conduct caused the victims death.
Anomalous or not, Lord Lane CJs view was subsequently adopted by
the English Court of Appeal in OConnor ([1991] Crim LR 135): D could
adduce evidence of voluntary intoxication to negate the mens rea of murder,
but could not rely on a mistaken belief resulting from that state of
intoxication to raise self-defence as a defence to murder (see also Richardson
& Irwin [1999] Crim LR 494: intoxicated mistaken belief that victim had
consented to horseplay resulting in injury to victim D liable if would
have realised no consent had he not been drinking).
The approach in OGrady is to be contrasted with that in Jaggard v
Dickenson ([1981] QB 527), in which it was held that for the purposes of
the basic intent offence of criminal damage (contrary to section 60(1) of
the Crimes Ordinance; UK: section 1(1) of the Criminal Damage Act 1971),
274
DEFENCES
D may rely on an intoxicated mistaken belief for example, that the

owner of property would consent to damage being done to his or her
property to establish a lawful excuse under section 64(2) of the Crimes
Ordinance (UK: section 5(2) of the Criminal Damage Act 1971). The
Divisional Court concluded that this was the only interpretation consistent
with section 5(3) of the Criminal Damage Act 1971 (section 64(3) of the
Crimes Ordinance) which reads: For the purpose of this section, it is
immaterial whether a belief is justified or not if it is honestly held. Mustill J
stated (at 532):
Parliament has specifically isolated one subjective element, in the shape
of honest belief, and has given it separate treatment in its own special
gloss in section 5(3). This being so, there is nothing objectionable in
giving it special treatment as regards drunkenness in accordance with
the natural meaning of its words.
This also creates a somewhat anomalous situation. If D honestly, but

drunkenly, believes the owner would consent to the property damage done
by D, D may rely on this as giving rise to a lawful excuse. However, if D
honestly, but drunkenly, believes that the property is his or her own, this
would neither provide D with a lawful excuse within the meaning of the
statutory provisions, nor, applying the general rules regarding voluntary
intoxication, provide a basis for challenging mens rea.
OGrady and Jaggard v Dickenson must also be contrasted with the law
relating to rape. In Morgan ([1976] AC 182), the House of Lords held that
a defendant cannot be convicted of rape if he may have honestly, though
unreasonably, believed that the woman consented to sexual intercourse.
The reasonableness or otherwise of his belief is relevant only as evidence
in assessing whether D did honestly believe in the existence of consent.
When rape was codified in 1978 (section 118 of the Crimes Ordinance,
following section 1 of the Sexual Offences (Amendment) Act 1976 (UK)),
this common law rule was expressly adopted in section 118(4) of the Crimes
Ordinance, which reads:
It is hereby declared that if at trial for a rape offence 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 believes.
It has been held that voluntary intoxication is not a relevant matter
275
within the meaning of section 118(4), and that a mistaken belief in consent
resulting from Ds voluntary intoxication cannot be relied upon to negate
mens rea (Woods (1982) 74 Crim App R 312, at 314, per Griffiths LJ; see
also Fortheringham (1989) 88 Crim App R 206).
Intoxication and Dutch Courage

If D forms the intention to commit a particular specific intent offence,
such as murdering X, and then makes himself or herself intoxicated to
lessen his or her inhibitions and gain the courage to carry out his or her
intentions, D will not be entitled to rely on his or her intoxication to negate
mens rea in the event that D actually commits the offence. This rule was
adopted in Attorney General for Northern Ireland v Gallagher ([1963] AC
349) in which G was convicted of murdering his wife. The Lords rejected
Gs defence that he was either insane or intoxicated at the time of the
killing, there being evidence that he had formed the necessary intention to
kill his wife and had purchased a knife at an earlier stage. Lord Denning,
differing slightly from the other Lords in his analysis of the case, stated
(at 382):
If a man, whilst sane and sober, forms an intention to kill and makes
preparation for it, knowing that it is a wrong thing to do, and then
gets himself drunk so as to give himself Dutch Courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on
this self-induced drunkenness as a defence to a charge of murder, nor
even as reducing it to manslaughter. He cannot say that he got himself
into such a stupid state that he was incapable of an intent to kill .
The wickedness of his mind before he got drunk is enough to condemn
him, coupled with the act which he intended to do and did do.
7
Justifications and Excuses
INTRODUCTION
A person charged with an offence will be acquitted if he or she successfully
raises one or more of the following general defences: self-defence, crime
prevention, duress, marital coercion, necessity and perhaps also superior
orders. These defences, several of which (crime prevention and marital
coercion) are statutory in origin, with the others remaining a matter of
common law, are general in the sense that they are available (with some
exceptions) to crimes generally (see D.W. Elliot, Necessity, Duress and
Self-Defence [1989] Crim LR 611).
Not all of these defences operate in the same way. Self-defence, crime
prevention and necessity (where it arises) provide a defendant with a
justification for his or her conduct, e.g. the use of force. The situation is
viewed as one in which it is entirely appropriate and proper for D to act as
he or she did, for example, by using force. D is, so to speak, encouraged to
act in that manner in the circumstances, and is not therefore to be held
criminally liable.1 Duress, marital coercion and superior orders, on the
1
Professor J. C. Smith has pointed out that Ds conduct is justified strictly speaking only
when, for example, D is actually under attack and uses force (reasonable in the
circumstances) to defend himself. If D uses such force in the mistaken belief that he is
under attack, it is more correct, according to Smith, to say that Ds use of force is merely
excused and not criminal for that reason. See J. C. Smith, Using Force in Self-Defence
and the Prevention of Crime (1994) 47 Current Legal Problems 101.
278
DEFENCES
other hand, are generally said to provide D merely with an excuse for
what is prima facie criminal conduct. They reflect the laws recognition
that although D may have prima facie committed an offence, D did so only
because of some compelling external influence, effectively leaving D with
no choice but to act as D did; Ds conduct is understandable and therefore
excused, but not commended.
This distinction between justifications and excuses2 essentially
expresses different moral assessments of Ds conduct: justified action is
morally right whereas an excuse enables an individual to avoid criminal
liability for what is prima facie wrongful conduct. At the level of legal
analysis, a number of distinctions may be identified (although the common
law by no means fully reflects these distinctions). Firstly, excused conduct
prima facie involves social harm, so unlike justified behaviour, parties other
than the excused actor may remain guilty. A person who, for example, by
duress, procures another to commit an offence remains liable, despite the
acquittal of the actual offender. Secondly, justifiable conduct (for example,
the use of reasonable force in effecting a lawful arrest) may not be resisted
by a person threatened by it, whereas excusable conduct (for example, the
infliction of force under duress on another) may be resisted. Thirdly, D
ought to be entitled to rely on facts providing a justification for his or her
conduct, even though D may be unaware of those facts at the time of acting;
excusatory facts must be known.
Marital coercion aside (section 100 of the Criminal Procedure Ordinance
stipulates that marital coercion must be proved on the balance of
probabilities), D does not have to prove any of these defences. D is, however,
under an evidential burden and therefore must ensure that sufficient
evidence is presented at trial, either in the prosecution case or by D or by
witnesses called by D, to raise the particular defence. Once there is evidence
making a particular defence a credible issue, the prosecutions overriding
legal burden of proof will require the prosecution to disprove or negate the
defence beyond reasonable doubt.
This distinction is well developed in American literature: see, for example, G. P. Fletcher,
Rethinking Criminal Law (1978); Robinson, Criminal Law Defences (1984); less so in English
writing: but see J. C. Smith, Justification and Excuse in the Criminal Law (1989); A. Ashworth,
Principles of Criminal Law (third edition, 1999), pp. 13751, 25062.
JUSTIFICATIONS AND EXCUSES
279
SELF-DEFENCE AND CRIME PREVENTION

Introduction
A person may lawfully use reasonable force against another person, up to
and including, in some circumstances, deadly force, for the purpose of
defending himself or herself, his or her property and, in some circumstances,
other people3 (self-defence or private defence), or for the purpose of
preventing crime or effecting or assisting in the lawful apprehension of
offenders or suspected offenders (crime prevention or public defence).
Thus, when D strikes P across his head with her umbrella to repel P who
has grabbed hold of Ds arm and tried to drag her into a darkened alleyway,
D prima facie commits no offence, provided her response was reasonable,
because she has used force both, it might be said, to defend herself and
also to prevent Ps continued battery on her. Her use of force is thus lawful.
Similarly, if D grabs hold of P when P snatches Ds bag, and puts P in an
arm lock to subdue P until the police arrive, D is prima facie using force to
arrest P. Assuming that the arrest is lawful, and only reasonable force is
used, Ds conduct is lawful indeed it is said to be justified in the eyes
of the law. In either case, D will not be criminally liable for any offence
requiring proof that D used unlawful force.4 Lord Griffiths, delivering the
judgment of the Privy Council in Beckford v R ([1988] AC 130) concerning
self-defence, explained the rationale for this (at 144):
The common law recognises that there are many circumstances in
which one person may inflict violence upon another without
committing a crime . The common law has always recognised as
one of these circumstances the right of a person to protect himself
from attack and to act in the defence of others and if necessary to
inflict violence on another in doing so. If no more force is used than
is reasonable to repel the attack such force is not unlawful and no
crime is committed. It is because it is an essential element of all
crimes of violence that the violence or the threat of violence should be
A persons entitlement to damage or destroy property belonging to others in defence of

Ds own property or property belonging to a third party is now largely regulated by the
Crimes Ordinance, dealing with criminal damage; see sections 60 to 64 of the Crimes
For unlawfulness and homicide offences, see Chapter 10, p. 497; in relation to non-fatal
offences against the person, see Chapter 11, p. 564.
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DEFENCES
unlawful that self-defence, if raised as an issue in a criminal trial, must

be disproved by the prosecution. If the prosecution fail to do so the
accused is entitled to be acquitted because the prosecution will have
failed to prove an essential element of the crime namely that the violence
used by the accused was unlawful [emphasis added].
The entitlement to use reasonable force in self-defence and crime

prevention was originally a matter of common law (see Duffy [1967] 1 QB
63), but crime prevention is now dealt with in section 101A of the Criminal
Procedure Ordinance.5
Crime Prevention: Section 101A of the Criminal Procedure

Ordinance
Section 101A of the Criminal Procedure Ordinance (cap. 221), enacted in
1971 (in virtually the same terms as section 3 of the Criminal Law Act
1967), reads:
(1) A person may use such force as is reasonable in the circumstances
in the prevention of crime or in effecting or assisting in the lawful
arrest of offenders or suspected offenders or of persons unlawfully
at large.
(2) Sub-section (1) shall replace the rules of the common law on the
question when force used for a purpose mentioned in the subsection is justified by that purpose [emphasis added].
Section 101A(1) renders a persons use of force lawful provided that

it is only such force as is reasonable in the circumstances in the prevention
of crime or in effecting or assisting in lawful arrest. If D falls within section
101A(1), then Ds conduct will be lawful under both the civil and criminal
law. If D uses force when none is reasonably necessary in the actual
circumstances, or uses more force than is reasonable in the actual
circumstances, Ds conduct will not be lawful according to section 101A(1).
However, D may still avoid criminal liability if the use of force was at least
reasonable in the circumstances as D mistakenly believed them to be, as
discussed further below (p. 283, 287).
See, further, C. Harlow, Self-defence: Public Right or Private Privilege [1974] Crim
LR 528.
281
Prevention of crime
This limb of section 101A concerns the use of force to stop criminal activity
or offending while it is happening. For example, D uses force to prevent
someone attempting to commit rape, or someone in the act of murdering
another. As these examples illustrate, the crime does not need to be
committed against D.
In some circumstances, section 101A(1) may also be relied on to justify
the use of force, or at least the threatened use of force, to prevent anticipated
criminal activity. In Cousins ([1982] QB 526), for example, D was charged
with threatening to kill P (contrary to section 16 of the Offences Against
the Person Act, 1861 which makes it an offence for a person without lawful
excuse [to make] to another a threat, intending that the other would fear it
would be carried out, to kill that other or a third person ; liable to ten
years imprisonment). D alleged that he had threatened P only to forestall
an attack he understood P was planning against him. The English Court of
Appeal held that D could rely on the English equivalent of section 101A(1)
(or alternatively or concurrently, self-defence) to establish a lawful excuse
for making the threat, provided that Ds threat was reasonable in the
circumstances as a means of preventing Ps anticipated crime against D
(this being a question of fact for the jury; Cousins).
Lawful arrest
Under section 101A(1) of the Criminal Procedure Ordinance, reasonable
force may also be used in effecting or assisting in the lawful arrest of
offenders, or suspected offenders, or persons unlawfully at large. Any person
ordinary citizen, police officer or other law enforcement officer alike
making or assisting in a lawful arrest may rely on section 101A(1).
The arrest must be lawful. The arresting person, D, must therefore
point to some power of arrest arising in the particular case which he or she
(or the person whom D is assisting) was lawfully exercising. The power of
arrest may be common law or statutory in origin, and may arise with or
without warrant. Hong Kongs criminal law contains many powers of arrest.6
Most of them are statutory in origin and are conferred specifically on the
police or other law enforcement officers. Two such powers which are general
in nature and exercisable by anyone, including ordinary citizens, are: (1)
the statutory power of arrest without warrant under section 101(2) of the
6
See, for example, J. Rear, The Power of Arrest in Hong Kong (1971) 1 HKLJ 142.
282
DEFENCES
Criminal Procedure Ordinance, and (2) the common law power of arrest
as a means of preventing a breach of peace, discussed below.
Section 101(2) of the Criminal Procedure Ordinance
Section 101(2) reads:
Any person may arrest without warrant any person whom he may
reasonably suspect of being guilty of an arrestable offence.
This statutory power of arrest, replacing the former common law power to
arrest felons,7 arises in relation only to arrestable offences. This term is
defined in the Interpretation and General Clauses Ordinance (cap. 1) as
meaning offences with a penalty fixed by law (such as murder) or carrying
a sentence of imprisonment exceeding 12 months (cf. UK: five years
imprisonment; section 24 of the Police and Criminal Evidence Act 1984).
Thus common assault, which, by section 40 of the Offences Against the
Person Ordinance, carries a maximum penalty of one years imprisonment,
is not an arrestable offence, whereas the following are: assault occasioning
actual bodily harm (three years; section 39 of the Offences Against the
Person Ordinance), theft (ten years; section 9 of the Theft Ordinance (cap.
210)) and criminal damage (ten years; section 63(2) of the Crimes
The power of arrest in section 101(2) may be exercised by D on
reasonable suspicion that another person, P, has committed an arrestable
offence. It is not necessary for P actually to be an offender, nor even that
the suspected offence has been committed by someone,8 only that Ds
suspicions in this regard are reasonable in the circumstances of the case.9
Even if Ds suspicions are based on a mistaken view of the facts, D may
still lawfully arrest P, so long as Ds suspicions are reasonable. If, however,
8
9
J. Rear, The Power of Arrest in Hong Kong (1971) 1 HKLJ 142, note 7, at 148. Although
section 101(2) was enacted in its present terms in 1967, the common law power to arrest
felons was not finally abolished until the distinction between felony and misdemeanour
was abolished in Hong Kong in 1991; see the Administration of Justice (Felonies and
Misdemeanours) Ordinance, cap. 328 (originally No. 50 of 1991).
At common law, this was necessary; see J. Rear, The Power of Arrest in Hong Kong (1971)
1 HKLJ 142, note 7.
The legal position is not clear where P has in fact committed an arrestable offence, perhaps
a different arrestable offence to that suspected by D, and D has no reasonable grounds for
what he does suspect at the time he purports to arrest P.
283
D makes a mistake as to the law, believing, for example, that common

assault is an arrestable offence when it is not, this could not be relied on,
and Ds purported exercise of power under section 101(2) would then be
unlawful.
Mistaken belief in crime or arrest
If no crime is in fact being committed (or threatened) when D uses force,
then at first sight, it would appear that D cannot rely on crime prevention
in section 101A(1), even though Ds use of force to prevent its continuation
or commission would be reasonable if the circumstances were as D
mistakenly believed them to be. Similarly, if D uses force to effect or assist
an arrest that is in fact unlawful, then again, it would seem that D cannot
rely on the lawful arrest limb of section 101A(1), despite the fact that Ds
use of force would be reasonable if Ds mistaken belief that there are
facts making the arrest lawful were true. In each case, Ds conduct is
prima facie unlawful and may consequently attract civil liability. However,
since Ds use of force in each case is reasonable in the circumstances as D
mistakenly believes them to be, D may still generally avoid criminal liability,
so long as the offence allegedly involving the use of force requires proof
that D intended to use lawful force (as is invariably required for offences
involving the use of force against the person). This follows from the fact
that D, in each case, because of his or her mistaken belief, intends to use
only lawful force, i.e. force that would be lawful if the circumstances were
as D mistakenly believes them to be. Consequently, the prosecution cannot
prove, as it must, following Williams (Gladstone) ([1987] 3 All ER 411)
and Beckford ([1988] AC 130) in respect of assault-based offences against
the person, that D either intended to use unlawful force or at least was
reckless as to using unlawful force (discussed more fully below, p. 287).
Self-defence
At common law, a person may use force against another, including, if
necessary, deadly force, to defend his or her own person or property. In
some circumstances, D may also be entitled to defend others. In each case,
however, the use of force must be reasonable in the circumstances.
When section 101A of the Criminal Procedure Ordinance was enacted
in 1971, there were initially suggestions that section 101A(2), above, may
have impliedly abolished a persons common law entitlement to use
284
DEFENCES
reasonable force in self-defence, since most cases of self-defence can also

be characterized in terms of crime prevention. However, this suggestion
has since been rejected and the common law rules regarding self-defence
affirmed, with one qualification. Since self-defence operates concurrently
in most cases with section 101A(1), both self-defence and crime prevention
are treated as subject to the same general test provided for in section
101A(1): whether Ds use of force is or was reasonable in the circumstances
(Cousins, above).
It is unclear how far a person is entitled to use reasonable force to
defend others. This right may be limited to persons in a special relationship
with D, such as parent/child, master/servant and husband/wife. In Duffy
([1967] 1 QB 63), D argued that the law should permit her to defend her
sister because of their relationship, on the basis that the strong should
always be entitled to defend the weak. At trial, the prosecutions submission
that self-defence did not apply as between siblings was accepted, and Duffy
was convicted of unlawful wounding. On appeal, the Court of Criminal
Appeal quashed her conviction, but left open the question of whether a
special relationship is necessary for self-defence, deciding instead (at 284)
that Duffy could justify her use of force on the basis (since overtaken by
section 101A) that [q]uite apart from any special relations between the
person attacked and his rescuer, there is a general liberty even as between
strangers to prevent a felony.
Not all cases of self-defence can be concurrently treated as falling under
section 101A(1). Suppose, for example, D uses force to repel an infant, or
someone suffering from mental abnormality or in a state of automatism. In
each instance, the attacker commits no offence; there is, properly speaking,
no crime to be prevented. Accordingly, D cannot fit within section 101A(1),
but D may still rely on self-defence to justify his or her use of force and
avoid criminal liability. The reverse is also possible. Suppose, for example,
a police officer, P, is pursuing an offender in circumstances in which P is
in no actual or imminent personal danger; self-defence cannot therefore
supply the grounds for using force. Nonetheless, Ps use of force to stop
and subdue the offender may still be made to fit within section 101A(1).
If D mistakenly believes that it is necessary to defend himself or herself
or another when there is no actual threat, or that the threat is greater than
it actually is, D may still be entitled to rely on his or her mistaken belief to
avoid criminal liability arising from Ds use of force against another (or
against the property of another) (Williams (Gladstone) [1987] 3 All ER
411). This is discussed further below.
285
Use of Force to Prevent a Breach of Peace

In addition to permitting the use of reasonable force in self-defence and to
prevent a felony, common law recognized a right to use reasonable force to
prevent or arrest a person committing a breach of peace (see G. Williams,
Arrest for Breach of the Peace [1954] Crim LR 578). A breach of the
peace is an act done or threatened to be done which either actually harms
a person, or in his presence his property, or is likely to cause such harm,
or which puts someone in fear of such harm being done (Howell [1982]
QB 416, at 426, per Watkins LJ; applied in Hong Kong: HKSAR v Wong
Ying Yu [1997] 3 HKC 452, at 457, per Pang J; HKSAR v Yang Yon Ching
[1997] 3 HKC 744). A breach of peace may take place in a private as well
as a public place (McConnell v Chief Constable of the Greater Manchester
Police [1990] 1 WLR 364; applied in HKSAR v Yeung Kin Ping [1997] 3
HKC 478, at 488, per Stock J). The act (or threatened act) usually involves
the commission of an offence of violence, such as an assault, an affray, a
riot or other disturbance, but this is not always so, and a breach of peace
in itself does not amount to an offence or crime for the purposes of section
101A(1). Lawful conduct (e.g. a march or demonstration) may in some
circumstances amount to a breach of peace if it threatens to provoke violent
conduct by others (see Beatty v Gillbanks [1882] 9 QBD 308; Duncan v
Jones [1936] 1 KB 218; Nicol v DPP [1996] Crim LR 318; HKSAR v Yeung
Kin Ping [1997] 3 HKC 478).
This right to use reasonable force to prevent a breach of peace was not
abolished by section 101A(2) of the Criminal Procedure Ordinance,
although, as with self-defence, there is an overlap with section 101A(1)
when the act amounting to a breach of peace actually involves the
commission of an offence or crime. The continued existence of this
common law power to arrest and use reasonable force to prevent a breach
of the peace was considered by the House of Lords in Lavin v Albert ([1982]
AC 546). In this case, A was convicted of assaulting L (a police constable)
in the execution of duty (contrary to section 51 of the Police Act 1964). A
attempted to jump a bus queue, disrupting others in the queue. L, a plainclothes police officer, who happened to be in the queue, fearing a breach of
the peace, tried to stop A from boarding the bus. When A struggled, L told
A that he was a police officer and would arrest A if A did not stop struggling.
A allegedly did not believe this and hit five or six times purportedly in
self-defence. At trial, the justices found that even if A may have genuinely
believed that L was not a police officer, he had no reasonable grounds for
this belief and as a result could not rely on self-defence. As conviction was
286
DEFENCES
affirmed by both the Divisional Court (the requirement of reasonable belief

has since been overturned; see p. 288) and the House of Lords. The Lords
held that even if L had been an ordinary citizen, as A alleged he had
mistakenly believed, L was still entitled at common law to take reasonable
steps to prevent a breach of peace, and his arrest and detention of A were
therefore lawful. Lord Diplock stated (at 565):
Every citizen in whose presence a breach of the peace is being, or
reasonably appears to be about to be, committed has the right to take
reasonable steps to make the person who is breaking or threatening
to break the peace refrain from doing so; and those reasonable steps
in appropriate cases will include detaining him against his will. At
common law, this is not only the right of every citizen, it is also his
duty, although except in the case of a citizen who is a constable, it is
a duty of imperfect obligation.
Consequently, as Lord Diplock added (at 565):

Even if Alberts belief that Lavin was a private citizen and not a
constable had been correct, it would not have made his resistance to
Lavins restraint of him lawful.
Like self-defence and crime prevention, the use of force in preventing

a breach of peace must be reasonable in the circumstances.
Unknown Circumstances of Justification

On occasion, D may use force without being aware of circumstances
justifying Ds use of force. It appears that D is not entitled to rely on such
circumstances to avoid liability if D subsequently becomes aware of them.
This principle was laid down in Dadson ((1850) 4 Cox CC 358), in which
D, a constable, shot at and wounded P who was stealing wood. Such force
was permissible only if it was for the purpose of preventing a felon from
escaping; stealing wood was not a felony unless the thief had two or more
prior convictions for the same offence. Prima facie, Ds use of force was
therefore unlawful and led to his liability for shooting at the victim with
intent to cause grievous bodily harm. Unknown to D, P had several
convictions for stealing wood, making him a felon, but it was held that D
was not entitled to rely on this unknown circumstance of justification.
Dadson has been criticized, but its correctness has been affirmed by a
287
number of commentators, including Smith and Hogan (Criminal Law, ninth

edition, 1999, pp. 334), and it has been neither expressly overruled nor
reversed by statute, in either Hong Kong or England.
Reasonable in the Circumstances

The question of whether the force used by D is reasonable in the
circumstances ostensibly involves an objective assessment. It is commonly
said to involve two general inquiries. Firstly, was it reasonable for D to use
force at all in the circumstances, i.e. was it necessary in the circumstances?
Secondly, did D use a reasonable degree of force in the circumstances, i.e.
was the force used proportionate in the circumstances? If, objectively
speaking, it was not necessary to use force or if the force used was objectively
disproportionate or excessive, then Ds use of force is prima facie unlawful
and may amount to an offence.
However, in assessing reasonableness necessity and proportionality
regard must be had to Ds state of mind in two respects. Firstly, Ds
mistaken beliefs may in some circumstances be taken into account. Secondly,
Ds instinctive response to the circumstances is treated as strong evidence
of what was reasonable in the circumstances.
Mistaken beliefs
If D makes a mistake as to the factual circumstances in which D finds
himself or herself, this may be taken into account if it relates to and affects
Ds belief as to either the necessity of using force or the degree of force that
is required. For example, D mistakenly believes that P is attacking D, or
mistakenly believes that there is no means of escaping or avoiding Ps attack.
Such facts, if true, would be relevant in assessing the necessity, and thus
the reasonableness, of Ds use of force. In the same way, if D mistakenly
believes that P has a weapon or is acting with lethal intention, this is relevant
to the proportionality, and thus reasonableness, of Ds response. Assuming
in each case that Ds use of force would be reasonable necessary and
proportionate according to the facts as D mistakenly believes them to
be, then Ds intention is only to use reasonable force, i.e. lawful force.
Since the mens rea of offences against the person generally includes intention
to use unlawful force or, in some instances, recklessness as to the use of
unlawful force, according to Williams (Gladstone), discussed below, Ds
mistaken beliefs directly affect the mens rea which must be proved by the
288
DEFENCES
prosecution. This means that D will be able to avoid criminal liability if Ds

use of force is reasonable in the circumstances as D mistakenly believes
them to be, for the prosecution will not be able in such a case to prove
mens rea against D.
Ds mistaken beliefs are to be taken into account in this manner even
though they may have been unreasonable, although regard may be had to
the fact that a reasonable person would not have made such a mistake in
deciding whether it is possible that D actually held the belief in question.
These principles were laid down by the English Court of Appeal in
Williams (Gladstone) ([1987] 3 All ER 411; cf. Chisam (1963) 47 Cr App R
130; Fennell (1970) 54 Cr App R 451; Lavin v Albert [1982] AC 546).
Williams was charged with assaulting M occasioning him actual bodily
harm (contrary to section 47 of the Offences Against the Person Act 1861;
Hong Kong: section 39 of the Offences Against the Person Ordinance (cap.
212)). W alleged that he used force on M in the mistaken belief that M was
unlawfully beating up R, whereas M, who had seen R rob a woman, was in
fact lawfully using force on R to effect a citizens arrest. If Ws mistaken
belief M is beating up R (i.e. committing a battery) had been true,
then W would have been entitled to use reasonable force on M, on the
grounds of crime prevention (or possibly self-defence if self-defence extends
to the defence of strangers). The Court held that Ws mistaken belief was
to be taken into account, even though it may have been unreasonable.
Lord Lane CJ concluded (at 415):
In a case of self-defence, where self-defence or the prevention of crime
is concerned, if the jury came to the conclusion that the defendant
believed, or may have believed, that he was being attacked or that a
crime was being committed, and that force was necessary to protect
himself or to prevent the crime, then the prosecution have not proved
their case. If however, the defendants alleged belief was mistaken and
if the mistake was an unreasonable one, that may be a powerful reason
for coming to the conclusion that the belief was not honestly held
and should be rejected. Even if the jury come to the conclusion that the
mistake was an unreasonable one, if the defendant may genuinely have
been labouring under it, he is entitled to rely upon it [emphasis added].
Accordingly, W was entitled to be acquitted since, in the circumstances as

he believed them to be, his intention was only to use lawful force. This
meant that the prosecution could not prove the necessary mens rea required
under section 47 of the Offences Against the Person Act 1861, i.e. intention
to use unlawful force or recklessness as to the use of unlawful force (see
Chapter 11, p. 561).
289
This view of the law was subsequently approved by the Privy Council
on appeal from Jamaica in Solomon Beckford ([1988] AC 130). In this case,
a policeman, charged with murder, alleged he had shot at the victim, killing
him, in the mistaken belief the victim was armed and attempting to shoot
D; in fact, the victim was unarmed. At trial, the judge directed the jury that
D could rely on a mistaken belief only if it was reasonable. Lord Griffiths,
delivering the judgment of the Privy Council, concluded that there was no
difference between the law of self-defence in Jamaica and English common
law, which was correctly stated in Williams (Gladstone). The test to be
applied for self-defence, he concluded (at 145), is that:
a person may use such force as is reasonable in the circumstances as
he honestly believes them to be in the defence of himself or another.
Williams (Gladstone) was primarily concerned with mistakes regarding

the necessity of using force, but in Oatridge ((1992) 94 Cr App R 367) and
Scarlett ([1993] 4 All ER 629), the English Court of Appeal confirmed that
this view of the law applies equally to mistakes affecting the assessment of
proportionality. In Oatridge, the defendant was charged with fatally stabbing
her co-habitee. Inter alia, she alleged he had attacked her and she had
mistakenly believed he was trying to kill her. O was convicted of
manslaughter, but successfully appealed on the ground that the trial judge
had not directed the jury to assess self-defence in the light of her mistaken
belief. Mustill LJ observed (at 370) that the question for the jury when D
alleges he or she made a mistake as to the nature of the threatened danger,
is whether Ds response was commensurate with the degree of risk which
[D] believed to be created by the attack under which [D] believed himself
to be. In Scarlett, S was charged with manslaughter, arising out of the
death of a drunk, P, expelled by S from Ss bar. P apparently fell down the
stairs outside the bar, suffering fatal head injuries. The prosecution alleged
that S had effectively thrown P down the stairs, amounting to the use of
disproportionate or excessive force. It was alleged that S thereby committed
a battery, leading to liability for manslaughter by an unlawful and dangerous
act (see Chapter 10, p. 527). S maintained he believed P was about to
strike him and only used what he believed to be reasonable force in the
circumstances. The trial judge directed the jury that Ss act would amount
to an assault if excessive force had been used, without making any reference
to Ss mistaken beliefs. On appeal, this was held to be an inadequate
direction, and Ss conviction was quashed. Beldam LJ referred to Williams
(Gladstone) and Beckford, and continued (at 636):
290
DEFENCES
If the mental element necessary to prove an assault is an intention to

apply unlawful force to the victim, and the accused is to be judged
according to his mistaken view of the facts whether that mistake was on
an objective view reasonable or not, we can see no logical basis for
distinguishing between a person who objectively is not justified in
using force at all but mistakenly believes he is and another who is in
fact justified in using force but mistakenly believes that the circumstances
call for a degree of force objectively regarded as unnecessary.
Where, as in the present case, an accused is justified in using
some force and can only be guilty of an assault if the force used is
excessive, the jury ought to be directed that he cannot be guilty of an
assault unless the prosecution prove that he acted with the mental
element necessary to constitute his action an assault, that is that the
defendant intentionally or recklessly applied force to the person of
another .
Further, [the jury] should be directed that the accused is not to
be found guilty merely because he intentionally or recklessly used
force which [the jury] consider to have been excessive. They ought
not to convict him unless they are satisfied that the degree of force used
was plainly more than was called for by the circumstances as he believed
them to be and, provided he believed the circumstances called for the
degree of force used, he is not to be convicted even if his belief was
unreasonable [emphasis added].
At first sight, the last sentence of this passage might be interpreted as

saying that D is entitled to be acquitted provided that he or she honestly
believes that his or her use of force is reasonable, even if he or she is
mistaken and unreasonable in so believing; in effect, making the test entirely
subjective in nature. This interpretation was subsequently rejected by the
English Court of Appeal in Owino ([1996] 2 Cr App R 128). Affirming
Williams (Gladstone) and ruling that the question of whether Ds use of
force was excessive is to be assessed taking account of the circumstances as
D believed them to be, even if his or her belief may have been unreasonable,
Collins J added (at 134):
What [Beldam LJ in Scarlett] was not saying, in our view (and indeed
if he had said it, it would be contrary to authority) was that the belief,
however ill-founded, of the defendant that the degree of force he was
using was reasonable, will enable [D] to do what [D] did.
if that argument was correct, then it would justify, for example,
the shooting of someone who was merely threatening to throw a punch,
on the basis that [D] honestly believed, although unreasonably and
mistakenly, that it was justifiable for him to use that degree of force.
That clearly is not, and cannot be, the law.
291
This means, for example, that Ds mistaken belief that V had a gun should
be taken into account in assessing whether Ds response shooting V
was excessive; the question is whether Ds response was reasonable in the
circumstances as D believed them to be. However, if D mistakenly believed
that it is reasonable to shoot an unarmed attacker, this mistake in itself
cannot be relied on by D; the question of what was reasonable in the
circumstances is to be assessed by the jury, not by D himself or herself
(see also DPP v Armstrong-Braun [1999] Crim LR 416).
This approach has been followed in Hong Kong. In Man Wai Keung
([1992] 1 HKCLR 89; see also Leung Yuet-man [1991] 1 HKLR 300 and
Leung Ka-fai [1992] 1 HKCLR 255), Power JA, in the Court of Appeal,
considering self-defence, referred to the passage above from Williams
(Gladstone) and continued (at 956):
The test of the reasonableness of the response remains objective but
the objective assessment must be made in the light of the seriousness
of the attack as the defendant honestly believes it to be. It is not
material that his belief was a mistaken one, as long as it was honestly
held. The focus is now upon the honesty of the belief of the defendant
as to the seriousness of the attack and, in the light of that belief, the
reasonableness of the response must be judged. The critical factor is
whether the person being attacked honestly, perhaps genuinely is a
better word, believed the attack to be a serious one against which he
had to defend himself. If he did, then the reasonableness of his response
must be judged in accordance with that belief. If the jury were satisfied
that he did not honestly believe the attack to be one requiring selfdefence then a plea of self-defence would fail. If they were satisfied
that he honestly believed the attack to be one requiring self-defence
or if they considered that he might honestly have had that belief, then
self-defence will avail him if the force he uses is reasonable given that
belief. The position is succinctly put by Lord Griffiths in Beckford
where he states:
the test to be applied for self-defence is that a person
may use such force as is reasonable in the circumstances as
he honestly believes them to be in the defence of himself or
another.
While such a test can be simply formulated, situations in real life are,
not infrequently, so complex and confused that application of the test
is fraught with difficulty. It is common sense that in practice the belief
as to the seriousness of the situation and the response thereto are
often so interlinked that the latter may well be a factor of real weight
in the ascertainment of the former .
292
DEFENCES
There are three exceptions or qualifications on the principle that

mistaken beliefs are to be taken into account even though they may be
unreasonable. Firstly, statutory provisions may expressly or impliedly
stipulate that a mistaken belief must be reasonable before it can be relied
on to negate mens rea. An example of this is section 101(2) of the Criminal
Procedure Ordinance, which stipulates that if D wishes to rely on section
101(2) to establish that his or her actions and use of force on P were by
way of unlawful arrest, then D must reasonably suspect P of committing
an arrestable offence. D may be mistaken D need only suspect but
Ds suspicion must be reasonable. If it is unreasonable, then Ds arrest
will not be lawful, and Ds use of force cannot subsequently be justified
on that basis under section 101A(1).10
Secondly, if D is charged with an offence of violence which may be
proved by recklessness or gross negligence such as manslaughter
then D may still be liable if the prosecution proves that D was (subjectively)
reckless or grossly negligent (and not merely negligent or unreasonable) in
formulating and acting on the basis of a particular mistaken belief.
Thirdly, for the purposes of self-defence, if Ds mistake arises from Ds
voluntary state of intoxication, then the mistaken belief cannot be relied
on (OGrady [1987] 3 WLR 321; OConnor [1991] Crim LR 135; see
Chapter 6, p. 272).
Ds instinctive response
The second way in which Ds actual state of mind is to be taken into account
in assessing whether Ds use of force is reasonable in the circumstances
arises from the fact that a person confronted with personal danger may
have to respond immediately with little opportunity for reflection. The courts
have recognized that regard should be given to a persons instinctive
response to danger as an indicator of reasonable force. This was explained
in Palmer v R ([1971] AC 814) where Lord Morris stated (at 832) that:
10
It is unclear whether D can nonetheless assert that in the circumstances as D honestly but
mistakenly believed them to be, Ds use of force would have been reasonable, and D thus
intended only to use lawful force. The difficulty is that if one asks on what basis D would
be entitled to use force if the facts were as D mistakenly believed them to be, i.e. if P had
committed an arrestable offence, the answer would be for the purpose of lawful arrest.
However, section 101(2) requires Ds suspicion to be reasonable. Does this impliedly
require Ds mistaken belief to be reasonable before it can be relied on in the way suggested
above? This point does not appear to have been tested in Hong Kong.
293
If there has been an attack so that defence is reasonably necessary it

will be recognized that a person defending himself cannot weigh to a
nicety the exact measure of his necessary defensive action. If a jury
thought that in a moment of unexpected anguish a person attacked
had only done what he honestly and instinctively thought was necessary
that would be most potent evidence that only reasonable defensive action
had been taken. A jury will be told that the defence of self-defence,
where the evidence makes its raising possible, will only fail if the
prosecution show beyond doubt that what the accused did was not by
way of self-defence [emphasis added].
This view has been affirmed in England (see, for example, Shannon (1980)
71 Cr App R 192 and Whyte [1987] 3 All ER 416) and in Hong Kong. In
Man Wai Keung, above, for example, Power JA emphasized (at 94) that
[t]he focus is upon the response of the person defending himself. Palmers
honest and instinctive test was further approved by the Court of Appeal
in Cheung Kwok Wai ((1997) Crim App No. 271 of 1996).
In A-Gs Reference for Northern Ireland (No. 1 of 1975) ([1977] AC 105),
the House of Lords emphasized that reasonableness effectively involves a
balancing or weighing exercise: the harm potentially done in using force must
be balanced against the harm that may be done if force is not used. In some
circumstances, D may be left with little choice: either do nothing or use lethal
force. In that case, a British soldier on patrol in Northern Ireland was held to
have few options when a youth whom he believed was associated with the IRA
(a nationalist para-military organization) began running away. The soldier
believed that the youth was running to alert local IRA members who could then
ambush the soldier and other members of his troop. Heavily laden down with
military equipment, the soldier could not simply run after the youth. His
choices were to do nothing or fire his gun at the fleeing youth. The soldier
chose the latter option, causing the youths death. He was acquitted of murder,
not on the grounds of self-defence, since the evidence established that the
deceased was unarmed and posed no imminent danger to the soldier, but on
the grounds of reasonable force for the purpose of crime prevention.
Circumstances has been said to mean only the immediate
circumstances in which force is used, and not, for example, the general
background in which the use of force occurs (Farrell v Secretary of State
for Defence [1980] 1 All ER 166).
Where the issue is properly raised, the reasonableness of Ds use of
force is a question for the jury. In A-Gs Reference for Northern Ireland
(No. 1 of 1975), it was suggested (at 137) that a jury should be directed to
consider the following questions:
294
DEFENCES
Are we satisfied that no reasonable man (a) with knowledge of such

facts as were known to the accused or [reasonably]11 believed by him
to exist (b) in the circumstances and time available to him for reflection
(c) could be of opinion that the prevention of the risk of harm to
others [or to D or to property] which might otherwise be committed
justified exposing [the victim] to the risk of harm that might result
from the kind of force that the accused contemplated using?
To answer this the jury would have first to decide what were the
facts that did exist and were known to the accused to do so and what
were mistakenly believed by the accused to be facts.
Necessity of using force

For Ds use of force to be reasonable, it must have been necessary for D to
use force in the circumstances, or at least in the circumstances as D honestly
believed them to be. Thus, section 101A(1) will apply only if there is a
crime to prevent, or a lawful arrest to effect or assist, or D must at least
believe so (in some cases, reasonably believe, e.g. under section 101(2) of
the Criminal Procedure Ordinance). Similarly, using force in self-defence
will be necessary only if there is an actual or imminent attack against D or
others, while the use of force to repel or to prevent a breach of peace
requires the occurrence of a breach of peace, or D must at least believe
such an attack or breach of peace exists.
For the purposes of self-defence, it is not enough if there is merely a
threat of violence to D or others at some uncertain future time (Devlin v
Armstrong [1971] NI 13), although this may suffice where Ds response is
merely to threaten, rather than use, force to forestall such an anticipated
attack (Cousins, above).
At one time, the common law imposed a duty on a person who found
himself or herself facing an attack to retreat from the attack, failing which
self-defence could not be successfully pleaded, but this duty was moderated
in Julien ([1969] 2 ALL ER 856) so that self-defence would fail only if D
failed to take a reasonable opportunity to escape from the situation of danger.
Then, in Bird (Debbie) ([1985] 1 WLR 816), the English Court of Appeal
denied the existence of any such duty, holding that D was not disentitled
from raising self-defence merely because an opportunity to avoid using
force had not been taken. Instead, Ds failure to retreat is merely a factor to
be taken into account in considering whether D was acting in lawful selfdefence. The Court observed (at 820):
11
Ds belief no longer needs to be reasonable; see above, p. 288.
295
If [D] is proved to have been attacking, retaliating or revenging himself,

then he was not truly acting in self-defence. Evidence that the
defendant tried to retreat or tried to call off the fight may be a castiron method of casting doubt on the suggestion that he was the
attacker, retaliator or the person trying to revenge himself. But it is
not by any means the only method of doing that.
If D is being lawfully arrested or detained, for example, by a police

officer acting on reasonable suspicion, the law takes the view that D is not
prima facie entitled to use force to resist or escape (Kenlin v Gardner [1967]
2 QB 510). Such force, it is said, is not necessary, and therefore cannot be
reasonable in the circumstances given that the arrest or detention is lawful.
This is so even if D mistakenly believes (even reasonably) that his or her
arrest or detention is unlawful (Fennell [1971] 1 QB 428; Albert v Lavin,
above). This is subject to an exception where D uses force because of a
mistake as to the facts, e.g. D believes that P is a thug or robber attacking
him or her; there is authority that in this case D may be entitled to use
force in self-defence (Ansell v Swift [1987] Crim LR 194), or alternatively,
is not criminally liable because his or her mistaken belief negates mens rea,
i.e. intention to use unlawful force or recklessness as to the use of unlawful
force (Blackburn v Bowering [1994] 3 All ER 380; for commentary, see F
Fairweather and S Levy, Assaults on the Police: A Case of Mistaken Identity
[1994] Crim LR 817; see also Burley [2000] Crim LR 843: defendant entitled
to have self-defence considered, even though he knew that the persons on
whom he intended to use force were police officers).
It does not necessarily follow that a blow delivered by a person first
attacked is in self-defence (R v Li Wang (1996) Mag App No. 499/1996).
Proportionality
Ds use of force will also be unreasonable if it was not proportionate in
the circumstances to counter the danger actually confronting D (or believed
to exist), or to prevent the breach of peace or crime being committed (or
believed to be taking place), or to make the lawful arrest that D believes
himself or herself to be effecting or assisting.
If the force used is proportionate and thus reasonable in the
circumstances (or at least in the circumstances as D believed them to be),
then Ds use of force is lawful, and D is entitled to a complete acquittal of
charges based on the use of unlawful force, since the prosecution will have
failed to prove unlawfulness.
296
DEFENCES
Excessive force
If D uses a degree of force which is objectively disproportionate or
excessive in the circumstances, or at least in the circumstances as D
believed them to be, then self-defence, crime prevention and preventing
breach of peace will provide D with no defence for Ds use of force. D will
then be criminally liable to the full extent of the force actually used, up to
and including murder. In this sense, self-defence and crime prevention are
all or nothing defences, i.e. if successfully raised, D is entitled to a complete
acquittal of all charges based on the use of unlawful force, but if the force
used is excessive, then D cannot rely on the defence at all.
There have been suggestions (for example, by Criminal Law Revision
Committee (UK), Fourteenth Report, Cmnd 7844 (1980), para 56) that a
person whose defence of self-defence or crime prevention to murder is
rejected because of excessive force should be acquitted of murder and
convicted instead of manslaughter, and this was thought for a time to
represent the law in several Australian jurisdictions (see McKay [1957] VR
560, Howe (1958) 100 CLR 448; subsequently rejected and reversed by the
HCt of Australia in Zecevic v DPP (Victoria) (1987) 162 CLR 645; see further
S. Yeo, The Demise of Excessive Self-Defence in Australia (1988) 37 ICLQ
348). However, this argument has been rejected by the Privy Council in
Palmer ([1971] AC 814) and more recently by the House of Lords in R v
Clegg ([1995] 1 AC 482). In the latter case, Clegg, a soldier in Northern
Ireland, fired three shots at a car approaching his patrol at speed (in fact,
its occupants were joyriding) and a further shot, which killed a passenger,
after it had passed. It was held that Cs use of force was grossly excessive
and disproportionate. Applying Palmer, the Lords affirmed Cs conviction
of murder, observing that a decision to reduce murder to manslaughter
because of excessive fatal self-defence is for the legislature, not the courts.
This approach has been adopted in Hong Kong (Kwok Chak-ming (No. 2)
[1963] HKLR 349; Yeung Piu Yan (1973) Cr App No. 136 of 1973 (Full
Ct)).
In Kelbie ([1996] Crim LR 802), the English Court of Appeal observed
that although the test for the use of force is the same reasonable in the
circumstances there is almost inevitably a difference in what would be
reasonable according to different purposes for using force; Ds whole
approach is likely to be different, noted the Court. For example, in selfdefence, there may be the possibility of simply walking away, whereas a
person who acts to prevent a crime or breach of peace is by definition
actively intervening in the situation at hand.
297
Self-defence and Crime Prevention as Lawful Excuses

Self-defence and crime prevention may also be relied on to justify or excuse
actions that are preliminary to but do not involve any actual use of force.
In Cousins ([1982] QB 526), for example, self-defence and crime prevention
were relied on as lawful excuses to avoid liability for making a threat to
kill. Self-defence and crime prevention have also been relied on to establish
lawful excuses for making explosive substances (A-Gs Reference (No. 2 of
1983) [1984] 1 QB 456; although Ashworth has described this as an unduly
indulgent approach for the criminal courts (A. Ashworth, Principles of
Criminal Law, third edition, 1999, p. 138)), and for the possession of
offensive weapons (Evans v Hughes [1972] 3 All ER 412), although in
general, a person who anticipates circumstances of danger ought to seek
police assistance. In Yung Yuk ((1985) Mag App No. 662 of 1985), the
court was asked to consider whether a 17-year-old schoolboys assertion
that he had been assaulted six days earlier constituted a satisfactory account
for his possession of a 16-inch knife so as to avoid liability for possession
of an offensive weapon, contrary to section 17 of the Summary Offences
Ordinance (cap. 228). Ys explanation was accepted in the Magistracy and
Y was acquitted, but this was reversed in the High Court and a conviction
entered. Bewley J, noting that satisfactory account is construed less strictly
than reasonable excuse (Sin Kan-chuen [1979] HKLR 460), nonetheless
concluded that although Y may have genuinely believed he was in danger
from an imminent attack, neither this belief nor Ys reaction to it (i.e.
carrying the knife) was reasonable. There were, concluded Bewley J (at 8):
a number of options open to him, including arranging for an escort of
friends or family, reporting to the police, playing truant etc. Even
arming himself with a stout walking stick would have been a more
reasonable reaction than to carry a 16-inch knife to school.
Exceptionally, in Renouf ([1986] 1 WLR 522), self-defence and crime

prevention were also relied on to negate liability for reckless driving. R had
used his vehicle to force another vehicle off the road, allegedly for the
purpose of effecting the lawful arrest of persons in the other vehicle who
had earlier committed arrestable offences. The English Court of Appeal
held that R would not be liable for reckless driving if his use of his vehicle
in that manner was reasonable in the circumstances in carrying out his
declared purpose of effecting a lawful arrest.
298
DEFENCES
Self-induced Circumstances Necessitating Use of Force

On occasion, D may induce another person to attack D. If D then uses
force to respond to the danger thereby created or induced, D may be
disentitled from relying on self-defence or crime prevention. In Siu Kinhim ([1980] HKLR 126), for example, S and two others attempted to rob
an illegal gambling stall. A police officer who happened to be on the premises
fired his service revolver at them, striking one of the defendants. That
defendant then fired two shots in response, one of which killed the police
officer. The defendants were charged with murder. On appeal, they argued
that the defendant who fired the shots killing the police officer had used
reasonable force in self-defence. Roberts CJ, delivering the judgment of the
Court of Appeal, accepted that self-defence might be arguable in some of
such cases, but rejected its application in this case (at 1389):
In determining what it is permissible for an accused person to do in
self-defence, it is necessary to look at the circumstances in which the
killing occurred and, in particular, at the conduct of the victim.
Common-sense suggests, and the law appears to confirm, that if the
victim reacts in a justifiable manner to an attack by the accused, the
accused cannot be heard to say that he was entitled to retaliate in selfdefence . If the victim acts reasonably, the assailant cannot plead,
if he kills a victim, that he has himself acted in self-defence. This
would be an outrage to good sense and is not the law.
However, in Chan Wing-yin ([1996] Cr App No. 570 of 1995), the

Court of Appeal left open the question of whether Siu Kin-him must now
be reconsidered in the light of the decision of the English Court of Appeal
in Johnson ([1989] 1 WLR 740) to the effect that provocation is not to be
denied merely because the defendant created or induced the provocative
situation. Chan fatally stabbed an intended robbery victim when the latter
allegedly resisted the robbery attempt and grabbed hold of Cs jacket. Power
JP concluded that the evidence before the trial court did not raise any issue
of self-defence; it was therefore unnecessary to resolve the conflict, if, indeed
there be one, between Siu Kin-hims case and Johnsons case.
Burden of Proof
D bears only an evidential burden in relation to self-defence and crime
prevention. D must ensure that the issue is raised, either by prosecution
299
witnesses, or by D himself or herself, or by other witnesses called on behalf

of D. However, once the issue has been properly raised, D will be entitled
to be acquitted unless the prosecution disproves self-defence or crime
prevention, i.e. proves beyond reasonable doubt that Ds conduct was not
justified on the grounds of self-defence or crime prevention (Abraham [1973]
1 WLR 1270).
Where there is evidence raising self-defence, crime prevention or
prevention of breach of peace, the trial judge should consider whether to
leave these defences to the jury, even though D may not have raised the
issue (Leung Ka-fai [1992] 1 HKCLR 255; Chan Wing-yin (1996) Cr App
No. 570 of 1995). It may be a misdirection to refer to the defence of selfdefence if the trial judge does not make it clear to the jury that no onus of
proof rests on D (Wheeler (1968) 52 Cr App R 28; Ho Wing-sum [1987]
HKLR 952).
Defence of Property12
Where a person intentionally or recklessly damages or destroys property
belonging to another, prima facie amounting to an offence contrary to
section 60 of the Crimes Ordinance, D may nonetheless have a lawful
excuse for such conduct if D was protecting Ds own property or that of
others. This is expressly provided for in section 64 of the Crimes Ordinance.
Where D, in defending property, uses force against a person, this may
be justified either on the grounds of crime prevention or under the heading
of self-defence (Hussey (1924) 18 Cr App R 160). However, Ds entitlement
to use force will be more circumscribed if D is defending property rather
than his or her person. It is thought to be unlikely, for example, that
nowadays a person would be entitled to use deadly force merely to protect
his or her property, contrary to suggestions in Hussey, above, that a home
owner would be entitled to use deadly force, if necessary, against someone
seeking to dispossess the home owner of his or her home.
12
See D. J. Lanham, Defence of Property in the Criminal Law [1966] Crim LR 368, 426.
300
DEFENCES
DURESS AND NECESSITY

Introduction
The defences of duress and necessity arise where a person has prima facie
committed an offence, i.e. has performed the actus reus of an offence with
the necessary mens rea, but asserts that he or she was compelled or forced
to do so to avoid a serious threat of harm to himself or herself or others
created by external forces.
Duress, as traditionally understood, arises where D asserts that he or
she was threatened by another person to commit an offence, or else. A
plea of duress (or duress by threats as it has come to be known in recent
years) has long been recognized as a general defence under English common
law, and likewise incorporated into the common law of Hong Kong. It
operates as an excuse, rather than by negating the actus reus or mens rea
elements of the offence, as was explained by Lord Wilberforce in DPP for
Northern Ireland v Lynch ([1975] AC 653) (at 67980):
At the present time, whatever the ultimate analysis in jurisprudence
may be, the best opinion seems to be that duress is something
which is superimposed on the other ingredients which by themselves
would make up an offence, i.e. on the act and intention ; the addition
of the element of duress prevents the law from treating what [D] has
done as a crime.13
Necessity, on the other hand, arises where D asserts that the situation
or circumstances in which D found himself or herself created such an
overpowering threat of harm to D or others that D had little or no choice
but to act as he or she did. In other words, it was necessary for D to act as
he or she did, thereby prima facie committing an offence, in order to avoid
the threatened harm. Unlike duress (by threats), the scope of necessity as
a general defence has remained in doubt under the common law as it has
been applied in Hong Kong, as in England. It is usually said that there is
no general defence of necessity based on a ruling to that effect in Dudley
and Stephens ([188185] All ER 61). In this case, discussed below, the
English courts rejected an argument that desperate circumstances
13
Cf. Bourne (1952) 36 Cr App R 125, in which duress was treated as negating mens rea.
301
shipwrecked sailors adrift without food or water might be relied on as a

defence to the deliberate killing, i.e. murder, by two of them of a third for
the purpose of providing the survivors with sustenance. In recent years,
however, the courts in a number of common law jurisdictions, including
England, Canada and Hong Kong, have taken a different stance towards
necessity, developing by analogy to duress (by threats) a defence of
threatening circumstances known as duress of circumstances. Necessity
and duress of circumstances are discussed below (p. 313 et seq).
Duress by Threats
Duress by threats (hereafter, simply duress) arises where D asserts that he
or she was compelled or forced by another person to commit an offence or
else.
Nature of the threat
Duress requires a threat of death or serious physical harm (Graham [1982]
1 WLR 294). Threats to property are not sufficient, nor are threats to expose
a persons immorality (Valderama-Vega [1985] Crim LR 220), nor are threats
merely to act in a manner likely to cause serious psychological injury (Baker
and Wilkins [1997] Crim LR 497: this concerned duress of circumstances
but the English Court of Appeal rejected an invitation to extend the defence
beyond threats of death or serious harm). The threat may be express, as
where D is told, commit this theft or you will be seriously injured, or
implied, as where D is ordered to commit an offence by a person wielding
a large stick in a menacing manner. In this latter case, the threat of harm is
implied both from words and from conduct.
Traditionally, the threat must be directed at D or at Ds immediate
family (Ortiz (1986) 83 Cr App R 173; see also Hurley [1967] VR 526
where the Supreme Court of Victoria held that threats to Ds common law
wife would also suffice), although several of the recent English cases
concerning duress by circumstances indicate a willingness to recognize
threats to other persons, perhaps even to strangers, for this purpose.
However, there must be a nexus (or connection) between the threat and
Ds decision to act in the manner amounting to an offence (Cole [1994]
Crim LR 582; see also Rodger and Rose [1998] 1 Cr App R 143: D alleged
that he had become suicidal in prison this was insufficient to found a
defence of duress of circumstances as a defence to breaking out of prison,
302
DEFENCES
since it was not extraneous to offender himself). In respect of duress by

threats, this nexus is generally self-evident: do X (amounting to an offence)
or else you will die clearly establishes the requisite connection. However,
this nexus may be more difficult to establish in relation to duress by
circumstances; this is discussed below (p. 322). The threat must involve an
element of immediacy; that is, it must be a threat of imminent harm if D
does not commit the relevant offence, though the execution of the threat
need not always be immediately in prospect (Abdul-Hussain [1999] Crim
LR 570).
The effect of the threats
Duress is available only if the threat(s) of death or serious physical harm
actually operates on Ds mind; D must feel that he or she has no choice
except to commit the offence demanded by the other. On the other hand,
the threat of death or serious physical harm does not have to be the only
factor operating on Ds mind, compelling D to commit the offence in
question; it is sufficient if D would not have acted as he or she did but for
the threat of death or serious physical harm, even though other compelling
reasons for committing the offence may also have existed. In ValderamaVega, above, for example, V acted partly in response to a threat of physical
harm, and also partly because of threats to set fire to his house and expose
his immorality; V was still entitled to raise duress as a defence (compare
Ortiz (1986) 83 Cr App R 173: reference to solely not a misdirection on
facts). Similarly, in DPP v Bell ([1992] RTR 335), Bell was permitted to
raise, in that case, duress by circumstances as a defence to a charge of
driving with excess alcohol in his breath, even though B, who allegedly
drove in terror to escape threatening circumstances, may have intended to
drive home in that state in any event.
However, it is important for D not to succumb too readily to the threat
duress is not a licence to disregard the criminal law. Accordingly, D
must display a reasonable degree of steadfastness in the face of the threat,
and this has resulted in a two-limb test for duress, set out in Graham ([1982]
1 WLR 294 at 300, per Lord Lane CJ):
(1) Was [D], or may he have been, impelled to act as [D] did because,
as a result of what [D] [reasonably] believed [the person making
the threat] had said or done, [D] had good cause to fear that if
[D] did not so act [that person] would kill [D] or cause [D]
serious personal injury?
(2) If so, have the prosecution made the jury sure that a sober person
303
of reasonable firmness, sharing [Ds] characteristics would not

have responded to whatever [D] reasonably believed [the person
making the threat] said or did by taking part in the [offence]?
This test was endorsed by the House of Lords in Howe ([1987] AC 471, at
459, per Lord MacKay), and has been applied in Hong Kong (see Pang
Shun-yee [1988] 2 HKLR 146, discussed below, p. 311).
The first of these two questions is broadly subjective in nature, being
focused on Ds state of mind. This is emphasized by the fact that duress
may be raised not only where there is an actual threat of death or serious
physical harm, but also where D reasonably believes this to be so, even if
D may be mistaken (see Martin (1989) 88 Cr App R 345; affirmed re duress
of circumstances in Abdul-Hussain [1999] Crim LR 570 and Cairns [1999]
Crim LR 826). However, there are two restrictions of an objective nature
affecting this first limb. Firstly, D may rely on a mistaken belief for the
purposes of duress only if the mistake was a reasonable one for D to
make. This is arguably inconsistent with the law relating to self-defence
and crime prevention, as set out in Williams (Gladstone), where it was
accepted that a mistaken belief may be relied on even if it is unreasonable.
However, in 1987, the Law Lords in R v Howe ([1987] AC 417) approved
Grahams formulation of the test for duress without alteration or criticism
(several months later, the Law Lords in Beckford, above, affirmed Williams
(Gladstone) without referring to Howe; the (UK) Law Commission has
proposed the abolition of this reasonableness requirement, but would also
place the burden of proving duress on D (Law Com No. 218)).
Secondly, D must have good cause to fear that the threat would be
carried out if D did not commit the offence. This suggests not only that D
must actually believe the threat will be carried out, but also that this is
objectively likely having regard to all the circumstances.
In Graham itself, this test was not satisfied. G, a practising homosexual
living in a threesome with his wife (V) and another homosexual (K), was
convicted as a secondary party to the murder of V after he was allegedly
induced by his fear of K to hold on to the plug at one end of an electrical
cord wrapped around Vs neck while K pulled on the other end (the plug
actually came off the cord, raising doubts as to whether Gs act actually
contributed to Vs death). Dismissing Gs appeal against conviction, the
English Court of Appeal doubted whether the words and deeds directed at
G by K were sufficient to give G good cause to fear death or serious physical
harm (subsequently, the House of Lords in Howe ruled that duress may
never be raised on a charge of murder; below, p. 308).
304
DEFENCES
The second question in Grahams two-limb test is primarily objective:

Might a reasonable person have similarly responded to the threats (or
perceived threats) by committing the offence in question? This is to be
assessed in relation to a sober person; and a jury should therefore be
directed to disregard any evidence that D was intoxicated at the time when
D committed the offence (Graham). However, the test is not purely objective
for regard may be had to Ds personal characteristics. As with provocation
(see Chapter 10, p. 515), not all of a persons characteristics may be taken
into account for this purpose; taking all characteristics into account would
undermine the need for a minimum objective standard of steadfastness or
resistance in the face of threatened harm. In Horne ([1994] Crim LR 584),
the English Court of Appeal held that age, sex (i.e. gender) and physical
health may generally be taken into account, but that mental and
psychological traits merely going to show that D is especially vulnerable
or compliant and less able to resist threats are generally not relevant. In
Flatt ([1996] Crim LR 576), the same court held that Fs drug addiction
was not a characteristic for the purposes of duress, both because it was
self-induced and also because there was no evidence that the particular
addiction had or would have any effect on the ability of either F or anyone
else to withstand a threat, in that case from a drug dealer. In the courts
fullest consideration to date of characteristics and duress, Stuart-Smith LJ
in Bowen ([1996] 2 Cr App R 157) summarized (at 1667) what he
considered to be the guiding principles:
(1) The mere fact that [D] is more pliable, vulnerable, timid or
susceptible to threats than a normal person are not characteristics
with which it is legitimate to invest the reasonable /ordinary person
for the purpose of considering the objective test.
(2) [D] may be in a category of persons who the jury may think less
able to resist pressure. examples are age ; possibly sex [i.e.
gender] ; pregnancy, where there is added fear for the unborn
child; serious physical disability, which may inhibit self-protection;
recognised mental illness or psychiatric condition, such as post
traumatic stress disorder leading to learned helplessness.
(4) Characteristics due to self-induced abuse, such as alcohol, drugs
or glue-sniffing, cannot be relevant.
Noting the parallels with provocation, Stuart-Smith LJ emphasized that not

all characteristics which may be relevant in considering provocation will
necessarily be relevant in cases of duress. Using homosexuality as an
example, he observed (at 167) that there is no reason to think that
305
homosexuals are less robust in resisting threats of the kind that are relevant
in duress cases. Thus, a persons homosexuality generally will not be
relevant to duress for the purposes of establishing the standard of
steadfastness expected of the defendant, i.e. reasonable steadfastness.
In relation to mental illness, mental impairment and psychiatric
conditions, Stuart-Smith LJ considered that these would be relevant only if
the particular condition is such that persons generally suffering from it are
rendered more susceptible to pressure and threats. Consequently, psychiatric
evidence should be admissible only where D contends that he or she was
suffering from a category of mental illness, mental impairment or recognized
psychiatric condition generally making sufferers (of that condition)
susceptible to pressure and threats, and the evidence will assist a jury in
deciding whether a reasonable person suffering from such a condition might
have been impelled to act as D did. However, psychiatric evidence is not
admissible simply to show, as in Bowen, that D is especially timid, suggestible
or vulnerable to pressure and threats. Accordingly, Bs appeal against his
conviction of obtaining services by deception was dismissed. The question
of whether any particular characteristic is relevant, and whether medical or
psychiatric evidence is admissible, should be raised before the trial judge
who, in directing on or applying the objective limb of Grahams test, in the
absence of any other relevant characteristics, may confine characteristics to
Ds age and gender (Bowen, above, at 167).
It may be permissible, however, as with provocation, to take account
of Ds personal history of violence and abuse insofar as it goes to show why
a particular threat, on first sight of only a relatively minor nature, may
have had such a profound effect on a particular defendant, overbearing his
or her will and compelling him or her into committing the offence alleged
(Emery (1993) 14 Cr App R(S) 394; Hegarty [1994] Crim LR 353).
Imminence of threat and opportunity to avoid commission of the
offence
If a person has an opportunity of taking reasonable steps to prevent the
threat from being carried out or to remove the threat such as an
opportunity to escape from the person making the threats or to seek police
protection then duress may fail.
However, this requirement has on occasion been interpreted somewhat
liberally in favour of the defendant. In particular, in Hudson and Taylor
([1971] 2 QB 202), the English Court of Appeal allowed duress to be raised
as a defence, even though the threat could not be carried out immediately,
306
DEFENCES
and the defendants had an opportunity to seek police protection. The

defendants, two teenage girls, gave false evidence during the criminal trial
of X and were subsequently charged with perjury.14 They said that X had
threatened them during the trial (of X) to make them give such false
evidence. Their trial judge concluded that they could not rely on duress
since any threat by X could not have been put immediately into effect in
the courtroom at the time when they were testifying, and police protection
was available. Holding that duress should have been left to the jury, Lord
Widgery CJ in the Court of Appeal observed (at 207):
When there is no opportunity for delaying tactics, and the person
threatened must make up his mind whether he is to commit the
criminal act or not, the existence at that moment of threats sufficient
to destroy his will ought to provide him with a defence even though
the threatened injury may not follow instantly, but after an interval
. [The] threats were likely to be no less compelling, because
their execution could not be effected in the courtroom, if they could
be carried out in the streets the same night.
On police protection, he added:

The [prosecutors argument that the appellants should have taken steps
to neutralize the threats by seeking police protection either when they
came to court to give evidence or beforehand] does not distinguish
cases in which the police would be able to provide effective protection,
from those when they would not, and it would, in effect, restrict the
defence of duress to cases where the person threatened had been kept
in custody by the maker of the threats, or where the time interval
between the making of the threats and the commission of the offence
had made recourse to the police impossible. We recognize the need to
keep the defence of duress within reasonable bounds but cannot accept
so severe a restriction on it.
This was applied in Lewis ((1993) 96 Cr App R 412). In this case,

Lewis, who was serving time for armed robbery and had been severely
beaten up while in prison by one of his accomplices, subsequently refused
14
See section 31 of the Crimes Ordinance: If any person lawfully sworn as a witness or as
an interpreter, either generally or in a particular judicial proceeding, wilfully makes a
statement in any judicial proceeding which is material in that proceeding and which he
knows to be false or does not believe to be true, he shall be guilty of perjury and shall be
liable on conviction upon indictment to imprisonment for seven years and to a fine.
307
to give evidence against his attacker, potentially in contempt of court.

Beldam LJ in the English Court of Appeal concluded that L ought to have
been permitted to raise duress as a defence to the charge of contempt. The
question, he observed (at 4156), was whether Ls refusal was voluntary or
was the result of a well-founded fear of serious injury from which he
believed he could not be effectively protected, which was so real and
compelling that [L] could not reasonably be expected to act otherwise.
In assessing whether a defendant failed to avail himself or herself of a
reasonable opportunity to render the threat ineffective, regard ought to be
given to the defendants age and circumstances and to any risks involved
in the course of action that the prosecution contends the defendant ought
to have taken (see further, A Buchanan and G Virgo, Duress and Mental
Abnormality [1999] Crim LR 517).
Voluntary association with criminal or terrorist organization
Duress will fail if the threats on which it is based are made by persons with
whom the defendant has voluntarily associated, knowing or realizing that
they belong to criminal or terrorist organizations likely to use violence and
threats of violence to achieve their objectives (Fitzpatrick [1977] NI 20;
Shepard (1987) 86 Cr App R 47; Sharp [1987] 3 WLR 1). This applies
particularly to what were described in Lewis, above, as para-military or
gangster-tyrant style(s) of organization and would include triad societies
in Hong Kong, but duress has also been denied to defendants who
voluntarily associated themselves with a gang of armed robbers (Sharp),
burglars (Shepherd) or drug dealers (Heath [2000] Crim LR 109). In Lewis,
above, on the other hand, the English Court of Appeal held that a person
is not to be deprived of the defence of duress merely because he or she has
previously participated in criminal activities with the party making the
threats, unless, in the words of Beldam LJ (at 417):
the coercion [is] closely and not remotely connected with the
offence of violence in which he has joined. Lord LJ [in Sharp] expressed
this connection by the qualification and was an active member when
he was put under such pressure.
Excluded offences
Although duress is a general defence, it has been held that it is not available
as a defence to the following offences:
308
DEFENCES
Murder
Duress cannot be relied on as a defence to murder, whether D is charged
as a principal or a secondary party. In DPP for Northern Ireland v Lynch
([1975] AC 653), a majority of the House of Lords initially took a contrary
position, holding that secondary parties to murder could raise duress as a
defence. In Abbott v R ([1977] AC 755), not long after, the Privy Council
on appeal from the Court of Appeal of Trinidad and Tobago, by a 32
majority, affirmed the traditional view that duress was not available to a
person charged with murder as a principal, and also expressed doubts about
the correctness of the ruling in Lynch permitting secondary parties to murder
to rely on duress. The position was eventually reconsidered by the House
of Lords in Howe in 1987.
R v Howe, Bannister, Burke and Clarkson [1987] AC 417
Facts
Howe (H) and Bannister (B) were tried together with two other persons
on two counts of murder (counts 1 and 2) and one count of conspiracy
to murder (count 3). On count 1, H and B were charged as secondary
parties. On count 2, H and B were charged as joint principals, i.e. as
the actual killers. At trial, H and B, respectively aged 19 and 20, raised
duress, alleging that they had been induced to act by their fear of M,
aged 35. The trial judge ruled that duress could be raised on counts 1
and 3, but refused to leave the defence to the jury on count 2. H and
B were convicted on all three counts.
In the second case consolidated on appeal, Burke and Clarkson
(C) were tried on a single count of murder. It was alleged that Burke
killed the victim with a sawn-off shotgun at the request of C, who
wished to prevent the victim from giving evidence against C at trial.
Burke alleged that he had acted out of fear of C. The trial judge directed
the jury that duress was not available as a defence to Burke, since he
was the actual killer, but that his allegation of duress was relevant in
assessing an additional line of defence, to the effect that Burke fired the
gun accidentally and not intentionally. Following Richards ([1974] QB
776), the trial judge ruled that if Burke was liable only for manslaughter,
then C could be liable only for manslaughter, even though C may have
intended Burke to kill or cause grievous bodily harm to the victim.
Both Burke and C were convicted of murder.
All four defendants appealed against their convictions. H and B,
and Burke appealed in part on grounds relating to their entitlement to
rely on duress. The appeals were dismissed by the Court of Appeal,
309
which certified three questions of law for consideration by the House

of Lords:
(1)
(2)
(3)
Is duress available as a defence to a person charged with

murder as a principal in the first degree (the actual killer)?
Can one who incites or procures by duress another to kill or
to be a party to a killing be convicted of murder if that other
is acquitted by reason of duress?
Does the defence of duress fail if the prosecution prove that
a person of reasonable firmness sharing the characteristics of
the defendant would not have given way to the threats as
the defendant did?
Decision
Appeals dismissed. The convictions of all appellants were affirmed. On
the first question, the Law Lords reaffirmed the traditional view that
duress cannot be pleaded as a defence to a charge of murder, regardless
of whether D is charged as a principal (i.e. the actual killer) or as a
secondary party. In this respect, DPP for Northern Ireland v Lynch was,
therefore, overruled.
Lord Mackay, with the approval of several other Law Lords,
explained the reasoning of the Lords (at 456):
The argument for the appellants essentially is that Lynch having
been decided as it was and there being no practical distinction
available between Lynch and the present case this case should be
decided in the same way. The opposite point of view is that since
Lynch was concerned not with the actual killer but with a person
who was made guilty of his act by the doctrine of accession the
correct starting point for this matter is the case of the actual killer.
In my opinion, this latter is the correct approach. The law has
extended the liability to trial and punishment faced by the actual
killer to those who are participants with him in the crime and it
seems to me, therefore, that where a question as important as this
is in issue the correct starting point is the case of the actual killer.
It seems to me plain that the reason that it was for so long stated
by writers of authority that the defence of duress was not available
in a charge of murder was because of the supreme importance
that the law afforded to the protection of human life and that it
seemed repugnant that the law should recognise in any individual
in any circumstances, however extreme, the right to choose that
one innocent person should be killed rather than another. In my
opinion, that is the question which we still must face. Is it right
that the law should confer this right in any circumstances, however
extreme? While I recognise fully the force of the reasoning which
persuaded the majority of this House in Lynch to reach the decision
310
DEFENCES
to which they came in relation to a person not the actual killer, it

does not address directly this question in relation to the actual
killer. I am not persuaded that there is good reason to alter the
answer which Hale gave to this question. No development of the
law or progress in legal thinking which have taken place since
his day have, to my mind, demonstrated a reason to change this
fundamental answer. In the circumstances it would seem
particularly inappropriate to make such a change now. For these
reasons, in my opinion, the first certified question should be
answered in the negative.
On the second question, the Lords, overruling Richards, above,

concluded that a person, D, who procures or incites another to commit
murder (i.e. incites another to commit acts causing death with intent to
kill or cause grievous bodily harm to the victim), may be convicted of
murder even though the party procured or incited by D is convicted
only of manslaughter. Accordingly, the trial judge fell into error in ruling
that C could not be convicted of murder if the jury convicted Burke of
manslaughter only (see also Luk Siu-keung (1984) Cr App No. 1441 of
1983).
On the third question, the Lords affirmed the two-step test for duress
laid down in Graham.
In concluding that duress is not available as a defence to murder, the Law

Lords acknowledged several potential criticisms of their position. One is
that it creates an unjustifiable distinction between a defendant who attacks
a victim with intention to cause grievous bodily harm, causing death, who
may not raise duress, and one who only causes grievous bodily harm, who
may rely on duress. However, in the eyes of the Law Lords, the answer to
this lay in what they described as the criminal laws obligation to ensure
and protect the sanctity of life above all else. Lord Hailsham, for example,
stated (at 430):
I begin by affirming that, while there can never be a direct
correspondence between law and morality, an attempt to divorce the
two entirely is and has always proved to be, doomed to failure, and,
in the present case, the overriding objects of the criminal law must be
to protect innocent lives and to set a standard of conduct which
ordinary men and women are expected to observe if they are to avoid
criminal responsibility.
Similarly, Lord Griffiths asserted (at 4434):
311
We face a riding tide of violence and terrorism against which the law
must stand firm recognising that its highest duty is to protect the
freedom and lives of those that live under it. The sanctity of human
life lies at the root of this ideal and I would do nothing to undermine
it, be it ever so slight.
A second criticism points to what might be described as the realities of

being human; it is too much, it is said, to expect ordinary citizens to act in
a heroic manner, choosing to lay down their own lives when confronted
with a demand that they kill or assist in a killing or else. In the eyes of the
Lords, this also was not a valid criticism. Lord Hailsham, for example,
responded (at 432):
In general, I must say I do not at all accept in relation to the defence
[sic] of murder, it is either good morals, good policy or good law to
suggest, as did the majority in Lynch and the minority in Abbott that
the ordinary man of reasonable fortitude is not to be supposed to be
capable of heroism if he is asked to take an innocent life rather than
sacrifice his own. Doubtless in actual practice many will succumb to
temptation but many will not and I do not believe that as a
concession to human frailty the former should be exempt from
liability to criminal sanctions if they do. I have known in my own life
time of too many acts of heroism by ordinary human beings of no
more than ordinary fortitude to regard a law as either just or humane
which withdraws the protection of the criminal law from the innocent
victim and casts the cloak of its protection upon the coward and the
poltroon in the name of a confession to human frailty.
One difficulty with this response is that even though individuals do

sometimes sacrifice their own lives rather than take those of innocents, so
it is perhaps right for the law to expect this, it does not follow that this
same heroism can be or should be expected where the threat (of death) is
directed not against D himself or herself, but rather against others, especially
innocent members of Ds family. Is it realistic to expect, indeed, demand,
that a parent, confronted with death threats against his or her children,
must refuse even to assist another acting with intention to cause grievous
bodily harm, just because this will amount to murder if the others act
happens to cause death?
Howe has been applied in Hong Kong in Pang Shun-yee ([1988] 2 HKLR
146). Silke VP, delivering the judgment of the Court of Appeal, considered
whether Howe ought to be followed, or the earlier decision of the Privy
Councillors in Abbott should continue to be applied in Hong Kong. He
concluded (at 163):
312
DEFENCES
We take the view that Howe is declaratory of the common law in

England. Some of the same, as well as additional, arguments have been
advanced here as were advanced in Howe. We do not think the
circumstances of Hong Kong require modification of the decision in
Howe such as to exclude it as part of the common law to be applied here.
We are fortified in this aspect of the decision to which we have
come by the very obvious reluctance in Abbott to apply Lynch to the
full. It is clear from a reading of Abbott that the majority, if it had
thought that it lay open to them to do so, would not have followed
Lynch. We are therefore of the view, though it is not necessary to take
a decision on these appeals, that Howe should be followed.
Attempted Murder
In Gotts ([1992] 2 AC 412), the House of Lords applied their decision in
Howe to attempted murder. By a 32 majority, they held that duress was
not available as a defence to attempted murder, on the basis that attempted
murder requires proof of intention to kill, and it would be contrary to the
principles relating to the sanctity of human life reaffirmed by the Law Lords
in Howe to allow someone who acted with such an intention to raise duress
as a defence. Lord Jauncey, delivering the principal judgment for the
majority, concluded (at 426):
I can see no justification in logic, morality or law in affording to
an attempted murderer the defence which is withheld from a murderer.
The intent required of an attempted murderer is more evil than that
required of a murderer and the line which divides the two offences is
seldom, if ever, of the deliberate making of the criminal. A man
shooting to kill but missing a vital organ by a hairs breadth can justify
his action no more than can the man who hits that organ. It is pure
chance that the attempted murderer is not a murderer and I entirely
agree with what Lord Lane CJ [in the Court of Appeal in Gotts [1991]
1 QB 660] said: that the fact that the attempt failed to kill should not
make any difference.
In the eyes of Lords Keith and Lowry, in the minority, this was an
unjustified extension of the decision in Howe. In their view, the reason for
denying duress on a charge of murder is the fact of death itself. Furthermore,
they challenged the assertion that the intent of the attempted killer is more
evil than that of a murderer, since the intent of the former is formed only
as a result of duress.
Like Howe, Gotts is declaratory of the common law in England. It must
therefore be taken to represent the law in Hong Kong.
313
Treason
According to English authorities, duress may be a defence to some, but not
all, types of treason (Oldcastle [1419] 1 Hale PC; Lai Kit [194649] HKLR
7; compare Steane [1947] KB 1005, in which it was suggested that duress
was not available at all on a charge of treason). It is thought, for example,
that duress would not be available as a defence to a charge of treason based
on the death of the Sovereign (Axtel (1660) Kel 13, cited by Lord Simon in
Lynch, above, at 697). It would also appear that duress may be raised in
this context only if the threat was one of death, and not merely serious
physical injury (Purdy (1945) 10 JCL 182).
Burden of proof
D is under only an evidential burden in relation to duress (Howe [1987]
AC 417 at 435, per Lord Hailsham). Once there is sufficient evidence to
raise the issue of duress (maybe D was acting under duress), then the
prosecutions overriding legal burden will operate and require it to disprove
beyond reasonable doubt that D acted under duress (see HKSAR v Butrago
[1998] 3 HKC 113, at 1167, per Power ACJHC).
Necessity and Duress of Circumstances

No general defence of necessity
Until recently, an allegation that it was necessary to commit an offence in
order to escape some grave harm threatening D or others did not generally
give rise to any defence under Hong Kong criminal law. Necessity, as this
defence is generally known, was largely thought to have been rejected under
English common law in Dudley and Stephens ([188185] All ER 61) in the
late nineteenth century.
The facts of this case involve cannibalism. Dudley and Stephens, along
with a third man and a young cabin boy, were shipwrecked and cast adrift
in a small lifeboat. After several days, their supplies of food and drinking
water having run out, D and S killed the young cabin boy, who was near
death. The three survivors then fed on the boys flesh and blood, keeping
themselves alive for several more days until they were somewhat
miraculously rescued. D and S were then tried for murder. D and S raised
necessity, arguing that all four of them would have died if they had not
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DEFENCES
sacrificed the victim. The jury concluded that all three survivors would
probably have died before being rescued if they had not fed upon the flesh
of the murdered boy, but that there was no greater necessity to kill the boy
than for D or S to sacrifice himself. These findings were referred to the
Queens Bench Division who rejected the existence of any defence of
necessity on these facts. Setting the tone for subsequent discussions about
necessity, Lord Coleridge CJ, after examining various historical sources,
including the Bible, concluded (at 67) that killing in such circumstances
would be murder unless the killing was justified by what has been called
necessity:
But the temptation to the act which existed here was not what the law
has ever called necessity. Nor is this to be regretted. Though law and
morality are not the same, and though many things may be immoral
which are not necessarily legal, yet the absolute divorce of law from
morality would be of fatal consequence, and such divorce would follow
if the temptation to murder in this case were to he held by law an
absolute defence of it. It is not so.
He acknowledged, however (at 678), that this effectively demanded

heroism:
It must not be supposed that, in refusing to admit temptation to be an
excuse for crime, it is forgotten how terrible the temptation was, how
awful the suffering, how hard in such trials to keep the judgment
straight and the conduct pure. We are often compelled to set up
standards we cannot reach ourselves, and to lay down rules which we
could not ourselves satisfy. But a man has no right to declare
temptation to be an excuse .
The court affirmed Ds and Ss convictions of murder and their

mandatory death sentences, although their sentences were subsequently
commuted to six months imprisonment.
This view of necessity was likewise thought to represent the general
position in Hong Kong.
Common law and statutory exceptions
Dudley and Stephens did not completely reject the possibility of a defence
of necessity, and necessity has occasionally reared its head, sometimes
successfully, in several contexts. In a number of medical cases, necessity
has been relied on to vindicate the conduct of medical staff. In Bourne
315
([1939] 1 KB 61), for example, a doctor charged with performing an

unlawful abortion was permitted to argue before the jury that it had been
necessary for him to perform the abortion to save his female patients life.
Similarly, in Gillick v West Norfolk and Wisbech AHA ([1986] AC 112), the
House of Lords was of the view that a doctor who prescribed contraceptives
for a girl under 16 would not thereby be guilty of aiding, abetting,
counselling or procuring a man to have unlawful sexual intercourse with
her (consent being no defence to sexual intercourse with a female under
16 years; see section 124 of the Crimes Ordinance), if the doctor honestly
believed that his actions were necessary for the physical, mental and
emotional health of the underage girl. (See also In re F (mental patient:
sterilisation) [1990] 2 AC 1, in which Lord Goff stated that acts which
might otherwise amount to a battery might be justified if they were taken
as a matter of necessity to assist another person without his consent.)
In Hong Kong, necessity was raised, unsuccessfully on the facts, in
A-G v Chan Yuen Lung ([1989] 1 HKC 470) in an attempt to justify the
repeated physical restraint of a mentally disturbed patient in an old peoples
home. Bewley J, allowing the (then) Attorney-Generals appeal against Chans
acquittal at trial, ruled that necessity could be relied on only if (1) Ds
conduct was done only to avoid consequences which, if they had followed,
would have inflicted upon D, or upon others whom he or she was bound
to protect, inevitable and irreparable evil, (2) no more was done than was
reasonably necessary for the purposes, and (3) the evil inflicted was not
disproportionate to the evil avoided. These tests were not satisfied in relation
to Chans conduct.
Necessity has also been raised in England in a number of cases involving
statutory provisions relating to traffic. In Johnson v Phillips ([1976] 1 WLR
65; see also Woods v Richards [1977] RTR 201), for example, it was
suggested that a police officer might be entitled to direct motorists to disobey
traffic regulations if this was reasonably necessary for the protection of life
or property. On the other hand, in Buckoke v GLC ([1971] Ch 655), Lord
Denning noted the general acceptance of the contrary view (at 668):
I suggested to both counsel that the driver [of a fire engine driving
down the road towards a blazing house with a man at an upstairs
window in extreme peril] might be excused in crossing the [red lights]
to save the man. He might have the defence of necessity. Both counsel
denied it. They would not allow him any defence in law. The
circumstances went to mitigation, they said, and did not take away his
guilt. If counsel are correct and I accept that they are nevertheless
such a man should not be prosecuted. He should be congratulated.
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DEFENCES
In London Borough of Southwark v Williams ([1971] 2 All ER 175),

Lord Denning went further, remarking on the danger of recognizing a
general defence of necessity (at 179):
Necessity would open a door which no man could shut the plea
would be an excuse for all sorts of wrongdoings. So the courts must,
for the sake of law and order, take a firm stand.
Statutes may expressly provide for a defence of necessity. Section 77 of

the Road Traffic Ordinance (cap. 374), for example, provides that various
emergency vehicles (including fire, ambulance and police vehicles), in
emergencies, may exceed speed limits if compliance with those provisions
would be likely to hinder the use of the vehicles on that occasion for that
purpose.15 Similarly, regulation 60 of the Road Traffic (Traffic Control)
Regulations provides that various traffic signs and road markings shall not
apply in a variety of circumstances, including, for example, the avoidance
or prevention of an accident or obtaining or giving help required as a result
of an accident or emergency (Regulation 60(d) of the Road Traffic (Traffic
Control) Regulations).
Duress of circumstances
The reluctance of the courts to develop a general defence of necessity at
common law lies partly in the perception that whereas duress operates as
an excuse, individual to a particular case, leaving intact the essential
criminality of Ds conduct, necessity operates as a justification for and
thus condones Ds conduct (as with self-defence, a particular instance of
necessity). While it may be acceptable to promote this notion of necessity
in the case of a doctor who operates in an emergency without consent
(which, were it not for necessity, would amount to a criminal battery), the
courts have been understandably reluctant to say that persons such as
Dudley and Stephens were justified in killing an innocent victim, in the
same way that they have been unwilling to say that a starving man is
justified by his circumstances in stealing food.
As already mentioned, in recent years, the courts in a number of
common law jurisdictions have found several methods of overcoming this
justification hurdle.
15
Section 77 does not exempt such vehicles from civil liability; see section 77(3) of the Road
Traffic Ordinance.
317
Necessity and moral involuntariness

In Canada, for example, the Supreme Court in Perka ((1984) 13 DLR (4th)
1) repackaged necessity as an excuse, rather than as a justification, in
order to give recognition to a general defence of necessity. Dickson J, for
example, stated (at 14):
Conceptualised as an excuse, however, the residual defence of
necessity is, in my view, much less open to criticism. It rests on a
realistic assessment of human weakness, recognising that a liberal and
humane criminal law cannot hold people to the strict obedience of
laws in emergency situations when normal human instincts, whether
of self-preservation or of altruism, overwhelmingly impel disobedience.
The objectivity of the criminal law is preserved; such acts are still
wrongful, but in the circumstances they are excusable.
Necessity, according to this approach, makes a defendants act morally

involuntary, but it is subject to a number of restrictions, including (at 22):
(8) The existence of a reasonable legal alternative [disentitles the actor
to the excuse of necessity]; to be involuntary the act must be
inevitable, unavoidable and afford no reasonable opportunity for
an alternative course of action that does not involve a breach of
the law;
(9) The defence only applies in circumstances of imminent risk where
the action was taken to avoid a direct and immediate peril.
The defendants in Perka alleged they had been forced to unload a

cargo of marijuana, destined for Alaska, in Canada, contrary to prohibitions
on the import of dangerous drugs, when their ship ran aground in
deteriorating weather. It was alleged that the captain of the ship ordered
the men to offload the cargo to prevent the ship from capsizing and putting
their lives at risk. At trial, they successfully argued necessity and were
acquitted, but the Supreme Court of Canada on appeal ordered a retrial,
holding that the defence of necessity, while available, had not been correctly
left to the jury, particularly because of the judges failure to refer to
restrictions such as those outlined above.
The English response
The English courts have taken a different approach, avoiding the recognition
of necessity as such and developing instead a defence of threatening
318
DEFENCES
circumstances analogous to duress, called duress of circumstances to

distinguish it from duress (or duress by threats as duress is now commonly
known). It differs from duress by threats in that D is not threatened to
commit offence X or else; rather D acts as he or she did (amounting to an
offence) because there seemed to D to be no other way of avoiding or escaping
from a threat of serious harm created by the situation or circumstances
surrounding D, possibly including the threatening behaviour of others. This
requires the factors causing D to commit an offence to be extraneous to D;
it is insufficient if Ds compulsion to act in a manner involving the
commission of an offence is merely the result of Ds own subjective thought
processes and emotions (Rodger and Rose [1998] 1 Cr App 143).
Duress of circumstances, like duress by threats, is treated as an excuse,
thereby avoiding the justification problems associated with necessity.
This development occurred in England in the 1980s initially in a series
of traffic cases, including Willer, Denton and Conway, concerning reckless
driving (the defence has been applied subsequently to dangerous driving,
which replaced reckless driving: Backshall [1999] Crim LR 662), Martin,
concerning driving while disqualified, and Bell, a case of driving with an
excessive breath alcohol level. In the first three cases, the defendant argued
that he had driven in the manner alleged to be reckless to escape from a
situation of danger to himself or to passengers in his vehicle. From these
beginnings, the defence expanded to the point where it now seems to be
recognized as a general defence, grounded on the same principles as those
previously developed for duress by threats (Pommell [1995] 2 Cr App R
607, discussed below).
In Willer ((1986) 83 Cr App R 225), W drove his vehicle along a
pavement and then through a shopping mall allegedly to escape threats of
violence made to him. The Recorder rejected Ws attempt to raise necessity,
whereupon W pleaded guilty. Ws conviction was quashed by the English
Court of Appeal. Watkins LJ explained (at 227) that even if W could not
raise necessity, which was left undecided, W was nonetheless entitled to
raise a defence of duress:
What we deem to have been appropriate in these circumstances to
raise as a defence by the appellant was duress. The appellant in effect
said: I could do no other in the face of this hostility than to take the
right turn as I did, to mount the pavement and to drive through the
gap out of further harms way, harm to person and harm to my
property. Thus [the defence] of duress, it seems to us, arose but was
not pursued. What ought to have happened therefore was that the
assistant recorder upon those facts should have directed that he would
319
leave to the jury the question as to whether or not upon the outward
or the return journey, or both, the appellant was wholly driven by
force of circumstance into doing what he did and did not drive the car
otherwise than under that form of compulsion, i.e. under duress
[emphasis added].
In Denton ((1987) 85 Cr App R 246), the Court of Appeal declined a

further invitation to recognize a defence of necessity, on the basis that Ds
defence was that he had driven carefully and not recklessly to avoid danger;
this, the Court concluded (at 248), exclude[d] any possible defence of
necessity, even assuming there is such a defence. The necessity, if any, was
to drive, not to drive recklessly.
In Conway ([1988] 3 WLR 1238), C argued that he drove in what was
alleged to be a reckless manner to help his passenger escape from what C
believed to be a situation of danger. In fact, there was no danger, since the
persons supposedly threatening Cs passenger were police officers, but C
said he had not realized this and panicked. On appeal, C argued that a
defence of necessity should have been left to the jury. The Court of Appeal
concluded that C was entitled to raise not necessity but a defence of duress
of circumstances, explained by Woolf LJ (at 1244) as follows:
It appears that it is still not clear whether there is a general defence
of necessity or, if there is, what are the circumstances in which it is
available. We conclude that necessity can only be a defence to a charge
of reckless driving where the facts establish duress of circumstances,
as in Willer, i.e. where the defendant was constrained by circumstances
to drive as he did to avoid death or serious bodily harm to himself or
some other person. As the learned editors point out in Smith & Hogan,
Criminal Law (6th edition 1988, page 225), to admit a defence of
duress of circumstances is a logical consequence of the existence of
the defence of duress as that term is ordinarily understood, i.e. do
this or else. This approach does no more than recognise that duress
is an example of necessity. Whether duress of circumstances is called
duress or necessity does not matter. What is important is that,
whatever it is called, it is subject to the same limitations as the do
this or else species of duress.
Duress of circumstances was then raised, and judicially confirmed, in

Martin ([1989] 1 All ER 652), involving driving while disqualified. M
asserted that he drove his stepson to work despite having been disqualified,
allegedly to prevent his suicidal wife from carrying out a suicide threat.
The Court of Appeal concluded that duress by circumstances, a form of
320
DEFENCES
necessity, ought to have been left to the jury, even though, in the words of
Simon Brown J (at 654), it was difficult to believe that any jury would
have swallowed the improbable story which this appellant desired to
advance. Simon Brown J also attempted to summarize the effect of the
recent case law (at 6534):
First, English law does, in extreme circumstances, recognise the defence
of necessity. Most commonly this defence arises as duress, that is
pressure on the accuseds will from the wrongful threats or violence
of another. Equally however, it can arise from other objective dangers
threatening the accused or others. Arising thus it is conveniently called
duress of circumstances.
Second, the defence is available only if, from the objective
standpoint, the accused can be said to be acting reasonably and
proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his
account of the facts, the issue should be left to the jury, who should
be directed to determine these two questions: First was the accused, or
may he have been, impelled to act as he did because as a result of
what he reasonably believed to be the situation he had good cause to
fear that otherwise death or serious physical injury would result;
second, if so, would a sober person of reasonable firmness sharing the
characteristics of the accused, have responded to that situation by
acting as the accused acted? If the answer to both those questions was
Yes, then the jury would acquit; the defence of necessity would have
been established [emphasis added].
The third proposition is based on Grahams test for duress by threats,

modified by a reference to the situation instead of what was said or done
by the alleged duressor.
In Bell ([1992] RTR 335), where B was charged with driving with an
excessive breath alcohol level, B alleged that he drove in an intoxicated
condition to escape what he believed were threats of serious injury directed
at himself and others in the car-park of a bar as they were leaving. On
appeal, the Divisional Court quashed his conviction, holding that B was
entitled to raise duress of circumstances, even though when he left the bar,
before the alleged threats were made, he may have intended to drive the
vehicle in that same intoxicated condition. Mann LJ concluded that there
was evidence that B drove in his intoxicated state in terror to escape from
what he believed to be threats of serious personal injury; it was for the
prosecution to disprove this by showing that B had driven further than was
necessary to escape the threats, i.e. that B was no longer driving under
321
duress, and this it had failed to do, especially in light of the fact B did not
drive all the way home.
This defence was judicially extended beyond driving cases by the
English Court of Appeal in 1995 in Pommell ([1995] 2 Cr App R 607; see
also Baker and Wilkins [1997] Crim LR 497). In this case, the court agreed
with the view of Professor JC Smith in his commentary on Bell (see [1992]
Crim LR 176) that the defence, like duress by threats, should apply to all
offences except murder, attempted murder and some forms of treason.
Pommell was charged with the illegal possession of a weapon (a submachine
gun) and ammunition after police searched his home one morning and
found him lying in bed with the loaded submachine gun. P gave evidence
that the previous night he had persuaded an acquaintance who was intent
on using the gun in a revenge attack to hand it over to P who intended to
arrange for the gun to be handed in to the police that morning. P said he
had initially unloaded the gun, but then reloaded it and put it in his bed to
hide it from his girlfriend. P pleaded guilty after the trial judge ruled that
even if P was originally driven by necessity to take possession of the gun,
his failure to go immediately to the police deprived him of any defence at
law; applying Martin, he ruled there was no threat of immediate harm as
required by the second of Simon Brown Js proposition. The Court of Appeal
concluded that P was entitled to have his defence considered by a jury
both as regards his initial possession of the gun and ammunition and also
as to whether his failure to report immediately to the police thereby deprived
him of the defence. Kennedy LJ for the court noted the longstanding
reluctance of the courts about recognizing a general defence of necessity,
but observed (at 614) that this aversion to second-guessing the relative
merits of social policies underlying criminal prohibitions:
does not really deal with the situation where someone commendably
infringes a regulation in order to prevent another person from
committing what everyone would accept as being a greater evil with
a gun. In that situation it cannot be satisfactory to leave it to the
prosecuting authority not to prosecute, or to individual courts to grant
an absolute discharge. The authority may prosecute because it is
not satisfied [that D] is telling the truth, and then, even if [D] is
vindicated and given an absolute discharge, [D] is left with a criminal
conviction which, for some purposes, would be recognised as such.
Dealing with the trial judges ruling on delay, Kennedy LJ concluded that the
test laid down in Martin was not necessarily appropriate in a case such as this.
Instead, following Smith and Hogan (Criminal Law, eighth edition, p. 244,
322
DEFENCES
in relation to duress by threats (now ninth edition, p. 242)), he said that it

was appropriate to ask whether P had desist[ed] from committing the crime
as soon as he reasonably [could]. Since the evidence was equivocal on this
point, it was something, he concluded, that ought to have been left to the
jury. Accordingly, the Court quashed Ps convictions and ordered a retrial.
There must be a close nexus, or link, between the threatened harm
and the otherwise criminal course of action (Cole [1994] Crim LR 583).
Unlike duress by threats, where the link is found in the threat itself (commit
offence X or else), there must be a sufficient degree of directness and
immediacy between the harm and the offence before duress of circumstances
may properly arise. In Cole, C alleged that he committed two robberies in
an attempt to repay moneylenders who, he said, had threatened and beaten
him, and also threatened his girlfriend and child, in relation to his debt.
The Court of Appeal affirmed Cs convictions, holding that duress by threats
did not arise (the moneylenders had not ordered C to commit robbery to
repay his debt), and duress of circumstances failed. There was no threat
of imminent peril, and Cs cause of conduct was not as close and immediate
as in Willer, Conway and Martin, where the offence was virtually a
spontaneous reaction to the physical risk arising (compare Ali [1995] Crim
LR 303: A, a drug addict, indebted to a drug supplier, X, was given a gun
by X and told to pay up the following day; As voluntary association with
X negated As entitlement to raise duress by threats) (see also Heath [2000]
Crim LR 109: voluntary association with drug dealers).
Hong Kong
Duress of circumstances has not yet been expressly recognized by the courts
of Hong Kong. However, it is a welcome development of the common law,
and it is to be expected that in due course, it will be adopted as part of the
common law of Hong Kong.
Burden of proof
Like duress (by threats), D bears an evidential burden in relation to
necessity, or duress of circumstances, unless statute dictates otherwise.
Once properly raised, it is for the prosecution to negative or disprove duress
beyond reasonable doubt. However, if there is no evidence to support the
defence, then the judge is entitled to withdraw duress from the jury (Pommell
[1995] 2 Cr App R 607, at 611, per Kennedy LJ; see also Baker and Wilkins
[1999] 2 Cr App R 335 and Heath [2000] Crim LR 109).
323
Reform proposals
At the same time as the English courts have expanded duress in a manner
likely to be followed in Hong Kong, they have been invited to go further
and remove some of the traditional limitations on duress, whether by threats
or circumstances. A number of commentators, including Glanville Williams
(Textbook of Criminal Law, second edition, pp. 6256), have argued that
duress ought to be available even for threats of lesser harms than death or
serious physical injury, provided that the harm threatened exceeds the harm
resulting from commission of the offence, i.e. a balancing of harms. However,
this has generally been resisted, with the courts holding to the view that
the reform of the law of duress is a matter for the legislature, rather than
the courts. Reform, it is said, can be properly considered only along with
the question of shifting the burden of proving duress, presently lying on
the prosecution, to the defendant (see, for example, Cole [1996] Crim LR
576). Several English criminal law reform bodies have in fact proposed
legislation along these lines (see, for example, (UK) Law Commission, Law
Com No. 218, Offences Against the Person), but this has yet to bear fruit.
MARITAL COERCION
Where one spouse (husband or wife) threatens the other or creates
circumstances compelling the other to commit an offence, the latter may
plead duress at common law. In addition, a wife who is threatened or
coerced by her husband may raise the defence of marital coercion. This
defence is similar in nature to duress and was first recognized at common
law. It enabled a wife who committed an offence in her husbands presence
to assert that she did so under his coercion; in the absence of evidence that
she acted on her own initiative, the law presumed the wife to have been
acting under her husbands coercion, leading to an acquittal.16
The common law defence was abolished in 1930 and replaced by a
statutory defence, now found in section 100 of the Criminal Procedure
Ordinance (cf. section 47 of the Criminal Justice Act 1925). This provides:
16
A wife was also immune at common law from liability as an accessory after the fact if she
assisted her husband after his commission of an offence; see Lee Shek-ching [1986] HKLR
304.
324
DEFENCES
Any presumption of law that an offence committed by a wife in the

presence of her husband is committed under the coercion of the
husband is hereby abolished, but on a charge against a wife for any
offence other than treason or murder it shall be a good defence to
prove that the offence was committed in the presence of, and under
the coercion of, the husband.
Importantly, whereas coercion was presumed at common law from the

mere fact of the husbands presence, section 100 requires the wife to prove
(i.e. the legal burden of proof is upon the wife) both the husbands presence,
and also the fact of his coercion, on the balance of probabilities.
Marital coercion overlaps with duress, in that coercion includes such
threats as would constitute duress, but the marital defence appears to extend
beyond threats of death or serious physical injury, to the use of coercive
moral force by the husband. This was the view of the English Crown Court
in Richman ([1982] Crim LR 508), in which it was held that coercion is
not established merely by showing that the wife acted out of (or the husband
persuaded his wife to act out of) love or loyalty, but that there is no need
to prove the husband used physical force or even threatened physical force.
Marital coercion may arise, for example, if a husband merely threatens to
leave his wife.
This view has been adopted in Hong Kong (see Kong Man Heung [2000]
1 HKC 406 (decided in 1986); see also HKSAR v Au Yuen Mei [2000] 1
HKC 411: report of recent directions to jury on marital coercion).
The UK Law Commission has recommended the abolition of this
defence (Law Com No. 83).
SUPERIOR ORDERS
In general, it is not a criminal defence for a person to assert that he or she
was acting on the orders of a superior, whether military or civil. This was
accepted by the Privy Council, on appeal from the Court of Appeal of
Hong Kong, in Yip Chiu-cheung ([1994] 2 HKCLR 35, [1995] 1 AC 111).
Rejecting a suggestion that an undercover law enforcement officer acting
on instructions from his agency was not thereby a party to a conspiracy to
traffic in dangerous drugs, Lord Griffiths observed (at 39):
The High Court of Australia in R. v Hayden (No. 2) (1984) 156 CLR
532 declared emphatically that there was no place for a general defence
325
of superior orders or of Crown or executive fiat in Australian criminal

law. Gibbs, C.J. said at page 540:
It is fundamental to our legal system that the executive has no
power to authorise a breach of the law and that it is no excuse
for an offender to say that he acted under the orders of a superior
officer.
This statement of law applies with the same force in England and
Hong Kong as it does in Australia.
This view of the law was also subsequently affirmed by the House of Lords
in England in R v Clegg ([1995] 1 AC 482).
On the other hand, D may sometimes be able to rely on superior orders
to negate mens rea. If, for example, as a result of an order (which turns out
to be unlawful), a police officer mistakenly believes that it is necessary to
use a degree of force greater than might otherwise be justified in dealing
with a present danger, the officer may argue that he or she intended to use
only lawful force. If accepted, this may entitle D to be acquitted of an
offence against the person based on the use of unlawful force. Similarly,
superior orders may give rise to a defence of claim of right, as where D,
pursuant to orders, mistakenly believes that it is necessary to destroy
property belonging to another person in order to save some other property,
thereby establishing a lawful excuse within section 64(2) of the Crimes
Ordinance.
PART IV
Participation
and Inchoate
Liability
8
Participation
INTRODUCTION
Criminal liability is not limited to the person who physically commits
an offence. A range of other persons may also be criminally liable by
virtue of their participation in the commission of the offence in various
ways.
Firstly, a person who assists, encourages or procures (i.e. causes)
another to commit the offence may be criminally liable as a party to that
offence. In this situation, the person who physically commits the offence
who intentionally does the act that kills another (murder), or recklessly
does the act that destroys property belonging to another (criminal damage),
or intentionally does the act inflicting personal violence on another
(common assault), or has sexual intercourse with a woman recklessly
without her consent (rape) who, in other words, commits the actus
reus together with the necessary mens rea, is known as the principal. The
other parties, those liable by virtue of the fact that they assisted, encouraged
or procured the commission of the offence, are collectively known as
secondary parties or accessories. Together, the principal and secondary
parties constitute the parties to the offence, although the latter are also
known as accomplices for evidential purposes.
Secondly, persons who assist after the commission of an offence may
in some circumstances be criminally liable, though not as parties to the
offence (as was once the case). Instead, they may attract liability under
330
PARTICIPATION AND INCHOATE LIABILITY
section 90 or 91 of the Criminal Procedure Ordinance covering respectively

assisting offenders and concealing offences (below, p. 383).
Thirdly, a person may, exceptionally, be liable for the criminal conduct
of another because of his or her relationship to, or responsibility for, the
conduct of the other. This is known as vicarious liability (below, p. 388).
Lastly, corporations may in certain circumstances be criminally liable
even though they do not as such have a physical body or mind with which
to act or think; instead corporate liability arises by treating the conduct of
company personnel as the conduct of the corporation (below, p. 395).
This chapter considers each of these four forms of participation liability.
PRINCIPALS
Where several persons jointly play a role in committing an offence, each of
them may be criminally liable according to their own conduct and state of
mind. It is necessary to draw a general distinction between the principal
offender and secondary parties.
The Principal
The principal (hereafter P) is the perpetrator, the one whose act is the
most immediate cause of the actus reus of the offence,1 the one who, with
any necessary fault elements, does the acts constituting the external elements
of the offence,2 or the person who personally participates in the physical
transaction of the actus reus of an offence.3 As these expressions illustrate,
determining whether a person is a principal (or principal in the first degree,
as it was known prior to the abolition of the distinction between felonies
and misdemeanours in Hong Kong; see below, p. 334) essentially depends
on whether or not the person physically participated in the performance of
the actus reus of the offence: the principal is the one who performed the
fatal act the one who stabbed and thereby wounded the victim, the one
1
2
3
M. J. Allen, Textbook on Criminal Law (fifth edition), London: Blackstone Press Ltd., 1999,
p. 185.
Law Commission (UK), Working Paper No. 43 (Parties, Complicity and Liability for the
Act of Another 1972), 56.
P. Gillies, The Law of Criminal Complicity, Sydney: Law Book Co. Ltd., 1980, p. 39.
PARTICIPATION
331
who had sexual intercourse with a female without her consent, the one
who took the victims wallet, and so on.4
Joint principals
In some cases, more than one person may qualify as a principal. Suppose,
for example, A and B both stab the victim who subsequently dies from
blood loss. Assuming each stab wound is proved to be a legal cause of the
victims death, both A and B have committed the actus reus of murder or
manslaughter. Each may therefore be charged as a principal offender, with
liability depending on proof of mens rea. If they are acting together, A and
B are known as joint principals.
Joint principals may also exist where two (or more) persons acting
together between them perform the actus reus of an offence, as where P1
threatens the victim, enabling his or her partner, P2, to take the victims
wallet without resistance. Their combined acts P1s threat and P2s act
of theft constitute the actus reus of robbery, contrary to section 10 of
the Theft Ordinance. P1 and P2 may therefore be jointly charged with
robbery as principal offenders or joint principals.
Some offences require joint principals. For example, the offence of
statutory conspiracy, contrary to section 159A of the Crimes Ordinance
(see Chapter 9, p. 416) requires a person (P1) to agree with any other
person or persons (P2, P3, etc.) to commit an offence.
Innocent agent
In some situations, a person may be treated and charged as a principal,
even though he or she was not the person who physically performed the
actus reus. This includes cases where the apparent principal is at law
incapable of committing an offence,5 for example, a child under seven years
of age (dolix incapax; see Chapter 6, p. 213), or is suffering from mental
abnormality amounting to insanity (see Chapter 6, p. 224), but D can be
Where the offence is a state of affairs offence, the principal is the person who falls within
the statutory description; see Smith and Hogan, Criminal Law (ninth edition, Butterworths,
1999), p. 125.
In some circumstances, the principal may be exempt, not from liability as in the case of a
child under seven years, but from prosecution. In such cases, D may still be liable as a
secondary party; see, for example, Austin [1981] 1 All ER 374.
332
proved to have procured that person to commit the acts amounting to the
actus reus. Suppose, for example, that D persuades a child, C, aged six
years, to deliver a package containing dangerous drugs to a purchaser, or
to appropriate (take) property belonging to another. C commits the actus
reus of a dangerous drugs offence or theft, but Cs incapacity means that
he or she thereby commits no offence. Ostensibly, since C, as principal,
commits no offence, D, although perhaps liable for incitement (see Chapter
9, p. 405), cannot be liable as a secondary party. However, by treating C as
Ds innocent agent, D may be said to be the immediate cause of the
commission of the actus reus (by the innocent agent), and may therefore
be treated as the principal offender (see, for example, Stringer [1991] Crim
LR 639).
Related to this are situations in which the alleged principal may be not
guilty because he or she is not proved to have the necessary mens rea for
the offence, or successfully raises a defence, such as self-defence or duress.
In these cases, it may also be possible to use the innocent agent doctrine
to attribute liability as a principal to another.
There are limits on the use of this innocent agent doctrine. In
particular, it is thought that it cannot be used to treat D as the principal
where the conduct constituting the actus reus cannot as a matter of
construction be ascribed to D. Thus, a female ought not to be held to have
committed rape as a principal, for example, by procuring a boy aged under
14 years to have non-consensual sexual intercourse with the victim. Since
the boy, aged under 14 years, is still presumed under Hong Kong law to be
physically incapable of sexual intercourse,6 he cannot be convicted as a
principal of rape (although he may in some circumstances be convicted as
a secondary party). However, to treat him as the females innocent agent
would be to say that rape may be committed by a female as a principal,
contrary to the clear wording and intent of section 118 of the Crimes
Ordinance (a female may however commit rape as a secondary party; see
Ram and Ram (1893) 17 Cox CC 609). Similarly, prior to 1991 in England
(i.e. before a husband lost his common law immunity from liability for
raping his wife; see R v R [1992] 1 AC 599, Chapter 12, pp. 6025), a
husband who deceived another male (P) into having non-consensual sexual
intercourse with his wife, P mistakenly believing the wife to be consenting
Above p. 215. This rule has now been statutorily abolished in England and Wales; see
section 1 of the Sexual Offences Act 1993. In addition, in Hong Kong, a child between 7
and 14 years is rebuttably presumed to lack criminal capacity; above, p. 213.
PARTICIPATION
333
(P thus lacking the mens rea for rape), ought not to have been liable for
rape, there being no principal offender, and it being inappropriate to treat
P as the husbands innocent agent. However, in Cogan and Leak ([1976]
QB 217), the English Court of Appeal took a contrary view. L induced C to
have sexual intercourse with Ls terrorized wife against her wishes. C alleged
that he mistakenly believed Ls wife was consenting. On the facts, this
belief was unreasonable, and C was convicted of rape at trial. On appeal,
his conviction was quashed in the light of the decision of the House of
Lords in DPP v Morgan ([1976] AC 182) (delivered between trial and appeal)
that a man could rely on his genuine mistaken belief that there was consent
to negate the mens rea of rape, even if it was an unreasonable mistake to
make in the circumstances. However, Ls conviction of rape was affirmed;
the Court took the view that C was merely Ls innocent agent, enabling L
to be convicted as the principal offender.
As suggested above, this explanation of Leaks conviction is difficult to
justify. It may also have been unnecessary, particularly since the Court of
Appeal offered an alternative basis for liability, expressed on the basis that
Leak intentionally procured Cogan to commit the actus reus of rape
non-consensual sexual intercourse with the intention or desire that the
offence take place. According to this, D may be held criminally liable, even
though the apparent principal is immune or exempt from criminal liability
or lacks mens rea or has a defence, not on the basis of innocent agency,
but on the basis of Ds secondary party liability as a procurer. This is
discussed further below (p. 356).
SECONDARY PARTIES
Secondary parties are persons who assist, encourage or procure the
principal(s), before or at the time, to commit the offence.
The Basis of Secondary Party Liability

Section 89 of the Criminal Procedure Ordinance
The general foundation of secondary party liability in Hong Kong is section
89 of the Criminal Procedure Ordinance (cap. 221), which reads:
334
Any person who aids, abets, counsels or procures the commission by

another person of any offence shall be guilty of the like offence.7
In England, the courts have held that the English provision from which
section 89 is derived (section 8 of the Accessories and Abettors Act 1861
(UK)) recognizes four separate modes or forms of secondary party liability8
aiding, abetting, counselling and procuring, although it is traditional
to combine aiding and abetting on the one hand, and counselling and
procuring on the other.9
Prior to the abolition of the distinction between felonies and
misdemeanours in Hong Kong in 1991 (see section 2 of the Administration
of Justice (Felonies and Misdemeanour) Ordinance (cap. 328)),10 a
secondary party who was present (aiding and abetting) at the scene of a
felony was known as a principal in the second degree, whereas one who
was absent (but had earlier counselled or procured) was known as an
accessory before the fact. No similar distinction applied to misdemeanours:
all secondary parties to a misdemeanour aiders, abettors, counsellors or
procurers, present or not were simply referred to as principals in the
second degree.
Since the abolition of the distinction between felonies and
misdemeanours, it is generally thought that the same principles now apply
to all secondary parties, regardless of whether the alleged party was present
or absent during the commission of the offence (see, for example, Rook
[1993] 1 WLR 1005).
7
10
Specific statutory provisions may duplicate section 89; see, for example, sections 38, 56,
93 and 117 of the Crimes Ordinance. Compare section 33B of the Offences Against the
Person Ordinance, which enacts a specific offence of aiding, abetting, counselling or
procuring the suicide of another, or an attempt by another to commit suicide. This is
necessary because suicide is not itself an offence; see Chapter 10, p. 525.
Many modern commentators suggest that there is no substantive difference between
abetting and counselling, save that abetting occurs at the time of the offence, whereas
counselling occurs beforehand; see, for example, Smith and Hogan, Criminal Law (ninth
edition, Butterworths, 1999), note 4, p. 125.
Historically, section 8 of the Accessories and Abettors Act 1861 (UK) was intended to
clarify criminal procedure and was not a codification of secondary party liability as such.
At the time, a wide range of terms were used to describe the various modes of secondary
party liability, and the phrase aiding, abetting, counselling and procuring was adopted in
section 8 without further definition simply as a short-hand means of referring to all possible
modes of secondary party liability. Subsequently, aiding, abetting, counselling and
procuring came to be universally accepted as the appropriate means of referring to the
different modes of secondary party liability.
See G. Heilbronn (1992) 22 HKLJ 61. England abolished the distinction in 1967; see
section 1 of the Criminal Law Act 1967.
PARTICIPATION
335
Felonies (but not misdemeanours) also involved a fourth category of

party to the offence: those assisting the principal after the commission of a
felony, known as accessories after the fact. Criminal liability for this form
of assistance is now statutorily provided for in sections 90 and 91 of the
Criminal Procedure Ordinance (below, p. 383).
Prima facie, section 89 applies to all offences, statutory or common
law, that are recognized under Hong Kong law (unless expressly or impliedly
excluded by the wording of a statute; see Jefferson [1994] 1 All ER 270).
Derivative liability
Liability for the like offence
Section 89 imposes criminal liability on those who aid, abet, counsel or
procure another to commit an offence; it does not make aiding, abetting,
counselling or procuring an offence in itself, as was accepted by Addison
J in the Hong Kong Court of Appeal in Po Koon-tai ([1980] HKLR 492, at
497):
I find myself not persuaded by [the] argument that the combined
effect of section 89 of the [Criminal Procedure Ordinance] and section
82 of the Interpretation and General Clauses Ordinance is to create a
specific statutory offence of aid, abet, counsel or procure.
Likewise, Power J in Wong Kwai-fun ((1993) Cr App No. 390 of 1991,

at 6) emphasized that persons who aid, abet, counsel or procure are liable
as parties to the principals offence the like offence:
It is correct that a counsellor or procurer can by virtue of section 89
be charged with and convicted of the substantive offence but that
does not mean that he has committed that offence. A person who is
present at the scene of a rape and actively encourages the rapist may
be convicted of rape as an aider and abettor under section 89 but he
himself does not commit rape.
Secondary party liability thus derives from and, subject to the discussion
below regarding procuring (p. 356), depends upon proof of the commission
of an offence by the principal.11 To establish secondary party liability, it is
11
Exceptionally, aiding, abetting, counselling or procuring itself amounts to an offence, e.g.

section 33B of the Offences Against the Person Ordinance (cap. 212), which imposes
336
therefore necessary both to ascertain the substantive offence or offences

alleged to have been committed by the parties, and also to identify the
party who is to be treated as the principal.
Acquittal of principal
In two circumstances, however, a secondary party may be convicted even
though the person alleged to be the principal offender is acquitted. Firstly,
where P and D are tried together, D may be convicted if there is additional
evidence admissible against D, but not P, which goes to prove Ps
commission of the offence. For example, D may have confessed that he or
she assisted or encouraged P to commit the alleged offence; provided that
this confession is voluntary, it is admissible in evidence against D to prove
Ps commission of the offence, even though it is not likewise admissible
against P. In this case, D may still be convicted as a secondary party (see
Humphries and Turner [1965] 3 All ER 689; compare Anthony [1965] 2 QB
189). On the other hand, if the evidence against P and D is largely the
same, then it is inconsistent to acquit P and still convict D (see Surujpaul
v R [1958] 1WLR 1050 and Chan Cho-nam [1986] HKC 603).
Secondly, where P and D are tried separately, then D may be convicted
as a secondary party despite Ps earlier or subsequent acquittal. D may be
convicted, however, only if there is evidence at Ds trial establishing Ps
guilt. If P is tried and acquitted before Ds trial, Ps acquittal is not admissible
evidence at Ds trial (Hui Chi-ming [1991] 2 HKLR 537; Luk Siu Keung
[1984] HKLR 333).
Individual versus joint enterprise liability
The phrase aiding, abetting, counselling, and procuring in section 89
broadly embraces two overlapping methods of establishing secondary party
liability. Firstly, the alleged secondary party (hereafter D) may be liable
essentially on the basis of his or her individual conduct or acts of assistance,
encouragement or procurement before or during the commission of the
criminal liability on a person who aids, abets, counsels or procures the suicide of another,
or an attempt by another to commit suicide. This is necessary because committing or
attempting to commit suicide is not itself an offence (see section 33A of the Offences Against
the Person Ordinance). Similarly, these terms may be used in specifying the elements of
offences, e.g. procuring in the Dangerous Drugs Ordinance; see also Sin Chi Keung [1995]
2 HKCLR 1.
PARTICIPATION
337
offence by P. This approach necessitates both proof of Ds specific acts

(aiding, abetting, counselling or procuring) and Ds intentional state of
mind in performing such acts, together with proof of a meeting of [Ps and
Ds] minds for abetting and counselling, and also proof that Ds acts caused
P to commit the substantive offence in the case of procuring (each of these
elements is discussed further below).
Secondly, aiding, abetting, counselling or procuring may be based on
the fact that P and D were parties to a joint enterprise or common design to
commit a criminal act, during the currency of which and pursuant to which
P committed the substantive offence. On this approach, it must be proved
that D participated in the joint enterprise with P, having contemplated the
possible commission of the substantive offence actually committed by P as
an incident of carrying out their criminal enterprise.
In many cases, these two approaches will overlap. Suppose, for instance,
P, D1 and D2 plan and then carry out a robbery. In accordance with their
plan, P uses a gun to threaten the victim and make the victim hand over
his or her wallet; D1 keeps watch; and D2 waits nearby in their getaway
car. P is the principal offender, since it is P who performs the actus reus of
robbery (i.e. threatens force and appropriates property belonging to another;
see section 10 of the Theft Ordinance). Turning to D1 and D2, they assist
and encourage P by their individual acts (D1 keeps watch; D2 drives the
getaway vehicle) and thus they aid and abet P; they will therefore be liable
as secondary parties to the robbery pursuant to section 89. However, equally,
or alternatively, D1 and D2 are parties to a criminal or joint enterprise
with P, with the robbery committed by P as principal clearly contemplated
by D1 and D2 as a possible incident of carrying out that joint enterprise,
being in fact the object or purpose of their enterprise. D1 and D2 are
therefore equally liable, pursuant to section 89, on a joint enterprise basis
for aiding and abetting P to commit robbery.
This overlap does not always exist. In particular, two situations may
necessitate the use of joint enterprise, rather than individual, liability. These
are (1) where the principal offender cannot be identified, and (2) where
one of the parties to a joint enterprise commits an offence other than that
which they set out to commit. In both of these cases, each partys liability
rests on proof of his or her participation in a joint enterprise with the
contemplation that such an offence might occur as a possible incident of
carrying out the enterprise.
Joint enterprise liability is discussed more fully below (p. 360).
338
The charge
Although all parties to an offence may, by virtue of section 89, be jointly
charged as principals in one count (R v Merriman [1973] AC 584),12 it is
desirable for the prosecution to indicate in the particulars of the count the
basis of each alleged partys liability (DPP for Northern Ireland v Maxwell
[1978] 1 WLR 1350; followed in Lau Chi-kin [1988] 1 HKLR 282).13 If
possible, the particulars should indicate whether each party is being
proceeded against as a principal or as a secondary party and, if as a secondary
party, the basis of liability: as an aider and abettor, a counsellor and procurer,
or by virtue of a joint enterprise. The failure to provide such particulars
will not necessarily make an indictment defective (Maxwell). In Kwan Chihung ([1993] 2 HKCLR 113), the Hong Kong Court of Appeal accepted
that the prosecution may proceed alternatively on the basis that D aided
and abetted or counselled and procured if the evidence supports such an
approach, leaving it to the jury to determine the appropriate basis of Ds
liability, if any.
Aiding, Abetting, Counselling or Procuring

Ordinary meanings
The terms aiding, abetting, counselling and procuring in section 89 of
the Criminal Procedure Ordinance are not statutorily defined. At common
law, the courts have taken the view they are ordinary words and that each
term should therefore as far as possible be given a separate meaning. This
was the approach of the English Court of Appeal in A-Gs Reference (No. 1
of 1975) ([1975] QB 773, at 779, per Lord Widgery CJ):
We approach section 8 of the 1861 Act [from which section 89 is
derived] on the basis that the words should be given their ordinary
meanings, if possible. We approach the section on the basis also that
if four words are employed the probability is that there is a
difference between each of those four words and the other three,
12
13
See further, G. Heilbronn, Criminal Procedure in Hong Kong (third edition), Chapter 6.
It may be permissible to charge alternatively as principal or accessory, provided that this
is not inconsistent; see Gaughan [1990] Crim LR 880. As to the necessity for the jury to
determine whether D was a principal or secondary party, see Giannetto [1996] Crim LR
722.
PARTICIPATION
339
because, if there were no such difference then Parliament would be

wasting time using four words when two or three would do. Thus
we approach the section on the footing that each word must be given
its ordinary meaning.
The ordinary meaning of each term involves both (1) acts or conduct
and (2) mens rea on the part of D. In addition, abetting and counselling
require proof of a further element involving what is called a meeting of
minds or consensus (but not a causal link), whereas procuring requires
proof of a causal link (but not consensus).
Conduct
Aiding
Aiding involves help, support or assistance given to P, the principal, at
the time when P commits the alleged offence. Thus, D aids P by giving P a
gun which P then uses to injure the victim, or by holding the victim while
P commits rape. An aider will ordinarily be present at the scene, but this is
not necessary. Thus, a person who gives P a plan of the premises prior to
a burglary may be said to give help, support or assistance to P at the time
of the commission of the offence, insofar as P then uses the information
obtained from the plan in gaining entry to the premises, regardless of
whether D is later physically present at the scene of the burglary.
Abetting and counselling
Abetting and counselling are generally said to have similar meanings14
and require acts of encouragement, incitement, instigation or the like (e.g.
in Lee Chi Wai ((1993) Cr App No. 306 of 1992), the Hong Kong Court of
Appeal spoke of ordered, advised, encouraged or persuaded). Such
distinction as there is between abetting and counselling appears to be
primarily historical a person who encourages P and is then present at
the time when P commits the offence is an abettor, whereas a counsellor
14
Some commentators have suggested that there is no difference in substance between abetting
and counselling. See, for example, Smith and Hogan, Criminal Law (ninth edition,
Butterworths, 1999), note 4, p. 125. Smith has argued that it would be better and easier to
speak more simply of only three forms of participation liability: assisting, encouraging
and causing the commission of an offence.
340
encourages P prior to the commission of the offence. Thus, D abets P

when D shouts out kill him at the crime scene, or when he tells P to drive
faster in excess of the speed limit or recklessly. Similarly, D counsels P
when D advises P to make a false insurance claim, or incites P to beat up
X the next day after D has left town.
Abetting and counselling require consensus, or a meeting of minds,
between P and D. This requirement was discussed by Lord Widgery CJ in
A-Gs Reference (No. 1 of 1975) (at 7789):
Of course, it is the fact that in the great majority of instances where
a secondary party is sought to be convicted of an offence there has
been a contact between the principal offender and the secondary party.
Aiding and abetting almost inevitably involves a situation in which
the secondary party and the main offender are together at some stage
discussing the plans which they may be making in respect of the alleged
offence, and are in contact so that each knows what is passing through
the mind of the other.
In the same way, it seems to us that a person who counsels the
commission of a crime by another, almost inevitably comes to a
moment when he is in contact with that other, when he is discussing
the offence with that other and when, to use the words of the statute,
he counsels the other to commit the offence.
The fact that so often the relationship between the secondary
party and the principal will be such that there is a meeting of minds
between them caused the trial judge in the case from which this
reference is derived to think that this was really an essential feature of
proving or establishing the guilt of the secondary party and, as we
understand his judgment, he took the view that in the absence of
some sort of meeting of minds, some sort of mental link between the
secondary party and the principal, there could be no aiding, abetting
or counselling of the offence within the meaning of the section.
So far as aiding, abetting and counselling is concerned we would
go a long way with that conclusion. It may very well be, as I said a
moment ago, difficult to think of a case of aiding, abetting or
counselling when the parties have not met and have not discussed in
some respects the terms of the offence which they have in mind. But
we do not see why a similar principle should apply to procuring
[emphasis added].
A-Gs Reference (No. 1 of 1975) was a procuring case, but the courts
suggestion that consensus is necessary for abetting and counselling (though
not for procuring) was subsequently adopted in relation to counselling
(and by implication also for abetting) by the English Court of Appeal in
Calhaem.
341
PARTICIPATION
Calhaem [1985] QB 808

Facts
Mrs Calhaem was convicted of murder. She was alleged to have hired
Z to murder R, a rival in love. According to Z, he went to Rs house,
intending only to pretend to carry out his contract with C, but when
R screamed, he went berserk and actually killed her. Z pleaded guilty
to murder. C was charged on the basis that she counselled and procured
Rs murder. At trial, C argued that the prosecution had failed to prove
that her actions were a substantial cause of the killing, the chain of
causation between her earlier communications with Z and Rs death
having been broken when Z went berserk. The trial judge rejected this
submission, holding that causation was relevant to procuring, but was
not necessary for counselling. C appealed.
Decision
Appeal dismissed. Affirming Cs conviction, Parker LJ for the court
concluded (at 813):
We must therefore approach the question raised on the basis that
we should give to the word counselling its ordinary meaning,
which is, as the judge said, advise, solicit, or something of
that sort. There is no implication in the word [counsel] itself,
that there should be any causal connection between the
counselling and the offence. It is true that, unlike the offence of
incitement at common law, the actual offence must have been
committed, and committed by the person counselled. To this extent
there must clearly be, first, contact between the parties, and,
second, a connection between the counselling and the murder.
Equally, the act done must, we think, be done within the scope of
the authority or advice, and not, for example, accidentally when
the mind of the final murderer did not go with his actions
[emphasis added].
In A-Gs Reference (No. 1 of 1975), the court suggested that a mental

connection may also be required for aiding, but commentators have doubted
this, suggesting that a person who in fact assists P may never have met P or
made his or her intentions known to P (e.g. Smith and Hogan, Criminal
Law, ninth edition, 1999, p. 128). So, if D, knowing that P plans to burgle
Ds work premises, leaves the door unlocked to enable P to enter freely, D
has thereby aided P. Of course, as the court observed in A-Gs Reference
(No. 1 of 1975), in the great majority of cases, there will in fact have been
contact between D and P.
342
Procuring
In A-Gs Reference (No. 1 of 1975), Lord Widgery LJ, for the court, stated (at
779) that the ordinary meaning of procuring is to produce by endeavour:
You procure a thing by setting out to see that it happens and taking
the appropriate steps to produce that happening . Causation is
important. You cannot procure an offence unless there is a causal link
between what you do and the commission of the offence .
The defendant in this case had surreptitiously laced a friends drinks with
double measures of alcohol with the result that the friend later drove home
with excess alcohol in his bloodstream in breach of the Road Traffic Act
1972. D was acquitted at trial of procuring Ps commission of that strict
liability offence, but the English Court of Appeal on a reference held that
D ought to have been convicted. Lord Widgery LJ concluded (at 780):
Giving the words their ordinary meaning in English, and asking oneself
whether in those circumstances the offence has been procured, we
are in no doubt that the answer is that is has. It has been procured
because, unknown to the driver and without his collaboration, he has
been put in the position in which in fact he has committed an offence
which he never would have committed otherwise. We think that there
was a case to answer and that the trial judge should have directed the
jury that an offence is committed if it is shown beyond reasonable
doubt that the accused knew that his friend was going to drive, and
also knew that the ordinary and natural result of the additional alcohol
added to the friends drink would be to bring him above the recognised
limit .
Accordingly (subject to proof of mens rea), D procures an offence by

taking steps which cause another to commit it, regardless of whether there
is any mental connection, or consensus, between the procurer and the
principal.
This was accepted by the Hong Kong Court of Appeal in Fok Kau
([1994] 1 HKCLR 122, at 125, per Bewley J):
An offence cannot be said to have been procured unless there is a
causal link between what the alleged procurer did and the commission
of the offence.
In Fok Kau, F was convicted as a party to the theft of a Lexus motor vehicle
on the basis that he telephoned the thief and asked him to steal a car
PARTICIPATION
343
any [kind] will do thereby causing, i.e procuring, Ps subsequent theft

of the Lexus.
In several English cases, the potential for a considerably broadened
notion of procuring has recently appeared, intentionally involving liability
for procuring the commission of the actus reus of an offence, regardless of
whether or not the party procured by D to commit the actus reus is liable
as a principal. This is discussed further below (p. 356).
Presence and inactivity
Neither Ds presence at the scene of an offence nor Ds failure to intervene
or prevent the offence necessarily makes D an accessory.
Aiding and abetting by presence
For Ds presence to amount to aiding and abetting in the absence of other
acts of assistance or encouragement, the prosecution must prove either (1)
that Ds presence was pursuant to a joint enterprise to commit the offence
(below, p. 360) or (2) that Ds presence was intentional, had the effect of
encouraging P, and was intended by D to encourage P.
Presence here means not only physical presence at the actual scene of
the offence, but also constructive presence, i.e. D is nearby in a position
to assist or encourage P if required, as accepted by Silke VP in Lau Chi-kin
([1988] 1 HKLR 282, at 286):
It is not necessary for an aider to be an ear or eye witness to the
commission of the crime provided that he is present in the sense of
being near enough and having the intention to assist, and to be capable
of affording that assistance, should the occasion arise at the time the
crime is committed.
In general, the requirements at (2) will be difficult to prove in the

absence of some other positive act of assistance or at least words of
encouragement by D.
Early authority for these principles is Coney ((1882) 8 QBD 534), in
which Coney and others successfully appealed against convictions of aiding
and abetting an unlawful assault because the evidence established no more
than that they had been present in a crowd which had formed around an
unlawful boxing match. In the words of Hawkins J (at 557) (quoted with
approval by Sir T.L. Yang CJ in the Hong Kong Court of Appeal in Lee Chi
Wai (1993) Cr App No. 306 of 1992, at 20):
344
In my opinion, to constitute an aider and abettor some active steps

must be taken by word, or action, with the intent to instigate the
principal, or principals. Encouragement does not of necessity amount
to aiding and abetting, it may be intentional or unintentional, a man
may unwittingly encourage another in fact by his presence, by
misinterpreted words, or gestures, or by his silence, or noninterference, or he may encourage intentionally by expressions,
gestures, or actions intended to signify approval. In the latter case, he
aids and abets, in the former he does not. It is no criminal offence to
stand by, a mere passive spectator of a crime, even of a murder. Noninterference to prevent a crime is not itself a crime. But the fact that
a person was voluntarily and purposely present witnessing the
commission of a crime, and offered no opposition to it, though he
might reasonably be expected to prevent and had the power so to do,
or at least to express his dissent, might under some circumstances,
afford cogent evidence upon which a jury would be justified in finding
that he wilfully encouraged and so aided and abetted. But it would be
purely a question for the jury whether he did so or not.
The prosecutions failure to prove that Coney and the others were
intentionally present, intending thereby to encourage the fighters,
necessitated the quashing of their convictions.
Similarly, in Allan ([1965] 1 QB 130), A, sporting knife wounds, was
arrested at the scene of an affray involving knives, but there was no evidence
establishing anything actually done or said by him. At trial, A was convicted
as a party to making an affray, after the jury were directed that it would
suffice if they were sure that A had been present with a secret intention to
join in the fight if help were needed, though he had not otherwise done
anything either by way of acts or words to display that intention. On appeal,
it was held that this was a misdirection. The Court of Criminal Appeal
stated (at 138):
In our judgment, before a jury can properly convict an accused person
of being a principal in the second degree [i.e. aider or abettor] to an
affray, they must be convinced by the evidence that, at the very least,
he by some means or other encouraged the participants. To hold
otherwise would be, in effect, to convict a man on his thoughts,
unaccompanied by any physical act other than the fact of his mere
presence.
These principles were strongly reaffirmed in Clarkson.
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R v Clarkson [1971] 1 WLR 1402

Facts
At trial, Clarkson and two other soldiers were convicted of aiding and
abetting rape. According to the prosecution, all three, in a drunken
state entered a room in an army barracks where a girl was being raped
by several other soldiers and there observed events for some time. There
was no evidence that C or the others did or said anything to actively
encourage or physically participate in the rape. On appeal, C and the
others submitted that their mere presence in the room was insufficient
to establish liability for aiding and abetting.
Decision
Convictions quashed. Where non-accidental presence, but no further
acts or words of assistance or encouragement, was proved, the
prosecution must prove not only that Ds non-accidental presence
actually encouraged P, but also that D wilfully encouraged, i.e intended
to encourage, P to commit the offence.
According to Megaw LJ (at 1406):
In a case such as the present, more than in many other cases
where aiding and abetting is alleged, it was essential that [wilful
encouragement] should be stressed; for there was here at least
the possibility that a drunken man with his self-discipline loosened
by drink, being aware than a woman was being raped, might be
attracted to the scene and might stay on the scene in the capacity
as what is known as a voyeur; and, while his presence and the
presence of others might in fact encourage the rapers or discourage
the victim, he himself, enjoying the scene or at least standing by
assenting, might not intend that his presence should offer
encouragement to rapers and would-be rapers or discouragement
to the victim; he might not realise that he was giving
encouragement; so that, while encouragement there might be, it
would not be a case in which, the accused person wilfully
encouraged.
These principles have been applied in Hong Kong. For example, in

Kwan Kwok-hing ([1977] HKLR 159), K and his friend P were walking
down a road when according to K, P spontaneously seized a female
pedestrian by the neck and took away her handbag, thereby committing
robbery, contrary to section 10 of the Theft Ordinance. Ks conviction as
an accessory to robbery was quashed since there was no evidence that K
played any active part in the robbery; indeed, according to the victim, K
had persuaded P to return her handbag, although only after P had already
346
taken cash from it. McMullin J concluded that Ks presence may have been
accidental and, even if proved to have been non-accidental, was equally
susceptible of the interpretation of acquiesence or silent complicity in the
act of his companion [which might give rise to liability] or of surprise and
positive disapproval (at 162). The prosecution, he concluded (at 162),
must establish (quoting from Clarkson):
where the evidence is of non-accidental presence without firm
agreement or positive physical acts of participation in the act or
commission of the crime, the elements of intention to encourage or
an actual encouragement having taken place.
In Yeung Kit Yung ((1993) Cr App No. 15 of 1993), on the other hand,
relatively minor acts sufficed to justify D3s conviction of aiding and abetting
a gang rape. Penlington J, delivering the judgment of the Court of Appeal,
observed (at 11):
D3s statement was taken in the presence of his father and was a clear
admission that he was present and conscious in the flat at the time
when the second alleged rape took place, though he denies that he
himself raped the victim. While morally his conduct was totally
reprehensible, to found a conviction for rape there must be evidence
that he did more than simply look on and failed to take any action to
prevent the other men doing what they did. As far as that is concerned
the relevant part of the statement related to holding the victims hand
[emphasis added].
Aiding and abetting by inactivity

A persons failure to intervene or prevent the commission of an offence
may exceptionally lead to liability as an accessory if he or she had the
power or entitlement to control the actions of another, P, and yet did nothing
to stop P, thereby in effect encouraging P.
This is illustrated by Tuck v Robson ([1970] 1 WLR 741). Tuck, the
licensee of a bar, was present when alcohol was consumed one evening
after-hours, his only action being to call time. T was convicted of aiding
and abetting the unlawful consumption of alcohol on the basis that he had
the power to evict customers or at least require them to leave the bar and,
by failing to exercise this power by his inaction had lent passive
assistance to the commission of the offence. Similarly, in Chan Wing Hang
([1996] 3 HKC 225), Leong J concluded (at 2289) that C being the
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347
manager was in a position to control the staff. The presence of [C] in

the position of the manager acquiescing in the prohibited sale by his
subordinates was in every sense encouragement.
However, if D has no right of control over the actions of the principal,
D will not be liable as a secondary party merely because D is aware that the
other may be committing an offence. This was the result in Bland ([1988]
Crim LR 4), in which the court held that Bs knowledge that her lover was
dealing in drugs in their shared room was not sufficient to make B liable in
the absence of any direct evidence of assistance or encouragement, or of
any right of control.
Further, as with aiding and abetting by presence, mere inactivity (where
D has a power to control P) will not generally suffice. It must also be
proved that D intended his or her inactivity to encourage Ps commission
of the offence, knowing of (or, at least, deliberately turning a blind eye to)
Ps offending. This is illustrated by R v JF Alford Transportation Ltd. ([1977]
Crim LR 745), in which the prosecution successfully charged the defendant
company and its managing director (D2) and transport manager (D3) of
aiding and abetting the companys drivers in making false entries in records,
contrary to the Transport Act 1968, on the basis that D2 and D3 must have
known of the drivers conduct and accepted it. The English Court of Appeal
quashed their convictions, holding that it was necessary to prove (by
inference if necessary) that D2 and D3 had been positively encouraging
what was going on. This would be established if it was proved they intended
to do the acts which [they] knew to be capable of assisting or encouraging
the commission of the crime.
On the other hand, so long as this was proved, then, it was not necessary
to prove that D2 or D3 also intended that the crime be committed. On the
facts, the prosecution failed to prove this knowledge against the defendants.
This case also illustrates that a person may be liable for aiding and abetting
by inactivity, even though he or she is not present at the scene of the
offence; presence, while evidentially important, is not necessary.
Mens rea
The mens rea of a secondary party differs from that required of the principal.
Stated shortly, it requires proof that D intended Ds conduct (including
presence or inactivity if these are relied on by the prosecution) to assist or
encourage P to commit the offence, together with knowledge of all the
essential matters and circumstances rendering Ps conduct (assisted,
encouraged or procured by D) an offence. Prima facie, this mens rea
348
intention or knowledge must be proved regardless of whether the offence

itself requires proof of intention or recklessness against the principal, or at
the other extreme, no mens rea at all and is strict liability.
No need for D to desire commission of the offence
It is not necessary to prove either that D knew Ps conduct amounted to an
offence (ignorance of the law is no defence) or, in relation to aiding,
abetting and counselling, that Ds motive or purpose was that the offence
should be committed. This latter point was emphasized by Devlin J in
National Coal Board v Gamble ([1959] 1 QB 11, at 23):
[A]n indifference to the result of the crime does not of itself negative
abetting. If one man deliberately sells to another a gun to be used for
murdering a third, he may be indifferent about whether the third man
lives or dies and interested only in the cash profit to be made out of
the sale, but he can still be an aider and abetter. To hold otherwise
would be to negative the rule that mens rea is a matter of intent only
and does not depend on desire or motive.15
The position regarding procuring is less clear. In Rook ([1993] 1 WLR

1005), R was convicted as a party to murder, allegedly having been party
to a contract killing. One ground of appeal was that where, as here, a
defendant was not present when the offence was committed, then it had to
be proved the defendant intended the offence to be committed (a further
ground of appeal related to withdrawal; below, p. 379). The English Court
of Appeal rejected this argument, Lloyd LJ concluding (at 1010) that the
position is the same, regardless of whether a party to a joint enterprise is
present or absent when the offence is committed:
It follows that it is no defence to a secondary party to say that he did
not intend the victim to be killed, or to suffer serious harm, if he
contemplated or foresaw the event as a real or serious risk.
However, Lloyd LJ went on to observe, without finally deciding the point,

that had the prosecution framed its case against R on the basis that R had
15
Compare Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, in which
the House of Lords took the view that D2, a doctor, was not liable for illegally prescribing
contraception to an underage girl because his purpose was to meet her health needs, rather
than to assist or encourage her to commit an offence (unlawful sexual intercourse), even
though he knew that this would be the inevitable consequence of his conduct.
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349
procured the commission of the crime, then this might have necessitated
proof that R did desire intend the crime to be committed (at 1010):
It would be an odd consequence of section 8 of the 1861 Offences
Against the Person Act that procuring, alone of the four modes of
complicity enshrined in that section, should require proof of intention
that the crime be committed, although that is no doubt the natural
and ordinary meaning of the word procure.
Intention to assist, encourage or procure

It must be proved that D acted with the purpose of assisting, encouraging
or procuring P to perform the conduct constituting the offence, or that D
at least realized his or her act(s) was (or were) virtually certain to assist,
encourage or cause P to perform the conduct constituting the offence.
Where D has done a positive act of assistance or encouragement or
procuring, with knowledge of the relevant circumstances, then Ds intention
to assist, encourage or procure may generally be inferred from the fact that
D voluntarily performed the act that assisted, encouraged or procured. As
Devlin J put it in National Coal Board v Gamble [(1959] 1 QB 11, at 23):
Prima facie a man is presumed to intend the natural and probable
consequences of his acts and the consequence of supplying essential
material [to the commission of an offence] is that assistance is given
to the criminal. It is always open to the defendant to give evidence
of his real intention .
Where D has not done any such positive act, as where D is merely present
or fails to prevent Ps commission of the offence, then the prosecution
must be able to adduce additional evidence proving Ds intention to assist,
encourage or procure, as appeared from Coney, Clarkson and Kwan Kwokhing, discussed above.
What if D supplies P with a weapon or tool knowing that P intends to
use it in carrying out an offence? Prima facie, this amounts to aiding P.
However, Devlin J in National Coal Board v Gamble, above, suggested (at
20) that the necessary intention might not be proved:
In a sense a man who gives up to a criminal a weapon which the
latter has the right to demand from him aids in the commission of the
crime as much as if he sold or lent the article, but this has never been
held to be aiding in law. The reason, I think, is that in the [latter]
case there is in law a positive act and in the [former] only a negative
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one. In the transfer of property there must be either a physical delivery

or a positive act of assent to a taking; but a man who hands over to
another his own property on demand, although he may physically be
performing a positive act, in law is only refraining from detinue. Thus
in law, the former act is one of assistance voluntarily given and the
latter is only a failure to prevent the commission of the crime by
means of a forcible detention, which would not even be justified except
in the case of felony.
This view has been criticized,16 since Ps criminal purpose would give
D a valid excuse under the civil law for refusing to hand over the article.
However, this might then mean that a person who merely sells something
to P, e.g. a knife or screwdriver, knowing that P intends to use it in carrying
out a criminal act, thereby intentionally assists or encourages P to commit
the offence, a result which in turn seems unacceptable. One possible solution
would be to hold D liable only if the offence committed using the sold
item is sufficiently serious in nature, but the law remains uncertain in this
area.
Recently, it has been suggested that recklessness, rather than intention,
may, in some circumstances, suffice as the mens rea of a secondary party.
In Blakely, Sutton v DPP ([1991] RTR 405), in a re-enactment of A-Gs
Reference (No. 1 of 1975), the defendants, B and S, secretly laced Ps drinks
at a party, though their intention was to make him stay overnight. However,
P left and drove home with an excessive blood-alcohol level before B and S
could inform him. B and S were subsequently convicted of procuring P to
drive with a blood-alcohol level exceeding the prescribed level. B and S
appealed, contending that the trial judge had wrongly invited the jury to
convict them on the basis that they were Caldwell reckless, i.e. reckless as
to whether their acts might result in the commission of an offence by P.
The English Divisional Court quashed their convictions, holding that if
recklessness sufficed, as the prosecution argued, it would at least have to
be subjective recklessness (Cunningham recklessness) and not merely
Caldwell recklessness as the trial judge had directed the jury. McCullough J
rejected two further arguments regarding procuring, firstly, that the mens
rea of an accessory before the fact (i.e. a counsellor or procurer) is less
than that required of a principal in the second degree (i.e. an aider and
abettor), and secondly, that the mens rea required on a charge of procuring
16
See, for example, Smith and Hogan, Criminal Law (ninth edition, Butterworths, 1999),
pp. 1357.
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the commission of a strict liability offence is less than that required for
procuring an offence requiring mens rea. He went on to suggest (at 415) in
relation to recklessness that:
While it [might now] be the law that advertent recklessness to the
consequences of [an accessorys] deliberate act of assistance might
suffice to convict some, if not all, of those accused of being an accessory
before the fact, it is clear that inadvertent recklessness does not. It
must, at the least, be shown that the accused contemplated that his
act would or might bring about or assist the commission of the
principal offence: he must have been prepared nevertheless to do his
own act, and he must have done that act intentionally. These
requirements match those needed to convict principals in the second
degree [i.e. aiders and abettors]. And they fit well with the liability of
the parties to a joint enterprise. In relation to those accused only of
procuring and perhaps also those accused only of counselling and
commanding, it may be that it [is] necessary to prove that the
accused intended to bring about the principal offence. The present
case does not require this to be decided.
One unusual feature about this case is that it concerns Ds recklessness

as to whether P might do an act (in this case, drive), rather than whether
circumstances rendering Ps act criminal existed (Ps excess blood-alcohol
level) which had been previously considered in Carter v Richardson ([1974]
RTR 314).
There is some support in Hong Kong for reliance on recklessness, as
shown in Lee Yiu-kwong.
Lee Yiu-kwong [1985] HKLR 184
Facts
P, the driver of a truck, was convicted of dangerous driving causing
death, contrary to (then) section 11(3) of the Road Traffic Ordinance
(cap. 374), after his truck, illegally overloaded with metal bars protruding
beyond the permitted overhand, collided with a bus, resulting in the
death of a passenger on the bus who was struck by the metal bars.
Lee, the registered owner of the truck, was convicted of procuring
P to commit the offence. It was established that Ls practice was to
engage independent teams of delivery workers to load, man, drive and
unload his trucks, and, on this occasion, he had directed the head man
of the gang of delivery workers to load the vehicle driven by P. Both P
and the head man were aware before its departure that the lorry was
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overloaded and might present a danger to the public, and P in fact

drove slowly and cautiously because of this, hoping thereby to avoid
any possible danger. L appealed, contending firstly it was wrong to
conclude merely because he had instructed P to use Ls vehicle to
deliver the metal rods, that L therefore knew P would use Ls vehicle in
contravention of the Road Traffic Regulations and, secondly, even if L
had known this, it was not sufficient to make L liable as an accessory
to the dangerous driving which actually occurred.
Decision
Appeal dismissed and Ls conviction affirmed. On the first point, in the
absence of evidence to the contrary, the trial judge had correctly
concluded that L expected his truck would be loaded with metal rods
known by him to exceed the permitted length under the relevant
regulations.
As to the second point, applying Robert Millar (Contractors) Ltd.
and Robert Millar ([1970] 1 AII ER 577), it was sufficient to establish
liability by showing that L foresaw some harm was likely as a result of
sending his vehicle out in a defective state. It was unnecessary to prove
in addition that L appreciated that death was a likely, or even possible,
consequence. The conclusion was unavoidable that L, in giving the
delivery orders, was aware that his truck would be greatly overloaded;
he must therefore have realized that driving the truck in that condition
would create the likelihood of danger to other road-users. This was
sufficient to establish liability for procuring the commission of the
offence.
In affirming Lees conviction of procuring P to cause death by driving,

the Court of Appeal relied on the fact that L appreciate[d] that driving the
lorry thus loaded would create the likelihood of danger to other users of
the road. That is, L was liable because he realized that his conduct
causing P to drive when the vehicle was overloaded might result in P
driving dangerously. If so, then Lee Yiu-kwong would seem to go further
than Blakely, Sutton, since it imposes liability for procuring based on Ds
subjective recklessness, the point left undecided in Blakely, Sutton. However,
it could be said that Lee Yiu-kwong held L liable, not because he was reckless,
but because he ordered the vehicle on to the road when he knew it to be so
overloaded that driving it on a road would inevitably involve dangerous
driving in other words, he knew that this was virtually or almost certain
to be the result, a state of mind which arguably gives rise to an inference of
intention, not merely recklessness.
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353
Knowledge of circumstances
It must be proved that D knew all the essential matters or circumstances
rendering Ps conduct criminal. This requirement was laid down in Johnson
v Youden ([1950] 1KB 544) by Lord Goddard CJ (at 546):
Before a person can be convicted of aiding and abetting the commission
of an offence,17 he must at least know the essential matters which
constitute that offence. He need not actually know that an offence has
been committed, because he may not know that the facts constitute
an offence and ignorance of the law is not a defence [emphasis added].
In this case, a solicitor was convicted of aiding and abetting a builder

client to breach building price controls, by continuing to assist the builder
to offer property for sale despite having been informed in a letter from the
purchasers solicitor that the builder was asking for a payment exceeding
the legal amount by 250. It was held the solicitor therefore knew of the
breach of the regulations, despite his assertion that he had misread the
relevant legislation and concluded there was no breach. His two legal
partners were acquitted since it was not proved they ever knew the builder
was claiming the extra 250.
Similarly, in Ferguson v Weaving ([1951] 1 KB 814), the landlady of a
bar was acquitted of aiding and abetting customers to commit the offence
of consuming alcohol after-hours, since it was not proved she knew
customers were doing this.
Essential matters include any circumstances comprising part of the
actus reus (e.g. the absence of consent in rape, or the ownership of property
by another in criminal damage), any relevant consequence (e.g. death in
murder, or damage or destruction in criminal damage), and possibly Ps
mens rea. Knowledge, as Johnson v Youden demonstrates, includes wilful
blindness but mot mere negligence or constructive knowledge (i.e. liability
based simply on what D ought to have known or appreciated). This is
illustrated by Roberts and George ([1997] Crim LR 209), in which the English
Court of Appeal held that the owner of a truck was not liable for procuring
dangerous driving causing death merely because the owner ought to have
realized that the truck was in a dangerous condition. It had to be shown
17
Or counselling or procuring; there is no longer any difference between principals in the

second degree (aiding/abetting) and accomplices before the fact (counselling/procuring);
see Blakely, Sutton [1991] RTR 405 and Rook [1993] 1 WLR 1005.
354
that the owner knew of the trucks dangerous condition, although this
could be established by showing the owner either had actual knowledge of,
or deliberately refrained from making inquiries about, the condition of the
truck, not caring to know the results.
It may be, applying Blakely, Sutton, above, that recklessness also suffices
for this requirement, taking recklessness here to mean subjective, or
advertant, recklessness. Thus, if D is charged with aiding, abetting,
counselling or procuring rape, maybe it will suffice to prove D either knew
the victim did not consent to sexual intercourse (the absence of consent
being one of the circumstances constituting the offence), or perhaps at
least subjectively realized there was a risk she did not.
Ds knowledge of essential matters must be proved even though the
offence aided, abetted, counselled or procured by D is a strict or absolute
liability offence and does not require proof of knowledge against P. Thus,
in Callow v Tillstone ((1900) 83 LT 441) in which P, a butcher, was
convicted of exposing unsound meat for sale, a strict liability offence, D,
the veterinarian who had negligently examined the animal carcass prior to
sale and certified the meat as sound, was acquitted, since it was not proved
he knew the meat was unsound.
Knowledge or contemplation of the type of offence
One of the central difficulties with the requirement of knowledge concerns
the nature of the offence that D is alleged to have intended to assist,
encourage or procure P to commit. Suppose, for example, D supplies P
with gas-cutting equipment, suitable for cutting open a safe, but has no
details of Ps intended target or victim. Is Ds broad awareness of the type
of offence that P may subsequently actually commit (offence X) sufficient
to say that D has aided and abetted P in committing offence X? In Bainbridge
([1960] 1 QB 129), the English Court of Criminal Appeal concluded that
this was sufficient. B supplied oxygen-cutting equipment to P, who
subsequently used it to break into a branch of an English bank and steal
nearly 18,000, leaving the equipment behind. B was convicted as an
accessory before the fact to office-breaking on the basis of Bs admitted
suspicions that P wanted the equipment for something illegal, probably for
breaking up stolen goods, even though B said he had no knowledge that
the equipment was going to be used for any such purpose as that for which
it was used. The court concluded it was sufficient if the offence actually
committed was at least a crime of the type that D knew was intended;
this was so even though B did not know all the details of the offence P
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355
actually intended, since B knew more than just that some illegal venture
was intended.
In DPP for Northern Ireland v Maxwell ([1978] 1 WLR 1350), the House
of Lords extended this test to impose accessorial liability for any actual
offence committed by the principal provided that it was proved to have
been within the range of offences contemplated by a secondary party at
the time of his or her acts of assistance or encouragement. In that case,
Maxwell, a member of the terrorist Ulster Volunteer Force (UVF) in
Northern Ireland, one evening guided other members of the UVF to a bar
near where M lived. M guessed that something was up, i.e. some sort of
terrorist activity, this being the nature of the UVFs activities, but having
guided them, he drove away. The others subsequently attempted
(unsuccessfully in the event) to bomb the bar. Maxwell argued that he was
wrongly convicted as an accessory on charges of doing an act with intent
to cause an explosion likely to endanger life or cause serious injury to
property, and possession of explosive substances with intent to endanger
life or cause serious injury to property, since he did not know exactly
what was to happen, i.e. did not know the type of offence intended. Ms
conviction was affirmed, with the House of Lords concluding (at 1363, per
Lord Scarman):
[An accessory] may have in contemplation only one offence, or several;
and the several which he contemplates he may see as alternative. An
accessory who leaves it to his principal to choose, is liable, provided
always the choice is made from the range of offences from which the
accessory contemplates the choice will be made [emphasis added].
This approach, requiring only proof that the offence actually committed
was within the range of offences contemplated (though not known), has
been expressly followed in Hong Kong. In Fok Kau ([1994] 1 HKCLR 122),
Bewley J, delivering the judgment of the Court of Appeal, held that D was
liable for counselling and procuring the theft of motor vehicles, observing
(at 125):
An offence cannot be said to have been procured unless there is a
causal link between what the alleged procurer did and the commission
of the offence. The applicant was charged not with incitement but
with counselling and procuring. Clearly the applicant did not give
any instructions in relation to the actual car stolen. In Bainbridge, it
was held that the judge was correct in directing that it is sufficient to
show knowledge of the intention to commit a crime of the type which
356
was committed, and something done, with that knowledge, to help in

the commission of the crime; it is not necessary to show knowledge
of the particular date and premises concerned. That decision was
approved by the House of Lords in DPP for Northern Ireland v Maxwell.
The precise scope of this test is unclear. For example, if D assists P in

the contemplation that P intends to break and enter premises and commit
theft therein, thereby committing burglary (contrary to section 11(1)(a) of
the Theft Ordinance), is D still liable if P in fact breaks and enters but
thereupon commits rape? P is still liable for burglary, the offence
contemplated by D, but in a different form (though it still falls under section
11(1)(a) of the Theft Ordinance). Similarly, how long does such liability
last? Suppose P uses the equipment supplied by D many months later, or
in a series of break-in offences committed over a number of months is
D liable as an accessory for all these offences?
Liability for unforeseen consequences
Where, by applying the above principles, D is liable as an accessory to Ps
act, then D may also be liable for any offence committed by P based on the
unforeseen consequences of Ps act. Thus, if D assists P to commit an assault,
knowing or at least contemplating that P may act with intent to cause
grievous bodily harm, and P does so act with intent to cause grievous
bodily harm causing death, both P and D may be liable as parties to murder,
even though neither intended nor even foresaw death. P will be liable as
the principal, and D as an accessory based on Ds contemplation that P
might do an act with intent to cause grievous bodily harm, i.e. an act with
such intent that was within the range of offences contemplated by D. This
form of liability overlaps with that arising out of a joint enterprise, discussed
more fully below (p. 360).
Procuring the actus reus of an offence
In Cogan and Leak ([1976] QB 217), the English Court of Appeal suggested
that a person who takes steps causing another to commit the actus reus of
an offence may be convicted as a party for procuring that offence, even
though the apparent principal may be acquitted for lacking the necessary
mens rea for the offence, upon proof that D, the procurer, acted with the
intention of procuring the commission of the offence. In that case, C was
acquitted of raping Ls wife because L had misled C into believing,
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357
mistakenly, that Ls wife was consenting; C thus lacked the necessary mens
rea for rape. Considering Ls liability, Lawton LJ expressed the view (at
223):
Her ravishment had come about because Leak wanted it to happen
and had taken action to see that it did by persuading Cogan to use his
body as the instrument for the necessary physical act. In the language
of the law the act of sexual intercourse without the wifes consent was
the actus reus; it had been procured by Leak who had the appropriate
mens rea, namely his intention that Cogan should have sexual
intercourse with her without her consent.
This approach, combining Ds act of procurement and mens rea with

the actus reus performed by the principal party, has since been adopted as
a basis of liability in England. In Millward ([1994] Crim LR 527), the
English Court of Appeal held that M was liable for causing death by reckless
driving (since repealed) by sending H onto a main road driving a tractor
towing a trailer with a poorly maintained hitch, resulting in the trailer
detaching itself and colliding with another vehicle, causing the death of a
passenger. H, the driver and thus the principal, was acquitted of the offence.
Ms liability was explained on the basis that he procured H to perform the
actus reus of the offence, which was said to be taking the vehicle in its
defective condition on to the road so as to cause death (commentators
have queried this,18 but it was not challenged before the offence was repealed
in England).
In Wheelhouse ([1994] Crim LR 756), the English Court of Appeal
approved Millward and applied it to uphold Ws conviction of procuring P
to commit burglary, despite Ps acquittal for lack of mens rea. The Court of
Appeal took the view that W was liable because, with the necessary mens
rea including dishonesty for burglary, he had procured P to remove
a vehicle from a garage and deliver it to W (W could perhaps have been
convicted instead on the basis that P was Ws innocent agent; see
Commentary [1994] Crim LR 756, at 757).
In DPP v K & B ([1997] Cr App R 36), the English Divisional Court
used this approach to convict two females, K (aged 14) and B (aged 11), of
rape (at trial, they had been acquitted). K and B had procured a boy (whose
age was not established but was probably between 10 and 14 years, so that
18
See, for example, commentaries to Loukes [1996] Crim LR 341 and Roberts and George
[1997] Crim LR 209.
358
he was not liable unless it was proved that he possessed criminal capacity)19
to have non-consensual sexual intercourse with a 14-year-old victim. Despite
the inability of the prosecution to establish the boys guilt, Russell LJ, for
the court, concluded (at 45):
There is no doubt whatever that W was the victim of unlawful sexual
intercourse without her consent; such was not disputed. The actus
reus was proved. [K and B] procured the situation which included
the sexual intercourse.
It would be singularly unattractive to find that because of the
absence of a mental element on the part of the principal, the procurers
could thereby escape conviction when, as the magistrate found, K and
B had the requisite mens rea namely, the desire that rape should take
place and the procuring of it.
The scope of this approach is unclear. It could have been used to explain
Bourne ((1952) 36 Cr App R 125), in which B was convicted of aiding,
abetting, counselling or procuring buggery20 by forcing P, his wife, to have
sexual connection with a dog. Prima facie, P performed the physical acts
constituting the actus reus of buggery, with the necessary mens rea, but
since she acted only under Bs duress, P was acquitted. Bs conviction as a
secondary party was affirmed and explained on the basis that duress may
have excused P, but it did not deny her commission of the elements of the
offence. Alternatively, the case could be treated as an instance of B
intentionally procuring the commission of the actus reus of an offence
(buggery), with B desiring that the offence be committed.
This approach is not without difficulty. It appears to impose liability
on a person for procuring an offence, despite the failure of the prosecution
to prove that an offence was actually committed (there being no principal).
If this supposedly involves secondary party liability, it seems to be
inconsistent with the fact that secondary party liability is derivative in nature.
Some commentators have consequently suggested that the true effect of
19
20
In Hong Kong, this presently applies to children aged between 7 and 14; see Chapter 6,
p. 213. In addition, in Hong Kong, a boy under 14 years is still presumed to be incapable
of sexual intercourse; see Chapter 6, p. 215.
At common law, buggery included sodomy (i.e. anal intercourse) and bestiality (i.e. anal
or vaginal intercourse with an animal). The common law offence of buggery, formerly
codified in section 49 of the Offences Against the Person Ordinance, has now been
abolished; see section 118M of the Crimes Ordinance. Bestiality is specifically provided
for in section 118L of the Crimes Ordinance.
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these cases may be to recognize a new substantive offence of procuring the

actus reus of a (substantive) offence (see, for example, Smith and Hogan,
Criminal Law, ninth edition, Butterworths, 1999, p. 154). If so, then the
courts still have to work out fully the limits of such an offence, especially
as regards the mens rea requirement. It may be, for example, that any such
offence should be restricted to cases in which it was the procurers purpose
(i.e. intention in its strict, direct sense) to procure the commission of the
actus reus of the offence (as argued by J.C. Smith, Commentary to Millward
[1994] Crim LR 527, 52930). Rape, for instance, would require proof that
D not only wanted the rapist to have sexual intercourse with the female,
but also wanted it to take place without her consent. This certainly seems to
be what Lawton LJ had in mind in Cogan and Leak: Leak wanted it to
happen and had taken action to see that it did it had been procured by
Leak who had the appropriate mens rea, namely his intention that Cogan
should have sexual intercourse with her without her consent. Similarly, in
K and B, it was said that K and B desire[d] that rape should take place and
the procuring of it. However, this is arguably inconsistent with the fact
that a person charged with rape as a principal may normally be convicted
so long as he was at least reckless as to whether the victim was consenting
(section 118(3)(b) of the Crimes Ordinance).
If this restriction were applied, then Millward itself was arguably
wrongly decided, for the actus reus of the statutory offence of causing
death by reckless driving includes causing death, and it is not easy to see
how it could be said that M sent H out onto the road towing the defective
trailer because M wanted H to cause death. Indeed, if he had, then M
would have had the necessary mens rea for murder (if death actually
occurred) or attempted murder in any other case.
Nonetheless, if these cases are treated as having recognized a new
offence of procuring the actus reus of an offence, then one further
restriction must also be emphasized: the actus reus of the offence procured
must actually occur before there can be liability. If not, then, as has been
held in Loukes ([1996] Crim LR 341) and Roberts and George ([1997] Crim
LR 209), the party alleged to have procured the commission of the actus
reus of the offence must be acquitted.
360
Joint Enterprise Liability

The joint enterprise doctrine
The second general basis of secondary party liability is by way of the joint
enterprise, or common purpose, doctrine.21
The nature of joint enterprise liability
Where two or more persons enter into a joint enterprise, or agreement,
to commit a crime, then each of them will be liable for any offence(s)
committed by the parties to the agreement while carrying out and pursuant
to the joint enterprise, whether as a principal (if he or she commits the
actus reus) or as a secondary party. Each partys liability in this instance is
based on his or her participation in the criminal enterprise, having
contemplated the commission of the acts (constituting the offence(s)) as a
possible incident of carrying out their enterprise. This form of liability may
be in addition to, or as an alternative to, secondary party liability based on
Ds individual acts.
Suppose, for example, D1 and D2 agree to commit a robbery. Suppose
further that D1 commits the robbery as contemplated by them. D1 is
therefore liable as the principal. D2, on the other hand, may be liable as a
secondary party on the basis that he or she either aided, abetted, counselled
or procured D1 to commit the robbery by D2s individual words or acts
(e.g. D2 is present and keeps watch), or simply on the basis that D1
committed the robbery pursuant to the joint enterprise with D2. In this
type of case, D2 may be liable as a secondary party both because of D2s
individual acts and also on a joint enterprise basis.
The utility of joint enterprise liability
In two situations, the doctrine of joint enterprise may operate to impose
secondary party liability on D2 where liability based on D2s individual
acts might fail to do so. The first is where the principal offender cannot be
identified. Suppose, for example, three defendants, A, B and C, are on trial
21
Compare Stewart [1995] 3 All ER 159, in which the English Court of Appeal treated joint
enterprise liability as a separate basis of liability. This has been criticized by Professor J. C.
Smith; see [1995] Crim LR 296, at 2978, and Criminal Liability of Accessories: Law and
Law Reform (1997) 113 LQR 453, at 462.
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for murder. Each asserts that the fatal injury to V was inflicted by one of
the others, and the prosecution cannot prove who inflicted the fatal blow.
Each of them may still be convicted as a secondary party to murder if the
prosecution proves beyond reasonable doubt that the act giving rise to the
offence the intentional infliction of the (fatal) injury was committed
in furtherance of a joint enterprise among the three and was contemplated
by each of A, B and C as a possible incident of carrying out that enterprise.
The second situation is where one of the participants to the joint
enterprise commits a different offence (usually more serious) than that
intended by the parties when they set out in their enterprise. Suppose, for
example, A, B and C set out to commit burglary. They break and enter an
apartment but unexpectedly encounter an occupant, V. Before B or C can
do or say anything, A attacks V, intentionally causing serious injury to V,
and rendering A liable for an offence against section 17(a) of the Offences
Against the Person Ordinance (causing grievous bodily harm with intent).
Are B and C liable? Neither B nor C can be easily said to have aided, abetted,
counselled or procured A in causing serious injury to V (B and Cs presence,
even if intentional, does not necessarily give rise to an inference of assistance
or encouragement). However, A, B and C were present pursuant to a joint
enterprise. B and C may each therefore be liable as a secondary party to As
offence against section 17(a) if it is proved beyond reasonable doubt that
he or she previously contemplated that one of the parties to the enterprise
might intentionally cause grievous bodily harm. It matters not that A, B and
C did not set out with the intention of committing that offence, nor that
they may not have expressly or impliedly agreed to commit this offence as
a necessary incidental offence. B and Cs liability arises from the fact that
he or she contemplated that an act (like that amounting to the offence)
might happen and yet continued to participate in the joint enterprise.
Suppose further that V dies as a result of the injuries intentionally
inflicted by A, thereby rendering A liable for murder. B and C may now be
liable as secondary parties to murder, if it is proved that Vs death (giving
rise to the murder charge against A) was merely the unintended or
unforeseen consequence of an act (As intentional infliction of grievous
bodily harm) contemplated or foreseen by B and C as a possible incident
of carrying out their joint enterprise, i.e. burglary. If As act (the infliction
of serious injuries with intent to cause such harm) was not contemplated
by B or by C as a possible incident, then that individual, B or C, would
escape criminal liability for both the offence arising from the act (i.e. section
17(a)) and also the offence arising from its unforeseen consequences of the
act (i.e. murder).
362
Participation
Proof of joint enterprise and Ds participation
To succeed with joint enterprise liability, the prosecution must prove the
existence and continuation of the alleged joint enterprise and Ds
participation in it beyond reasonable doubt. This was emphasized by the
Privy Council, on appeal from the Hong Kong Court of Appeal, in Lau Sik
Chung ([1982] HKLR 113). In this case, it was alleged that L struck a nonfatal blow to the deceased during the course of a group attack. Ls conviction
of murder was quashed since the prosecution failed to prove that L struck
the blow pursuant to and as a participant in a joint enterprise or common
purpose with the other assailants, rather than as an independent actor.
The joint enterprise does not have to be the product of an express
agreement among all the alleged parties; the court in Lau accepted that it
may arise spontaneously as a result of a tacit understanding among the
parties (see also Mitchell [1999] Crim LR 496: joint enterprise must still be
continuing when fatal blow struck).
In Hung Man-chit ([1996] 3 HKC 25, at 28), the Hong Kong Court of
Appeal held that a defendant may not be liable as a participant in a joint
enterprise if he or she was only pretending to join in the plan:
it was not sufficient to prove that the accused pretended to go
along with the joint criminal enterprise. Nor was it sufficient to prove
that he did something 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.
Failure to prove joint enterprise

Where an individuals participation in a joint enterprise cannot be proved,
and the principal offender cannot be identified, this may result in the acquittal
of all the alleged parties. This unfortunately happens on occasion in cases
of child abuse, as R v S, R v C ([1996] Crim LR 340) illustrates. S (the mother)
and C (her co-habitee) were jointly charged with two offences causing
grievous bodily harm with intent to do grievous bodily harm (based on
serious injuries inflicted on Ss 18-month-old son during a 19-hour period),
and cruelty to a child (based on a variety of assaults allegedly inflicted over
a three-month period). The prosecution was unable to prove whether S or
C had inflicted the specific injuries alleged in the first count, nor who
committed the series of assaults alleged in the second count. S and C blamed
PARTICIPATION
363
each other. At trial, S was convicted on both counts, and C on the second
count, but their convictions were quashed on appeal. The Court of Appeal
noted that the second count alleged cruelty by commission (rather than wilful
neglect) and, in the absence of proof of assaults by each defendant, obliged
the prosecution to prove either that there was a joint enterprise between S
and C, or that each did acts aiding and abetting the other. Since the
prosecution was unable even to prove who had charge of the child when
the alleged assaults occurred, there was no proper case for S and C to answer
on this second count. In relation to the first count, there was evidence that
S was present in the house throughout the 19-hour period when the serious
injuries were inflicted; S may therefore have participated in a joint enterprise
with C during the course of which the injuries were inflicted, which would
render S liable. However, there were at least three other possible inferences
which could also have been left for consideration by the jury: C alone inflicted
the injuries while S was sleeping in which case C alone would be liable;
S alone inflicted the injuries while C was sleeping or absent in which
case S alone would be liable; or the jury could not be sure which of the two
inflicted the injuries in which case (unlike parent-child homicide cases,
where special rules have developed allowing liability despite the failure to
identify the principal offender), both would have to be acquitted, despite
the obvious sense of injustice that this may engender.22
Contemplation
The leading authorities on joint enterprise liability are two decisions of the
Privy Council on appeal from Hong Kong, Chan Wing-siu ([1985] 2 HKC
393, [1985] 1 AC 168) and Hui Chi-ming ([1991] 2 HKLR 537), and a
1997 decision of the House of Lords, R v Powell, R v English ([1999] AC 1).
These decisions establish that joint enterprise liability is based on two core
concepts, participation and contemplation (or authorization or foresight).
In Chan Wing-siu, the Privy Council was invited to re-examine the
basis of joint enterprise liability, in a case involving both an unidentified
principal and the commission of an offence different from that which the
parties set out to commit.
22
See also Lane and Lane (1985) 82 Cr App R 5, Russell and Russell (1987) 85 Cr App R 388
and Aston and Mason (1992) 94 Cr App R 180. See further, E. Griew, It Must Have Been
One of Them [1989] Crim LR 129; G. Williams, Which of You Did It? (1989) 52 Mod
LR 179. See also HKSAR v Sunami Marwito [2000] 1 HKLRD 892 CA.
364
Chan Wing-siu v R [1985] 1 HKC 393, [1985] 1 AC 168

Facts
Chan, along with W and T, was charged with murder and wounding with
intent to do grievous bodily harm (contrary to section 17(a) of the Offences
Against the Person Ordinance). The prosecution alleged that C, W and T
had gone to the deceaseds flat to commit robbery. Having gained entry,
all three allegedly drew knives (according to the deceaseds wife). T kept
guard over the deceaseds wife in one room, while C and W took the
deceased into another room where he was fatally stabbed (giving rise to
the murder charge). The deceaseds wife was slashed as they left (giving
rise to the wounding charge). Three knives were subsequently found in
the flat. C and W each admitted going to the flat armed with a knife,
knowing that the other also had a knife. T did not admit either possession
or knowledge of knives. None of the defendants gave evidence at trial,
and the prosecution was not able to prove whether it was C or W who
fatally stabbed the deceased. The jury were directed to convict each
defendant on each count if they were sure that C, W and T each
contemplated, in going to the flat, that one of them might, during the
course of their planned robbery, use a knife with the intention of inflicting
serious bodily harm. All three defendants were convicted on each charge.
On appeal, the defendants argued they should be liable only if it
were proved that the use of a knife with intent to kill or cause grievous
bodily harm while carrying out their robbery was foreseen by them as
more probable than not (not merely possible). After failing before the
Court of Appeal, the defendants appealed to the Privy Council.
Decision
Appeals dismissed. The trial judges direction had been a proper and
sufficient direction to the jury in the circumstances of the case.
Sir Robin Cooke, delivering the judgment of the Privy Council,
outlined the basis of liability (at 398):
The case [depends] on the wide, principle whereby a secondary
party is criminally liable for acts by the primary offender of a type
which the former foresees but does not necessarily intend .
[This principle] turns on contemplation or, putting the same idea
in other words, authorisation, which may be expressed but is more
usually implied. It meets the case of a crime foreseen as a possible
incident of the common unlawful enterprise. The criminal
culpability lies in participating in a venture with that foresight
[emphasis added].
He rejected an argument that the intentional use of knives had to be

foreseen as at least probable (at 399):
PARTICIPATION
365
In agreement with the courts in Hong Kong, Australia, and New

Zealand, their Lordships regard as wholly unacceptable any
argument that would propose, as any part of the criteria of the
guilt of an accomplice, whether on considering in advance the
possibility of a crime of the kind in the event actually committed
by his co-adventurers he thought that it was more than an even
risk. What public policy requires was rightly identified in the
submissions for the [prosecution]. Where a man lends himself to
a criminal enterprise knowing that potentially murderous weapons
are to be carried, and in the event they are in fact used by his
partner with an intent sufficient for murder, he should not escape
the consequences by reliance upon a nuance of prior assessment,
only too likely to have been optimistic.
He emphasized (at 399400) that liability on this basis is particular to

each alleged party to the joint enterprise:
On the other hand, if it was not even contemplated by the
particular accused that serious bodily harm would be intentionally
inflicted, he is not a party to murder . The test of mens rea
here is subjective. It is what the individual accused in fact
contemplated that matters . The prosecution must prove the
necessary contemplation beyond reasonable doubt, although that
may be done by inference . If, at the end of the day and
whether as a result of hearing evidence from the accused or for
some other reason, the jury conclude that there is a reasonable
possibility that the accused did not even contemplate the risk, he
is in this type of case not guilty of murder or wounding with
intent to cause grievous bodily harm.
Sir Robin Cooke elaborated on this latter point, recognizing (at 401) that
in exceptional cases, a party might not be liable even though he or she
did contemplate the risk, if he or she had genuinely rejected that risk:
Although a risk of a killing or serious bodily harm has crossed the
mind of a party to an unlawful enterprise, it is right to allow for a
class of case in which the risk was so remote as not to make that
party guilty of a murder or intentional causing of grievous bodily
harm committed by a co-adventurer in the circumstances that in
the event confronted the latter. But if the party accused knew that
lethal weapons, such as a knife or a loaded gun, were to be carried
on a criminal expedition, the defence should succeed only very
rarely.
In cases where an issue of remoteness does arise it is for the
jury (or other tribunal of fact) to decide whether the risk as
recognised by the accused was sufficient to make him a party to
the crime committed by the principal. Various formulae have been
suggested including a substantial risk, a real risk, a risk that
366
something might well happen. No one formula is exclusively

preferable; indeed it may be advantageous in a summing up to
use more than one. For the question is not one of semantics.
What has to be brought home to the jury is that occasionally a
risk may have occurred to an accuseds mind fleetingly or
even causing him some deliberation but may genuinely have
been dismissed by him as altogether negligible. If they think there
is a reasonable possibility that the case is in that class, taking the
risk should not make that accused a party to such a crime of
intention as murder or wounding with intention to cause grievous
bodily harm [emphasis added].
In the first passage reproduced from Chan above, Sir Robin Cooke
spoke not only of foresight, but also of contemplation or, putting the same
idea in other words, authorisation, which may be expressed but is more
usually implied, as the basis of joint enterprise or common purpose liability.
However, authorization and contemplation are not necessarily the same;
whereas contemplation suggests mere foresight, authorization suggests
foresight and approval or agreement. In relation to the object of the joint
enterprise or common purpose (what the parties set out to do), this
difference may not mater, but applied to incidental acts occurring during
the commission of the joint enterprise, authorization arguably sets a higher
threshold for liability than mere contemplation or foresight. This distinction
was advanced in a series of English cases, including Wakely ([1990] Crim
LR 119), and Slack ([1989] QB 775), which preferred authorization, and
Hyde ([1994] QB 134), in which contemplation was affirmed as the basis
of liability for incidental acts (and the offences based on such acts).
Eventually the test of contemplation was re-affirmed by the Privy Council,
on appeal from the Hong Kong Court of Appeal, in Hui Chi-ming v R.
Hui Chi-ming v R [1991] 2 HKLR 537, [1992] 1 AC 34
Facts
Hui was charged with murder. The prosecution alleged that the
deceased, V, was fatally assaulted by a group of youths led by P after
having been mistakenly identified as the person who had interfered in
Ps relationship with his girlfriend. It was alleged the group set out to
look for someone to hit and that V died after being struck by P with a
length of waterpipe. P was separately tried for murder but denied his
involvement in the attack and was eventually convicted of manslaughter.
H was subsequently tried as a party to murder, after rejecting a
prosecution invitation to plead guilty to manslaughter. No witness saw
367
PARTICIPATION
H hit V or play any particular part in the assault, so the prosecution

proceeded on the basis that H participated in a joint enterprise during
which P murdered V. The trial judge directed the jury to convict H of
murder if they were satisfied that H had participated in a joint enterprise
which set out to kill or cause grievous bodily harm, or, alternatively,
assuming the joint enterprise was only to commit some lesser offence
(such as assault), if H participated having contemplated that while
carrying out that common unlawful purpose, one of the parties might
use a lethal weapon with the intention of causing really serious bodily
harm. Based on this direction, H was convicted of murder.
H appealed unsuccessfully to the Hong Kong Court of Appeal and
then to the Privy Council. He argued, inter alia, that the prosecution
had to prove (1) both H and P contemplated the possibility of grievous
bodily harm being intentionally inflicted while carrying out their
common purpose, which, it was submitted, the prosecution had not
proved, and (2) following Wakely and Slack, that H had to authorize,
and not merely contemplate, the intentional infliction of serious bodily
harm.23
Decision
Appeal dismissed and murder conviction affirmed. The trial judge had
correctly directed the jury on the relevant test for joint enterprise liability;
the test is based on contemplation, not authorization.
In relation to ground (1) above, Lord Lowry, delivering the judgment
of the Privy Council, concluded (at 550):
[T]heir Lordships are unable to accept that in every case the
relevant act must be shown to have been in the contemplation of
both parties before the secondary party can be proved guilty.
He observed that it would be rare, if ever, that only the accessory, and
not the principal, contemplated the possibility of the incidental offence.
Lord Lowry similarly rejected Hs second ground of appeal ((2)
above). Affirming Chan Wing-siu, he observed (at 5501):
Their Lordships consider that Sir Robin Cooke [in Chan Wing-siu]
used [the word authorisation] to emphasise the fact that mere
foresight is not enough; the accessory, in order to be guilty, must
have foreseen the relevant offence which the principal may commit
as a possible incident of the common unlawful enterprise and
23
Hui also argued that it was an abuse of process to charge him with murder when the
principal offender had been convicted of manslaughter only. This submission was rejected
by the Privy Council.
368
must, with such foresight, still have particiated in the enterprise.

The word authorisation explains what is meant by contemplation,
but does not add a new ingredient. That this is so is manifest from
Sir Robins pithy conclusion to the passage cited: The criminal
culpability lies in participating in the venture with that foresight
[emphasis added].
Lord Lowry endorsed the following passage, taken from Hyde, as

correctly stating the law applicable to a joint enterprise resulting in the
commission of murder (at 5489):
If B realises (without agreeing to such conduct being used) that A
may kill or intentionally inflict serious injury, but nevertheless
continues to participate with A in the venture, that will amount to
a sufficient mental element for B to be guilty of murder if A with
the requisite intent, kills in the course of the venture . B has in
those circumstances lent himself to the enterprise and by so doing
he has given assistance and encouragement to A in carrying out the
enterprise which B realises may involve murder [emphasis added].
This and several related issues then came before the House of Lords in
the third leading case, R v Powell, R v English ([1999] AC 1). Affirming
Chan Wing-siu and Hui Chi-ming, Lord Hutton observed (at 2021):
The principle stated by Sir Robin Cooke in Chan Wing-sius case was
followed and applied in . Hyde, where Lord Lane CJ took account
[of the view that] there is a distinction between tacit agreement and
foresight and made it clear that [foresight] is the proper test.
There is therefore a strong line of authority that participation in a
joint criminal enterprise with foresight or contemplation of an act as
a possible incident of that enterprise is sufficient to impose criminal
liability for that act carried out by another participant in the enterprise.
The Law Lords also reaffirmed that the application of this doctrine in
murder cases is not affected by cases such as Moloney ([1985] AC 905) and
Hancock ([1986] AC 455), in which the Law Lords reaffirmed the need to
prove that the principal offender in a murder case intended to kill or
cause grievous bodily harm. Lord Hutton observed:
I recognise that on one view it is anomalous that if foreseeability
of death or really serious harm is not sufficient to constitute mens rea
for murder in the party who actually carries out the killing, it is
sufficient to constitute mens rea in a secondary party. But the rules of
the common law are not based solely on logic but relate to practical
PARTICIPATION
369
concerns and, in relation to crimes committed in the course of joint

enterprises, to the need to give effective protection to the public against
criminals operating in gangs.24
A third point considered in Powell, English, relating to the nature of

the act foreseen or contemplated, is discussed below.
Intentional deviation from the joint enterprise
The corollary of the principles outlined above is that the parties to the
joint enterprise will not be liable as a party to the incidental offence
committed by P if Ps acts, giving rise to that incidental offence, are outside
the scope of the joint enterprise as contemplated by D. Such acts are
commonly called a deviation or intentional deviation from the joint
enterprise. The classic statement of this aspect of joint enterprise liability
comes from Anderson and Morris ([1966] 2 QB 110, at 1189):
[W]here two persons embark on a joint enterprise, each is liable
for the acts done in pursuance of that joint enterprise, [including]
liability for unusual consequences if they arise from the execution of
the agreed joint enterprise but if one of the adventurers goes beyond
what has been tacitly agreed as part of the common enterprise, his coadventurer is not liable for the consequences of that unauthorised act
. [I]t is for the jury in every case to decide whether what was done
was part of the joint enterprise, or went beyond it and was in fact an
act unauthorised by that joint enterprise.
Taking an example, suppose P and D set out to cheat V at cards. While

doing so, P suddenly, and unexpectedly so far as D is concerned, attacks V,
committing an aggravated assault. D will only be liable as a party to Ps
assault (i.e. the offence based on Ps incidental act) if Ps act was
contemplated by D when they set out to cheat V as a possible incident of
carrying out that joint enterprise. Suppose further that Ps attack causes
unforeseen or unusual consequences, for example, V suffers a heart attack
and dies. P may then be liable for manslaughter by unlawful and dangerous
act, but D will not be a party to that manslaughter, since Ps acts giving rise
to the charge of manslaughter are outside the scope of their joint enterprise.
Ps act is an intentional deviation from the joint criminal enterprise.
24
This view of the law has been unsuccessfully challenged in Hong Kong for being in breach
of Hong Kongs Bill of Rights; see, for example, HKSAR v Coady [2000] 2 HKC 12.
370
Suppose, however, P and D set out to beat up V (i.e. commit assault).

Unfortunately for them, Ps unlawful conduct (a punch) proves to be fatal,
rendering P liable for manslaughter (by unlawful and dangerous act). In
this case, Ps act the punch was clearly contemplated by D as a
possible incident of carrying out their intended assault of V. D will
accordingly be liable as a party to manslaughter.
These two illustrations are relatively straightforward: in the first, it is
easy to say D did not contemplate Ps act and but that he or she did in the
second. The more difficult case arises when P, while carrying out the assault
intended by P and D, takes out a knife and stabs V, or a gun and shoots V,
intending to cause grievous bodily harm. Is D liable for this act?
Furthermore, if V dies, is D liable not only as a party to the assault that
they set out to commit, but also as a party to murder? Is it enough that D
contemplated violence in some form, though not the form that P actually
used, or is Ps sudden use of a knife or a gun an intentional deviation? If
Ps use of a knife or a gun was not contemplated by D, is D nonetheless
liable for manslaughter, since D contemplated the possibility of some
violence (which would amount to an unlawful and dangerous act), or is D
liable only for assault? These two inter-related points (different type of
violence/residual liability for manslaughter) were addressed by the House
of Lords in Powell, English. Prior to this, the authorities were divided. In
Davies v DPP ([1954] AC 378), for example, Lord Simonds LC in the House
of Lords took the view (at 401):
I can see no reason why, if half a dozen boys fight another crowd and
one of them produces a knife and stabs one of the opponents to death,
all the rest of his group should be treated as accomplices in the use
of the knife and the infliction of mortal injury by that means, unless
there is evidence that the rest intended or consented or at least
contemplated an attack with a knife by one of their number, as opposed
to a common assault. If all that was designed or envisaged was in fact
a common assault, and there was no evidence that [D], a party to that
common assault, knew that any of his companions had a knife, then
[D] was not an accomplice in the crime consisting in its felonious
use.
In Hong Kong, the Court of Appeal adopted a similar position in Law

Siu Long ([1996] 1 HKC 469), in which the principal offender, P, was
convicted of murder after it was proved he fatally shot an arrow into the
victims back. At trial, L was convicted of manslaughter. L alleged he was
present at the scene only to beat up the victim, knowing neither of the
PARTICIPATION
371
arrow nor of the possibility of the victim being shot with it. L successfully
appealed. Quoting the following passage from R v Lovesey & Peterson ((1969)
53 Cr App R 461, at 460):
A common design to use unlawful violence, short of the infliction of
grievous bodily harm, rendered all the co-adventurers guilty of
manslaughter if the victims death was an unexpected consequence of
the carrying-out of that design. Where, however, the victims death
was not a product of the common design but was attributable to one
of the co-adventurers going beyond the scope of that design, by using
violence which was intended to cause grievous bodily harm, the others
were not responsible for that unauthorised act.
the Court of Appeal concluded (at 4723) that P, in firing the arrow, may
have done so pursuant to a wholly different enterprise of which only he
was aware, and the judge should therefore have directed the jury that L
would be guilty of neither murder nor manslaughter if they were left in
doubt as to whether the death resulted from an enterprise wholly different
from the one to which he allied himself.
Similarly, in Anderson and Morris (above; see also Dunbar [1988] Crim
LR 693, Wan and Chan [1995] Crim LR 296), the Court of Criminal Appeal
quashed Morriss conviction as an accomplice to manslaughter, rejecting a
submission that it is illogical to convict a participant in a common design
of manslaughter if death accidentally results from the assault they set out
to commit, but acquit him or her if the other party in a moment of passion
acted with the intention of killing (at 120):
The law, of course, is not completely logical, but there is nothing
really illogical in such a result, in that it could well be said as a matter
of common sense that in the latter circumstances the death resulted
or was caused by the sudden action of the adventurer who decided to
kill and killed. Considered as a matter of causation there may well be
an overwhelming supervening event which is of such a character that
it will relegate into history matters which would otherwise be looked
up on as causative factors.
Significantly, in none of these cases was the party proved to have known
of the existence of the weapon actually used by P; thus it was easy to say
D did not contemplate the possible intentional use of the weapon. In Betty
((1963) 48 Cr App R 6), on the other hand, B did know that knives were
being carried; the court concluded that B was properly convicted as an
372
accomplice to manslaughter arising out of a knife attack (at 10, per Parker
LCJ):
[O]n the facts of this case, [B] himself had a knife, [B] knew that
[P] had a knife and they had both been using knives. It seems to this
court that the act which resulted in death was one which was well
within the scope of the concerted action which the jury must have
found in this case, namely a knife attack upon [the victim].
The victims death in Betty was the mere unforeseen consequence of

an unlawful act contemplated by B (see also Smith [1963] 1 WLR 1200
and Reid (1975) 62 Cr App R 109; in Hong Kong: Tsang Wai-keung [1973]
HKLR 432).
Suppose, then, D contemplates that one of the parties to the enterprise
might use a weapon during the enterprise, but has in mind a different
weapon to the one actually used by P. Or if D contemplated its use only to
frighten? In Hyde ([1991] 1 QB 134), Lord Lane CJ in the English Court of
Appeal concluded (at 139):
If B realises (without agreeing to such conduct being used) that A
may kill or intentionally inflict serious injury, but nevertheless continues
to participate with A in the venture, that will amount to a sufficient
mental element for B to be guilty of murder if A, with the requisite
intent, kills in the course of the venture [emphasis added].
According to this, the most important issue is whether a party to a

joint enterprise contemplates that one of the parties to the enterprise might
act (perhaps with a weapon of some sort?) with intent to cause serious
injury. If D contemplates this, and an act is done with that intent, then D
will prima facie be liable as a party to the offences based on that act or that
act and its consequences, such as death, even though the consequences
may have been neither intended nor foreseen by D. This relatively broad
view was applied in Szeto Kwok-hei ([1991] 2 HKLR 178) in Hong Kong
and in Roberts ([1993] 1 All ER 583) in England, concerning murders
committed during joint enterprises to rob. In each case, an accomplice was
convicted of murder (as well as robbery) on the basis he contemplated the
possibility that one of the other parties to the joint enterprise to rob might
act with intention to cause grievous bodily harm, with or without a weapon,
during the commission of the joint enterprise. In Szeto Kwok-hei, Fuad,
VP, delivering the judgment of the Hong Kong Court of Appeal, expressed
this as follows (at 188):
PARTICIPATION
373
We think that we should here observe that if party A to a joint

enterprise of robbery contemplates that, if necessary, party B will use
a knife to inflict serious bodily harm on the intended victim, it is
irrelevant that in fact party B uses some other weapon or means to cause
injury to the victim from which he dies. Likewise it is irrelevant that
party A does not consider what specific weapon or means party B might
use to do serious harm to the victim. Provided that party A contemplates
that such harm might be inflicted, he is guilty of murder if party B uses
such violence on the victim that causes his death [emphasis added].
Similarly, in Roberts, R was held to have been properly convicted of

both robbery and murder after P bludgeoned the elderly victim of their
robbery to death with either a spade or the back of an axe. Lord Taylor CJ,
in the Court of Appeal, observed (at 590):
In our judgment, the principle stated by Lord Lane CJ in Hyde is of
general application, whether weapons were carried or not and (as Lord
Lane CJ expressly said) whether the object of the enterprise be to
cause physical injury or to do some other unlawful act, e.g. burglary
or robbery. True, it would be easier for the [prosecution] to prove
that B participated in the venture realising that A might wound with
murderous intent if weapons are carried or if the object is to attack
the victim or both. But that is purely an evidential difference, not a
difference in principle.
He added (at 590):

[W]e are doubtful whether the defendant B, who fleetingly thinks of
the risk of A using violence with murderous intent in the course of a
joint enterprise only to dismiss it from his mind and goes on to lend
himself to the venture, can truly be said, at the time when he so lends
himself, to foresee or realise that A might commit murder. In such
a case, B can hardly have such foresight or realisation at the time he
lends himself to the venture because he has banished the risk from
his mind. The words realise and realisation used by Lord Lane CJ
[in Hyde] and by the trial judge here [in directing the jury on Ds
liability as an accomplice to murder] aptly described the test, because
to realise something will happen is surely to contemplate it as a real
not fanciful possibility,
and concluded that the real issue was not whether the appellant realised
force might be used but whether he realised only that some physical harm
might be done or that really serious injury might be inflicted [emphasis
added].
374
However, in R v Powell, R v English ([1999] AC 1), the House of Lords

adopted a different view of the law. In the second of these two cases,
consolidated on appeal, English (aged 15) and another, W, set out to attack
and injure a police officer. During the attack, both E and W violently struck
the officer with wooden posts as planned, but W then took out a knife and
stabbed the officer to death. Although it was accepted E may not have
known that W was carrying a knife, E was nonetheless convicted of murder
after the trial judge directed the jury along the lines in Hyde, Szeto and
Roberts, that they could convict if E knew there was a substantial risk that
[W] might cause some really serious injury with the wooden post .
On appeal against conviction to the House of Lords, the Law Lords
were asked to consider the following question of law (at 17):
Is it sufficient for murder that the secondary party intends or foresees
that the primary party would or may act with intent to cause grievous
bodily harm, if the lethal act carried out by the primary party is
fundamentally different from the acts or intended acts by the secondary
party?
The Law Lords answered this in the negative it is not sufficient

merely to foresee intention to cause grievous bodily harm. Lord Hutton,
delivering the leading speech on this point, accepted (at 28) that the
following submission was correct:
To be guilty under the principle in Chan Wing-siu the secondary party
must foresee an act of the type which the principal party committed,
and in the present case the use of a knife was fundamentally different
to the use of a wooden post.
Accordingly, Es conviction of murder was quashed.

Further, following Anderson and Morris, above, the Lords held that
although E was liable for aggravated assault (by beating the police officer
with wooden posts), he was not guilty of manslaughter instead of murder,
since, as Lord Hutton observed (at 30), the unforeseen use of the knife
would take the killing outside the scope of the joint venture (compare R v
Gilmour [2000] Crim LR 763, in which the court held that in some
circumstances, the accessory may still be liable for manslaughter).
This conclusion was premised on the assumption that Ws use of a
knife was fundamentally different from the parties agreed use of wooden
posts. Where this is not so, and the contemplated and actual weapons are
not fundamentally different, D may still be criminally liable, as Lord Hutton
emphasized (at 30):
PARTICIPATION
375
If the weapon used by the primary party is different to, but as dangerous
as, the weapon which the secondary party contemplated he might
use, the secondary party should not escape liability for murder because
of the difference in the weapon, for example, if he foresaw that the
primary party might use a gun to kill and the latter used a knife to
kill, or vice versa [emphasis added].
Lord Hutton also considered whether the use of a contemplated weapon

in a manner different to that anticipated affected liability. Referring to
Gamble ([1989] NI 268), in which G alleged he contemplated the use of a
gun to kneecap the victim (thereby causing grievous bodily harm), but
not the intentional use of a knife to cut the victims throat or gun shots to
the victims head, Lord Hutton suggested G ought not to be guilty of murder
arising from either the unforeseen use of the knife to cut the victims throat,
or the deliberate firing of the gun into the head or body of the victim
(other than to kneecap the victim). He acknowledged, however, that this
latter case was more debatable (at 30) and emphasized (at 31) that:
There will be cases giving rise to a fine distinction as to whether or
not the unforeseen use of a particular weapon or the manner in which
a particular weapon is used will take a killing outside the scope of the
joint venture, but this issue is one of fact for the common sense of the
jury to decide.
Subsequently, the English Court of Appeal in Uddin ([1999] QB 431)

attempted to extract and summarize the principles applicable in joint
enterprise cases. Beldam LJ stated (at 441):
[W]e think that the principles applicable are as follows:
(i) Where several persons join to attack a victim in circumstances
which show that they intend to inflict serious harm and as a
result of the attack the victim sustains fatal injury, they are jointly
liable for murder; but if such injury inflicted with that intent is
shown to have been caused solely by the actions of one
participant of a type entirely different from actions which the
others foresaw as part of the attack, only that participant is guilty
of murder.
(ii) In deciding whether the actions are of such a different type the
use by that party of a weapon is a significant factor. If the
character of the weapon, eg its propensity to cause death is
different from any weapon used or contemplated by the others
and if it is used with a specific intent to kill, the others are not
376
(iii)
(iv)
(v)
(vi)
(vii)
responsible for the death unless it is proved that they knew or

foresaw the likelihood of the use of such a weapon.
If some or all of the others are using weapons which could be
regarded as equally likely to inflict fatal injury, the mere fact
that a different weapon was used is immaterial.
If the jury conclude that the death of the victim was caused by
the actions of one participant which can be said to be of a
completely different type to those contemplated by the others,
they are not to be regarded as parties to the death whether it
amounts to murder or manslaughter. They may nevertheless be
guilty of offences of wounding or inflicting grievous bodily harm
with intent which they individually commit.
If in the course of the concerted attack a weapon is produced
by one of the participants and the others knowing that he has
it in circumstances where he may use it in the course of the
attack participate or continue to participate in the attack, they
will be guilty of murder if the weapon is used to inflict a fatal
wound.
In a case in which after a concerted attack it is proved that the
victim died as a result of a wound with a lethal weapon, eg a
stab wound, but the evidence does not establish which of the
participants used the weapon, then if its use was foreseen by
the participants in the attack they will all be guilty of murder
notwithstanding that the particular participant who administered
the fatal blow cannot be identified . If, however, the
circumstances do not show that the participants foresaw the
use of a weapon of this type, none of them will be guilty of
murder though they may individually have committed offences
in the course of the attack.
The mere fact that by attacking the victim together each of them
had the intention to inflict serious harm on the victim is
insufficient to make them responsible for the death of the victim
caused by the use of a lethal weapon used by one of the
participants with the same or shared intention.
If this view of the law is applied in Hong Kong, then the law relating
to joint enterprise liability for murder will be somewhat narrowed; the
prosecution will have to prove that the secondary party foresaw or
contemplated as a possibility the intentional use (that is, with intention to
cause grievous bodily harm) of either the particular weapon actually used
by the principal to kill, or at least another weapon equally as dangerous.
If D did not foresee or contemplate this, then Ps act will be treated as an
intentional deviation from the joint enterprise and D will escape liability
both for Ps act and for the consequences of Ps act (the victims death), i.e.
PARTICIPATION
377
D will be liable for neither murder nor manslaughter (though D will remain
liable for such lesser offence(s) committed by D or the other parties to the
joint enterprise as were intended or contemplated by D in participating in
the joint enterprise).
What will no doubt vex the courts under this approach will be the
question of the relative dangerousness of particular weapons (e.g. is a sixinch knife as dangerous as a heavy meat chopper?). This may be illustrated
by two recent cases. In Greatrex ([1999] 1 Cr App R 126; see also [1998]
Crim LR 733), the English Court of Appeal held that the question of whether
the actual weapon used to inflict fatal injuries (a metal bar) was
fundamentally different from the contemplated weapons (referred to as
shod feet, i.e. metal lined shoe) was one to be left to the jury. The Court
considered that these two weapons could readily be equated, but quashed
Gs conviction of murder since the jury had not been invited to consider
this question.
In Gilmour ([2000] Crim LR 763), a decision of the Court of Appeal of
Northern Ireland, G drove three associates to a particular house knowing
that a petrol bomb was to be thrown. Normally, as the Court observed,
such petrol bombs caused only minor fires; injury was rare. However, the
petrol bomb in this case was especially large, resulting in a larger
conflagration and the death of three young occupants of the house (three
adult occupants escaped). G was convicted on three counts of murder. The
Court allowed Gs appeal on the grounds there was insufficient evidence to
conclude G was aware of the unusually large size of the petrol bomb and
therefore was not proved to have foreseen that the three associates might
act with intent to cause grievous bodily harm (more controversially, the
Court also concluded that G was still liable for manslaughter). Thus, the
size of the bottle used for the petrol bomb made all the difference; the
actual petrol bomb was cleary much more dangerous. The difficulty with
this analysis is that it places emphasis on the distinction between normal
and large petrol bombs because of its significance in determining whether
G could be said to have foreseen the possibility of the principal offenders
acting with intent to cause grievous bodily harm, whereas the Lords in
Powell, English were clearly of the view that a fundamental difference in
the nature of the weapon matters in itself, as evidenced by the fact that the
question of law for the Lords was expressly posed on the basis that the
defendant intended or foresaw that the primary party would or might act
with intent to cause grievous bodily harm (see also Reardon [1999] Crim
LR 392).
378
SPECIAL RULES
Liability of Secondary Party for Greater Offence
In some circumstances, a secondary party may be liable for a greater offence
than that committed by the principal. Suppose, for example, D counsels P
to beat up V; P does so not knowing, as D does, that V has a weak heart.
V suffers a heart attack during the beating and dies, thereby establishing
the actus reus of both manslaughter and murder. P (referred to by some
commentators as a semi innocent agent)25 will prima facie be liable for
manslaughter based on Ps commission of an unlawful and dangerous act
causing Vs death. However, D, knowing of Vs heart condition, may be
said to have had the mens rea of murder, i.e. intended V to suffer grievous
bodily harm (or even die) as a result of the beating. Can D be convicted of
murder in this situation?
In Richards ([1974] QB 776), the English Court of Appeal held that a
secondary party could be convicted of a more serious offence only in such
circumstances if D was present, and not if D had merely counselled P prior
to Ps commission of the actus reus. However, this view was subsequently
disapproved of in Howe ([1987] AC 417) first by the Court of Appeal
according to Lord Lane CJ, Richards was incorrectly decided and then
by the House of Lords, although only obiter. Lord MacKay in the Lords
concluded (at 458):
I consider that the reasoning of Lord Lane CJ [in the Court of Appeal
in Howe] is entirely correct and I would affirm his view that where a
person has been killed and that result is the result intended by another
participant, the mere fact that the actual killer may be convicted only
of the reduced charge of manslaughter for some reason special to
himself does not, in my opinion in any way, result in a compulsory
reduction for the other participants.
This principle is also illustrated by Hui Chi-ming ([1991] 2 HKLR 537),

above, in which D was convicted of murder even though the alleged
principal was convicted of only manslaughter.
An alternative explanation of these cases is that they are instances of
the expanded notion of procuring procuring the actus reus of an offence
discussed above (p. 356).
25
For example, Williams, Glanville, Textbook of Criminal Law (second edition), p. 373.
London: Stevens & Son, 1983.
PARTICIPATION
379
Secondary Party May Be a Protected Victim

On occasion, the person filling a secondary role is a protected victim in
the eyes of the criminal law and, as such, not liable to conviction as a
secondary party. This most commonly arises in respect of sexual offences.
For example, D, a girl under the age of 16, willingly encourages and assists
a male to have sexual intercourse with her. By virtue of her age, her consent
is irrelevant, and her partner commits an offence of unlawful sexual
intercourse with a girl under 16 (contrary to section 124 of the Crimes
Ordinance). However, D herself will not attract accessory liability, despite
having encouraged and assisted P, since the social purpose or objective of
the prohibition in question is to protect vulnerable girls under 16 from
being preyed upon and seduced into giving their consent to sexual
intercourse. She is a protected victim.
If the offence in question is not designed or intended to protect a particular
class of persons, then D may still be liable as a secondary party even though
he or she is a victim. Suppose D is a masochist, i.e. one who derives pleasure
from suffering pain. D allows P, a sadist, i.e. one who derives pleasure from
inflicting pain, to perform various activities designed to satisfy their reciprocal
needs. In Browne ([1994] 1 AC 212), the House of Lords held that Ds consent
to Ps activities would not absolve P from criminal liability if D intended to
cause, or perhaps just caused, actual bodily harm or greater. This restr iction
on the validity of consent is imposed as a matter of public policy and seeks
to protect all members of society, rather than a particular class. Therefore,
it is arguable that D, although in one sense the victim of Ps violence, may
also be liable as a secondary party to the like offence committed by P.
Withdrawal or Disassociation by Secondary Party

In some circumstances, a person who has prima facie done enough to attract
accessorial liability may escape liability by effectively withdrawing or
disassociating from the criminal enterprise before P fully commits the offence
(although D may remain liable for incitement, or conspiracy, or even
possibly attempt, based on Ds conduct prior to withdrawal).
Mere repentance is not enough to establish withdraswal, nor, according
to Rook ([1993] 1 WLR 1005), is the mere fact that D never turns up at the
scene or departs prematurely, prior to the commission of the offence.
To be an effective withdrawal, it seems that D must at least
unequivocally communicate his or her withdrawal to the other participants.
380
In Croft ([1944] KB 295), for example, Lawrence J, holding that the

surviving party of a suicide pact was guilty of murder (see now section 5 of
the Homicide Ordinance), stated (at 298):
The authorities, however, such as they are, show, in our opinion, that
the appellant, to escape being held guilty as an accessory before the
fact must establish that he expressly countermanded or revoked the
advising, counselling, procuring or abetting which he had previously
given.
In Whitehouse ([1941] 1 WWR 112), Sloan JA, in a passage subsequently

approved by the English Court of Appeal in Becerra ((1975) 62 Cr App R
212) and Rook, above, suggested (at 115):
Where practicable and reasonable there must be timely communication
of the intention to abandon the common purpose from those who
wish to dissociate themselves from the contemplated crime to those
who desire to continue in it. What is timely communication must
be determined by the facts of each case but where practicable and
reasonable it ought to be such communication, verbal or otherwise,
that will serve unequivocal notice upon the other party to the common
unlawful cause that if he proceeds upon it he does so without the
further aid and assistance of those who withdraw.
In Becerra, a man was stabbed to death during a burglary with a knife

provided by B shortly before the murder. It was held that Bs sudden
departure from the scene of the crime with the words, Come on, lets go,
was an insufficient communication of withdrawal, and his conviction as a
secondary party to murder was upheld. Similarly, in Rook, R, who recruited
two other men to assist him in carrying out a contract killing, then failed
to appear on the appointed day. The court held that R had not effectively
withdrawn from the murder that was subsequently carried out by the others
since he never told the others that he was not going ahead with the crime.
His absence on the day could not possibly amount to unequivocal
communication of his withdrawal so the minimum necessary for
withdrawal from the crime was not established on the facts (at 1012).
A person who has given assistance, for example by providing a weapon,
may sometimes need to go further than communicating withdrawal, and
actually take steps to neutralize the assistance given. This may require
recovery of the weapon, warning the victim of the danger, or even reporting
the matter to the police (although the English Court of Appeal in Rook left
this point open).
PARTICIPATION
381
The courts have emphasized that the threshold for effective withdrawal
will vary according to the circumstances of each case. In Grundy ([1977]
Crim LR 543), for example, G passed on information about certain premises
and the habits of the occupants to burglars six weeks prior to a burglary.
Two weeks before the burglary, G tried to dissuade the burglars from
committing the offence. It was held that this evidence of withdrawal should
have been left to the jury; not having been, Gs conviction was quashed.
Similarly, in Whitefield ((1983) 79 Cr App R 36), W gave P information
about premises and agreed to break in with P. W later withdrew, but took
no further steps to stop P who went ahead. It was held that there was
evidence that W had unequivocally communicated withdrawal; it was not
necessary for W to notify the police or take other steps to prevent the
burglary in this case (see also Mitchell [1999] Crim LR 496: withdrawal
from spontaneous joint enterprise to inflict violence).
Agent Provocateurs and Entrapment

On occasion, one of the parties to a criminal enterprise may turn out to be
a police officer or other law enforcement officer, or an informer assisting
the police, who joined with a view to obtaining incriminating evidence
against the other participants and thereby entrapping them. In Yip Chiucheung ([1994] 2 HKCLR 35), for example, Yip was alleged to have
conspired with a US Drug Enforcement Agency officer to import drugs
into Australia, using Hong Kong as a transit point. Y alleged that the Drug
Enforcement Agency officer, who was to play an active part in transshipping
the drugs through Hong Kong to Australia, encouraged and assisted Y,
with a view to entrapping Y.
Ideally, the prospective offenders are arrested before the criminal
enterprise is carried out, and are subsequently prosecuted for conspiracy,26
or perhaps attempt, or possibly also any substantive offences already
committed, e.g. possession of offensive weapons. Sometimes the enterprise
is actually carried out, and the offenders are arrested only afterwards. In
either case, two questions then arise: firstly, what is the criminal liability of
the participating police or law enforcement officers?27 If he or she only
26
27
If, as in Yip Chiu-cheung [1994] 2 HKCLR 35, there are only two parties to an enterprise,
one being an undercover police officer, the other can be prosecuted for conspiracy only if
the police officer is at law a co-conspirator. See further, Chapter 9, p. 423.
Informers may be granted immunity from prosecution but are not automatically immune;
see Ho Chung-yum (1985) Cr App No. 120 of 1985.
382
pretends to concur (Mullins [1848] Cox CC 526) with the other parties,
and the offence is one which would have been committed regardless of his
or her participation it was already laid on (McCann (1971) 56 Cr App
R 359; Clarke (1984) 80 Cr App R 344) then the officer will not incur
criminal liability (see also Hung Man-chit, above, p. 362). However, officers
sometimes overreach, either personally or acting through an informer, and
this may lead to a different result, as noted by Lord Parker CJ in Birtles
((1969) 53 Cr App R 469, at 473):
[I]t is vitally important to ensure so far as possible that the informer
does not create an offence, that is to say, incite others to commit an
offence which those others would not otherwise have committed. It is
one thing for the police to make use of information concerning an
offence that is already laid on . But it is quite another thing, and
something of which this court thoroughly disapproves, to use an
informer to encourage another to commit an offence, or indeed an
offence of a more serious character, which he would not otherwise
commit, still more so if the police themselves take part in carrying it
out.
An officer or informer in this latter category, who entices another to commit

an express breach of the law which he would not otherwise have committed
and then proceeds or informs against him in respect of such offence (Menby
and Sheridan (1974) 60 Cr App R 59), is known as an agent provocateur
and may incur liability. In Sang ([1980] AC 402), Lord Salmon observed
(at 443):
I would now refer to what is, I believe, and hope, the unusual case in
which a dishonest policeman, anxious to improve his detection record,
tries very hard with the help of an agent provocateur to induce a young
man with no criminal tendencies to commit a serious crime, and
ultimately the young man succumbs to the inducement . The
policeman and the informer who acted together in inciting him to
commit the crime should both be prosecuted and suitably punished.
On occasion, a private citizen may likewise instigate another to commit

an offence which might not otherwise have been committed, with a view
to entrapment. In general, he or she may be convicted as a party to the
commission of the offence by the other. In Smith ([1960] 2 QB 423), for
example, S was convicted of corruption after he offered bribes to a mayor,
even though S avowed that he did so only to expose corruption in local
government.
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The second question is whether entrapment affects the criminal liability

of the other participants. The law can be summarized as follows:
(1) there is no defence of entrapment at common law, even where the
offence is induced by agent provocateurs. This was accepted by the
House of Lords in Sang and has been followed by the Hong Kong
Court of Appeal in Cheung Chung Ching ((1984) Cr App No. 546 of
1984). Roberts CJ put it succinctly (at 6), incitement by an agent
provocateur to another to commit an offence does not absolve that
other person from criminal responsibility;
(2) evidence obtained as a result of entrapment is generally admissible
against those entrapped. In Sang, the Law Lords held that a court has
no discretion at common law28 to exclude such evidence, since this
would effectively recognize a defence of entrapment. However, in
Cheung Chung Ching, Roberts CJ expressly left this question open.
(3) entrapment may be taken into account in sentencing.
ASSISTANCE AFTER THE COMMISSION OF AN ARRESTABLE

OFFENCE
At Common Law29
At common law, a person could be criminally liable in the following ways
for assisting another after the commission of an offence:
(1) by assisting someone who had committed a felony (but not a
misdemeanour; Field (1943) 29 Cr App R 151) to evade arrest, trial or
punishment. Such a person, known as an accessory after the fact, was
treated as a party to the felony. This common law liability was abolished
in Hong Kong, along with the distinction between felonies and
misdemeanours, in 1991 (Administration of Justice (Felonies and
Misdemeanours) Ordinance (cap. 328)), and replaced with a statutory
28
29
In England, see now general discretion in section 78 of the Police and Criminal Evidence
Act 1984, applied to entrapment in Governor of Pentonville Prison, ex p Chinoy [1992] 1
All ER 317.
See generally, Glanville Williams, Criminal Law The General Part (second edition,
Stevens, 1961), pp. 40927.
384
offence in section 90(1) of the Criminal Procedure Ordinance, discussed

below;
(2) by failing to report the commission of a felony to the authorities. This
offence, known as misprision of felony (or misprision of treason if
the failure related to treason), was abolished in 1971 (see section 91(5)
of the Criminal Procedure Ordinance), and partially replaced by the
statutory offence in section 91(1) of the Criminal Procedure Ordinance,
discussed below;
(3) by agreeing for consideration (i.e. reward) not to prosecute, or to impede
a prosecution for, a felony. This offence, known as compounding a
felony, was also abolished (except for compounding a treason) in
1971 (see section 91(4) of the Criminal Procedure Ordinance), and
partially replaced by section 91(1), discussed below;
(4) by aiding another to bring or defend legal proceedings without just
cause or excuse (maintenance), or agreeing to receive payment out of
the proceeds of the litigation (champerty). These two crimes (also
torts) were abolished in England in 1967 (sections 13(1)(a) and 14(1)
of the Criminal Law Act 1967), but Hong Kong has not expressly
followed suit, and they presently remain part of the common law of
Hong Kong.
Under Statute
Assistance after the commission of an arrestable offence and the acceptance
of payments or other consideration for not reporting an offence are offences
under sections 90(1) and 91(1) of the Criminal Procedure Ordinance (based
on sections 4 and 5 of the Criminal Law Act 1967). In addition, section
91(2) of the Criminal Procedure Ordinance makes it an offence to waste
police time by making false reports.30
30
Section 91(2) of the Criminal Procedure Ordinance: If a person causes any wasteful
employment of the police by knowingly making to any person a false report tending to
show that an offence has been committed, or to give rise to apprehension for the safety of
any person or property, or tending to show that he has information material to any police
inquiry he shall be guilty of an offence and shall be liable on conviction to a fine or $2,000
and to imprisonment for 6 months. See also section 64 of the Police Force Ordinance:
knowingly making false report of commission of offence or misleading police officer by
giving false information or by making false statements or accusations; liable on summary
conviction to $1,000 fine and six months imprisonment.
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Assisting after an arrestable offence

Section 90(1) of the Criminal Procedure Ordinance provides:
If a person has committed an arrestable offence, any other person
who, knowing or believing him to be guilty of the offence or of some
other arrestable offence, does, without lawful authority or reasonable
excuse, any act with intent to impede his apprehension or prosecution
shall be guilty of an offence.
To establish this offence, the prosecution must first show that the person
(P) who was allegedly assisted by Ds act has committed an arrestable
offence. An arrestable offence is an offence for which the sentence is
fixed by law or for which a person may be sentenced to imprisonment
for a term exceeding 12 months, and an attempt to commit any such offence
(section 3 of the Interpretation and General Clauses Ordinance) [emphasis
added]. It is not necessary for P to have been tried and convicted prior to
Ds trial, so long as the prosecution can prove (at Ds trial) that P has
committed an arrestable offence (Donald and Donald [1986] Crim LR 535).
If P did not commit the offence, as believed by D, then D is not liable
under section 90, although it may be open to the prosecution to charge D
with attempting (contrary to section 159G of the Crimes Ordinance) to
commit the offence in section 90. Secondly, the prosecution must prove
that D performed an act any act with intent to impede Ps
apprehension or prosecution. This includes providing P with transport,
food or money to facilitate Ps escape, destroying evidence, and hiding P.
Words may also suffice, e.g. misdirecting police, but the requirement that
D do an act may mean that an omission is insufficient (but see definition
of act in section 3 of the Interpretation and General Clauses Ordinance).
It is not necessary to prove that Ds act actually impeded Ps apprehension
or prosecution.
In Wong Kwai-fun ([1993] 2 HKCLR 171), the Hong Kong Court of
Appeal held that a person may be liable under section 90(1) for assisting
another, P, even if he or she is also liable as a party to Ps arrestable offence.
In that case, W both counselled or procured several persons to cause
grievous bodily harm with intent and then assisted them to escape.
For mens rea, the prosecution must prove, firstly, that D knew or
believed P him to be guilty of an arrestable offence. This need not be
the actual arrestable offence committed by P, so long as D at least believes P
to be guilty of some arrestable offence. However, D will not be liable for
assisting R, whom D mistakenly believes to have committed an offence, if the
386
offence was actually committed by P. Smith and Hogan have also argued
(Criminal Law, ninth edition, p. 164) that D ought not to be liable if R
happens to have committed some arrestable offence completely unrelated to
the transaction (actually involving P) that D has in mind; and Williams has
suggested (G. Williams, Evading Justice [1975] Crim LR 430, 435) that
wilful blindness on Ds part as to Ps conduct ought not to suffice. It is not
necessary to prove that D knew Ps suspected actions were an offence, or that
the offence was arrestable, provided that D is proved to have known or
believed in the existence of facts which at law amount to an arrestable offence.
Secondly, the prosecution must prove that D acted with intent to
impede Ps apprehension or prosecution. It may be insufficient merely to
prove that D realized his or her acts would in fact impede; instead this
must have been Ds purpose or object in acting. Thus, if Ds purpose in
acting is to impede Ds own apprehension or prosecution, this intent ought
not to suffice, even if D realizes that his or her acts may also impede the
apprehension or prosecution of another (Jones [1949] 1KB 194).
There is no liability if D can point to some lawful authority or
reasonable excuse for impeding Ps apprehension or prosecution. In Lee
Shek-ching ([1986] HKLR 304), the Court of Appeal suggested that a wifes
marital obligations, at least insofar as they apply within the matrimonial
home, might in some circumstances amount to a lawful excuse within
section 90(1).
By section 90(4), the Secretary of Justice must give consent to a
prosecution under section 90(1).
Concealing an arrestable offence
Section 91(1) provides:
If a person has committed an arrestable offence, any other person
who, knowing or believing that the offence or some other arrestable
offence has been committed, and that he has information which might
be of material assistance in securing the prosecution or conviction of
an offender for it, accepts or agrees to accept for not disclosing that
information any consideration shall be guilty of an offence and shall
be liable on conviction on indictment to imprisonment for 2 years.
Like section 90(1), the prosecution must prove that someone (P) has
committed an arrestable offence (see above for arrestable offence). Also,
like section 90(1), this need not be the same arrestable offence as that
believed by D to have been committed. However, it seems that the actual
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387
arrestable offence committed by P should arise out of or relate to the same

transaction that D has in mind as involving the commission of an arrestable
offence. Otherwise, D would be liable under section 91(1) for accepting or
agreeing to accept consideration not to disclose information believed by D
to be material to a particular arrestable offence simply because someone,
anyone, has committed any other arrestable offence. This latter interpretation
would in effect render the opening words of section 91(1) redundant: If a
person has committed an arrestable offence .
Secondly, the prosecution must prove that D accepted or agreed to
accept any consideration for not disclosing information known or believed
by D to be material. Merely making an offer to P would not suffice
(although it might amount to blackmail, under section 23 of the Theft
Ordinance). Consideration appears to include money, goods, services or
any act or forbearance. Unlike its English equivalent (section 5 of the
Criminal Law Act 1967), section 91(1) does not exclude the making good
of loss or injury caused by the offence, or the making of reasonable
compensation for that loss or injury. Thus, a person who agrees not to
report a theft to the police in consideration of repayment of the stolen
funds may be liable in Hong Kong under section 91(1), whereas he or she
would not be in England. It is not clear whether the consideration must
come from the person believed by D to have committed the offence, or
whether it would suffice, for example, that the consideration comes from
the spouse or a family member or associate of the suspected offender.
For mens rea, the prosecution must prove, firstly, that D knew or
believed an arrestable offence had been committed, although it need not
be the arrestable offence actually committed. Secondly, D must have known
or believed that he or she had information which might be of material
assistance in securing the prosecution or conviction of an offender for it.
It, here, presumably refers to the specific arrestable offence that D believed
had been committed, rather than the actual arrestable offence committed
by P, so the information must relate to the offence that D had in mind, not
that actually committed by P.
Thirdly, it must be proved that D intended to accept or agreed to accept
consideration for not disclosing that information.
Like section 90(1), the consent of the Secretary of Justice is required
for a prosecution under section 91(1) (section 91(3) of the Criminal
Procedure Ordinance).
Compounding an offence (other than treason) otherwise than under
section 91 has been abolished (section 91(4) of the Criminal Procedure
Ordinance).
388
VICARIOUS LIABILITY
Vicarious liability arises when one person (D) is deemed to be liable for
the wrongful acts of another (P). In the law of tort, for example, a master
is generally liable for torts committed by his or her servants in the course
of the employees employment. What is the position in the criminal law?
No Vicarious Criminal Liability at Common Law

The general rule at common law is that there is no vicarious criminal
liability. Thus, a master (D) will not be criminally liable at common law
for offences committed by Ds employees or agents (Huggins [1730] 2 Stra
883), unless D has participated in the commission of the offence either as
a principal (including where Ds employees are treated as Ds innocent
agents, as in Stringer [1991] Crim LR 639) or as a secondary party. Two
exceptions are recognized at common law: public nuisance (Stephens [1866]
LR QB 702) and criminal libel (Holbrook [1878] 4 QBD 42); D may be
vicariously liable for these offences if committed by Ds servant.
Vicarious Liability and Statutory Offences

The common law rule against vicarious criminal liability has been less
vigorously applied in relation to statutory offences.
Express provision
Vicarious liability may be expressly provided for by statute. An example of
this is found in section 8 of the Miscellaneous Licences Ordinance (cap.
114), which reads:
Whenever any person to whom any licence or permit or authority has
been issued or granted under this Ordinance would be liable under
the provisions of this Ordinance or of any regulations made thereunder
to any punishment, penalty or forfeiture for any act, omission, neglect
or default, he shall be liable to the same punishment, penalty or
forfeiture for every similar act, omission, neglect or default of any agent
or servant employed by him in the course of his business, and every such
agent or servant shall also be liable to every punishment, penalty or
forfeiture prescribed for such acts, omissions, neglects or defaults
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contrary to the provisions of this Ordinance as fully and effectually as

if he had been the person to whom the licence or permit or authority
had been issued or granted [emphasis added].
This has been interpreted as largely codifying the comparable common law
delegation principle discussed below, as appears from Kwok Hung-fai ([1982]
HKLR 453). D1 was the licensee of a massage establishment. D2 was the
manager. One evening, at 10:15 p.m., when D2, but not D1, was present,
two male police officers visited the premises and received massages from
females (D5 and D6), though there was no suggestion that any indecent
act took place. D1 was convicted of breaching Regulations 30(b) and 32(b)
of the Miscellaneous Licences Regulations which read:
30. Every person holding a licence under this Part shall observe the
following conditions (b) no massage or other treatment
shall be given except between the hours of 8 a.m. and 8 p.m.
32. Every person holding a licence under this Part shall not unless
the conditions of the licence otherwise provide (b) allow
male persons to be treated by female persons or vice versa.
On appeal to the High Court, the defendants convictions under Regulation

32(b) were quashed after the prosecution conceded that the word allow
requires proof of mens rea, contrary to the view of the Magistrate. The
defendants further appealed to the Court of Appeal, contending that
Regulation 30(b) also required proof of mens rea. The prosecution opposed
this, submitting that Regulation 30(b) imposed absolute (i.e. strict) liability,
only requiring proof that massages were given outside the stipulated hours
by D1s servant or agent; section 8 then imposed liability on D1. The
prosecution also wished to reinstate the convictions under Regulation 32(b),
and argued, relying in part on section 8, that the person who actually
allowed the massages was D1s delegate.
The Court of Appeal allowed the appeals and quashed the appellants
remaining convictions, holding that both regulations required proof that
D1 had delegated his duties as a licensee before D1 could be vicariously
liable. This, the Court held, had not been proved on the facts, since the
evidence did not even go so far as proving [D2D6] were in the employment
of D1 (at 461). McMullin VP explained further (at 4645):
I conclude that mens rea in the extended sense in which that
has been understood by the courts in the licensee cases is a necessary
ingredient in the proof of an offence under [Regulation 30(b)] as it is
390
in respect of offences pursued under regulation 32(b). Under both

regulations, where the licensee has not personally performed or
supervised the forbidden act, there must be evidence of delegation
sufficient to show that effective control of the massage establishment
has been put by the licensee in the hands of his delegate and that
such control can be reasonably interpreted as extending to all such
acts of the delegate as would be within the scope of the licensed activity
whether lawfully performed or not. It follows from what has been
said that [section 8] does not by itself oust the need to show the
necessary degree of delegation.
This conclusion followed from McMullin VPs view that section 8 essentially
codifies the existing common law rules, except in the following respect
where it clearly goes further than the common law (at 4601):
we have in section 8 a statutory application of the vicarious
liability rule [applying to licensees] which additionally fortifies the
rule by providing that the delegate himself is, in effect, to be treated
also as a principal.
Li JA similarly accepted that delegation must be proved before section 8

can be relied on to impose vicarious liability for an offence requiring mens
rea, observing (at 4689):
[By virtue of] section 8, once it is proved that the licensees servant
had committed a breach of condition be it under strict liability or
committed with guilty knowledge, and the master and servant or
principal agent [sic] relationship is also established then the licensee
of the establishment will be liable even though the licensee himself
has no knowledge whatsoever of the breach. In that sense, the liability
of the licensees may be said to be absolute, i.e. he may be found
guilty even if he himself had no guilty knowledge whatsoever.
[I]f regulation 30 does not create an absolute offence, mens rea
on the part of the actual offender is required to be proved. [To
impose liability on D1, delegation must be proved.] Either he delegated
or he did not. This is a question of fact. If he did, the provisions in
section 8 will take effect and operate to fix him with liability. If he
did not, there is no proof of any master/principal and servant/agent
relationship, he will be clearly not liable as [D1] is not liable in the
present case.
Another illustration of statutory vicarious liability is Chan Wing Hang

([1996] 3 HKC 225). C, the manager of a bar licensed to sell alcohol on
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391
the ground floor, but not on the mezzanine floor where alcohol was sold,
unsuccessfully appealed against his conviction for selling liquor without a
licence, contrary to sections 17(3B) and 46(1) of the Dutiable Commodities
Ordinance (cap. 109). Leong J, on appeal, affirmed Cs conviction on the
ground that C aided and abetted the unlawful sale of alcohol on the
mezzanine floor by his presence and inactivity, but also held that the
Magistrate had erroneously applied section 46(1) of the Ordinance as an
alternative basis of liability. Section 46(1) reads:
When an offence against this Ordinance is committed by a servant of
a licensee, the licensee shall, without prejudice to the liability of the
other person, also be guilty of that offence but shall not be liable to
any term of imprisonment.
This, Leong J held (at 227), could not be relied on to impose vicarious
liability on C since C was the manager, not the licensee, of the premises:
he was an employee of the club albeit a superior to the other members of
staff in the pub. There was no master and servant relationship between
him and the other staff members.
Implied vicarious liability
In some circumstances, vicarious liability for a statutory offence may be
implied. The general rationale for doing so is to give full effect to the
statutory provisions in question; without vicarious liability, they would be
rendered nugatory. Determining whether vicarious liability should be
implied is a matter of construing the relevant statutory provisions, as stated
by Atkin J in Mousell Bros v London and North Western Rlwy ([1917] 2 KB
836, at 845):
[W]hile prima facie a principal is not to be made criminally responsible
for the acts of his servants, yet the legislature may prohibit an act or
enforce a duty in such words as to make the prohibition or the duty
absolute; in which case the principal is in fact liable if the act is in
fact done by his servants. To ascertain whether a particular Act of
Parliament has that effect or not, regard must be had to the words
used, the nature of the duty laid down, the person upon whom it is
imposed, the person by whom it would in ordinary circumstances be
performed, and the person upon whom the penalty is imposed.
Two general approaches to implied vicarious liability have been

recognized. These are the attributed act approach, dealing with strict
392
liability offences, and the delegation by licensee approach, dealing with

statutory licensing offences requiring proof of mens rea.
Attributed act
According to this approach, sometimes called the extensive construction
principle, the criminal act of an employee or agent may be treated in law as
the act of his or her employer or principal if (1) the offence thereby
committed is a strict liability offence, and (2) the activity which forms the
basis of the strict liability offence is referable to the employer or principal.
According to this approach, the act of the employee or agent is deemed to
be the act of the employer or principal; since the offence is strict liability,
mens rea does not have to be proved against the employer or principal,
and therefore there is no need to attribute the state of mind of the employee
or agent to the employer or principal.
An illustration of this approach is Coppen v Moore (No. 2) ([1898] 2
QB 306), in which an employer was held criminally liable when his
employee, a shop assistant, sold goods in an unlawful manner. Although
the actual sale was made by the assistant, the court took the view that the
employer could equally be said to have sold the goods thereby rendering
him liable. Other words which may be held to operate in a similar way to
sold are use (as, for example, where an employee or agent uses a vehicle
in breach of traffic regulations), keeps and in possession (see also London
Borough of Harrow v Shah and Shah [2000] Crim LR 692: vicarious liability
of newsagents for unlawful sale of lottery ticket to underage buyer).
Some words, however, dictate against the imposition of vicarious
liability. Examples are where the offence is based on driving, or on allowing
or permitting some activity to occur. Drive cannot easily be construed as
applying to someone other than the person actually driving the vehicle,
and allow and permit have generally been held to require proof of mens
rea, at least in a limited sense (e.g. Kowloon Motor Bus Co. (1933) Ltd.
[1973] HKLR 395; Gammon (HK) Ltd. v A-G of HK [1985] AC 1).
Where the attributed act approach is used, both parties employer
and employee, principal and agent may be prosecuted as joint principals.
Delegation principle
This principle applies to offences requiring proof of mens rea. It is used
primarily to impose vicarious liability on statutory licensees, i.e. persons
who have been granted a licence under statute. In general, such persons
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are placed under various statutory obligations or duties affecting the

operation of their licences; often, these impose criminal liability if the
licensee knowingly breaches these obligations, but prima facie, only the
licensee can do this. If the licensee chooses to delegate the performance of
the licensed activity to another and that second person, in performing the
activity, breaches the licensees statutory duties with the requisite mens
rea, then both the delegates act and his or her mens rea may be deemed to
be the act and mind of the licensee.
Kwok Hung-fai, discussed above, provides an example of this principle
in operation. A further example is Allen v Whitehead ([1930] 1 KB 211), in
which D ran a cafe. He employed P as manager and inter alia gave P express
instructions not to allow prostitutes to meet in the cafe. D visited the
premises once or twice a day. Contrary to Ds instructions, P knowingly
permitted prostitutes to meet in the cafe over a number of days. This conduct
and knowledge was imputed to D who was convicted of knowingly
permitting prostitutes to remain in a place of refreshment, contrary to
section 44 of the Metropolitan Police Act 1839. Similarly, in Tam Winghim ([1978] HKLR 404), D, the licensee of a nightclub, was convicted of
permitting the employment on the premises of a person under the age of
14 years, despite being overseas at the time. D had entrusted the entire
management of the nightclub to L, who had knowingly employed a 13year-old girl at the club. Ls proven knowledge of the girls age was imputed
to D, who was thereupon treated as having permitted the girls employment.
The delegation principle is not restricted to licensee/employee
relationships. It applies whenever a licensee delegates performance of his
or her statutory duties. In Linnett v MPC ([1946] KB 290), for example,
this principle was applied to make one licensee vicariously liable for the
actions of his co-licensee to whom the former has delegated responsibility
for keeping the licensed premises.
In Vane v Yiannopoullos ([1965] AC 486), the House of Lords, putting
aside reservations about the validity of the principle, held that for this
principle to apply, the delegation must be complete and not merely partial.
D operated a licensed restaurant, in which alcohol could be served but
only to customers having a meal. D advised his staff of this restriction and
gave them instructions to comply with it. On one occasion, while D was
on one floor of the premises, a waitress on another floor breached this
condition and served alcohol without a meal. By a 32 majority, the Lords
held that D had only partially delegated performance of his duties, and
hence was not liable for the breach of licence conditions.
The question of whether there has been a complete or only partial
394
delegation is a question of fact. In Howker v Robinson ([1972] 2 All ER

786), for example, a licensee was convicted of serving alcohol to underage
drinkers, despite the fact that, as in Vane v Yiannopoullos, D had only
delegated the operation of a lounge bar, where alcohol was served, to a
barman, while D himself kept control in an adjacent public bar.
If a licensees delegate then sub-delegates performance of the statutory
duties to another, the licensee may still be vicariously liable for breaches
by the sub-delegate (Sopp v Long [1970] 1 QB 518).
In these licensing cases, the licensees delegate who actually performs
the prohibited activity does not necessarily escape criminal liability; he or
she may find himself or herself liable as a secondary party at common law.
However, as noted in Kwok Hung-fai, for the purposes of licences regulated
by the Miscellaneous Licences Ordinance, this rule has been modified by
section 8, which provides:
[E]very such agent or servant shall also be liable to every punishment,
penalty or forfeiture prescribed for such acts, omissions, neglects or
defaults contrary to the provisions of this Ordinance as fully and
effectually as if he had been the person to whom the licence or permit or
authority had been issued or granted [emphasis added].
Limitations
Two limitations on implied vicarious liability have been recognized at
common law.
Firstly, in Ferguson v Weaving ([1951] 1 KB 814), it was held that one
person, D, cannot be held vicariously liable for the acts of another who
merely abetted the commission of an offence. In this case, waiters in Ds
licensed premises allowed customers to continue drinking alcohol outside
of authorized drinking hours, contrary to Ds express instructions. The
Court held that even if the waiters were Ds delegates, D was not vicariously
liable for their acts. Lord Goddard CJ concluded (at 821):
[D] can aid and abet the customers if she knows that the customers
are committing an offence, but we are not prepared to hold [that the
waiters] knowledge can be imputed to her so as to make her, not a
principal offender, but an aider and abettor. So to hold would be to
establish a new principle in criminal law and one for which there is
no authority.
Secondly, it has been said that there can be no vicarious liability for an
attempt (Gardner v Ackroyd [1952] 2 QB 743).
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CORPORATE LIABILITY
Introduction31
In Hong Kong, as elsewhere, business activity whether construction,
banking, manufacturing, financial services, etc. largely takes place within
corporate structures. Many of these activities or aspects of them, ranging
from employment, to pollution, to advertising, to building safety, and so
on are regulated or controlled in various ways, including the imposition
of criminal penalties for breaches. When breaches occur within or as a
result of such corporate activity, the question arises as to whether the
corporation itself, and not just the individuals within the corporation who
made the decisions and performed the acts attracting liability, is criminally
liable.32
Imposing Liability
A corporation, generally meaning a limited company incorporated under
the Companies Ordinance (cap. 32), exists as a legal entity and constitutes
a legal person. For the purposes of statutory interpretation, this is expressly
recognized in section 3 of the Interpretation and General Clauses Ordinance
which defines person as including any public body and any body of persons,
corporate or unincorporate, and expressly states that this definition shall
apply notwithstanding that the word person occurs in a provision creating
or relating to an offence or for the recovery of any fine or compensation.
According to this, a corporation33 may theoretically be liable for any
statutory offence that can be committed by a person. However, this does
31
32
33
See generally, Wells, Celia, Corporations and Criminal Responsibility (second edition).
Oxford: Oxford University Press, 2001.
Some commentators have doubted the need for corporate liability; see, for example, Smith
and Hogan, Criminal Law (ninth edition, Butterworths, 1999), p. 186. Reasons advanced
in favour usually include: identifying a responsible individual within a corporate structure,
imposing a greater fine than would be justified in relation to an individual, and ensuring
public censure.
At common law, an unincorporated body, e.g. a partnership, is not a legal person and
cannot be criminally liable as such. Section 3 inter alia allows an unincorporated body to
be held criminally liable, i.e. based on the acts of its members. Compare in the UK, section
5 and Schedule 1 of the Interpretation Act 1978.
396
not answer a fundamental problem how exactly does a corporation commit

an offence? After all, criminal liability requires proof of actus reus and
mens rea, and a corporation has no physical existence or presence in the
sense that a human being does. So how can it act or think in the sense
that the criminal law presupposes and requires for liability?
For this and other procedural reasons, it was at one time thought that
corporations could not be made criminally liable (Anon [1701] 12 Mod
Rep 560). However, several ways around this physical objection have since
been found, and, subject to certain limitations discussed below, corporations
may now generally be held criminally liable.
Firstly, corporations may be expressly or impliedly liable for breaches
of statutory duties imposed on persons having a particular status owner,
occupier, keeper and such like (Evans and Co. Ltd. v Lee [1914] 3 KB
315). For example, section 12 of the Air Pollution Control Ordinance (cap.
311) provides:
(1) The owner of any premises used for the conduct of any specified
process shall use the best practicable means for preventing the
emission of noxious or offensive emissions from such premises,
and for preventing the discharge, whether directly or indirectly,
of such emissions into the atmosphere, and for rendering such
emissions where discharged harmless and inoffensive.
(2) Any person who fails to comply with subsection (1) commits an
offence and is liable to a fine of $200,000 .
If a company is the owner of premises used for the conduct of a specified

process, then the company may be criminally liable if the best practicable
means for preventing emissions is not used.
Secondly, a corporation may be made vicariously liable for the acts and
omissions of its agents and servants on the same basis and to the same extent
as a natural person. This includes vicarious liability for (1) public nuisance
(Great North of England Railway [1846] 2 Cox CC 70), (2) strict liability
offences committed by servants and agents and referable to the company,
and (3) offences (including mens rea offences) committed by persons to
whom the company has delegated performance of statutory obligations (see,
for example, Gammon (HK) Ltd. v A-G of HK [1985] AC 1).
Thirdly, and most importantly, a corporation may be criminally liable
for offences committed by certain persons said to be identified with and
treated as being the corporation, as if the acts and thoughts of such persons
were the acts and thoughts of the corporation itself its alter ego as this
doctrine of identification is sometimes known (see DPP v Kent and Sussex
PARTICIPATION
397
Contractors Ltd. [1944] KB 146, ICR Haulage Ltd. [1944] KB 551, and Moore
v I. Bresler Ltd. [1944] 2 All ER 515). This basis of liability was more fully
explained by Lord Reid in Tesco Supermarkets Ltd. v Nattrass ([1972] AC
153, at 170):
A living person has a mind which can have knowledge or intention or
be negligent and he has hands to carry out his intentions. A corporation
has none of these: it must act through living persons, though not
always one or the same person. Then the person who acts is not
speaking or acting for the company. He is speaking as the company
and his mind which directs his acts is the mind of the company. There
is no question of the company being vicariously liable. He is not acting
as a servant, representative, agent or delegate. He is an embodiment
of the company, one could say, he hears and speaks through the
persona of the company, within his appropriate sphere, and his mind
is the mind of the company. If it is a guilty mind then that guilt is the
guilt of the company.
By virtue of this fictional identification of certain individuals with the

company, the company itself is made directly, not merely vicariously, liable.
This doctrine has been applied in Hong Kong. In Lee Tsat-pin ([1985]
Cr App No. 315 of 1985), for example, Li VP, in the Court of Appeal,
stated (at 6):
The principle is that in order to attach liability to a limited company
for the act of an officer of that company the officer who committed
the offence must be a person who was in control of the company so
that his criminal act could be identified as that of the company.
Who then is to be identified with the corporation for this purpose,

i.e. treated as its alter ego? In general, it is said to be those persons who
effectively control the actions of the corporation, those who make the
decisions. In HL Boulton (Engineering) Co. Ltd. v TJ Graham and Sons Ltd.
([1957] 1 QB 159), Lord Denning, likening a company to a human body,
drew a distinction (at 172) for this purpose between those who represent
the mind and will of the company and those who are merely the hands:
[The company] has a brain and a nerve centre which controls what it
does. It also has hands which hold the tools and act in accordance
with directions from the centre. Some of the people in the company
are mere servants and agents who are nothing more than hands to do
the work and cannot be said to represent the mind or will. Others are
directors and managers who represent the directing mind and will of
398
the company and control what it does. The state of mind of these
managers is the state of mind of the company and is treated by the
law as such.
It is not always easy to draw this distinction. It is not enough, for

example, simply to show that a person exercises some managerial
responsibility. In Tesco, above, the prosecution unsuccessfully sought to
make the company criminally liable for breaches of trade description
regulations committed by an assistant at one of its 800 branches by
identifying the company with that branchs manager. The Lords held that
Tesco was entitled to rely on a statutory defence absolving it of liability on
the basis that the breach was committed by another person (see also
Cunningham (1992) Mag App No. 341 of 1992, at 5). Lord Reid suggested
(at 171) that a corporation should generally be liable for the acts of only
the board of directors, the managing director and perhaps other superior
officers of a company [carrying] out the functions of management and
speak and act as the company .
Viscount Dilhorne (at 187) thought such persons had to be in actual
control of the operations of a company or of part of them and who is not
responsible to another person in the company for the manner in which he
discharges his duties in the sense of being under his orders .
According to this, then, for the doctrine of identification to apply,
someone who is regarded as the corporations brains must be proved to
have committed the offence with any necessary mens rea. In assessing this,
the functions and responsibilities that a particular person carries within
the corporate structure are a question of fact, but the question of whether
a particular person with those functions and responsibilities is to be regarded
as a corporations brains or hands is a question of law for the judge.
The following have been held to be merely hands: a depot engineer
(Magna Plant Ltd. v Mitchell [1966] Crim LR 394; Kowloon Motor Bus Co.
(1933) Ltd. [1973] HKLR 395), a weighbridge operator (John Henshall
(Quarries) Ltd. v Harvey [1965] 2QB 233), and a transport manager
(Reddhead Freight Ltd. v Shulman [1988] Crim LR 696).
Secondly, the person who actually committed the offence must be
proved to have committed the offence within the scope of his or her office;
the corporation will not be liable if the offender was acting in his or her
personal capacity (DPP v Kent and Sussex Contractors Ltd.).
However, in Meridian Global Funds Management Asia Ltd. v Securities
Commission ([1995] 2 AC 500), the Privy Council, on appeal from the
Court of Appeal of New Zealand, recently emphasized that care must be
PARTICIPATION
399
taken with this brains-and-hands image or anthropomorphism for

the very power of the image can distract attention from its primary purpose,
namely, to assist in determining and applying the appropriate rules of
attribution to a particular corporate defendant charged with a particular
offence. Lord Hoffman expressed the Privy Councils opinion on this as
follows (at 507):
There will be many cases in which the court considers that the
[criminal offence] was intended to apply to companies and that,
although [the law] excludes ordinary vicarious liability, insistence on
the primary rules of [corporate] attribution [e.g. those found in the
companys articles of association or implied by law] would in practice
defeat that intention. In such a case, the court must fashion a special
rule of attribution for the particular substantive role. This is always a
matter of interpretation; given that it was intended to apply to a
company, how was it intended to apply? Whose act (or knowledge, or
state of mind) was for this purpose intended to count as the act etc of
the company? One finds the answer to this question by applying the
usual canons of interpretation, taking into account the language of the
rule (if it is a statute) and its content and policy [emphasis added].
Applying this to the facts of the case, the Privy Council concluded that
the defendant investment management company was criminally liable for
the failure of two senior investment officers, K and N, to give immediate
notice of certain matters required by New Zealand securities legislation,
despite the fact that the facts giving rise to the disclosure obligation were
not known by either its board of directors or managing director. Lord
Hoffman explained (at 511):
The policy of section 20 is to compel, in fast-moving markets, the
immediate disclosure of the identity of persons who become substantial
security holders in public issuers . In the case of a corporate security
holder, what rule should be implied as to the person whose knowledge
for this purpose is to count as the knowledge of the company? Surely
the person who, with the authority of the company, acquired the
relevant interest. Otherwise the policy of the Act would be defeated.
Their Lordshipshold that upon the true construction of section
20(4)(e), the company knows that it has become a substantial security
holder when that is known to the person who had authority to do the
deal . The fact that K did the deal for a corrupt purpose and did
not give such notice because he did not want his employers to find
out cannot affect the attribution of knowledge and the subsequent
duty to notify.
400
Lord Hoffman added (at 511) that it was therefore unnecessary to

inquire into whether K could have been described in some more general
sense as the directing mind and will of the company.
Meridian represents a considerable broadening of the traditional doctrine
of identification, although Lord Hoffman went on to say that this did not
make a company liable whenever a servant of a company has authority to
do an act on its behalf. Rather, he reiterated (at 511):
it is a question of construction in each case as to whether the
particular rule requires that the knowledge that an act has been done,
or the state of mind with which it was done, should be attributed to
the company .
He gave as an example the case of a company employee authorized to drive

a lorry: that does not in itself lead to the conclusion that if he kills someone
by reckless driving, the company will be guilty of manslaughter.
Limitations on corporate liability
There are two general limitations on corporate liability. Firstly, a corporation
cannot be made liable as a principal for any offence requiring human
conduct outside the limits of corporate activity. Offences of this type include
rape, indecent assault, bigamy, perjury and murder, all of which involve
human conduct that cannot readily be said to be within any legitimate
corporate activity; likewise for most crimes of violence. Corporate
manslaughter is an exception to this. Following on from earlier English
authority (R v Coroner for East Kent, ex p Spooner (1989) 88 Cr App R 10;
P & O European Ferries (Dover) Ltd. (1990) 93 Cr App R 72), arising out of
deaths caused by the capsize of an English channel ferry, companies have
been successfully indicted and convicted of manslaughter both in England
(R v Kite and DLL Ltd., unreported Winchester Crown Ct, 9 December
1994) and in Hong Kong (Ajax Engineers and Surveyors Ltd. in which the
company pleaded guilty; see discussion in M Pritchard, Corporate
Manslaughter: The Dawning of a New Era? (1997) 27 HKLJ 40). At the
same time, the theoretical foundations of corporate manslaughter have yet
to be fully elaborated (see further A-Gs Reference (No. 2 of 1999) [2000]
Crim LR 475, CA: reaffirmed necessity for identifiable guilty human actor
before company can be convicted of manslaughter by gross negligence).
Secondly, corporations cannot be convicted of any offence where the
only penalty that may be imposed is physical in nature. This includes murder
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401
and treason, which result in mandatory sentences of life imprisonment. In

ICR Haulage Ltd., Stable J explained (at 554) why this should obviously be
so:
A further exception, comprises offences of which murder is an
example, where the only punishment the court can impose is corporal,
the basis on which this exception rests being that the court will not
stultify itself by embarking on a trial in which, if a verdict of Guilty
is returned, no effective order by way of sentence can be made.
Corporations can be made only to pay fines or make compensation on

conviction.
Liability of Corporate Officers

In general, corporate officers who commit offences within the scope of
their office may be convicted along with the corporation, either as joint
principals or as a secondary party (generally an abettor). In either case,
however, there must be proof of actual participation by the officer in the
commission of the offence, since he or she, even if identified with the
corporation, is not thereby vicariously liable for the criminal acts of the
corporations servants and agents.
In addition, statutory provisions may impose criminal liability on
corporate officers. There is a general provision to this effect in section
101E of the Criminal Procedure Ordinance (formerly section 84 of the
Interpretation and General Clauses Ordinance), which was considered in
Chan Pui-kay ([1992] 1 HKCLR 218):
Where a person by whom an offence under any Ordinance has been
committed is a company and it is proved that the offence was committed
with the consent or connivance of a director or other officer concerned
in the management of the company, or any person purporting to act
as such director or officer, the director or other officer shall be guilty
of the like offence [emphasis added].
Specific provisions to the same effect exist in other ordinances, e.g. section
20 of the Theft Ordinance.
Under these statutory provisions, the burden of proof remains on the
prosecution. Both the fact that the company is liable for the offence and
the fact that the offence was committed with the consent or connivance of
the officer in question must be proved. In proving that the company is
402
liable, the prosecution may rely on the doctrine of identification (Lee Tsatpin [1985] Cr App No. 315 of 1985).
A second type of provision is that found in section 20 of the Trade
Descriptions Ordinance (cap. 362), which reads:
Where a body corporate is convicted of an offence under this
Ordinance, every person who, at the time of the commission of the
offence, was a director, manager, secretary or other similar officer of
the body corporate, or any person who was purporting to act in any
such capacity, shall be deemed to be guilty of that offence unless he
proves that the offence was committed without his knowledge, or that
he exercised all due diligence to prevent the commission of the offence
[emphasis added].
Under this type of provision, the prosecution bears the burden of proving
that the corporation has been convicted and that D, the person alleged to
be liable under this provision, was or purported to be an officer of the
corporation. D will then be liable deemed to be guilty unless D
proves lack of knowledge or due diligence, on the balance of probabilities
(Cunningham (1992) Mag App No. 341 of 1992).
9
Inchoate Offences: Incitement,
Conspiracy and Attempt
INTRODUCTION
Under Hong Kong law, conduct prior to the commission of a full offence
may, in certain circumstances, itself lead to criminal liability. This will be
so if the conduct amounts to incitement to commit an offence, conspiracy
to commit an offence, or an attempt to commit an offence. Incitement,
conspiracy and attempt constitute what are called inchoate offences.
Together, they enable criminal sanctions to be imposed on persons who
carry out various acts prior to or in preparation for the commission of an
offence (usually called the substantive or primary offence) with intention
to commit that offence, despite the fact that the primary offence murder,
theft, rape, etc. remains uncompleted (or inchoate).
This form of liability recognizes both that the preparatory criminal
conduct itself creates the danger of prospective harm and also that police
and other law enforcement agencies must be able to intervene and arrest
prospective offenders well before their intended harm is done, yet still be
able to secure their conviction and punishment. Without inchoate liability,
the police could prevent the commission of an offence, but would then be
unable to prosecute the arrested person with any complete offence.1
1
Lacey, Nicola, and Wells, Celia, Reconstructing Criminal Law: Critical Perspectives on Crime
and the Criminal Process (second edition, London: Weidenfeld and Nicholson, 1998), p. 55,
record the following rationales for inchoate liability: the danger of actual offences posed
404
The Nature of Inchoate Liability

Inchoate liability is not simply liability for criminal thoughts. In addition to
the offenders criminal intention, specific preliminary or preparatory steps
must be proved: an act of incitement, an agreement for conspiracy, or an act
that is more than merely preparatory to the commission of the offence for
attempt. Each offence, in other words, requires both actus reus and mens rea.
However, once D has committed the necessary actus reus of incitement,
conspiracy or attempt with the requisite mens rea, the relevant inchoate
offence is already committed, and any subsequent decision to withdraw
without committing the primary offence will not relieve D of liability for the
previous act of incitement, conspiracy or attempt. If the primary offence is
actually committed, D, assuming that he or she did not previously withdraw,
may also be liable as a principal or secondary party to the primary offence.
Inchoate liability depends on there being a primary offence to incite,
conspire at or attempt, in the sense that D is not liable simply for
incitement, conspiracy or attempt, but rather for inciting, conspiring at
or attempting an offence whether it be murder, theft, rape or any other
offence under Hong Kong law.
The Basis of Criminal Liability for Incitement, Conspiracy

and Attempt in Hong Kong
Prior to 2 August 1996, the law relating to criminal incitement, conspiracy
and attempt in Hong Kong was primarily common law (attempt had been
partially codified; see below). On that date, the Crimes (Amendment)
Ordinance (No. 49 of 1996) came into force, enacting statutory offences of
conspiracy and attempt along similar lines to earlier English reform
(Criminal Law Act 1977 (as amended by the Criminal Attempts Act 1981
and the Criminal Justice Act 1987) re conspiracy, and the Criminal Attempts
Act 1981 re attempt). Save for retaining conspiracy to defraud, the previous
common law relating to criminal conspiracy and attempt was consequently
abolished. The Hong Kong Law Reform Commission in its 1994 Report on
Codification: The Preliminary Offences of Incitement, Conspiracy and Attempt
(Topic 26, March 1994) had also recommended the enactment of a statutory
by inchoate ones, police convenience in being able to arrest well before the completion of
the offence, culpability of the defendant (especially where lack of completion is due to
external, fortuitous factors).
INCHOATE OFFENCES: INCITEMENT, CONSPIRACY AND ATTEMPT
405
offence of incitement, and draft provisions to this effect were included in

the Crimes (Amendment) Bill 1995 (sections 159M to 159O), but these
provisions were not enacted, and incitement remains an offence at common
law.
INCITEMENT
The Offence of Incitement
At common law, it is an offence to incite another person (the incitee) to
commit an offence (Higgins (1801) 102 ER 269; Whitehouse [1977] QB
868). The offence of incitement is complete when D the inciter
commits the act of incitement itself, and it is immaterial for the purposes
of the offence of incitement whether the offence incited is thereafter
committed or even attempted by the incitee or whether the incitee agrees
with or is influenced or encouraged at all by D.
If the incitee agrees to do what D incites, this may then amount to a
conspiracy between D and the incitee. If the substantive offence incited by
D is subsequently committed by the incitee, then D may generally be charged
as secondary party to that substantive offence.
In addition to the general common law offence of incitement, there are
also a number of specific statutory offences requiring proof of incitement
as an element of the offence. One example is inciting incest, contrary to
section 47(3) of the Crimes Ordinance (cap. 200) which reads:
Any man who ... incites a girl under the age of 16 years, who is to his
knowledge his granddaughter, daughter or sister, to have sexual
intercourse with him, shall be guilty of an offence ... .
In this section, as also, for example, in section 146(1) of the Crimes

Ordinance (it is an offence for a person ... [to] ... incite a child under the
age of 16 to commit ... [an act of gross indecency] with or towards him or
her or another), the conduct incited may not, in itself, constitute an offence
if committed by the incitee. Thus, D does not incite V to commit an offence
(see Whitehouse [1977] QB 868, discussed below). Inciting such conduct
nonetheless gives rise to criminal liability.
406
Actus reus
Incitement occurs where D seeks to influence another to commit an offence.
The act of incitement or solicitation (Higgins, above) is broadly defined: it
may be express or implied, it may be by words (spoken or written) or
conduct, and it may involve advice, encouragement or persuasion
(Hendrickson [1977] Crim LR 356; James (1985) 82 Cr App R 226), pressure
or threats (Race Relations Bd v Applin [1973] QB 815), or even bribery. In
Fitzmaurice ([1983] QB 1083), the English Court of Appeal also spoke of
suggestion, proposal and request as modes of incitement. Merely assisting
another to commit an offence may not be enough (Hendrikson and Tichner
[1977] Crim LR 356). So, if D without any words of encouragement or
persuasion supplies X with a gun knowing that she intends to murder her
husband, D ought not to be liable for inciting murder, although D may be
liable as an accessory if X actually commits murder. Ds act of solicitation
must be communicated or come to the attention of the person or persons
incited. Thus, sending a letter to X encouraging X to commit an offence
would not suffice if the letter was never received by X (though D may be
liable of an attempt to incite; see Ransford (1874) 13 Cox CC 9. Compare
Rowley [1991] 1 WLR 1020, in which the act of sending notes to arrange
a meeting was held to be merely preparatory to an act of incitement, thus
not an attempt to incite). However, the words or conduct need not be
directed at a particular person or persons; placing an advertisement, for
example, may suffice, as in Invicta Plastics Ltd. v Clare ([1976] RTR 251),
in which a company was held to have incited the illegal use of a radar for
detecting police speed traps by advertising the device for sale in a motoring
magazine, despite an express warning in the advertisement that it was illegal
to use the device for this purpose. This must be contrasted with James and
Ashford ((1986) 82 Cr App R 226) in which the English Court of Appeal
acquitted the defendants of conspiring to incite others to abstract electricity
(contrary to section 13 of the Theft Act 1968). The mere fact that the
defendants planned to sell devices capable of being used illegally to reverse
electricity meters, thereby abstracting electricity, did not in the courts view
establish an intent on their part to persuade buyers to use them in this
way. In Most ([1881] 7 QBD 244), D was convicted of inciting murder
after he published an article in a newspaper applauding and advocating
assassination as a revolutionary means.
If the accused is the intended victim of the offence and would not be
liable as an accessory thereto, then he or she likewise cannot be guilty of
inciting the offence (Tyrrell [1894] 1QB 710).
407
Mens rea
The mens rea of incitement is intention. D must be proved to have had the
intention that the incitee (X) should commit the offence incited, i.e. perform
the actus reus with the necessary mens rea. This requires proof that D (1)
intended X to perform any conduct specified in the offence, (2) intended Xs
conduct to cause any consequence required for the offence, (3) knows or
believes (or perhaps is wilfully blind) that any circumstances existed, and (4)
knows or believes that X will have the necessary mens rea required for the
offence. Suppose, for example, D is charged with inciting X to commit
criminal damage, contrary to section 60(1) of the Crimes Ordinance (cap.
200). The prosecution must prove: (1) D intended X to perform acts (or
omissions) that would cause damage to property which D knew or believed
belonged to another, without any lawful excuse for causing such damage
(actus reus of criminal damage), and (2) D knew or believed that X would
so act either with the intention of causing such damage or being reckless (in
the Caldwell sense, as required for criminal damage) as to whether Xs
conduct would cause such damage (mens rea of criminal damage). Therefore,
if D believes the acts incited by him or her will not cause any damage, or
that the property belongs to X, or that X has a lawful excuse for causing
such damage, then D cannot be said to have intended X to commit the
offence of criminal damage and ought to be acquitted of incitement.
Similarly, if D knows or believes that X will not have the requisite
mens rea e.g. D knows that X honestly (but mistakenly) believes that
the property belongs to X (see Smith [1974] QB 354) then D ought not
to be guilty of incitement. Likewise, D ought not to be liable of inciting
rape if D knows that X will believe the female victim is consenting.2
Ds acquittal in these cases is based on Ds lack of the mens rea required
for incitement. However, in Curr ([1968] 2 QB 944), the English Court of
Appeal went further, holding that D also ought to be acquitted if it is not
proved that X would in fact have the necessary mens rea for the primary
offence. Thus, Curr was acquitted of incitement because it was not proved
that the women incited by him to carry out a fraud involving the encashment
of welfare cheques knew they had no right to receive payment. This aspect
D may instead be convicted as a secondary party to rape, on the basis that D procured the
commission of the actus reus of rape; see Chapter 8, p. 356. In relation to criminal damage,
the incitee may alternatively be treated as Ds innocent agent, making D liable for criminal
damage as the principal; see Chapter 8, p. 331.
408
of Curr has been criticized for confusing the mens rea of the principal
offender with that of the inciter.3
Likewise, there should be no need to prove that D himself or herself
had the mens rea of the offence incited. Thus, D ought to be guilty of
inciting theft regardless of whether D personally acted dishonestly, so long
as D knew or believed that the incitee would appropriate the property with
a dishonest state of mind (compare Shaw [1994] Crim LR 365). In any
event, it is not necessary to prove that D realized the conduct incited by D
is or would amount to an offence ignorance of the criminal law is no
defence.
Since intention is required, incitement is a specific intent offence for
the purposes of the law relating to voluntary intoxication.
The offence incited
Indictable or summary
In Curr ([1968] 2 QB 944), it was held that the offence incited may be a
summary or an indictable offence. Since incitement is itself an indictable
offence, this creates an anomaly that D may be liable on indictment for inciting
another to commit what is only a summary offence (although D is liable on
conviction only to the same maximum penalty (section 101I(2)(c) of the
Criminal Procedure Ordinance)). Section 159M(3) (not enacted) of the
Crimes (Amendment) Bill 1995 would have maintained this position, by
expressly declaring incitement applicable to any offence triable in Hong Kong.
No offence by incitee
The conduct incited by D must amount to an offence (under Hong Kong
law); if not, then D is not liable for incitement. This principle is illustrated
by Whitehouse ([1977] QB 868), in which W was accused of inciting his
15-year-old daughter to commit incest with him. Although W would have
For example, Card, Cross and Jones, Criminal Law (fourteenth edition, Sweet and Maxwell,
1998) comment (para 18.4): It is difficult to see why the mental element of the person incited
should be relevant to liability for incitement since liability for that offence does not depend
on the incited offence being committed or even intended by the person incited. In the Hong
Kong Law Reform Commissions Report on Codification: The Preliminary Offences of Incitement,
Conspiracy and Attempt (Topic 26) (March 1994), it was recommended that this rule in Curr
should not be perpetuated (para 2.28). See also DPP v Armstrong [2000] Crim LR 379.
409
been guilty of incest (contrary to section 10(1) of the Sexual Offences Act
1956) if sexual intercourse with his daughter had actually taken place, and
she could have been liable for permitting such sexual intercourse if she
had been 16 years old (contrary to section 11(1) of the Sexual Offences
Act 1956), since she was only 15 years old, she could not be liable for this
latter offence as a principal. Furthermore, since she fell within the class of
persons whom the law of incest seeks to protect, in the absence of any
express offence applicable to her, she was not at law liable as an accessory
for aiding and abetting her father to commit incest with her (contrary to
section 10). Consequently, the conduct that W incited her to commit
sexual intercourse with him would not have been an offence by her if it
actually took place. Unhappily, therefore, W was not guilty of inciting her
to commit an offence. This particular anomaly in the law of England, and
also Hong Kong, has since been rectified (section 47(3), above), but the
principle remains that no offence of incitement is committed if the incitee
is legally incapable of committing the offence incited, e.g. the incitee is
under the age of criminal responsibility. The position may be different in
the case of an incitee who raises the defence of duress, since duress does
not negate actus reus or mens rea.
Conduct capable of performance only in future
The conduct incited need not be capable of immediate performance, so
long as it may become possible to perform it at some future time. For
example, D incites X to steal Ys pay packet when Y receives it at the end
of the month, or incites a pregnant woman to kill her unborn child after its
birth (Shephard [1919] 2 KB 125).
Impossibility
What if the incited offence cannot be committed, if it is impossible? Unlike
conspiracy and attempt, the effect of impossibility on incitement remains a
matter of common law.
Legal impossibility
If D incites another to commit acts which D mistakenly believes to be an
offence, D is not liable for incitement. For example, D incites X to commit
adultery, mistakenly believing that adultery is an offence under Hong Kong
law.
410
Inadequate means and intervention

If the reason that the offence incited cannot be completed is either that the
method or means of carrying out the offence contemplated by D is
inadequate (the poison is not strong enough to kill; not enough explosive
is used to crack open the safe), or that X is or will be prevented by law
enforcement officials from doing so, or that the incitee is a police officer
and does not, for example, intend to distribute child pornography (DPP v
Armstrong [2000] Crim LR 379), this will not provide D with a defence of
impossibility to incitement.
Factual impossibility
If the conduct incited by D would amount to an offence if completed, but
it is factually impossible for that conduct to be completed, or for it to
bring about an intended consequence, as where D incites X to kill someone
who is already dead or to steal from an empty safe, it seems that D is still
guilty of incitement, although the law remains somewhat clouded. The two
leading authorities are English Court of Appeal cases, McDonough ((1962)
47 Cr App R 37) and Fitzmaurice ([1983] 1 QB 1083). In McDonough, the
court held that D could be properly convicted of inciting another to receive
stolen lamb carcasses, even though no such carcasses existed. However, in
Fitzmaurice, by which time two intervening decisions of the House of Lords
had held that factual/physical impossibility was a defence at common law
to charges of attempt (Haughton v Smith [1975] AC 476) and conspiracy
(DPP v Nock [1978] AC 979), the Court of Appeal took the view that the
law relating to incitement should be the same, despite the statutory reversal
of these two House of Lords cases in England in 1981. Applying Nock, the
court concluded that factual impossibility ought to be a defence if D incited
a specific act (D incites X to kill V who is already dead), but not if the
incitement is general in nature (D invites X to manufacture dangerous
drugs). The crucial question, stated Neill J (at 1092), is to establish on
the evidence the course of conduct which the alleged inciter was
encouraging. The effect of this is to limit the circumstances in which factual
impossibility may be raised as a defence to incitement, but not negate the
existence of the defence in a proper case.
In Hong Kong, sections 159A(1) and 159G(2) of the Crimes Ordinance
(cap. 200) (as added by Crimes (Amendment) Ordinance No. 49 of 1996)
have followed England and reversed the common law rules regarding
impossible conspiracies and attempts. Pursuant to the recommendation of
411
Hong Kongs Law Reform Commission that the law should be the same for
all three inchoate offences, section 159M(2) in the Crimes (Amendment)
Bill 1995 would have likewise abolished impossibility as a defence to
incitement, but this provision was not enacted. It is to be hoped that should
the issue arise in Hong Kong, the decision in McDonough would be applied.
Otherwise, the anomalous result would be that if D incites X to wound V
who is already dead, D is not guilty of incitement, but the moment X
agrees to do as D incites, or attempts to stab Vs lifeless body, D may then
be guilty as a co-conspirator or as a party to attempt.
Participation and double inchoate liability
Incitement and participation
Inciting another to aid, abet, counsel or procure the commission of an
offence by a third party (i.e. inciting X to be a secondary party to Ys act)
does not give rise to liability for the offence of incitement for the reason
that being a secondary party is not in itself an offence (Bodin and Bodin
[1979] Crim LR 176; however, compare Po Koon-tai [1980] HKLR 492
which recognized conspiracy to aid, abet, counsel or procure, contrary to
English authority). This is subject to an exception where aiding, abetting,
counselling or procuring constitutes the actus reus of a substantive offence,
as in section 33B of the Offences Against the Person Ordinance (cap. 212)
(OAPO) which makes it an offence to aid, abet, counsel or procure another
to commit or attempt to commit suicide.
It would, however, seem possible to be an accessory to incitement; for
example, D arranges a meeting between X and Y, knowing and intending
that at the meeting, X will incite Y to commit an offence. D himself or
herself does not incite Y, but D does assist X to incite Y.
If the primary offence incited by D is actually committed, then D will
generally be indictable as an accessory to that primary offence.
Double inchoate liability
The primary offence incited by D may itself be an inchoate offence, giving
rise to what is called double inchoate liability. Inciting incitement, for
example, was recognized by the English Court of Appeal in Sirat ((1985)
83 Cr App R41; see also Evans [1986] Crim LR 470); thus D may be liable
for incitement by soliciting X to address a public meeting and encourage a
riot. According to the Hong Kong Court of Appeal in Mak Sun-kwong
412
([1980] HKLR 466), it is also possible at common law to incite another to

conspire (whether with the inciter or with others) to commit an offence.
Such liability has been statutorily abolished in England (section 5(7) of the
Criminal Law Act 1977), but Hong Kongs recent codification of conspiracy
and attempt did not purport to abolish incitement to conspire; indeed,
Hong Kong expressly recommended that, along with inciting incitement,
the offence of incitement to conspire should be retained (Report, para
2.3.1), because of its importance in the context of triad crimes [involving]
long term conspiracies, such as those involving gambling, prostitution and
drugs. (It has been held that triad societies may generally be regarded as
continuing conspiracies; Sit Yat-keung [1986] HKLR 434, A-G v Chik Wailun [1987] HKLR 41; cf. Chan Kai [1990] 1 HKLR 684.) Inciting an attempt
may also be permissible, although in general such a charge would be
misconceived since inciting X to attempt to commit an offence almost
inevitably involves inciting X to commit the primary offence itself.
Where Ds intended incitement fails because the act of solicitation is
never in fact communicated to the intended incitee, as where D posts a letter
exhorting X to commit an offence but it is destroyed before delivery, D may
still be liable for an attempt to incite, contrary to section 159G(1) of the
Crimes Ordinance, provided that all the necessary elements of attempt are
proved (Ex p. Amos [1973] Crim LR 437). Along the same lines, two persons
who agree to encourage a third party to commit an offence may be charged
with conspiracy to incite (James and Ashford (1986) 82 Cr App R 226).
Procedure, penalties and jurisdiction
Procedure and penalties
At common law, incitement was a misdemeanour triable on indictment.
Section 101I(2)(c) of the Criminal Procedure Ordinance (cap. 221)
(formerly section 90(2)(c) of the Interpretation and General Clauses
Ordinance (cap. 1)) provides that a person convicted of incitement is liable
to the same maximum penalty as that provided by statute for the offence
incited, unless a penalty is otherwise provided by any ordinance for such
incitement. Section 101C(1) of the Criminal Procedure Ordinance (formerly
section 82 of the Interpretation and General Clauses Ordinance) further
provides that any statutory offence and any statutory powers or duties
exercisable or to be performed upon a persons detention for or conviction
of an offence shall be deemed to include a reference to, or be exercisable or
performable upon, a conviction of incitement. Section 101C(2) expressly
413
provides that subsection 101C(1) applies to powers of imposing pecuniary

penalties, forfeiture and search and seizure, and to powers and discretions
to cancel, suspend or refuse to issue any licence, permit or other
authorization.
Jurisdiction
Incitement is a Group B offence (along with conspiracy and attempt) for
the purposes of the Criminal Jurisdiction Ordinance (cap. 461). This
ordinance (section 3(3)) extends the jurisdiction of Hong Kongs courts
over certain offences against the Theft and Crimes Ordinance (cap. 200)
Group A offences provided that any relevant event occurred in
Hong Kong (relevant event means any act or omission or event (including
any result of one or more acts or omissions) constituting part of the actus
reus of the offence (section 3(1) of the Criminal Jurisdiction Ordinance)).
In relation to incitement, section 4(4) provides: On a charge of
incitement to commit a Group A offence, the defendant may be guilty of
an offence whether or not the incitement took place in Hong Kong. Further,
under section 4(1), a person may be guilty of inciting a Group A offence
(a) whatever his citizenship or nationality, or whether or not he was a
permanent resident of Hong Kong at any material time; (b) whether or not
he was in Hong Kong at any such time. Further, by section 6(2), a person
who, while in Hong Kong, incites a Group A offence where the incitement
would in all respects be triable in Hong Kong except for the fact that what
the person charged had in view (i.e. the offence incited) would not itself
be an offence triable in Hong Kong (e.g. it is to be committed overseas),
may still be convicted in Hong Kong, provided that in accordance with
section 7(2), what the person charged had in view would involve the
commission of an offence under the law in force where the whole or any
part of it was intended to take place.
Thus, a mainland Chinese person who visits Hong Kong and encourages
a Canadian visitor to blackmail (a Group A offence) a Vietnamese in Canada
would be liable in Hong Kong for inciting blackmail, provided that the act
of blackmail incited by the Chinese person (what the person charged had
in view) would amount to an offence in Canada (where ... it was intended
to take place).
Proposed reform
In 1994, the Law Reform Commission of Hong Kong recommended the
414
enactment of a statutory offence of incitement, and draft provisions to this

effect were included in the Crimes (Amendment) Bill 1995. Section
159M(1), which was not enacted, would have read:
A person is guilty of incitement to commit an offence or offences if
(a) he incites another to do or cause to be done an act or acts which,
if done, will involve the commission of the offence or offences by
the other; and
(b) he intends or believes that the other, if he acts as incited, shall or
will do so with the same state of mind as is required for the
offence or offences.
Notably, this would not have defined the central element of the offence
incites which would presumably have retained its common law
meaning.
CONSPIRACY
Introduction
Persons who enter into agreements or form plans to carry out criminal
activity may be liable for criminal conspiracy. Conspiracy requires the
involvement of at least two persons, known as co-conspirators.
Like incitement and attempt, conspiracy enables law enforcement
agencies to take preventive action at the planning stage, but it is commonly
the case that a conspiracy is actually discovered only after it has been put
into action. As one commentator has observed:
... most conspiracy charges, far from enabling the law to intervene at
an early stage and nip criminal organisations in the bud, are normally
preferred after the agreed offence has been committed ...4
Conspiracy is an attractive charge to a prosecutor, even when the object

of the agreement has already been carried out, because it enables a
prosecutor to present the defendants criminal activity as a whole, as part
of a plan alleged by the prosecution, rather than as a series of separate
incidents. There is also an evidential advantage in charging conspiracy:
4
R. Spicer, Conspiracy: Law, Class and Society (Lawrence and Wishart, 1981), p. 129.
415
simply put, once there is evidence from which the necessary agreement
can be inferred, then, contrary to the normal rules of admissibility,
everything said and done by each alleged co-conspirator during the currency
of the conspiracy in furtherance of it is admissible against every other alleged
co-conspirator.5 This is called the co-conspirators rule.
This advantage comes into play only once the necessary agreement
has been proved, but prosecutors have been assisted by the courts in this
regard, as the following comment notes:
It is extremely difficult for the prosecution to prove conspiracy
according to the normal rules of evidence, because direct evidence of
an agreement is rarely available. This has led to the development of
the doctrine of inference. The judges have repeatedly declared that,
so far as proof goes, conspiracy is generally to be inferred from the
acts of the parties carried out in pursuance of their agreement.
Prosecution strategy is generally aimed at establishing that the accused
acted in a certain way and in asserting that such behaviour could only
have arisen as the result of a plan of action. In this way, proof of
conspiracy is actually easier than proof of other offences.6
Until 1996, criminal conspiracy was primarily a common law offence

in Hong Kong, although, like incitement and attempt, there were some
specific statutory offences referring to conspiracy. For example, section 5
of the OAPO makes it an offence imprisonable for life for a person within
Hong Kong to conspire, confederate, and agree to murder any person,
whether a citizen of Hong Kong or not and whether within Hong Kong or
not; but the meaning of conspiracy in this offence remained a matter of
common law.
According to traditional notions, criminal conspiracy involves an
agreement to do an unlawful act or a lawful act by unlawful means (Mulcahy
[1863] LR 3 HL 306). At common law, conspiracy covered not only
agreements to commit an offence, but also agreements to carry out a range
of activities that in themselves did not necessarily amount to or involve the
commission of an offence; the latter category included conspiracies to
defraud, conspiracies to commit a tort (such as trespass), and two related
5
6
See A. Bruce and G. McCoy, Criminal Evidence in Hong Kong (looseleaf edition, Butterworths
Asia, 2002), at V. [1011]. See, for example, HKSAR v Pang Tat Sing [1998] 1 HKC 604.
R. Spicer, Conspiracy: Law, Class and Society (Lawrence and Wishart, 1981), p. 127. See
further, J. C. Smith, Proving Conspiracy [1996] Crim LR 386; More on Proving
Conspiracy [1997] Crim LR 333. However, see HKSAR v Heung Yu Nam [1997] 3 HKC
632 setting limits on the application of this co-conspirators rule.
416
categories, conspiracies to corrupt public morals and to outrage public

decency.
In 1996, the offence of conspiracy at common law was abolished in
Hong Kong (section 159E(1) of the Crimes Ordinance), save for conspiracy
to defraud (section 159E(2)).7 A statutory offence of conspiracy was enacted
in its place.
Statutory Offence of Conspiracy

Section 159A(1) of the Crimes Ordinance (cap. 200) (added by section 2
of the Crimes (Amendment) Ordinance, No. 49 of 1996), modelled on
section 1(1) of the Criminal Law Act 1977 in England (as substituted by
section 5(1) of the Criminal Attempts Act 1981), reads:
(1) Subject to the following provisions of this Part, if a person agrees
with any other person or persons that a course of conduct shall be
pursued which, if the agreement is carried out in accordance with
their intentions, 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, or
(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.
Existing specific statutory offences of conspiracy, such as that in section

5 of the OAPO above, were not repealed, but section 159E(6) provides that
sections 159A and 159B shall apply in determining whether a person is
guilty of an offence of conspiracy under any such enactment. Where the
conduct is an offence of conspiracy under any such other enactment, it
must then be charged under that enactment and does not amount to an
offence under section 159A (section 159E(6)).
So far, there have been few cases in Hong Kong considering the meaning
and application of this new statutory offence. For the time being, therefore,
regard must be had to English cases interpreting their equivalent statutory
provisions. This is not entirely satisfactory, for there have been several
such decisions in England, particularly at the level of the House of Lords,
7
Conspiracies to corrupt public morals or outrage public decency were also retained under
English common law; see section 5(3)(a) of the Criminal Law Act 1977.
417
which have been of doubtful correctness in their interpretation of the

legislation. It is to be hoped that Hong Kongs courts will be appropriately
cautious and have regard to commentary on the English decisions before
embracing in their entirety the English case law. Hong Kong should avail
itself of the opportunity to address and, where necessary, redress the
weaknesses and inadequacies of the English cases.
Actus Reus
The essence of conspiracy is an agreement. Determining whether there is
an agreement involves asking a series of questions: who agreed, when and
where did they agree, how did they agree, and what did they agree?
Agreement
Under section 159A(1), conspiracy requires proof that one person agreed
with any other person or persons. However, the notion of agreement itself
is not defined in the ordinance; lawyers tend to speak of it in terms of a
meeting of minds. This emphasizes a central difficulty with agreement
it is as much a mental activity as it is a physical act. The actus reus of
conspiracy is essentially the physical manifestation of that meeting of minds
the spoken or written words of the parties to the agreement, or their
conduct (e.g. a nod of the head), whereby they acknowledge the fact that
they have reached a common understanding. Thus, it is not enough merely
to show that two individuals contemporaneously but separately held the
same criminal thoughts. Agreement requires proof that they communicated
their mutual understanding or intention to each other in some manner
(Scott (1979) 68 Cr App R 164).
The parties must have gone beyond the point at which they are still
only considering, discussing or negotiating the possibility of committing a
crime (OBrien (1974) 59 Cr App R 222; Walker [1962] Crim LR 458). The
parties must have reached a definite conclusion to carry out an unlawful
course of conduct (King [1966] Crim LR 280), although it is not necessary
for all the parties to know and agree on all the details of what is to be
done, nor is it necessary to show that each accused agreed to play an active
part in the conspiracy (Siracusa (1990) 90 Cr App R 340). If the parties fail
to reach an agreement, it may still be possible, subject to proof of the
elements of attempt, to charge them with attempted conspiracy, under
section 159G of the Crimes Ordinance (below, pp. 4612) (unlike in
418
England where conspiracy is excluded from the offences which may be

attempted; see section 1(4) of the Criminal Attempts Act 1981).
Sometimes, the analogy of a contract is used to determine whether an
agreement existed, but there is no need for the parties to have reached the
level of certainty required for a contract, nor is there any need for formalities
such as consideration to be satisfied. Unlike contracts, criminal conspiracies
are not legally enforceable.
In R v Griffiths ([1965] 2 All ER 448), Paull J emphasized (at 4545)
the broad nature of the agreement required for criminal conspiracy:
... in law all must join in the one agreement, each with the others, in
order to constitute one conspiracy. They may join in at various times,
each attaching himself to that agreement; any one of them may not
know all the other parties, but only that there are other parties; any
one of them may not know the full extent of the scheme to which he
attaches himself; but what each must know is that there is coming
into existence, or is in existence, a scheme which goes beyond the
illegal act which he agrees to do.
The parties can agree without any physical meeting, e.g. communication
over the Internet by computer, but each alleged co-conspirators act of
agreement must have been communicated to at least one other party to the
conspiracy. Further, it must be proved (by admissible evidence) that all
charged co-conspirators were parties to the same conspiracy (Sheik Abdul
Rahman Bux [1989] HKLR 1; Chan Lap Man Raymond and Others (No. 4)
[1996] 3 HKC 671).
Continuing offence
Conspiracy is a continuing offence (DPP v Doot [1973] AC 807). It comes
into being the moment when two or more parties enter into the requisite
agreement to commit an offence, and in one sense is therefore complete at
that stage. Thus, two colleagues who agree to rob a bank the following day
are thereupon guilty of conspiracy, even though that night one of them
wins the Mark Six lottery and they abandon their robbery plans; until then,
the agreement continues to exist, and a third party could therefore have
joined in later that day before the plan was abandoned. In this sense then,
a conspiracy, once initiated, continues until it is completed either because
the course of conduct agreed upon is carried out and the unlawful object
of the agreement achieved, or because the agreement is terminated without
achieving its object after the then parties to it abandon it, or, alternatively,
419
it is interrupted by external events such as the arrest of the parties by law

enforcement officers. As a result, a single conspiracy may sometimes run
over a considerable period of time, even for years, although the longer the
period, the greater the difficulty will be in proving that there was only one
continuing conspiracy (Barratt and Sheehan [1996] Crim LR 495).
Consequently, it is not necessary to show that each alleged co-conspirator
joined the conspiracy at its inception, nor even that those who formed the
initial agreement remained as parties throughout its duration. Instead, parties
may come and go; but the moment when a party enters into the agreement
with at least one other party, then that partys liability for conspiracy
crystallizes and is complete.
Conditional agreement
On occasion, the object of the parties agreement may be such that it can
be accomplished without committing an offence, although the possibility
of committing an offence in order to achieve the plan also exists. In other
words, there is only a conditional agreement to commit an offence. Is this
sufficient? According to section 159A(1), conspiracy requires the parties to
have agreed to carry out a course of conduct which if the agreement is
carried out in accordance with their intentions ... will necessarily amount
to or involve the commission of [an] offence ... [emphasis added]. Since
the agreement in the above case does not necessarily involve the commission
of an offence the plan can be achieved without offending it ought
not to amount to conspiracy, and this was the preferred view of the English
Court of Appeal in Reed ([1982] Crim LR 819). Donaldson LJ gave the
following example: A and B agree to drive from London [say, Wanchai] to
Edinburgh [say, Tai Po] in a time which can be achieved without breaking
the speed limit, but only if the traffic along the way is exceptionally light.
There is the possibility of offending, but in his view, this agreement is not
a criminal conspiracy. This view is to be contrasted with the decision of
the court in Jackson ([1985] Crim LR 442) in which D1, D2 and D3 agreed
that should D3 be convicted at his ongoing trial for burglary, then, in
order to gain sympathy and a more lenient sentence from the court, D3
would be shot in the leg. It was held that D1, D2 and D3 were liable for
conspiring to pervert the course of public justice. It was a conspiracy
because, unlike the hypothetical driver in Reed, the course of conduct agreed
upon by D1, D2 and D3 shooting D3 in the leg would necessarily
amount to or involve an offence wounding or grievous bodily harm
if their agreement was carried out in accordance with their intentions.
420
The course of conduct agreed upon by Reeds driver driving from one
place to another in a specified time did not necessarily require him to
break the speed limit thereby committing a speeding offence, but was merely
incidental to carrying out their object. Conspiracy is, therefore, more
concerned with the parties intentions and what has been agreed than with
what may actually happen. Of course, if Reeds driver actually broke the
speed limit, then the driver and his or her friends could be convicted as
parties to a speeding offence, but not for conspiracy.
Necessity for two persons
Section 159A(1): a person agrees with any other person or persons
Conspiracy requires two persons; one person cannot agree with himself
or herself. On the other hand, the prosecution does not have to prove that
each co-conspirator knew the identity of every other alleged co-conspirator,
nor does it have to prove that each party had been in contact with every
other party. Furthermore, the prosecution may allege that in addition to
the named parties to the agreement, there were other, unidentified parties;
these may be charged as person(s) unknown. However, if the identity of
the person is known, then his or her particulars ought to be given (Chim
Pui Chung v HKSAR [1999] 1 HKLRD 836). If the conspiracy depends
upon a person unknown as the co-conspirator, then the prosecution must
prove that some such person existed. On occasion, a person may be named
as a co-conspirator in the indictment without actually being charged as a
party to the conspiracy, for example, where the named person has been
granted immunity or is dead.
If a multi-party conspiracy is alleged, then it must be shown that each
alleged party agreed with at least one other party to the conspiracy, knowing
that there are also other parties. Multi-party conspiracies may take many
different forms. Some, for example, may involve a meeting of all the parties
at which each party agreed with the others. Others may take the form of a
chain (A < > B < > C < > D) with each party successively
communicating with another, some communicating therefore with two
others, but some with only one other. Still, others may take the form of a
wheel, with A, B and C each individually communicating with D at the
centre or hub of their agreement, knowing that others unidentified
are also involved. Whatever form may be alleged, the prosecution must
prove that all charged co-conspirators were parties to that particular alleged
conspiracy (Chan Lap Man Raymond and Others (No. 4), above).
421
Exceptions
In certain circumstances, both under statute and at common law, the law
exempts certain categories of person from liability for criminal conspiracy.
Statutory exceptions Section 159B sets out three categories of exempt
persons and provides that if the only other person or persons with whom
[D] agrees fall(s) both initially and at all times during the currency of the
agreement within one or more of these exemptions, then the charge of
conspiracy will fail against D. This applies both to conspiracies under section
159A(1) and also to statutory offences of conspiracy under section 159E(6).
Section 159B(2)(a): Ds spouse At common law, it was thought that
a husband could not be convicted of conspiring with his wife because she
was treated as lacking a will or mind independent from that of her husband;
thus, there were not two minds at law (Mawji [1957] AC 126). Despite
criticism of this rule, it has been preserved in section 159B(2)(a). If the
parties marry after the inception of the agreement, the exception does not
apply, nor does it apply if at some time during the currency of the
agreement, another party joins the conspiracy (in this case, all three may
be convicted of conspiracy). In Chrastny ([1991] 1 WLR 1381), it was held
that a wife could be convicted provided that she had agreed with her
husband, knowing that he was conspiring with others, regardless of whether
she herself came to an agreement with any third party (see also Cheung Kafai [1995] 2 HKCLR 184).
This rule applies only to conspiracy; it does not also protect spouses
from liability as parties in the event one of them actually commits the
offence conspired at. Retention of this rule has been criticized on the basis
that other traditional rules ostensibly protecting the sanctity of marriage,
such as the husbands immunity from rape, have been abolished at common
law. Further, it applies only to spouses; two persons in a long-term but
non-marital relationship would not attract the protection of this exemption.
Section 159B(2)(b): children under seven years If the only other party
to an agreement with D is a person under the age of criminal responsibility,
then D is not guilty of conspiracy. In Hong Kong, section 3 of the Juvenile
Offenders Ordinance (cap. 226) sets the age of seven years as the age at
which children are conclusively presumed at common law to lack criminal
responsibility (see Chapter 6, p. 213). In addition, those aged 7 to 14 are
rebuttably presumed to lack such capacity, but may be convicted upon
proof of what is known as mischievous discretion, i.e. criminal
responsibility. By section 159B(3), section 159B(2)(b) applies only to the
422
first of these classes. Thus, D would not be liable for conspiracy to steal by
agreeing with a six-year-old child to take a bicycle belonging to another
child, but could be if the child is aged seven. Further, two nine-year-olds
entering the same agreement could be liable provided each is proved to
possess mischievous discretion. If a child under seven years actually takes
the bicycle, D may still be liable if the child is treated as Ds innocent
agent (see Chapter 8, p. 331). If, however, the child is aged seven, then
there would be no exemption from liability for conspiracy; and this would
seem to be so even if the child were not proved to have had mischievous
discretion and therefore could not be convicted of conspiracy.
Sections 159B(1) and (2)(c): intended victim of the offence(s) If one
of the parties to the conspiracy is the intended victim of the offence agreed
upon, section 159B limits liability for conspiracy under 159A(1) in two
ways. Firstly, section 159B(1) provides a blanket exemption from liability
under section 159A to any person who is the intended victim of the
conspiracy, regardless of how many other parties there may be to the
agreement. Secondly, section 159B(2)(c) provides that if D and the intended
victim of the conspiracy are the only two parties to the agreement, then D
is not liable under section 159A(1). Suppose, for example, a young couple,
the female being 15 years old, agree to have sexual intercourse: even with
her consent, this act would amount to an offence by him against section
124 of the Crimes Ordinance (cap. 200) if performed. However, the female,
being within the class of persons intended to be protected by section 124,
is neither liable at common law as a party to the offence under section 124,
nor liable by virtue of section 159B(1) for the agreement or conspiracy to
commit the offence. Further, applying section 159B(2)(c), the male would
not be liable for conspiracy since the girl the intended victim is the
only other party to the conspiracy.
The expression intended victim is not defined in the Crimes Ordinance,
and it is unclear whether it is restricted to the above type of case, i.e.
where D falls within a particular class of persons intended to be protected
by the offence conspired at, or whether it may be used more generally to
cover any party who can be characterized as an intended victim of the
offence to be pursued. Take the facts of Brown ([1994] 1 AC 212), for
example, concerning consensual sado-masochistic homosexual activities,
in which A agreed to inflict actual bodily harm on B. According to the
House of Lords in Brown, Bs consent cannot be a valid defence to A on a
charge of aggravated assault if actual bodily harm is intended (or caused)
as it would be if the agreed facts were to take place. Suppose they had
merely agreed to commit these acts: is there a conspiracy, or is B an intended
423
victim such that sections 159B(1) and (2)(c) would apply to exempt both
A and B from liability?
Common law exceptions Several common law cases may operate to similar
effect.
One-person company In McDonnell ([1966] 1QB 233), it was held
that D is not guilty of conspiracy when the only other alleged party to the
agreement is a one-person company operated by D as the sole director,
even though in law companies have separate legal personalities from their
directors. This is because, in reality, there is only one mind, that of D, the
director. However, if a third person, say a second director, is proved to be
a party to the agreement, then all three parties may be convicted.
Mentally abnormal offenders In principle, an agreement with someone
who is suffering from mental abnormality and who as a result cannot form
the intent necessary for conspiracy ought to prevent the liability of the
other party in the absence of a third responsible party. This remains a
moot point at common law.
Undercover law enforcement officers Does an undercover law
enforcement officer who joins a conspiracy as part of a covert operation
thereby become a co-conspirator? If not, and there is only one other party
to the conspiracy, then that other party ought not to be liable for conspiracy.
This issue was considered by the Privy Council on appeal from the Court
of Appeal of Hong Kong in Yip Chiu-cheung.
Yip Chiu-cheung [1994] 2 HKCLR 35, [1995] 1 AC 111
Facts
Yip was convicted of conspiracy to traffic in a dangerous drug (heroin),
contrary to common law and section 4 of the Dangerous Drugs
The prosecution alleged that Y made an agreement in Thailand
with an undercover American Drug Enforcement Agency (DEA) agent,
according to which the DEA agent was to travel to Hong Kong, where
he would be met by Y who would supply him with the dangerous
drugs in question. The DEA agent was then to travel on to Australia
(thus exporting the drugs and thereby trafficking in dangerous drugs).
In fact, the DEA agent never travelled to Hong Kong, but Y did, where
he was arrested pursuant to information received from the DEA agent.
Y submitted that the DEA agent was not a co-conspirator, since he
was acting pursuant to his law enforcement duties, and that left only
one possible party, Y, to the alleged conspiracy. Ys appeal to the Hong
424
Kong Court of Appeal was dismissed, and he appealed to the Privy

Council.
Decision
Appeal dismissed and conviction affirmed. Lord Griffiths, delivering
the judgment of the Privy Council, drew a distinction between two
situations. The first is where an undercover agent only pretends to
agree with others with no actual intention of taking any part in the
planned crime (instead, having the intention of providing information
to frustrate the plan). In such a case, since the agent does not have the
necessary criminal intention for conspiracy, he or she would not be a
co-conspirator, and D would have to be acquitted of conspiracy (unless
there were other parties to the agreement). The second is where the
undercover agent not only overtly agrees but does so with the intention
of carrying out the acts agreed upon. In this case, the agent has the
necessary criminal intention for conspiracy and is capable of being a
co-conspirator (even though the agent may know that he or she will
not be prosecuted); the only other party may accordingly be convicted
of conspiracy.
Lord Griffiths concluded that the DEA agent fell into the second of
these two situations when he agreed with Y that he intended to
travel to Hong Kong, pick up the drugs and then travel on to Australia.
Accordingly, he was capable of being a co-conspirator, and Y was
rightly convicted.
Yip concerned common law conspiracy, but the appeal argument relied
on a passage in an earlier decision of the House of Lords, Anderson ([1986]
AC 27), dealing with statutory conspiracy (under the English provisions on
which statutory conspiracy in Hong Kong is based). Lord Griffiths in Yip
distinguished Lord Bridges comments in Anderson, not on the basis that they
concerned statutory conspiracy, but rather on the basis that they were
directed at liability in the first type of situation outlined by Lord Griffiths,
where the necessary criminal intention for conspiracy was lacking, whereas
Yip fell within the second. There is therefore no reason to suppose that Yip
does not apply equally to statutory conspiracy under section 159A(1),
subject to discussion of the mens rea of statutory conspiracy (below, p. 435).
The object of the agreement
The object of the agreement, and thus the conspiracy, is more narrowly
defined under section 159A(1) than it was at common law. In simple terms,
putting aside (1) conspiracy to defraud (section 159E(2)) and (2) specific
425
statutory conspiracies, criminal conspiracy is now limited to agreements to

commit an offence.
This is stated in section 159A(1), which stipulates that the parties must
have agreed:
that a course of conduct shall be pursued which, if the agreement is
carried out in accordance with their intentions, 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; or
(b) would do so but for the existence of facts which render the
commission of the offence or any of the offences impossible
[emphasis added].
Under section 159A(1)(a), two questions fall for determination. Firstly,

what was the agreed course of conduct? Secondly, if the agreement is carried
out in accordance with [the parties] intentions, will that course of conduct
necessarily amount to or involve the commission of any offence or offences by
one or more of the parties to the agreement?
Both questions look to the course of conduct agreed upon and the
parties intentions, not to what actually happens in carrying out their
intentions. This is further emphasized by section 159A(1)(b) which states
that it is irrelevant that the agreed conduct cannot actually be carried out
because of the existence of facts making it impossible to do so (i.e. negating
the defence of factual impossibility; see further, below, p. 453).
Course of conduct
What is meant by course of conduct? One view is that it should be restricted
solely to the physical acts or conduct performable by the parties to the
agreement, along the lines adopted by the House of Lords at common law
in DPP v Nock ([1978] AC 979). In that case, the Lords concluded that the
agreed course of conduct did not amount to a conspiracy to produce
dangerous drugs (specifically cocaine) because it was factually impossible
to produce cocaine as intended from the particular substance the
conspirators had obtained for that purpose. According to this approach, an
agreement to stab someone would amount to a conspiracy since the agreed
course of conduct, i.e. the physical acts to be performed the stabbing,
will necessarily amount to or involve the commission of an offence. Suppose,
however, that the plan is to fatally stab, i.e. murder, the victim. To
characterize this as a conspiracy to murder necessitates the inclusion of the
victims death a consequence in the course of conduct and not simply
426
the parties intended physical act the stabbing. Likewise, rape requires
proof not only of sexual intercourse with a female, but also of the absence
of her consent. To characterize an agreement as a conspiracy to rape
therefore requires the inclusion of this circumstance the lack of consent
as part of the agreed course of conduct. Limiting course of conduct to
the intended physical acts therefore presents difficulties in characterizing
that course of conduct in terms of the offence intended by the parties if
the agreement is carried out in accordance with their intentions. One
solution would be to ask not simply whether the physical acts alone
(adopting the narrow meaning for course of conduct) will amount to or
involve an offence, but whether such acts will do so if, as section 159A(1)
says, the agreement is carried out in accordance with [the parties]
intentions. If the parties intend the stabbing to be fatal, or sexual
intercourse to take place without consent, then this supplies the means of
characterizing the agreement as one to murder, or rape, and so on.
Alternatively, a broad view of course of conduct may be taken,
incorporating not only the physical acts intended but also any consequences
and circumstances intended to occur or exist. Determining whether an
agreement amounts to a conspiracy then simply involves asking whether
carrying out the agreed acts in the contemplated circumstances and with
the intended consequences would necessarily amount to or involve the
commission of an offence.
In Siracusa ((1990) 90 Cr App R 340), OConnor LJ observed (at 350)
that the term course of conduct limits what the parties to the agreement
can be convicted of conspiring to do:
If the prosecution charge a conspiracy to contravene s.170(2) of the
Customs and Excise Management Act [1979] by the importation of
heroin, then the prosecution must prove that the agreed course of
conduct was the importation of heroin. This is because the essence of
the crime of conspiracy is the agreement and, in simple terms, you do
not prove an agreement to import heroin by proving an agreement to
import cannabis.
OConnor LJ added (at 350) that in the same way, the parties to an
agreement will not be guilty of a conspiracy to murder unless it is proved
that they intended to kill, even though they may be guilty of murder itself
merely by intending to cause grievous bodily harm.
427
Offence
Offence is broadly defined in section 159A(3) for the purposes of statutory
conspiracy as including any offence triable in Hong Kong .... The offence
may be common law or statutory, indictable or summary (see section
159C(5) re summary offences).
Jurisdiction Whether the offence is triable in Hong Kong is a question of
criminal jurisdiction. The traditional rule (see Chapter 2, p. 56) is that
criminal jurisdiction is territorial. This can be slightly problematic when
applied to conspiracy, since conspiracy rests not on what is actually done,
but rather on what is agreed to be done. Thus, jurisdiction over conspiracy
depends not just on the fact of agreement itself, but also on whether the
object of the agreement the offence to be committed will itself be
triable in Hong Kong. An agreement made in Hong Kong to manufacture
dangerous drugs in Thailand is not triable in Hong Kong as a conspiracy,
since the conspiracy does not involve the commission of an offence triable
in Hong Kong: the agreed course of conduct manufacturing dangerous
drugs in Thailand does not involve criminal activity in Hong Kong.
This follows the general rule laid down for common law conspiracies in
Board of Trade v Owen ([1957] AC 602). There, Lord Tucker in the House
of Lords concluded (at 634) that:
... a conspiracy to commit a crime abroad is not indictable in this
country unless the contemplated crime is one for which an indictment
would lie here ... .
Similarly, the English Court of Appeal in A-Gs Reference (No. 1 of

1982) ([1983] QB 751) held that an agreement made in England to commit
acts abroad which would amount to a conspiracy to defraud if committed
in England was not triable in England.
Exceptions Contrary to the general rule of territorial jurisdiction, there
are some offences triable in Hong Kong even though they may take place
partly outside of the Hong Kong SAR. Consequently, an agreement made
in Hong Kong to commit such an offence is likewise triable in Hong Kong
as a conspiracy:
Offences of an international character, such as piracy and aircraft
hijacking: these may be triable in Hong Kong as a matter of international
criminal law even though the criminal activity constituting the offence
takes place outside Hong Kong;
428
Murder abroad: section 159A(3) provides that offence ... includes

murder notwithstanding that the murder in question would not be so
triable if committed in accordance with the intentions of the parties to
the agreement. Accordingly, a conspiracy made in Hong Kong to
commit murder abroad is triable in Hong Kong, even though the
conspirators would not be triable in Hong Kong for the murder itself if
committed overseas in accordance with their intentions. This reproduces
the effect of section 5 of the OAPO which provides: All persons who
within Hong Kong conspire, confederate, and agree to murder any
person, whatever his nationality or citizenship and wherever he may be
... shall be guilty of an offence and shall be liable to imprisonment for
life. Since section 159E(6) applies the rules in sections 159A and 159B
to specific statutory conspiracies such as that in section 5, and further
provides that conduct which is an offence under a specific statutory
conspiracy is not also an offence under section 159A, the appropriate
charge in this case would be under section 5, and not section 159A(1);
Sometimes, the agreed course of conduct abroad may have an effect or
involve secondary activity in Hong Kong. A conspiracy to defraud
overseas, for example, may cause economic loss to a party in Hong
Kong. If this effect or secondary activity necessarily amounts to or
involves the commission of an offence in Hong Kong, then the
conspirators may be triable in Hong Kong provided that this effect or
secondary activity was intended and not merely the incidental, foreseen
but unintended consequence of carrying out the course of conduct
abroad (A-Gs Ref (No. 1 of 1982)); see also Yu Yem Kin (1994) Cr App
No. 162 of 1994;
The Criminal Jurisdiction Ordinance (cap. 461) applies to conspiracies.
Its general effect in relation to conspiracy is discussed below (p. 431).
Agreement abroad to commit an offence in Hong Kong If an agreement to

commit an offence in Hong Kong is made outside of Hong Kong, the general
rule is that the parties may still be tried for conspiracy in Hong Kong, even
though the offence has not yet been committed, nor even attempted in
Hong Kong (Somchai Liangsiripraesert v Government of the United States of
America [1990] 2 HKLR 612; [1991] 1 AC 255 (PC); discussed below).
Suppose, for example, two persons agree in Thailand to manufacture
dangerous drugs in Hong Kong. Prima facie, the agreement the central
element of criminal conspiracy is made in Thailand, not Hong Kong, so
no conspiracy is committed in Hong Kong. However, Thailand, applying a
territorial rule of jurisdiction, would prima facie have no jurisdiction over
429
the conspiracy, since the object of the agreement is to commit an offence

in Hong Kong, not Thailand. Ostensibly, by applying territorial rules, the
conspiracy would be triable in neither Hong Kong nor Thailand; yet, such
a result would undermine the preventative function of the inchoate offences
in general and conspiracy in particular.
Accordingly, the House of Lords in DPP v Doot ([1973] AC 807) held
that a conspiracy in such a case is triable at common law in the country
where its object is to take place. In that case, five foreigners made an
agreement while abroad to import cannabis into the United Kingdom, in
breach of the United Kingdoms dangerous drug laws. The Lords held that
when one of the parties to the agreement subsequently arrived in England
while the conspiracy was still continuing, he and his fellow conspirators
thereby became triable for conspiracy, even though prior to that moment, the
English courts would not have had jurisdiction to try them for conspiracy.
In Doot, it was suggested that overt acts within the geographical territory
may be a precondition of jurisdiction over conspiracy. In A-G v Yeung
Sum-shun ([1987] HKLR 987), the Hong Kong Court of Appeal held that if
overt acts are required, then the acts of an agent, innocent or guilty, of the
conspirators will suffice, even though no acts have been performed by the
conspirators themselves, who may have never even entered Hong Kong
prior to the termination of the conspiracy. However, Roberts CJ also queried
the necessity for overt acts (at 998):
It has not been necessary for us to consider the further question of
whether a conspiracy formed abroad, to commit an offence in Hong
Kong, is within the jurisdiction of the Hong Kong courts if no acts in
furtherance of the conspiracy are committed within Hong Kong.
In principle, however, we are not unsympathetic to the view,
expressed in recent cases, that the territorial basis for jurisdiction is
becoming outmoded, and that in such circumstances the Hong Kong
courts should assume jurisdiction upon the basis that: (a) the
conspiracy is aimed at Hong Kong and intended to bring about a
breach of the peace here; (b) since the conspiracy is not directed at
the residents of the country where it is entered into, the courts of that
country could raise no reasonable objection to this course on the
ground of comity.
The necessity for overt acts was rejected by the Privy Council in Somchai
Liangsiripraesert v Government of the United States of America, on appeal
from Hong Kong. Like Yip above, Somchai involves an agreement with an
undercover law enforcement officer to traffic in dangerous drugs.
430
Somchai Liangsiripraesert v Government of the United States of

America [1990] 2 HKLR 612, [1991] 1 AC 225
Facts
Somchai and his cousin, SC, both Thai citizens, were arrested while in
Hong Kong at the request of US authorities who sought their extradition
to the USA to stand trial on several charges, including conspiracy to
import heroin into the USA. S challenged the extradition order made
against him inter alia on the basis that the Hong Kong courts lacked
jurisdiction over the alleged conspiracy unless overt acts were proved
to have occurred pursuant to the conspiracy in Hong Kong.
S and SC were alleged to have entered into an agreement in
Thailand with undercover US DEA officers to illegally import heroin
with a street value of US$2228 million into the USA. Pursuant to the
agreement, S and SC supplied heroin to a DEA officer, who arranged
for it to be carried into the USA by diplomatic courier. After several
payments to S in Thailand, S and SC travelled to Hong Kong as agreed
to meet the DEA officer to receive further payments. When they met
with the DEA officer, they were arrested by the Hong Kong police.
S was committed to prison to await extradition inter alia on a
charge that S and SC conspired with other persons to traffic in a
dangerous drug, contrary to Common Law and s. 39 of the Dangerous
Drugs Ordinance (Cap. 134). S applied unsuccessfully for habeus corpus
first in the High Court and then in the Court of Appeal. Before both
courts, the DEA officers involved in the agreement were assumed not
to be co-conspirators (and unlike Yip, there were at least two parties to
the agreement other than the DEA officers, so this concession was not
fatal to the charge of conspiracy).
S appealed to the Privy Council inter alia on the ground that a
conspiracy entered into abroad was not an offence at common law
unless either some overt act pursuant to the conspiracy takes place
within jurisdiction, or alternatively at least the impact of the conspiracy
is felt within jurisdiction. S further submitted that the acts of the DEA
agents in importing the heroin did not constitute an overt act because
they were neither co-conspirators nor innocent agents of S.
Decision
Appeal dismissed. The charge of conspiracy was triable in Hong Kong
even if no overt acts in pursuance of the conspiracy had occurred in Hong
Kong. Further, the fact that the drugs were imported by the DEA agents
did not break the chain between the conspirators and the importation.
Lord Griffiths, delivering the advice of the Privy Council, observed
(at 625):
431
... the inchoate crimes of conspiracy, attempt and incitement

developed with the principal object of frustrating the commission
of a contemplated crime by arresting and punishing the offenders
before they committed the crime. If the inchoate crime is aimed
at England8 with the consequent injury to English society why
should the English courts not accept jurisdiction to try it if the
authorities can lay hands on the offenders, either because they
come within jurisdiction or through extradition procedures?
Turning to the issue, he emphasized (at 626):

... [W]hy should an overt act be necessary to found jurisdiction?
In the case of conspiracy in England the crime is complete once
the agreement is made and no further overt act need be proved
as an ingredient of the crime. The only purpose of looking for an
overt act in England in the case of a conspiracy entered into abroad
can be to establish the link between the conspiracy and England
or possibly to show the conspiracy is continuing. But, if this can
be established by other evidence, for example the taping of
conversations between the conspirators showing a firm agreement
to commit the crime at some future date, it defeats the preventative
purpose of the crime of conspiracy to have to wait until some
overt act is performed in pursuance of the conspiracy
and concluded (at 626):

Unfortunately in this century crime has ceased to be largely local
in origin and effect. Crime is now established on an international
scale and the common law must face this new reality. Their
Lordships can find nothing in precedent, comity or good sense
that should inhibit the common law from regarding as justiciable
in England inchoate crimes committed abroad which are intended
to result in the commission of criminal offences in England.
Accordingly a conspiracy entered into in Thailand with the
intention of committing the criminal offence of trafficking in drugs
in Hong Kong is justiciable in Hong Kong even if no overt act
pursuant to the conspiracy has yet occurred in Hong Kong.
Although Doot, Yeung and Liangsiripraesert all involve common law

conspiracies, it has been judicially accepted that they equally apply to
statutory conspiracies. Specifically, in Sansom ([1991] 2 QB 130), the English
Court of Appeal rejected a submission to the contrary. In that case, the
defendants were charged (under section 1(1) of the Criminal Law Act 1977,
8
The Privy Council considered the jurisdictional issue as a matter of English law, on the
basis that the law of conspiracy in Hong Kong is the same as the common law of conspiracy
in England (at 619, per Lord Griffiths).
432
the English equivalent of section 159A(1) of the Crimes Ordinance), with

conspiring to evade the prohibition on the importation of a controlled drug,
cannabis, into England. The agreement was made in Morocco. Noting that
there was nothing in the Criminal Law Act 1977 to indicate that common
law and statutory conspiracies were to be treated differently on this point,
the court concluded that it would be absurd to restrict Liangsiripraesert to
common law conspiracies. Although one of the conspirators had in fact
done an act in England (hiring a fishing vessel to import the drugs from
Morocco), it seems that Sansom correctly represents the common law on
this point.
The Criminal Jurisdiction Ordinance As with incitement, the Criminal
Jurisdiction Ordinance (CJO) has broadly extended the criminal jurisdiction
of the courts in Hong Kong over conspiracies to defraud and conspiracies
to commit Group A offences (i.e. certain listed offences against the Theft
Ordinance (cap. 210) and Crimes Ordinance (cap. 200)) even though they
are to take place outside of Hong Kong, provided that a relevant event
(i.e. any act or omission or event (including any result of one or more acts
or omissions) proof of which is required for the conviction of the offence
see section 3(1) of the CJO) occurs or will occur in accordance with
their intentions in Hong Kong.
Specifically, in relation to conspiracy, section 4(2) of the CJO provides:
On a charge of conspiracy to commit a Group A offence, or conspiracy
to defraud in Hong Kong, the defendant may be guilty of the offence
whether or not
(a) he became a party to the conspiracy in Hong Kong;
(b) any act or omission or other event in relation to the conspiracy
occurred in Hong Kong.
This provision has the same effect as the rule adopted in

Liangsiripraesert, although the latter applies generally and is not confined
to Group A offences. Thus, an agreement made abroad to commit theft (a
Group A offence) in Hong Kong is triable in Hong Kong as a conspiracy
to steal, even though nothing has yet been done in Hong Kong in pursuance
of the conspiracy.
Under section 4(1), a person may be guilty of conspiracy to commit a
Group A offence or conspiracy to defraud (a) whatever his citizenship or
nationality, or whether or not he was a permanent resident of Hong Kong
at any material time; (b) whether or not he was in Hong Kong at any such
time.
433
Further, section 6(1) provides that a person may be convicted of

conspiracy to commit a Group A offence or conspiracy to defraud, even
though no relevant event (i.e. any act or omission or other event required
for the commission of the Group A offence) will occur in Hong Kong, if:
(a) a party to the agreement constituting the conspiracy, or a partys
agent, did anything in Hong Kong in relation to the agreement
before its formation; or
(b) a party to it became a party in Hong Kong (by joining it either in
person or through an agent); or
(c) a party to it, or a partys agent, did or omitted anything in Hong
Kong in pursuance of it,
and the conspiracy would be triable in Hong Kong but for the offence or
fraud which the parties to it had in view not being intended to take place
in Hong Kong [emphasis added].
However, this is subject to section 7(1) which stipulates that a person may
be guilty of an offence by virtue of section 6(1) only:
... if the pursuit of the agreed course of conduct would at some stage
involve
(a) an act or omission by one or more of the parties; or
(b) the happening of some other event,
constituting an offence under the law in force where the act,
omission or other event was intended to take place.
Taken together, sections 6(1) and 7(1) allow a party to a conspiracy to

commit a Group A offence or to defraud to be tried in Hong Kong, even
though the offence (or fraud) to be committed would not be triable in
Hong Kong because it is to occur outside of Hong Kong, provided that:
(1) one party has a sufficient nexus or link with Hong Kong, established
by showing that he or she either personally or by an agent joined the
conspiracy in Hong Kong (section 6(1)(b)), or did anything in Hong
Kong before the formation of the agreement (section 6(1)(a)), or did or
omitted anything in Hong Kong in pursuance of the conspiracy (section
6(1)(c)); and
(2) there is an equivalent full offence in the foreign country where the
offence is intended to be committed.
The result is that a conspiracy may be triable in Hong Kong, even
though no element required to be proved for the commission of the agreed
offence itself is to occur in Hong Kong. Suppose, for example, C, a Canadian,
434
by his or her agent in Hong Kong, conspires with E in England to steal a

painting from a museum in New York. Since one of the parties, C, by his
or her agent, has done something in Hong Kong, and since theft is an
offence in the USA (where the agreement is to be carried out), both C and
E may be tried in Hong Kong (and this is so even though neither was in
Hong Kong at any time nor is a Hong Kong resident section 4(1)(a)(b)).
Offence to be committed by one or more parties to the agreement
Section 159A(1) requires the intended offence to be committed by one or
more parties to the agreement. If the only person who will commit an
offence is a third party to the agreement, this will not suffice (unless the
third party is merely an innocent agent of the parties to the conspiracy).
It is unclear whether commission of the offence must be as a principal
offender and not merely as an aider, abettor, counsellor or procurer.
Suppose, for example, D1 and D2 agree to assist X, who is not a party to
that agreement, to kill V. D1 and D2 have at best conspired to aid and abet
X, a third party, to commit murder. If X commits the murder, D1 and D2
may be convicted of murder as secondary parties to it. Is this sufficient to
satisfy the requirement in section 159A(1) that the commission of [the]
offence must be by one or more of the parties to the agreement? (An
alternative would be to charge D1 and D2 with conspiracy to incite X to
murder if it can be proved that carrying out the course of conduct agreed
upon would result in the commission of the offence of incitement.) Unlike
section 159G(5), which expressly excludes liability for attempting to aid
and abet, there is nothing in the statutory provisions dealing with conspiracy
to exclude liability for conspiracy to aid and abet. At common law, it was
generally thought that there was no liability on this basis, but the Court of
Appeal in Hong Kong recognized such a conspiracy in Po Koon-tai ([1980]
HKLR 492). However, this decision proceeded on the basis that aiding and
abetting persons to land illegally in breach of the Immigration Ordinance
(cap. 115) could be treated as an unlawful act for the purposes of common
law conspiracy to commit an unlawful (but not necessarily criminal) act.
This category of common law conspiracy has now been abolished in Hong
Kong (section 159E(1)), and Po Koon-tai should therefore be treated as a
doubtful authority in relation to statutory conspiracy.
The English Court of Appeal considered this issue in Hollinshead
([1985] 2 WLR 761), and suggested that the phrase the commission of
any offence by one or more of the parties should be read as requiring
involvement by a party as a principal. However, the issue was not discussed
435
by the House of Lords on appeal ([1985] AC 975), nor did the Lords
approve or disapprove the Court of Appeals decision.
It is not necessary for all the co-conspirators to be liable as either a
principal or secondary party to the intended offence: according to section
159A(1), this needs to be true in relation to only one party to the agreement.
Thus, a party may be liable as a co-conspirator, even though he or she may
be incapable at law of committing the offence as a principal (R v Sherry, R
v El Yamani [1993] Crim LR 536). For example, a female may be liable for
conspiracy to rape, even though she cannot commit rape as a principal
offender.
Mens Rea
Intention
Section 159A(1) requires proof of intention; specifically, proof of the parties
(their) intentions to carry out the agreement (or course of conduct agreed
upon). However, section 159A(1) does not specify exactly what must be
intended by each party to the agreement to satisfy this requirement. Based
on the previous common law, which had generally required proof of full
intention (i.e. intention to carry out the agreement with knowledge of all
the facts necessary to render the object of the agreement unlawful) against
each co-conspirator, it was natural to assume that each alleged party (or at
least two of them) must agree on the course of conduct to be pursued and
also intend to carry it out, i.e. intend to commit the offence which the
agreed course of conduct necessarily amounts to or involves.
Furthermore, as has been discussed above, if course of conduct
encompasses not only the physical conduct to be performed but also any
circumstances and consequences that must attend on or result from that
physical conduct, then the requirement of intention would necessitate proof
not only that each party (or at least two of them) intended the agreed
physical conduct to be performed, but also that he or she intended any
such circumstances and consequences to exist or occur.
Anderson
However, when the House of Lords considered the matter in 1985 in
Anderson ([1986] 1 AC 27), in relation to section 1(1) of the Criminal Law
Act 1977, they took the view that it is not necessary to prove that each co-
436
conspirator intended that the agreed course of conduct should be carried

out i.e. the offence should be committed. Lord Bridge, delivering the
principal judgment, expressed the Lords conclusion in the following terms
(at 38):
... I am clearly driven by consideration of the diversity of roles which
parties may agree to play in criminal conspiracies to reject any
construction of the statutory language which would require the
prosecution to prove an intention on the part of each conspirator that
the criminal offence or offences which will necessarily be committed
by one or more of the conspirators if the agreed course of conduct is
fully carried out should in fact be committed. ... In these days of
highly organized crime the most serious statutory conspiracies will
frequently involve an elaborate and complex agreed course of conduct
in which many will consent to play necessary but subordinate roles,
not involving them in any direct participation in the commission of
the offence or offences at the centre of the conspiracy. Parliament
cannot have intended that such parties should escape conviction of
conspiracy on the basis that it cannot be proved against them that
they intended that the relevant offence or offences should be
committed.
Instead, in the view of the Lords, statutory conspiracy requires proof of an

intention to play some part in the agreed course of conduct (at 39):
... beyond the mere fact of agreement, the necessary mens rea of
[statutory conspiracy] is ... established if, and only if, it is shown that
the accused, when he entered into the agreement, intended to play
some part in the agreed course of conduct in furtherance of the criminal
purpose which the agreed course of conduct was intended to achieve.
Nothing less will suffice; nothing more is required [emphasis added].
This conclusion was partly motivated by the perceived need to take

account of what Lord Bridge referred to as innocent agents, that is, persons
playing the part of a willing collaborator with the purpose of exposing and
frustrating the criminal purpose of the other parties to the agreement. The
mens rea implicit in the offence of statutory conspiracy, said Lord Bridge
(at 39), must clearly be such as to recognise the innocence of such a person,
notwithstanding that he will, in literal terms, be obliged to agree that a
course of conduct be pursued involving the commission of an offence.
Such a persons innocence, in other words, would lie in the fact that he or
she did not intend to play some part in furthering the criminal purpose.
437
However, it was also motivated by a perception that the appellant,

Anderson, might otherwise avoid liability for conspiracy. Anderson was
charged with conspiracy to effect the escape of a prisoner whom he had
met while in custody on remand. It was alleged that he had agreed to
obtain and supply diamond wire capable of cutting prison bars, in return
for payment. At trial, he argued that he had received a partial payment and
intended to seek more, but then decided to leave England and play no
further part in the planned escape. He stated that he never intended to go
through with the plan, i.e. never intended to commit the offence, which he
believed was in any event doomed to failure. The trial judge ruled that
even if this were true, it would provide A with no defence. A thereupon
pleaded guilty and appealed, contending that if his assertions were true, he
would have lacked the necessary mens rea for statutory conspiracy, and
this should have been left to the jury. The House of Lords dismissed his
appeal, as had the Court of Appeal. The fact that A himself may not have
intended the escape to go ahead was in their view irrelevant. Instead, A
was liable because he intended to play some part in the agreed course of
conduct by obtaining and supplying diamond cutting wire in furtherance
of the plan to escape. The words if the agreement is carried out in
accordance with their intentions were held to mean exactly what they said
their [even if not his own] intentions.
Criticism
The Lords analysis of the mens rea of statutory conspiracy in Anderson has
been criticized, firstly for its rejection of the need to show that each party
to the conspiracy intended the offence conspired at to be committed. If
correct, then it means that an agreement with only two parties, one of
whom does not intend the agreed course of conduct to be carried out, i.e.
does not intend the commission of the offence, is still a conspiracy provided
that each party at least intended to play some part in the agreed course of
conduct. This hardly seems consistent with the statutory wording their
intentions, and seems to be at odds with the fact that conspiracy requires
two criminally minded parties.
Secondly, this view of their intentions seems to disregard section
159A(2), discussed below, which stipulates that full intention, i.e. intention
or knowledge of relevant facts and circumstances, must be proved even
though this may not be required for the substantive offence itself, and
further stipulates that such intention or knowledge must be proved against
D and at least one other party to the agreement. It is difficult to see why
438
both parties in a two-person conspiracy must have intention in respect of

a circumstance constituting part of the offence conspired at, but only one
(and possibly neither) needs to have the intention actually to carry out the
course of conduct to which that circumstance relates.
It has also been pointed out that the Lords in Anderson could have
dealt with the defendant more simply by holding him liable as an accessory
to the conspiracy to effect the escape (rather than as a principal party), in
line with the second of the two questions of law presented to the Lords;
instead the Lords left this second question unanswered.
Not surprisingly, Anderson, or at least this aspect of the judgment, has
not been uniformly followed. In Edwards ([1991] Crim LR 45), for example,
the English Court of Appeal quashed Es conviction of conspiracy to supply
amphetamines because E may have only intended to supply a different
drug, ephedrine. In other words, E was not guilty because it was not proved
that he intended the particular offence charged to be committed.
Doubt has also been cast on this aspect of Anderson by the decision of
the Privy Council in Yip Chiu-cheung v R ([1994] 2 HKCLR 35). In this
case, the appellant, not surprisingly, relied on Anderson to argue that his
alleged co-conspirator in the conspiracy to traffic dangerous drugs, a US
DEA officer, was an innocent agent and not a co-conspirator since he
lacked the necessary mens rea for conspiracy. The Privy Council rejected
this argument on the facts, holding that the DEA officer did intend to carry
out the agreed course of conduct (trafficking in dangerous drugs), and
clearly intended to play a central role in furthering that agreement. The
DEA officers laudable motives and courage did not as such exculpate him,
although of course he expected not to be prosecuted. In the opinion of the
Privy Council, Lord Bridges concern in Anderson about the innocent agent
applied only to a co-conspirator who merely pretends to agree, not to
someone such as the DEA agent in Yip who actually intended trafficking to
take place. In explaining this, Lord Griffiths commented (at 39):
The crime of conspiracy requires an agreement between two or more
persons to commit an unlawful act with the intention of carrying it
out. It is the intention to carry out the crime that constitutes the necessary
mens rea for the offence. As Lord Bridge pointed out [in Anderson], an
undercover agent who has no intention of committing the crime lacks
the necessary mens rea to be a conspirator [emphasis added].
This is effectively a reversal, rather than just a re-interpretation of

Anderson, for it was the lack of intention to play any part in carrying out
the agreed course of conduct that enabled an undercover officer to avoid
439
liability in Lord Bridges view, not the lack of intention to carry out the
crime referred to by Lord Griffiths in Yip. Indeed, the Lords in Anderson
clearly ruled that intention in this latter sense did not have to be proved
against every party.
Anderson has also been criticized for holding that each co-conspirator
must intend to play some part in carrying out the agreed course of conduct.
Such a requirement read literally would prevent the conviction of the
mastermind who gathers all the conspirators together and sets them on
their course, but intends to play no further role himself or herself in carrying
out the agreed course of conduct. This aspect of Anderson has also been
re-interpreted, in particular, by the English Court of Appeal in Siracusa
((1989) 90 Cr App R 340), where it was explained that, contrary to what
Lord Bridge appeared to say, there is no rule of law that each co-conspirator
must intend to play an active part in the agreed course of conduct. The
liability of a mastermind, said OConnor LJ (at 349), rests rather on proof
that he or she knew what was going on. The intention to participate in
the furtherance of the criminal purpose, he added, is also established by
his failure to stop the unlawful activity. Lord Bridges dictum does not
require anything more.
The law in Hong Kong
This issue has not yet been directly considered by Hong Kongs courts in
relation to statutory conspiracy under section 159A(1) (see HKSAR v Siu
Ping Fuk [1999] HKLRD B3). It is submitted that Yip should be followed in
this regard (despite the fact that it was dealing with a conspiracy at common
law) and that conspiracies under section 159A(1) (and likewise, special
statutory offences of conspiracy under section 159(E)(6)) should require
proof that at least two parties intended the agreed course of conduct to be
carried out in accordance with their agreement, i.e. intended the offence
involved in their course of conduct to be committed.
Knowledge of circumstances
The necessity for intention to be proved applies not only to the agreed
course of conduct, but also to any circumstances that must exist in order
for the agreed course of conduct to amount to an offence. This is stipulated
in section 159A(2) (section 1(2) of the Criminal Law Act 1977 in England),
which provides that a person may be convicted of conspiracy to commit an
offence requiring proof of the existence of certain facts or circumstances only
440
if 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 [emphasis added]. Further, this is
so even though the offence itself may be committed without knowledge on
the part of the person committing it of any particular fact or circumstance
necessary for the commission of the offence (section 159A(2)). Section
159A(2) thus prevents liability for statutory conspiracy based on
recklessness, negligence or strict liability as to necessary facts or
circumstances, even though recklessness, negligence or strict liability may
suffice for the offence itself.
For example, on a charge of conspiracy to commit rape, it must be
proved that at least two parties (he and at least one other) to the agreement
intended or knew that the intended victim did not or would not consent
to sexual intercourse (or at least believed that this would be so), the absence
of consent being a fact which, in the terminology of section 159A(2), is
necessary for the commission of the offence. Recklessness on the part of
the conspirators as to whether or not the female would consent will not
suffice for conspiracy, even though it will for the offence of rape itself.
Similarly, if two men agree to have sexual intercourse with a woman and
(honestly) believe that she will consent, then by virtue of section 159A(2),
they are not guilty of conspiracy to rape since they do not intend or know
that that fact or circumstance [lack of consent] shall or will exist at the
time when the conduct constituting the offence is to take place [emphasis
added].
Similarly, suppose an employer and his manager decide to hire a worker
who is underage. If the worker is actually employed, the employer and
manager may be charged with the offence of employing an underage worker,
and it will avail them nothing to assert they did not know the worker was
underage the offence is strict liability as to this fact. If charged with
statutory conspiracy to commit this offence, however, then by virtue of
section 159A(2), it must be proved that each of them (unless he and at
least one other party to the agreement) knew that the prospective worker
was underage, i.e. it would have to be proved they agreed to employ someone
known to be underage. This was the position at common law, as laid down
by the House of Lords in Churchill v Walton ([1967] 2 AC 224), in which
convictions of common law conspiracy to commit several strict liability
dutiable commodities offences were quashed in the absence of proof that
the parties to the conspiracy knew of the circumstances rendering their
prospective conduct unlawful (i.e. that duty had not been paid).
Section 159A(2) only applies to facts or circumstances necessary for
441
the commission of the offence (as to when a fact or circumstance is

necessary, see Courtie [1984] AC 403). Suppose, for example, D is charged
with conspiracy to commit aggravated criminal damage criminal damage
endangering life contrary to section 60(2) of the Crimes Ordinance. D
may be convicted of this offence if D recklessly damaged property belonging
to another, being reckless as to whether the life of another would thereby be
endangered. It has been held there is no need to prove the endangerment of
life as a fact to convict a person of this substantive offence (Dudley [1989]
Crim LR 57); rather, endangerment involves a determination of Ds state of
mind: did D, when he or she intentionally or recklessly caused criminal
damage, additionally realize or fail to consider the obvious and serious risk
to life arising from his or her actions? Endangerment is not therefore a
necessary fact or circumstance, and the requirement of intention or
knowledge in section 159A(2) ought not to apply. D may therefore be
convicted of conspiracy to commit this offence based upon his or her
recklessness as to the endangerment of life, rather than intention or
knowledge as to the fact of endangerment of life.
Consequence(s)
Where the substantive offence is a result crime, such as murder, i.e. its
actus reus requires proof of a specified consequence, then the mens rea of
a statutory conspiracy to commit that offence ought to include intention
by the parties to cause that consequence.
This is not expressly stated in section 159A, but ought to be implied
(if necessary, by reading course of conduct as including consequences, as
suggested above, p. 425). Further, if the mens rea of the substantive offence
may be established by proving intention to cause some lesser consequence
(e.g. intention to cause grievous bodily harm, in murder), proof of that
lesser intention ought not to suffice in proving statutory conspiracy to
commit that offence. On a charge of conspiracy to murder, therefore, it
must be proved that the parties intended to cause the prohibited
consequence, i.e. death, not merely grievous bodily harm. If the parties
intention was only to cause grievous bodily harm, then this would only
amount to a conspiracy to cause grievous bodily harm with intent (contrary
to section 17(a) of the OAPO).
The scope of a conspiracy is thus dictated by the specific result offence
or offences which the agreed course of conduct would necessarily amount
to or involve the commission of, if carried out in accordance with their
intentions. Applied strictly, this would exclude liability by way of conspiracy
442
for a consequence foreseen by the parties as a virtually certain result of

carrying out their agreed course of conduct but not intended by them in
its direct, purposive sense (see Chapter 4, p. 120). Carrying out their agreed
course of conduct in accordance with their intentions would not necessarily
amount to or involve the commission of that consequence. Of course, in
such a case, if the conspirators go ahead with their plan and, for example,
someone is actually killed, then they may be charged with murder on the
basis that their intention to cause death or grievous bodily harm may be
inferred from the fact that they foresaw death or grievous bodily harm as
virtually certain to result from carrying out the plan.
Further points
Several further points can be briefly made:
(1) If the substantive offence conspired at requires proof of an additional
or ulterior intent, then this must also be proved for conspiracy. Theft,
for example, requires proof of dishonesty and intention to deprive
permanently. Parties to a conspiracy to steal must therefore be proved
not only to have intended their agreed course of conduct to deprive
the victim permanently of the property, but also to know that their
course of conduct would be dishonest;
(2) In the normal way, it is not necessary to prove that the parties to the
agreement knew their agreed course of conduct would necessarily
amount to or involve the commission of an offence, or what that offence
might be. Ignorance of the criminal law is no defence;
(3) Since statutory conspiracy requires proof of intention, it is a specific
intent offence for the purposes of the rules relating to voluntary
intoxication.
Conspiracy to Defraud
Introduction
Conspiracy to defraud has always been an important weapon in the law
enforcement armoury dealing with dishonest financial and economic
activities. It is particularly useful since it can be used to prosecute two
persons for fraudulent activities which, if committed by one person alone,
might not amount to an offence at all, since fraud, in itself, did not amount
to an offence under Hong Kong law until recently. An example of this
443
would be secret profits obtained by directors in breach of their fiduciary

obligations to their company. In some circumstances, the secret profits
may be treated as the property of the company, and their retention may
give rise to liability for theft. However, even if this were not so, a charge of
conspiracy to defraud might still lie, as in Adams v R ([1995] 1 WLR 52),
in which A, a director of EHL, was convicted of conspiracy to defraud by
concealing profits that he and five investment colleagues had made through
a series of share transactions, in breach of his obligations to disclose such
dealings to the company. Affirming As conviction, Lord Jauncey of
Tullichette, giving the advice of the Privy Council, stated (at 65):
Since a company is entitled to recover from directors secret profits
made by them at the companys expense, it would follow that any
dishonest agreement by directors to impede a company in the exercise
of its right of recovery would constitute a conspiracy to defraud.
Often, fraudulent schemes involve the commission of specific offences of

dishonesty, such as theft (section 9 of the Theft Ordinance), dishonestly
obtaining property by deception (section 17 of the Theft Ordinance), false
accounting (section 19 of the Theft Ordinance), forgery (section 71 of the
Crimes Ordinance), and such like. Where a fraudulent scheme takes place
over a period of time, or is planned to do so, numerous offences of this
nature may be committed or planned, and it is open to a prosecutor to
charge the alleged parties with conspiracy to commit such statutory offences.
However, this then obliges the prosecutor to prove each individual offence,
rather than simply an agreement to bring about a fraudulent result, and it
is much more difficult to fully represent the true extent of the coconspirators criminality. Conspiracy to defraud has the distinct advantage
that it allows a prosecutor to present a series of dishonest acts as one
concerted scheme, avoiding the need to complicate the trial by laying
multiple charges based on each discrete act, and also allows the prosecution
to take advantage of the evidential benefits of a charge of conspiracy.
Following the recommendations of the Law Reform Commission of
Hong Kong, an offence of fraud has now been enacted in Hong Kong (see
section 16A of the Theft Ordinance, as introduced by section 3 of the Theft
(Amendment) Ordinance, Ord No. 45 of 1999, 16 July 1999; see Chapter
14, p. 768) Conduct such as that in Adams, where the fraud had actually
taken place, may now be prosecuted as the substantive offence of fraud,
and the co-conspirators joined instead as parties to the substantive offence
of fraud. Alternatively, where there was an agreement between two or more
444
persons to carry out the fraudulent scheme, this agreement may now be
prosecuted under section 159A as a statutory conspiracy to commit the
statutory offence of fraud, in accordance with the principles outlined above,
even if the fraud has been actually carried out.
However, significantly, section 16A(4) (as added by section 3 of the
Theft (Amendment) Ordinance, Ord No. 45 of 1999) provides that the
offence of conspiracy to defraud at common law shall not be affected or
modified by the enactment of section 16A of the Theft Ordinance.
Accordingly, it would seem that an agreement to commit the statutory
offence of fraud may still be prosecuted as a conspiracy to defraud at
common law, instead of as a statutory conspiracy, and this would seem to
be so even if the fraud has been actually committed and even though it
could be prosecuted as a statutory conspiracy to commit fraud.
The leading authority in Hong Kong on conspiracy to defraud at
common law is Wai Yu-tsang v R ([1992] HKCLR 29). In this case, discussed
more fully below, the Privy Council (on appeal from the Court of Appeal
of Hong Kong) adopted the view that a conspiracy to defraud is simply an
agreement to practise a fraud on somebody, using fraud here in a broad
sense, based on either dishonestly imperilling the economic interests of
another or dishonestly acting to the prejudice of anothers rights.
Conspiracy to defraud may be directed against both private and public
victims, the latter covering, for example, public officials who are made to
act contrary to their public duty, whether by deceit, forgery, bribery or
such like.
The elements of conspiracy to defraud
Like all conspiracies, conspiracy to defraud requires proof of an agreement
between two or more parties. In addition, conspiracy to defraud requires
proof that the course of conduct involved dishonest means resulting in
the defrauding of another person or persons, and that the parties acted
with intention to practise a fraud.
Defraud and intention to practise a fraud
Pre Wai Yu-tsang In Scott v Metropolitan Police Commissioner ([1975] AC
819), the House of Lords held that:
... an agreement by two or more by dishonesty to deprive a person of
something which is his or to which he is or would be or might be
445
entitled and an agreement by two or more by dishonesty to injure

some proprietary right of his, suffices to constitute the offence of
conspiracy to defraud. The Lords rejected a contention that conspiracy
to defraud necessarily involves deception, although this will commonly
be the case [emphasis added].
The defendants in Scott bribed cinema employees to provide the

defendants temporarily with films that were copied and then, after the
original films were returned, hired out for a profit; as such, no deception
was used. Nonetheless, it was held this conduct amounted to a conspiracy
to defraud; dishonesty was established by virtue of the use of bribes.
Lord Diplock, in a brief summary of previous case law, went on to
suggest (at 841) that there were two broad categories of conspiracy to
defraud: those involving private victims which required proof that the
purpose of the conspirators was to cause the victim economic loss by
depriving him of some property or right, corporeal or incorporeal, to which
he is or would or might become entitled ...; and those involving persons
performing public duties in which case it was sufficient if the purpose is to
cause him to act contrary to his public duty .... The conspiracy in Scott fell
within the first of these two categories, as is evident from the passage cited
above.
The second of Lord Diplocks categories had been earlier recognized
and affirmed by the House of Lords in 1961 in Welham v DPP ([1961] AC
103), where it was said that intent to defraud could be established even
though there may be no intent to cause economic loss to the victim, nor
any such actual loss (see also Moses [1991] Crim LR 617).
In R v Allsop ((1976) 64 Cr App R 29), the English Court of Appeal
broadened Lord Diplocks first category by holding that there may be a
conspiracy to defraud so long as carrying out the agreement would or might,
to the conspirators knowledge, at least imperil the economic interests or
proprietary rights of another (i.e. put them at risk), regardless of whether
any actual loss results and even though the primary purpose of the
conspirators was to make a profit or gain for themselves without causing
any loss to the victim (e.g. investing a fraudulently obtained loan which
the conspirators have every intention of repaying on time, with interest,
etc.). In such a case, said Shaw LJ (at 31), requiring proof of intention to
cause loss would place too high an obligation on the prosecution because
the detriment ... to their victims is secondary to that purpose and incidental
... [and] is intended only in the sense that it is a contemplated outcome
of the fraud that is perpetrated.
446
Subsequently, in A-Gs Ref (No. 1 of 1982) ([1983] QB 751), the English

Court of Appeal disapproved of the suggestion in Allsop that the mere
contemplation an agreement might imperil the economic interests or rights
of another is enough to establish intention for the purposes of conspiracy
to defraud. Accordingly, an agreement to sell cheap whisky, falsely labelled
as the product of a well-known British firm, in an overseas country was
not triable in England as a conspiracy to defraud merely because carrying
out the scheme in fact caused incidental loss in Britain to the British firm,
unless it was proved that causing this loss (or at least prejudicing the
economic interests of the British firm) was not merely foreseen but was the
true object of the agreement. This may be contrasted with Cooke ([1986]
AC 909) in which rail stewards who sold their own foodstuffs instead of
British Rails were convicted of conspiring to defraud British Rail, even
though causing loss to British Rail was merely incidental to their primary
object of making a profit for themselves.
Wai Yu-tsang The nature and scope of conspiracy to defraud was fully
reconsidered by the Privy Council in Wai Yu-tsang in 1991.
Wai Yu-tsang v R [1992] 1 HKCLR 26
Facts
Wai was chief accountant at Hang Lung Bank (HLB). It was alleged
that W had conspired with other high-level staff at HLB to defraud HLB
and its existing and potential shareholders, creditors and depositors
by dishonestly concealing in HLBs accounts the fact that a large number
of US dollar cheques (totalling US$124 million and purchased by HLB
as part of a fraudulent cheque-kiting scheme) had been dishonoured.
The cheque-kiting scheme, the second of two, had been terminated on
the instructions of HLBs managing director after HLB experienced
financial difficulties in September 1982. W, who was not alleged to
have participated in the cheque-kiting schemes, was brought in to help
conceal the outstanding debt, which exceeded the then assets of HLB.
It was alleged that W both failed to report the dishonoured cheques to
several parties concerned in supporting HLB and failed to record them
in HLBs computerized ledgers.
At his jury trial, W argued that his actions were done on the
instructions of HLBs management and with a view to protecting the
confidentiality of the information and preventing a further run on HLB,
but W was convicted. He appealed unsuccessfully to the Court of
Appeal. W then appealed to the Privy Council, arguing that the trial
judge misdirected the jury on the mental element required for conspiracy
447
to defraud by directing them in the following terms, adopted from Allsop:

It is fraud if it is proved that there was the dishonest taking of a risk
which there was no right to take which to the defendants knowledge
at least would cause detriment or prejudice to ... the economic or
proprietary rights of another. ... If the interests of some other person
the economic or proprietary interests of some other person are imperiled,
that is sufficient to constitute fraud even though no loss is actually
suffered and even though the fraudster himself did not desire to bring
about any loss.
Decision
Appeal dismissed. There was no misdirection by the trial judge. A
conspiracy to defraud is an agreement to dishonestly bring about a
state of affairs which the conspirators realize will or may cause the
victim to act or fail to act, thereby causing the victim to suffer financial
loss or putting his or her economic interests at risk.
In reaching this conclusion, the Judicial Committee, through Lord
Goff, affirmed the authority of Welham which, he said (at 30), established:
... that the expression intent to defraud is not to be given a narrow
meaning, involving an intention to cause economic loss to another.
In broad terms, it means simply an intention to practise a fraud
on another, or an intention to act to the prejudice of another
mans right
Lord Goff rejected Lord Diplocks attempt in Scott to categorize

conspiracies to defraud, stating (at 31) that:
... the cases concerned with persons performing public duties are
not to be regarded as a special category in the manner described
by Lord Diplock, but rather as exemplifying the general principle
that conspiracies to defraud are not restricted to cases of intention
to cause the victim economic loss.
Lord Goff then turned (at 323) to Allsop, and the question of
whether the agreement in that case to present a hire-purchase company
with false particulars of motor vehicle purchases in order to facilitate
the obtaining of hire-purchase facilities was properly considered a
conspiracy to defraud, notwithstanding that the defendants underlying
purpose or motive was not to damage any economic interest of the
[hire-purchase] company but to ensure that the transaction went through
so that he could earn his commission. On this question, Lord Goff
concluded (at 33):
Their Lordships see no reason why such an agreement should not
be a conspiracy to defraud the company ... . The defendant was,
for his own purposes, dishonestly supplying the company with
448
false information which persuaded it to accept risks which it would

or might not have accepted if it had known the true facts. Their
Lordships cannot see why this was not an agreement to practise a
fraud on the company because ... it was a dishonest agreement to
employ a deceit which imperiled the economic interests of the
company.
Referring to criticism of Allsop for its use of contemplation rather

than intention as the basis of liability for conspiracy to defraud, Lord
Goff, eschewing discussion of the distinction, sometimes artificially
drawn, between intention and recklessness, concluded (at 33):
The question whether particular facts reveal a conspiracy to
defraud depends upon what the conspirators have dishonestly
agreed to do, and in particular whether they have agreed to practise
a fraud on somebody. For this purpose it is enough for example
that, as in Allsop and in the present case, the conspirators have
dishonestly agreed to bring about a state of affairs which they
realise will or may deceive the victim into so acting, or failing to
act, that he will suffer financial loss or his economic interests will
be put at risk. It is however important in such a case, as the Court
of Appeal stressed in Allsop, to distinguish a conspirators intention
(or immediate purpose) dishonestly to bring about such a state of
affairs from his motive (or underlying purpose). The latter may be
benign to the extent that he does not wish the victim or potential
victim to suffer harm; but the mere fact that it is benign will not
of itself prevent the agreement from constituting a conspiracy to
defraud. Of course, if the conspirators were not acting dishonestly,
there will have been no conspiracy to defraud; and in any event
their benign purpose (if it be such) is a matter which, if they
prove to be guilty, can be taken into account at the stage of
sentence [emphasis added].
Applying this analysis to the facts, it can be seen that W, by agreeing

(with others) to conceal the dishonoured cheques, decided to bring about a
situation (in which HLBs true financial position was concealed) which he
realized would or might deceive the victims (HLB, and its existing and
potential shareholders, creditors and depositors) into acting (e.g. by buying
shares in HLB or depositing money with HLB) or failing to act (e.g. by not
withdrawing deposits) in a manner which imperiled their economic
interests, i.e. put them at risk of losing their money. This was Ws immediate
purpose and thus his intention for the purposes of establishing conspiracy
to defraud; Ws alleged motive (or underlying purpose) in concealing the
dishonoured cheques, namely, to stop further runs on HLB, was irrelevant
to the question of whether he intended to practise a fraud, even though if
true it may have been a benign one.
449
Smith and Hogan have commented (Criminal Law, ninth edition, 1999,
p. 291) that Lord Goffs use of the words or may [deceive the victim]
perpetuates the possibility of liability based on recklessness rather than
intention (i.e. liability based on the fact that W realized that there was a
risk his conduct would imperil anothers economic interests), but have
suggested that these words may have been unnecessary on the facts since
the trial judge directed the jury only in terms of whether Ws act, to Ws
knowledge, would [emphasis added] cause detriment or prejudice to
another.
Wai Yu-tsang has since been followed in Hong Kong. In R v Yin Laikuen ([1993] 1 HKCLR 215), Y was alleged to have conspired to defraud
the Director of the Trade Department of the Hong Kong government a
public official in relation to the obtaining of textile export quotas. Wong
J, delivering the judgment of the Court of Appeal, observed (at 230) that
on a charge of conspiracy to defraud, ... all that [the prosecution] needed
to show was that [Y] intended to practise a fraud on the Director of Trade
in the sense of causing him to act contrary to his public duty, even if there
was no intention on [Ys] part to inflict upon him any pecuniary or economic
harm: Wai Yu-tsang.
Similarly, in R v Wong Chai-chung ([1993] 1 HKCLR 19), Wai was
referred to with approval by the Court of Appeal, with Fuad VP citing (at
30 and 33) the two passages set out above.
Again, in Chan Kang To ([1997] 2 HKC 281), Litton VP, delivering the
judgment of the Hong Kong Court of Appeal, referred to Wai (at 285) in
saying that The expression to defraud is very wide: it means an intention
to practice a fraud on another or to act to the prejudice of another persons
rights: see Wai Yu-tsang. Litton VP went on to emphasize the necessity for
economic loss or risk of such loss if a scheme is to amount to a conspiracy
to defraud. Referring to Allsop and Wai, he observed (at 291): In both
cases the fraudulent scheme exposed others to the risk of economic loss.
In Chan however, the prosecution argued that C was a foreign exchange
dealer who, with others, in order to get investors to deposit money with
his company, EGI, falsely represented that EGI operated a computer trading
system for forex transactions. Litton VP doubted that the elements of a
conspiracy to defraud had been made out or properly left to the jury,
commenting (at 2856):
The bare expression to defraud is not self-explanatory, as might be
with words like to steal. Fraudulent conduct can take an infinite
variety of forms. It is difficult to see, from the particulars as averred,
450
wherein lies the criminality of the charge: Assuming that the plot as
averred were carried out, and customers did pay money to EGI
International for investment in Foreign Exchange transactions as
alleged, how were their economic interests to be prejudiced, or the
conspirators to benefit? There could hardly be a conspiracy to defraud
without either of those ingredients being present. A conspiratorial
agreement to tell lies to others, without more, is not a conspiracy to
defraud. What was the point of the scheme, if it did not include an
intent in some way to prejudice other persons interests and to benefit
the conspirators, directly or indirectly? It is no answer to the point to
say: However, the very concept of fraud is to act to the prejudice of
another persons rights. Conspirators do not put their heads together
and say: Let us act to the prejudice of other persons rights. That is
the language of legal analysis, not the vocabulary of fraudsters. On
the face of the indictment the conspiratorial agreement is shadowy
and incomplete .
No doubt the prosecution could have proved loss or prejudice if it had

properly presented its case, but this, the court concluded, it had failed to
do, and Cs conviction was accordingly quashed.
Fraud by one or more of the parties to the agreement?
It appears that conspiracy to defraud may be committed even though the
fraudulent scheme is in fact only to be carried out by someone other than
the parties to the agreement. In Hollinshead ([1985] 2 WLR 761), the English
Court of Appeal took a different view, suggesting that common law
conspiracy, like statutory conspiracy, requires proof that the intended course
of conduct is to be performed by one or more of the parties to the agreement.
Accordingly, it quashed convictions of conspiracy to defraud since the
conspirators had merely agreed to sell to a middleperson electrical devices
capable of altering the readout on electricity meters; the potential fraudulent
use of the devices by consumers to whom they would be resold was
insufficient. However, their convictions were subsequently restored by the
House of Lords ([1985] AC 975) on the basis that the purpose of the
defendants conduct was to defraud the electricity company, even though
the actual fraudulent use of the devices was to be carried out by others.
Dishonesty: Dishonest means
Dishonesty or dishonest means must be proved to establish the fraudulent
nature of the agreed course of conduct. Contrary to earlier authorities (Landy
451
[1981] 1 All ER 1172; McIvor [1982] 1 All ER 491), the test for dishonesty
for conspiracy to defraud is now taken to be the same two-limbed objectivesubjective test adopted in Ghosh ([1982] QB 1053) for theft under the
Theft Act 1967. Briefly, the Ghosh test says that a person is dishonest if his
or her conduct would be considered dishonest by ordinary people
(objective), and it is proved he or she realizes it would be so considered
(subjective). This test has been applied in Hong Kong in relation to both
theft and conspiracy to defraud. In Wong Chai-chung (above), for example,
Fuad VP rejected a submission that the trial judge had misdirected the jury
on dishonesty. There is no doubt, he stated (at 26), that Ghosh decided
that the test of dishonesty is subjective in relation to any offence, including
conspiracy to defraud, but that the standard of honesty to be applied is
that of reasonable and honest men and not the accused if his standards
differ. The trial judge, in his view (at 28), had given a clear and correct
direction that, to act dishonestly in the context of defrauding, the applicant
must not only have prejudiced (or have taken the risk of prejudicing)
another persons rights but that he must have known that he had no right
to do so.
In most cases, the requirement of dishonesty or dishonest means will
be established by the intended or actual use of deception, but other means
may also suffice, such as bribery, as in Scott above, or the concealment of
secret profits as in Adams above.
Overlap between statutory conspiracy and common law conspiracy
to defraud
Often, a fraudulent scheme, when carried out, involves conduct amounting
to or involving specific offences of dishonesty or fraud, such as theft,
obtaining property by deception, false accounting and so on. In such cases,
the agreement to defraud may be charged either under section 159A(1) as
a statutory conspiracy to commit whatever specific offence(s) will necessarily
be committed by carrying out the fraud, or as a common law conspiracy to
defraud. This is expressly provided for in section 159E(3):
If
(a) a person agrees with any other person or persons that a course of
conduct shall be pursued; and
(b) that course of conduct will necessarily amount to or involve the
commission of any offence or offences by one or more of the
parties to the agreement if the agreement is carried out in
accordance with their intentions,
452
the fact that it will do so shall not preclude a charge of conspiracy to

defraud being brought against any of them in respect of the agreement
[emphasis added].9
On the other hand, there will be cases where no substantive offence

will necessarily be committed by carrying out the fraud; in such cases, a
charge of statutory conspiracy will not lie, but conspiracy to defraud may
still be charged.
Jurisdiction
The rules of jurisdiction discussed above in relation to statutory conspiracy
apply equally to conspiracy to defraud at common law.
Impossibility
At common law
At common law, there was no liability for conspiracy:
(1) if neither the object of the agreement nor the means to achieve it
involved any offence, despite the parties mistaken belief to the contrary.
Thus, if D1, a male, agrees to have sexual intercourse with D2, a female
aged 17 years, both mistakenly believing this to be an offence if she is
not aged 18, this would not amount to conspiracy, since it was affected
by legal impossibility;
(2) if, as at the date of the agreement, the object of the agreement was or
would be factually or physically impossible to carry out or achieve,
despite the parties mistaken belief to the contrary, as where D1 and
D2 agree to kill someone who (unknown to them) is already dead.
Factual impossibility was recognized as a defence at common law to a
charge of conspiracy by the House of Lords in DPP v Nock ([1978] AC
979), after its earlier recognition in relation to attempts in Haughton v
The English provision on which section 159E(3) is based section 12(2) of the Criminal
Justice Act 1987 was designed to overcome Ayres [1984] AC 447, in which the House
of Lords held that a charge of common law conspiracy to defraud was precluded if the
course of conduct necessarily involved the commission of any offence, no matter how minor
or how limited the penalty might be; only statutory conspiracy to commit that particular
offence could be charged, similarly restricted as to penalty. However, compare Cooke [1986]
AC 909.
453
Smith ([1975] AC 476). However, its effect was limited to cases in

which the only agreement that could be proved involved a specific
course of conduct that happened to be impossible, such as extracting
cocaine from a specific package of raw product which in fact contained
no cocaine. Factual impossibility provided no escape from liability if
the conspirators agreement was proved to be more general in nature,
since one particular instance of impossibility would not necessarily
mean that their general object could never be achieved. In HKSAR v
Saifudeen Abdul Wahid ([1997] 3 HKC 729), the Hong Kong Court of
Appeal, applying Nock as interpreted in Bennett ([1979] 68 App R 168),
held that a conspiracy to traffic in dangerous drugs was not impossible
unless it was impossible to carry it out in any circumstances both at
the time of the agreement and at all times thereafter. The fact that
drugs which were the object of the conspiracy had been seized by the
authorities in Hong Kong did not, in the opinion of Power VP (at
733), render the agreement impossible since the drugs were in existence
and the conspirators intended to deal with them if they could get their
hands on them.
On the other hand, if an agreement could not be carried out as intended
simply because it involved means which were inadequate to achieve the
object, for example, inadequate explosives to break into a bank and blast
open the safe, this provided no defence. Likewise, if the agreement was or
would be prevented from being carried out by some supervening event,
such as the death of a party or the intervention of law enforcement officers,
this provided no defence.
These rules remain fully in effect for the time being in relation to
conspiracy to defraud at common law. In relation to statutory conspiracy
both under section 159A(1) and under any specific statutory offence of
conspiracy (to which the provisions of section 159A apply section
159E(6)), the rules relating to legal impossibility, inadequate means and
intervention remain in effect. Factual impossibility, however, is no longer
a defence, as is discussed below.
Statutory abolition of defence of factual impossibility
The decision of the House of Lords in Nock that factual impossibility may
constitute a defence to conspiracy has been reversed by section 159A(1)(b)
of the Crimes Ordinance, which provides that the parties to an agreement
may be liable for statutory conspiracy under section 159A(1) (and also any
454
special statutory offence of conspiracy to which section 159A applies

section 159E(6)) if carrying out the agreed course of conduct in accordance
with their intentions ... (b) would [necessarily amount to or involve the
commission of any offence ... by one or more of the parties to the agreement]
... but for the existence of facts which render the commission of the offence
... impossible. Therefore, an agreement to murder someone who is in fact
already dead may now amount to conspiracy, since carrying out the
agreement in accordance with their intentions, i.e. killing the victim, would
necessarily amount to an offence, murder, but for the existence of the fact
that the intended victim is already dead.
It may be that that subsection was not strictly necessary since section
159A(1)(a) requires liability for statutory conspiracy to be assessed as if
the agreement is carried out in accordance with their intentions which
arguably includes any mistaken beliefs that the parties may have as to the
facts, but section 159A(1)(b) puts this beyond doubt. The law on factual
impossibility is thus the same for statutory conspiracy as it is for the statutory
offence of attempt, under section 159G of the Crimes Ordinance.
Further Points
Participation and doubly inchoate liability
Participation
Although there are doubts about the validity of a charge of statutory
conspiracy to aid, abet, counsel or procure an offence (since section 159A(1)
requires commission of a course of conduct constituting an offence by
one or more of the parties to the agreement), there is nothing in the
legislation nor at common law to prevent liability as an accessory to
conspiracy. Indeed, it has been suggested that Anderson, above, should have
been treated as an accessory to conspiracy, rather than as a principal
offender, i.e. conspirator, contrary to the House of Lords actual analysis.
Conspiracy and inchoate offences
Hong Kongs legislation does not expressly exclude a charge of statutory
conspiracy to incite or attempt an offence, nor is an attempt to conspire
expressly excluded (unlike the equivalent English legislation dealing with
criminal attempts).
455
Immunity and acquittal of co-conspirators

The fact that Ds co-conspirator(s) may be immune from prosecution, or
be acquitted, will not necessarily entitle D to be acquitted of conspiracy.
Immunity
In Duguid ((1906) 21 Cox CC 200), an accused who agreed to help a
mother remove her child from the custody of its lawful guardian, contrary
to (then) section 56 of the Offences Against the Person Act 1861 (now
repealed), was held by the Court of Crown Cases to have been properly
convicted of conspiracy, even though the mother may have been immune
from prosecution under that section. Similarly, there is some authority that
an accused who is immune from prosecution for an offence may nonetheless
be convicted as a party to conspiracy to commit that offence (Whitechurch
(1890) 24 QBD 420). In Burns ((1984) 79 Cr App R 175), for example, a
father was found guilty of conspiring to steal his own child when he could
not (at the time) have been found guilty as the principal offender.
Acquittal
At one time, the fact that one of two conspirators tried together was acquitted
meant that the other could not be found guilty of conspiracy. If tried
separately, the rule was different: the acquittal of one did not necessarily
bar the conviction of the other since the evidence against one might be
stronger; for example, one party might have given a confession which the
prosecution could rely on to help prove its case against that particular
party. Doubt was cast on the correctness of the first rule in DPP v Shannon
([1975] AC 717) in which there were suggestions that conviction might
still be possible even where parties were tried together if there were
differences in the evidence against each defendant.
This doubt was removed in Hong Kong in 1983 by section 66A of the
Criminal Procedure Ordinance, now replaced by subsections 159E(4) and
(5) of the Crimes Ordinance:
(4) A person shall not be entitled to be acquitted of, or to have quashed
his conviction for, the offence of conspiracy for the reason only
that the only other person or persons with whom he is alleged,
in the indictment or charge sheet, to have entered into that
conspiracy are or have been acquitted.
(5) Any rule of law or practice inconsistent with the provisions of
subsection (4) is abolished [emphasis added].
456
These two subsections apply equally to statutory and common law

conspiracy (section 159E(1) abolishes common law conspiracy subject to
the following provisions of this section).
Accordingly, one conspirator may be convicted despite the acquittal of
the other(s) at the same trial, unless in the circumstances of the case,
conviction of one alone would be inconsistent with the acquittal of the
other(s). This ultimately depends on whether the evidence against a
particular party is substantially stronger than it is against the other(s), for
example, where one has made a confession (Merrick (1980) 71 Cr App R
130; Longman (1980) 72 Cr App R 121; Roberts (1983) 78 Cr App R 41).
Where this is so, the judge should instruct the jury to consider each party
separately; and it is possible for D to be convicted of conspiring with E,
but E acquitted of conspiring with D. However, if the evidence is essentially
the same against each party, then the judge should direct the jury to convict
all or acquit all.
Miscellaneous
Merger
Conspiracy does not merge with the substantive offence, so a charge of
conspiracy may still be laid even though the full offence has been committed.
Charging conspiracy has the advantage of giving the full picture of an
accuseds criminality. However, the prosecution may be prevented from
proceeding with both the full offence and conspiracy charges if this would
be prejudicial to the accused.
Time limits
If the substantive offence agreed upon has been committed, and proceedings
may not be instituted for that offence because any time limit applicable to
the institution of any such proceedings has expired, then the institution of
proceedings for conspiracy based on that agreement is likewise prohibited
(section 159D of the Crimes Ordinance). This restriction does not apply if
the substantive offence has not yet been committed.
Procedure
Section 159C(1) provides that statutory conspiracy is triable on indictment.
However, section 159C(5) recognizes that if any of the offences alleged to
457
have been conspired at is triable on indictment or summarily, then

conspiracy may likewise be tried summarily.
Non-exclusivity of statutory conspiracy
Apart from section 159E(3) dealing with conspiracy to defraud, section
159L provides that conviction of an offence under Part XIIA of the Crimes
Ordinance (as added by section 2 of the Crimes (Amendment) Ordinance,
No. 49 of 1996) (i.e. statutory conspiracy and attempt) or under any other
ordinance is not precluded by the fact that the conduct in question
constitutes an offence both under this Part and under that other Ordinance.
Penalties
Section 159C sets out the various maximum penalties which may be imposed
on a person convicted of statutory conspiracy. In summary:
by virtue of subsections 159C(1)(a) and (3), a person convicted of
conspiracy to murder or conspiracy to commit an offence for which
the mandatory or maximum sentence is life imprisonment, is liable to
imprisonment for life;
by virtue of subsections 159C(1)(a) and (4), a person convicted of
conspiracy to commit any other offence punishable with imprisonment
is liable to imprisonment up to the maximum term of imprisonment
provided for that offence. If the course of conduct involves the
commission of more than one imprisonable offence, then a person
convicted of conspiracy is liable to a term of imprisonment not
exceeding the longer or longest possible term of imprisonment for any
one of those offences;
by virtue of subsection 159C(1)(b), a person convicted of statutory
conspiracy to commit any offence not falling within subsection (3) or
(4) (i.e. not imprisonable) is liable to a fine. There is no restriction on
the amount that may be imposed by way of fine;
by virtue of subsection 159C(5), where a person is convicted of statutory
conspiracy after summary trial (i.e. where the offence conspired at (or
any one of them) is triable summarily), then he or she is liable to any
penalty which could have been imposed on a summary conviction for
that relevant offence;
by virtue of subsection 159C(6), a person convicted of conspiracy to
defraud is liable to 14 years imprisonment;
by virtue of subsection 159C(7), any statutory powers to impose
458
pecuniary penalties, forfeit, search and seize, cancel, suspend or refuse

to issue any licence, permit or other authorization, upon conviction of
a relevant offence, and any statutory duties exercisable or performable
upon conviction of such an offence or in relation to a person detained
in custody for such an offence, may also be exercised or performed
upon conviction of conspiracy to commit that relevant offence.
However, subsection (7) does not authorize the imposition of a sentence
of imprisonment otherwise than in default of payment of any pecuniary
penalty which may be imposed by virtue of [subsection (7)].
ATTEMPT
Introduction
A person who attempts to commit an offence (the substantive offence)
may thereby be criminally liable for the offence of attempt.
The offence of attempt broadly covers two situations. The first is where
D has done all that he or she intends to do, but fails to bring about an
intended result: D aims a gun at V and pulls the trigger intending to kill V,
i.e. to commit murder, but the shot misses or V does not die. Ashworth
(Principles of Criminal Law, third edition, 1999, p. 443) describes this as a
complete attempt. The second situation, described by Ashworth as an
incomplete attempt, is where D has set out with the intention of committing
an offence, but has not yet done all the acts necessary to commit the offence:
D aims the gun at V with the intention of killing V, but has not yet pulled
the trigger, or D picks up another persons bag with the intention of taking
anything valuable in it, i.e. commit theft, but has not yet taken anything
from the bag.
In each case, D has the intention to commit an offence and has carried
out acts in furtherance of that intention. However, in each case, one or
more necessary elements of the substantive offence that D was trying to
commit is missing death (for murder), appropriation with the intention
of permanently depriving the owner (for theft).
In some circumstances, Ds conduct may still constitute an offence in
itself; for example, D above may be liable for assault or possession of an
offensive weapon. However, this hardly represents the true criminality of
Ds intentions. The law of attempt seeks to fill this gap, between the mere
formulation of a criminal intention, which is insufficient in itself to establish
459
criminal liability, and the successful implementation of that intention by

the commission of the substantive offence. According to Ashworth (at 443),
two broad justifications for criminalizing attempts are commonly identified:
The concern [of the criminal law] is not merely with the occurrence
of harm but also with its prevention. Once [the legislators have decided
exactly what harms should properly be objects of the criminal law],
and taking the aims of the criminal law into account, the law should
not only provide for the punishment of those who have culpably caused
such harms but also penalise those who are trying to cause the harms.
The consequentialist justification for a law of attempts is therefore
that it allows law enforcement officers and the courts to step in before
any harm has been done, so long as the danger of the harm being
caused is clear. There is also a separate justification, stemming from
the desert theory of criminal liability, namely that a person who tries
to cause a prohibited harm and fails is, in terms of moral culpability,
not materially different from the person who tries and succeeds: the
difference in outcome is determined by chance rather than by choice,
and the criminal law should not subordinate itself to the vagaries of
fortune by focussing on results rather than on culpability.
Previous Law Relating to Attempts

Before August 1996 (when conspiracy and attempt were codified in Hong
Kong), the law relating to attempt in Hong Kong was a mixture of common
law and statutory principles.
Under the common law, an attempt to commit an offence (whether
common law or statutory in origin, triable on indictment or summarily)
was itself an offence, punishable on indictment. An attempt for this purpose
meant an act sufficiently proximate to the commission of a substantive
offence, done with the intention of committing that substantive offence
(Chow Shui Ming (1996) Cr App No. 335 of 1996, CA).
Attempts to commit statutory offences also had a statutory footing in
Hong Kong pursuant to section 101B(1) of the Criminal Procedure
Ordinance (cap. 221) (previously section 81 of the Interpretation and
General Clauses Ordinance (cap. 1)), which provided that ... an attempt to
commit [a statutory] offence shall itself constitute an offence [emphasis added]
which may be dealt with and punished in like manner as if the offence had
been committed. This applied only to attempts to commit statutory offences
and did not affect attempts to commit offences at common law (section
101B(3) of the Criminal Procedure Ordinance).
460
Attempts were also referred to in, or formed the basis of, several specific
statutory offences; for example, section 14 of the OAPO provides: Any
person who, by any means other than those specified in any of [sections 10
to 13], attempts to commit murder [emphasis added] shall be guilty of an
offence ....
However, attempt was nowhere statutorily defined; prima facie,
therefore, all these statutory references to attempt had to be read as a
reference to attempt at common law.10
Since 2 August 1996, the law of criminal attempt in Hong Kong has
been codified in sections 159G159K of the Crimes Ordinance (added by
the Crimes (Amendment) Ordinance, No. 49 of 1996). Summarizing the
effect of these provisions:
(1) a new statutory offence of attempt was enacted section 159G(1) of
the Crimes Ordinance;
(2) the offence of attempt at common law was abolished see section
159K(1) of the Crimes Ordinance;
(3) section 101B and its statutory offence of attempting to commit a
statutory offence was repealed see section 4 of the Crimes
(Amendment) Ordinance (No. 49 of 1996);
(4) the new statutory offence of attempt and the rules applicable to it apply
equally for the purpose of determining whether a person is guilty of
an attempt under a special statutory provision (i.e. a statutory offence
other than section 159G which is expressed as an offence of attempting
to commit another offence) see sections 159I(1)(2)(3) of the Crimes
Ordinance. Section 14 of the OAPO, referred to above, is an example
of such a special statutory provision;
(5) all previous statutory references to attempts which [fell] to be construed
10
However, see Lau Sai Wai [1985] HKLR 423, in which the Hong Kong Court of Appeal
held that the words dealt with ... in like manner as if the offence had been committed in
section 81(1) of the Interpretation and General Clauses Ordinance (subsequently re-enacted
as section 101B(1) of the Criminal Procedure Ordinance) meant that an attempt to commit
a strict liability offence was itself to be treated as strict liability. This absurd literal
interpretation of section 81(1) is fundamentally inconsistent with the notion of inchoate
liability, which presupposes the existence of intention to commit the offence [attempted].
(For criticism, see (1986) 16 HKLJ 130.) Woefully, Lau Sai Wai was later affirmed by the
Hong Kong Court of Appeal in Lei Sou Wa [1996] 3 HKC 494 shortly before the enactment
of the new statutory offence of attempt. It remains to be seen whether the flawed reasoning
of these cases effectively imposing liability for the mere commission of a proximate act
regardless of the defendants intention will be reintroduced under the new statutory
regime.
461
as references to the offence of attempt at common law11 are now to be

construed as references to the statutory offence of attempt under section
159G see section 159K of the Crimes Ordinance.
Statutory Offence: Sections 159G to 159K of the Crimes

Ordinance
Statutory offence of attempt
Section 159G(1) (following section 1(1) of the Criminal Attempts Act 1981
(UK)) enacts a statutory offence of attempt in the following terms:
(1) A person who, intending to commit an offence to which this
section applies, does an act that is more than merely preparatory to the
commission of the offence is guilty of attempting to commit the offence.
This statutory offence differs in three important respects from the previous
common law: the necessary mens rea is redefined; there is a new test for
the actus reus of criminal attempt; and, read together with subsections
159G(2) and (3) dealing with factual impossibility, the common law defence
of factual impossibility is abolished.
The offence of attempt at common law was consequentially abolished
(section 159K(1) of the Crimes Ordinance).
Offence attempted
The application of section 159G(1) is very broad. According to section
159G(5), it applies to any offence which, if it were completed, would be
triable in Hong Kong other than aiding, abetting, counselling or procuring
the commission of an offence. Thus, virtually every offence under Hong
Kong law may be statutorily attempted, whether statutory or common law,
triable on indictment or only summarily (unlike in England, where it
restricts statutory attempts to attempts to commit indictable offences; section
1(4) of the Criminal Attempts Act 1981).
11
Attempt is sometimes used in a statutory offence as an ordinary term, meaning to try,

and not as a reference to the offence of attempt; for example, section 21 of the OAPO:
Any person who unlawfully ... attempts [emphasis added] to apply ... any ... overpowering
drug ... with intent ... thereby to enable himself ... to commit ... any indictable offence ....
462
The one express statutory exception relates to attempting to aid, abet,

counsel or procure the commission of an offence. Insofar as this refers to
secondary party liability under section 89 of the Criminal Procedure
Ordinance, then save for the exceptional case referred to below, it is arguably
unnecessary, since aiding, abetting, counselling and procuring do not in
themselves constitute an offence; they are merely modes of participating
in an offence committed by another. Thus, a party who supplies a gun to
an assassin is liable as a party to the offence committed by the assassin, not
for committing an offence of aiding, abetting, counselling or procuring;
attempting to supply the gun, therefore, is not attempting to commit an
offence. The exceptional case is where an act of aiding, abetting, counselling
or procuring is expressly made an element of a specific statutory offence,
as in section 33B of the OAPO (aiding, abetting, counselling or procuring
the suicide or attempted suicide of another), or section 119 of the Crimes
Ordinance (cap. 300) (procuring unlawful sexual acts by threats or
intimidation), and is not merely a reference to secondary party liability. In
such a case, D may be liable under section 159G(1) for attempting to commit
that specific offence: D is not aiding, abetting, counselling or procuring
the commission of an offence within the meaning of section 159G(5); rather,
D is thereby actually committing the offence, and thus a charge of attempting
to aid or abet suicide (or even attempting to aid or abet another to attempt
suicide) is therefore valid (McShane (1978) 66 Cr App R 97; A-G v Able
[1984] QB 795; Hampshire v Mace [1986] Crim LR 752; and see Po Koontai [1980] HKLR 492, at 500, per Addison J).
In Hong Kong, unlike in England, there is no restriction on attempts
to commit other inchoate offences. Thus, there may be liability for
attempting to conspire (Mak Sun-kwong [1980] HKLR 467, at 478, per
Leonard JA; compare section 1(4) of the Criminal Attempts Act 1981), or
attempting to incite (see Mak Sun-kwong, above; Chelmsford Justices, ex p JJ
Amos [1973] Crim LR 437), as where D sends a communication by fax
inciting X to commit an offence, but Xs fax machine is out of paper, and
X never receives the communication.
Some academic commentators have argued that there may also be
certain offences which, as a matter of common law, cannot be attempted.
Manslaughter is given as a possible example of this if D intended to
cause death, then this would give rise to attempted murder; but if D did
not have this intention, then his or her attempt is only to commit battery,
or an aggravated assault such as wounding with intent (contrary to section
17(a) of the OAPO). It is difficult to say that D was attempting to act
grossly negligently, or was attempting to commit an unlawful and dangerous
463
act causing death (see Smith and Hogan, Criminal Law, ninth edition, 1999,
p. 318).
The offence in question must be triable in Hong Kong. This question
of jurisdiction for the purpose of attempts is discussed further below.
Elements of the Statutory Offence

Mens rea
The essence of a criminal attempt lies in the intent of the accused. This
follows from the fact that the conduct constituting the actus reus of a
criminal attempt necessarily falls short of the commission of a substantive
offence and attains its character as an offence only by virtue of the criminal
intent with which D performs the material acts. As Lord Goddard CJ stated
in Whybrow ((1951) 35 Cr App R 141) of attempt at common law: the intent
becomes the principal ingredient of the crime. Accordingly, it is desirable to
consider the mens rea of criminal attempt before turning to actus reus.
Section 159G(1) requires the prosecution to prove that D acted (more
specifically, in the context of section 159G(1), did an act more than merely
preparatory to the commission of an offence) intending to commit an
offence. The question is: what does this require the prosecution to prove?
The meaning of intending
At common law, the requirement of intent (or specific intent as it was
often called) was taken to require proof of intention or, as explained by
James LJ in the English Court of Appeal in Mohan ([1976] QB 1), where D
was charged with attempted murder under the common law, proof of a
specific intent, a decision to bring about, in so far as it lies within the
accuseds power, the commission of the offence which it is alleged the
accused attempted to commit, no matter whether the accused desired that
consequence of his act or not. According to this, recklessness (i.e. Ds
foresight that Ds conduct might cause a prohibited consequence) was
insufficient to establish criminal attempt.
On the other hand, this definition of intent embraced intention in
both its so-called direct and oblique forms (above, Chapter 4, p. 120);
that is, direct where it was Ds purpose or aim to cause the consequence,
and oblique where causing the consequence was not Ds primary purpose
but was foreseen by D as a virtually certain result of carrying out Ds primary
464
purpose whereby it may be inferred or found that D intended to cause the

consequence.
At first sight, this view of the mens rea of criminal attempt is reproduced
in section 159G(1), for it likewise requires proof that D intended to commit
an offence. Interpreted strictly, this would necessitate proof that D intended
every actus reus element (of the substantive offence attempted) to occur or
exist. However, a different position has been adopted by the English courts,
drawing a distinction for this purpose between consequences (or results),
which D must be proved to have intended, and circumstances, where
intention (or knowledge of the existence of the circumstance) will not
always be required.
Intending to commit an offence: consequences
The requirement that D intended to commit an offence has been relatively
strictly applied in relation to consequences. In general, if the offence
attempted requires proof of a consequence or result, it must be proved that
D intended this result to occur. In relation to attempted murder, for
example, following the previous common law (Whybrow (1951) 35 Cr App
R 141), it has been held that intention to kill must be proved; intention to
cause grievous bodily harm, although sufficient for murder itself, is
insufficient for the attempt (Walker and Hayles (1990) 90 Cr App R 226).
This recognizes that to say D intends to commit the substantive offence of
murder, D must be shown to intend to bring about the result prohibited
by the substantive offence, namely death. If the only result intended by D
is grievous bodily harm, then D does not intend to commit murder; instead,
D may be liable under section 17(a) of the OAPO if D actually causes
grievous bodily harm, or for attempting to cause grievous bodily harm
with intent, contrary to section 159G(1) of the Crimes Ordinance and
section 17(a) of the OAPO, if no harm or less than grievous bodily harm
results from Ds more than merely preparatory act(s).
Attempted criminal damage has been analysed in the same way. In
Millard ([1987] Crim LR 393), the English Court of Appeal held that
attempted criminal damage requires proof that D intended to damage or
destroy property, even though Caldwell recklessness suffices for the
substantive offence, and this is so whether the substantive offence attempted
is simple criminal damage/arson (contrary to section 60(1) or section 60(3)
(arson) of the Crimes Ordinance) or aggravated criminal damage/arson (i.e.
criminal damage (arson) endangering life, contrary to section 60(2) of the
Crimes Ordinance) (see also OToole [1987] Crim LR 759).
465
The English courts have reaffirmed Mohans definition of intent for

the purposes of statutory attempt, and consequently acknowledged that
intent in this context includes both direct intention and, by virtue of the
words no matter whether the accused desired that consequence of his act
or not in Mohans definition, oblique intention (i.e. where Ds primary or
immediate purpose is not to bring about the prohibited consequence, but
doing so is the inevitable or virtually certain consequence of carrying out
Ds primary purpose). In Pearman ((1985) 80 Cr App R 259), Stuart-Smith
J illustrated the use of this extended definition of intent (at 263) by referring
to the case of a man who is cornered by the police while in a car [who]
may have the primary purpose of simply escaping from that situation. If he
drives straight at the police officers at high speed, a jury is likely to conclude
that he intended to injure a police officer and maybe cause him grievous
bodily harm. D could therefore be convicted of attempting to cause grievous
bodily harm with intent, even though causing such injury was not Ds
primary purpose, nor desired by D. However, to convict D of attempted
murder, which requires proof of intention to kill, the jury would have to
be sure that in the circumstances, death (and not merely grievous bodily
harm) was both virtually certain and foreseen by D as such. This was
accepted by the English Court of Appeal in Walker and Hayles ((1990) 90
Cr App R 226) in which the defendants were convicted of attempted murder
after they had allegedly thrown the victim from a third-floor balcony after
threatening him with a knife and stating that they were going to kill him.
Arguably, there was no need for the trial judge to have given a so-called
Nedrick foresight direction at all, since there was no suggestion on the
facts that the defendants had some other primary purpose in mind, unless
it was only to seriously harm the victim. In reality, either their actions and
words established the defendants were trying to kill the victim, as explained
by the trial judge, or this inference could not be drawn, in which case the
defendants should have been acquitted of attempted murder. Furthermore,
the fact the trial judge in giving a foresight direction had referred to foresight
of a very high probability of death, rather than virtual certainty, did not,
in Lloyd LJs view, amount to a misdirection. It was better, he said (at
2323), to use virtual certainty, but the difference if there is one between
very high probability and virtual certainty of death was a matter of degree
which would have been inconsequential in the eyes of the jury. This latter
conclusion is by no means without difficulty: the difference may have been
inconsequential in this case in the light of the defendants alleged threats
to kill the victim, but absent such evidence, it is by no means clear that a
jury would find death to be virtually certain or foreseen as such where, as
466
in this case, the victim was thrown from only the third floor of a building
(see now Woollin [1999] AC 82; above, Chapter 4, p. 129).
Intending to commit an offence: circumstances
If a substantive offence requires proof of a circumstance as an element of
the offence (a definitional circumstance), then the requirement of intent
in section 159G(1) ought to require proof that D knew or believed that
that circumstance existed or would exist on a charge of attempting to
commit that offence. But the English courts have been less willing to adopt
this strict interpretation of intent in relation to circumstances, promoted
in part by earlier common law authority (e.g. Pigg [1982] 1 WLR 762) to
the effect that a defendant could be convicted of attempted rape if he was
at least reckless as to the female victims lack of consent. Based on this, the
English Court of Appeal has adopted the position that where a substantive
offence requires proof of a circumstance, but recklessness as to the existence
of that circumstance suffices for the full offence, then the requirement of
intent in section 1(1) of the Criminal Attempts Act 1981 (intending in
section 159G(1)) may also be satisfied by proof of recklessness as to that
definitional circumstance. Acting while intending to commit an offence in
relation to a definitional circumstance thus means acting with the mens
rea of the substantive offence in relation to that circumstance, rather than
with intention or knowledge. The two principal authorities for this approach
are Khan ([1990] 1 WLR 813) dealing with attempted rape, and A-Gs
Reference (No. 3 of 1992) ([1994] 1 WLR 409) dealing with attempted
aggravated arson.
In Khan, the defendants unsuccessfully attempted to have sexual
intercourse with a woman, either knowing she was not consenting or at
least realizing she might not be (i.e. being reckless as to whether she
consented). They were convicted of attempted rape and appealed,
contending that the trial judge had wrongly left the case to the jury on the
basis of their recklessness rather than their intent. The English Court of
Appeal dismissed their appeals, taking the view that the essential difference
between rape and attempted rape lay not in a defendants state of mind but
rather in whether or not sexual intercourse had taken place. Apart from
proving that D intended to have sexual intercourse, the Court concluded
(at 819) that:
the intent of [D] is precisely the same in rape and in attempted rape
and the mens rea is identical, namely an intention to have intercourse
467
plus a knowledge of or recklessness as to the womans absence of

consent. ... A man does not recklessly have sexual intercourse, nor
does he recklessly attempt it. Recklessness in rape and attempted rape
arises not in relation to the physical act of the accused but only in his
state of mind when engaged in the activity of having or attempting to
have sexual intercourse.
Accordingly, for the purposes of rape and attempted rape, there is no

difference so far as lack of consent is concerned between a defendant who
has achieved the slightest penetration and a defendant who stops just short
of penetration. In either case, D will be liable upon proof that he was
reckless as to the absence of consent.
In reaching this conclusion, Russell LJ for the court added (at 819)
that our reasoning cannot apply to all offences and all attempts. Where,
for example as in causing death by reckless driving or reckless arson, no
state of mind other than recklessness is involved in the offence, there can
be no attempt to commit it [emphasis added].
This recognizes that whereas a person who has caused death by reckless
driving, or has caused property damage by fire, may be convicted solely on
the basis that he or she drove recklessly or recklessly started the fire, the
same cannot be said of a defendant who has merely attempted to commit
these offences. A person cannot be said to be trying to cause death by
reckless driving, or trying to damage property by fire, unless causing death
or damaging property is shown to be his or her purpose or intention;
mere recklessness will not suffice.
In A-Gs Reference (No. 3 of 1992), the English Court of Appeal extended
this approach. Approving Khan on the basis that it accorded with policy
and common sense and did no violence to the words of section 1(1) of the
Criminal Attempts Act 1981, the Court then somewhat surprisingly applied
Khan to a charge of attempted aggravated arson, i.e. intentionally or
recklessly causing damage by fire, being reckless whether life would thereby
be endangered (section 1(2) of the Criminal Damage Act 1971; section
60(2) of the Crimes Ordinance). The prosecutions case was that D threw
a lit petrol bomb towards a car occupied by several persons; the bomb
missed the car, smashing harmlessly instead against a nearby garden wall.
The trial judge acquitted D on the basis D could be said to have attempted
to endanger life only if D intended the damage attempted by him to
endanger life, not merely if he was reckless as to endangering life. The
Court of Appeal disagreed, taking the view (at 418) that if D has done an
act more than merely preparatory to the substantive offence (aggravated
arson), intending to supply the missing physical element of the completed
468
offence, i.e. in this case, to damage property, while being reckless [in the
Caldwell sense] as to whether the life of another would thereby be
endangered, then there was no reason why there should not be a conviction
for attempt. Schiemann J for the court concluded (at 419) that:
[T]o succeed in a prosecution for attempt, it must be shown that [D]
intended to achieve that which was missing from the full offence. ...
In the present case, the prosecution had to show an intention to damage
the ... property, and the remaining state of mind required for the offence
of aggravated arson [emphasis added].
Since the remaining state of mind included being reckless as to whether

life would be endangered by the (intended) damage, D should, in the opinion
of the Court, have been convicted; there was, said Schiemann J, no need
for a graver mental state than is required for the full offence.
One difficulty with this analysis is that unlike Khan, where Ds
recklessness related to a definitional circumstance of the actus reus of the
substantive offence attempted (absence of consent in rape), the additional
matter dealt with in A-Gs Reference (No. 3 of 1992) the endangerment
of life relates solely to the mens rea of the substantive offence (see
Sangha ([1988] 1 WLR 519) where the English Court of Appeal held that
there is no necessity to prove any ones life was in fact endangered by the
criminal damage caused by D; it is sufficient to prove that D intended his
or her act of criminal damage to endanger life, or was reckless as to such
endangerment).
Furthermore, it is the existence of this additional element of mens rea
which distinguishes ordinary criminal damage/arson (section 60(1) of the
Crimes Ordinance) punishable with ten years imprisonment (section 63(2)
of the Crimes Ordinance), from its aggravated forms, punishable with life
imprisonment (section 63(1) of the Crimes Ordinance): if D is not proved
to have been trying, i.e. intending to endanger life by Ds act of criminal
damage, it is difficult to see how D can properly be said to have acted
intending to commit the aggravated offence, rather than the ordinary
offence. The fact that there was an objectively obvious risk of endangering
life, the possibility of which D failed even to consider, which would establish
Caldwell recklessness, seems a slim basis indeed for such a crucial distinction
yet that is what A-Gs Ref. (No. 3 of 1992) appears to accept.
There is a further uncertainty arising out of A-Gs Reference (No. 3 of
1992). When the court there said that D may be liable for an attempt
provided it is proved that D acted intending to supply the missing physical
element of the completed offence but otherwise with the same state of
469
mind as to material circumstances as would suffice for the full offence, it

is unlikely it had strict liability offences in mind. However, applied literally,
this approach would mean that an attempt to commit a substantive offence
which is strict liability as to a definitional circumstance should likewise be
treated as strict liability as to that specified circumstance. Section 123 of
the Crimes Ordinance provides an example of such an offence: under this
provision, D is liable to life imprisonment for having sexual intercourse
with a girl under the age of 13 years. On a charge of attempting to commit
this offence, applying Khan and A-Gs Reference (No. 3 of 1992), the
prosecution will undoubtedly have to prove that D intended to have sexual
intercourse with the victim; but what of her age? The substantive offence
does not require proof of mens rea as to this circumstance; it involves
strict liability and D may be convicted regardless of his knowledge,
awareness or belief as to her age. What then if anything must be proved as
mens rea in relation to the girls age on a charge of attempting to commit
this offence? At least three responses are possible. Firstly, adopting a strict
view of the requirement in section 159G(1) that D intended to commit the
offence, proof that D knew the girls age could be required. After all, it is
not easy to see how D can be said to be trying to have sexual intercourse
with a girl under the age of 13 if he honestly believed her to be above that
age, perhaps even old enough to give valid consent. Secondly, applying
Khan and A-Gs Reference (No. 3 of 1992), since the girls age is a definitional
circumstance, the prosecution should be allowed to rely upon Ds
recklessness rather than his intention or knowledge of her age. This, it
might be argued, is consistent with the protection that section 123 intends
to confer on girls under the age of 13, although Ds honest (but mistaken)
belief that the girl is older than 13 would still entitle D to an acquittal.
However, a third answer might also be given. Read literally, A-Gs Reference
(No. 3 of 1992) would permit D to be convicted of attempt upon proof of
the same state of mind regarding the girls age as that required for the full
offence; in this case, that would mean without requiring proof of mens rea
at all as to the girls age, i.e. strict liability.
It is submitted that the adoption of this third response would extend
the scope of statutory attempt beyond its acceptable limits. Applied to section
123, it would mean that a 16-year-old boy who unsuccessfully attempts to
have sexual intercourse with a prostitute whom he honestly believes to be
older than himself, but who is in fact under 13 years, could be convicted of
an attempt. Where sexual intercourse actually takes place, there is
undoubtedly justification for a conviction since the offence exists to protect
young girls from being sexually exploited. However, in the absence of actual
470
sexual intercourse, and putting aside whatever views one might form as to
Ds moral standards, there is little to justify Ds conviction, except perhaps
an over zealous belief in a literalist approach to the interpretation and
application of criminal statutory and common law authorities.
The position in Hong Kong
So far, there is little Hong Kong authority on the interpretation of section
159G(1), particularly on whether there is a distinction between
consequences and circumstances for the purposes of the mens rea of
statutory attempt. It is submitted that although the language of section
159G(1) intending to commit an offence is slightly different to that
in the English statute (with intent to), a similar distinction should be
adopted between definitional acts and consequences/results on the one hand,
and definitional circumstances and additional states of mind on the other.
This would be consistent with the common law as it has developed in
recent years in Hong Kong. Taking attempted murder, for example, the
strict view that intention to kill (and not merely to cause grievous bodily
harm) has been adopted at common law in Hong Kong (Chiu Cheung [1989]
1 HKLR 15, at 18; Chan Ching-fung [1992] HKCLR 190, at 2056); it is
submitted that this should continue to be so in prosecutions for attempted
murder under section 159G(1).
Millard has also been applied in Hong Kong to an attempt at common
law to commit arson. In Yu Fung Hi ([1996] 1 HKCLR 126), it was alleged
that early one morning, Y, while a pillion passenger on a motorcycle, threw
a petrol bomb towards shop premises owned by someone involved in an
earlier, midnight bar brawl with Y and others. A small fire started but there
was no damage to the premises, nor was anyone harmed. The trial judge
convicted Y and his accomplice on the basis that whatever their specific
intentions, they were reckless as to whether fire damaged [sic] to the shop
would occur. Quashing Ys convictions, Liu JA, for the Court of Appeal,
accepted the submission of Ys counsel that attempted arson cannot be
founded on recklessness alone; intention to cause damage to the premises
must be proved. The requirement, Liu JA stated (at 128) (referring to
Mohan, Pearman and Millard),to prove the specific criminal intent in an
attempt to commit an offence is well entrenched at common law. It is
submitted that were Y now charged under section 159G(1), the same strict
analysis should apply.
In the same way, D should be convicted, for example, of attempting to
maliciously wound or inflict grievous bodily harm (contrary to section 19
471
of the OAPO) only upon proof that D intended to wound or inflict grievous
bodily harm (i.e. intended to cause the definitional consequence), even
though D would be liable for the substantive offence itself merely upon proof
that D foresaw that his or her conduct might cause (i.e. Cunningham
recklessness) some physical harm (not necessarily a wound or serious harm).
These cases concern definitional consequences or results. As far as
definitional circumstances are concerned, Hong Kong courts are likely to
follow the approach in Khan and A-Gs Ref (No. 3 of 1992), whereby
recklessness as to the existence of that consequence should suffice for the
attempt, if it suffices for the substantive offence. A statutory provision to
this effect was at one time proposed in Hong Kong as part of the statutory
reform of criminal attempt,12 but was subsequently omitted.
On the other hand, Hong Kongs courts remain free to reject A-Gs Ref
(No. 3 of 1992)s extension of this approach to additional mens rea elements
such as that required for aggravated criminal damage, and adopt instead
the position that a person attempts to endanger life by criminal damage
only if endangerment is his or her intention or purpose, not merely a risk
in respect of which he or she is reckless. What should certainly be
strenuously resisted, however, is any literalist adoption of the dictum in AGs Ref (No. 3 of 1992) which would enable a person to be convicted of
attempting to commit a strict liability offence without proof of at least
recklessness in relation to all the elements of the substantive offence,
including any definitional circumstances attracting strict liability.
Such an interpretation allowing strict liability would not have
been possible under the proposed statutory provision relating to recklessness
and circumstances referred to above, nor is it fundamentally consistent
with the notion of inchoate liability, which is premised upon the existence
of criminal intention. Unfortunately, these concerns have not dissuaded
the Hong Kong Court of Appeal in the past (see Lau Sai Wai and Lei Son
Wa referred to above, at note 10) from adopting this literalist approach in
dealing with statutory attempts to commit strict liability offences under
section 81(1) of the Interpretation and General Clauses Ordinance and
12
The proposed section 159G(2) read: For the purposes of subsection (1), an intention to
commit an offence is an intention with respect to all the elements of the offence other
than fault elements, except that recklessness with respect to a circumstance suffices where
it suffices for the offence itself. This was adopted from an earlier English proposal (see
draft Criminal Code, Law Com. No. 177, 1989, Clause 49(2)). In their initial draft Criminal
Code, which would have included attempt, English drafters thought that the distinction
between circumstances and conduct was unworkable. After consultation, they later included
the above clause consistent with, although predating, Khan.
472
section 101B(1) of the Criminal Procedure Ordinance (both now repealed).

It is to be hoped that the express inclusion in section 159G(1) of a
requirement that D intended to commit an offence will at least give the
courts of Hong Kong reason to resist this approach in the future.
Conditional intent
Conditional intent refers to an intention to do an act if a particular
condition is satisfied. D picks up a womans handbag, intending to take,
i.e. steal, anything of value in it, but finds nothing and so replaces it. This
is not theft, since nothing has been appropriated with the intention of
permanently depriving the owner of it. Is it attempted theft? This depends
on the terms in which D is charged. If D is charged with attempting to
steal particular named items from the handbag, then Ds conditional intent
will prevent liability D never intended to steal those particular items
(Easom [1971] 2 QB 315; Husseyn (1977) 67 Cr App R 131). However, if
D is charged more generally with attempting to steal from a handbag,
then this may be proved and D convicted of attempt (A-Gs Ref (Nos. 1 and
2 of 1979) [1980] 1 QB 180). This is so even if there is nothing at all, let
alone nothing of value, in the handbag, since the fact that it is empty, thus
making it impossible for D to carry out his or her intention, will not prevent
liability for statutory attempt (section 159G(2)).
Actus reus
The actus reus of statutory attempt under section 159G(1) is an act that is
more than merely preparatory to the commission of the [intended] offence
[emphasis added].
Act
Act is a wide term. It need not be dangerous or illegal in itself, given that
the offence of attempt is essentially based on Ds criminal intention. It has
been suggested by Smith and Hogan (Criminal Law, ninth edition, 1999,
p. 316) that act ought not to include illegal omissions, i.e. criminal breaches
of duty, such as parents who deliberately withhold food from their child with
intent to kill it. Smith and Hogan argue that for this to amount to attempted
murder, it would require bold judicial interpretation to read act to include
omission . However, in Hong Kong, section 3 of the Interpretation and
General Clauses Ordinance (cap. 1) already lays the groundwork for this
473
interpretation, by providing that act when used with reference to an offence

... includes a series of acts, an illegal omission and a series of illegal
omissions. Thus, an attempt by illegal omission would appear to be possible
in Hong Kong, despite the express reference to act in section 159G(1).
More than merely preparatory
Statutory attempt requires an act that is not merely preparatory. It must
be one that is more than merely preparatory to the commission of the
intended offence.
According to section 159J(2), the question of whether Ds act is more
than merely preparatory is a question of fact which falls for determination
by the trier of fact once there is evidence sufficient in law to support a
finding that [D] did an act falling within [subsection 159G(1)], i.e. an act
more than merely preparatory to the commission of the [intended] offence.
It is for the trial judge to determine whether there is sufficient evidence at
law to support such a finding, but then for the trier of fact to determine
both the acts in fact done by D and whether these were more than merely
preparatory.13 Beyond this, however, the ordinance provides no further
guidance on the appropriate threshold for criminal liability.
At common law, various tests were used to determine whether Ds act
was sufficiently proximate to the commission of the substantive offence to
constitute the actus reus of attempt. According to one such test, acts
remotely leading towards the commission of the full offence are not to be
considered as attempts to commit it, but acts immediately connected with
it are. This test, derived from Eagleton ((1855)[184360] All ER 363, per
Parke B), was sometimes restrictively interpreted as requiring proof that D
had done the last act to be done by D or, as Lord Diplock put it in DPP v
Stonehouse ([1978] AC 55), had crossed the Rubicon and burnt his boats.
An alternative, less restrictive, test known as the equivocality test, derived
from Stephens Digest of Criminal Law and summarized in Davey v Lee
([1968] 1 QB 366), asked whether D had done an act which is a step
towards the commission of the specific crime, which is immediately and
not merely remotely connected with the commission of it, and the doing of
13
This is similar to the previous common law position; see DPP v Stonehouse [1978] AC 55.
Compare G. Williams, [1991] Crim LR 416, who argues that the law should have entitled
a judge to rule when preparation became an attempt: What the judges have lost is their
power to protect the public by telling the jury firmly that the defendants act, if proved, ...
did amount to an attempt (at 425).
474
which cannot reasonably be regarded as having any other purpose than the
commission of the specific crime.
In Hong Kong, prior to the enactment of section 159G of the Crimes
Ordinance, the Hong Kong Court of Appeal in Chan Kwong ([1987] HKLR
756) had adopted the less restrictive test set out in Davey v Lee, although
it did so on the basis that it seems to us ... there is not a last act test as
such, and Eagleton may be regarded as illustration of the principle enunciated
in Davey v Lee ... (at 763). Even applying the broader test, the Court held
(at 764) that the defendants had not committed a sufficiently proximate
act for the purposes of convicting them of attempting to cheat at gambling;
they had simply set the scene in preparation for the arrival of the intended
victim. ... It cannot be said that the applicants conduct up to the point of
their arrest can reasonably be regarded to have any purpose other than the
commission of the specific crime (see also Mulitex (Exports) Ltd. (1996)
Mag App No. 516 of 1996; [1996] HKLD A17).
It has been said there is no magic formula for ascertaining whether an
act amounts to an attempt, particularly having regard to the necessity for
the statutory offence of attempt to apply to all offences no matter how
defined. In Gullefer ([1990] 1 WLR 1063), the English Court of Appeal put
it this way (at 1066):
... the words of the Act of 1981 seek to steer a midway course. They
do not provide, as they might have done, that the ... Eagleton test is
to be followed, or that, as Lord Diplock suggested, the defendant must
have reached a point from which it was impossible for him to retreat
before the actus reus of an attempt is proved. On the other hand, the
words give perhaps as clear a guidance as is possible in the
circumstances on the point of time at which Stephens series of acts
begins. It begins when the merely preparatory acts have come to an
end and the defendant embarks upon the crime proper. When that is
will depend of course upon the facts in any particular case.
The accused in this case, G, had placed a bet on a greyhound race.

When it was apparent that the dog he had bet on was not going to win, G
jumped on to the track in a vain attempt to interfere with the race, hoping
(unsuccessfully in the event) that the race officials would declare no race,
and he would be able to reclaim his bet from the bookmakers. The court
held that Gs conduct did not amount to a statutory attempt. In their view,
G had not yet embarked on the crime proper; Gs acts remained merely
preparatory. If the officials had declared no race, the position might have
been different for there would then have been sufficient evidence to leave
475
the issue to the jury; however, it would still have been open to the jury to
acquit G, on the basis that his conduct remained merely preparatory until,
for example, he actually re-presented his betting slip to the bookmaker, or
perhaps joined the queue for that purpose.
The problem with this approach is that it sets no actual standard or
threshold: it is simply left to the trier of fact to decide, paving the way for
different juries to form different views on largely similar facts as to whether
and when Ds conduct becomes more than merely preparatory.
The distinction is sometimes drawn between mere preparation and being
on the job, i.e. in the process of committing the offence, but care must be
taken with this, for under the ordinance, an act of preparation may amount
to the actus reus of attempt, provided that it is more than merely preparatory.
When the Criminal Attempts Act 1981 was first enacted, some English
courts sought guidance from the previous common law tests (e.g. Ilyas
(1983) 78 Cr App R17; Widdowson [1986], RTR 124; Boyle (1987) 84 Cr
App R 270), but this approach was subsequently disapproved of by the
English Court of Appeal in Jones ([1990] 1 WLR 1057) where Taylor LJ
suggested that the correct approach was to look first at the natural meaning
of the statutory words, not to turn back to earlier case law and seek to fit
some previous test to the words of the section. In Jones, the Court of
Appeal concluded that J was properly convicted of attempted murder upon
evidence that J, in disguise and armed with a sawn-off shotgun, clambered
into the rear seat of a car being driven by V (the new boyfriend of Js
former girlfriend) and pointed the gun at V saying You are not going to
like this. J argued that, in the absence of evidence that his finger was on
the trigger and the safety catch was unlocked, his acts were merely
preparatory and therefore insufficient for a conviction of attempted murder.
Rejecting this, Taylor LJ stated (at 1062) that [Ds] actions in obtaining
the gun, in shortening it, in loading it, in putting on his disguise, and in
going to the school could only be regarded as preparatory acts. But ... once
he had got into the car, taken out the loaded gun and pointed it at the
victim with the intention of killing him, there was sufficient evidence for
the consideration of the jury on the charge of attempted murder. There
was no need to prove D had done the last possible act by him short of
actually committing the substantive offence.
In Campbell ([1991] Crim LR 268), on the other hand, C was acquitted
of attempted robbery despite evidence that he visited and reconnoitered a
sub-post office that he planned to rob while carrying an imitation gun and
a threatening note. At the time when he was arrested, C was going back to
his motorcycle, having decided, he said, not to go ahead with the robbery.
476
A jury, on this evidence, might well have convicted, but the English Court
of Appeal agreed that the trial judge was correct to withdraw the charge
from the jury on the grounds that Cs acts were at best merely preparatory.14
There was a similar result in Geddes ([1996] Crim LR 894), where the
English Court of Appeal quashed a conviction of attempted false
imprisonment because in its view, Gs conduct entering a school boys
lavatory equipped with a backpack containing a knife, rope and masking
tape was still merely preparatory. The test, it said, was to ask whether
the evidence if accepted could show that the defendant had done an act
indicating he had actually tried to commit the offence, or whether he had
only got ready or put himself in a position or equipped himself to do so.
Applying that test in Tosti and White ([1997] Crim LR 746), the English
Court of Appeal upheld convictions of attempted burglary even though,
according to the evidence, the defendants were only examining a padlock
on a barn door and arguably still only casing the joint in preparation for
burglary, rather than being in the process of actually committing the
offence, or on the job. Beldam LJ emphasized that although the defendants
actions were still preparatory, they were not merely so and [were] essentially
the first steps in the commission of the offence [of burglary]. (See also
Griffin [1993] Crim LR 515 in which a mother was convicted of attempting
to abduct her children and take them out of the UK merely upon evidence
that she had bought ferry tickets for Ireland and told her childrens teacher
that she was taking them to the dentist; there was no evidence that she had
taken charge of the children or set off for the port. Compare Nash [1999]
Crim LR 308: letter addressed to Paper Boy purporting to offer recipient
work with a security company and requesting a urine sample not sufficiently
proximate for charge of attempting to procure an act of gross indecency.)
Similarly, in A-Gs Ref (No. 1 of 1992) ([1993] 2 All ER 190), Ds
conviction of attempted rape was upheld, even though there was no evidence
showing that D had tried to penetrate the victims vagina. In the courts
view, D had embarked on the act of committing rape itself: The evidence
of the young womans distress, of the state of her clothing, and the position
in which she was seen, together with [Ds] acts of dragging her up the
steps, lowering his trousers and interfering with her private parts ... left it
14
Presumably, the court felt that it was necessary to prove that C had, for example, crossed
the threshold of the sub-post office to show that he was on the job and not merely
considering robbery. This approach poses obvious difficulties for law enforcement officers.
Perhaps, C could have been convicted instead of a different attempt, namely attempted
burglary, if it was considered that he had performed a more than merely preparatory act
on his way towards entering the building as a trespasser with intent to steal.
477
open to a jury to conclude that [D] had the necessary intent and had done
acts which were more than merely preparatory.
As these cases illustrate, establishing the actus reus of statutory attempt
remains a matter of degree. Part of the difficulty lies in balancing the need
to ensure there is evidence the defendant has psychologically committed
himself or herself to committing the offence (rather than just considering
doing so) and, on the other hand, to ensure law enforcement officers can
both intervene in a timely fashion in the interests of crime prevention and
yet still secure a conviction.
Impossibility
One of the significant reforms effected in 1996 was the abolition of the
defence of impossibility from the law of criminal attempts. This is dealt
with in subsection 159G(2) of the Crimes Ordinance, which reads:
A person may be guilty of attempting to commit an offence ... even
though the facts are such that the commission of the offence is
impossible ...
and is supplemented by subsection 159G(4) which reads:

In any case where
(a) apart from this subsection a persons intention would not be
regarded as having amounted to an intent to commit an offence;
but
(b) if the facts of the case had been as [D] believed them to be, [Ds]
intention would be so regarded,
then, for the purposes of [subsection 159G(1)], [D] shall be regarded
as having had an intent to commit that offence.
Although both subsections refer to facts, their effect is to abolish both

factual (or physical) and legal impossibility as defences to a charge of
criminal attempt, as is explained further below after consideration of the
prior law.
Impossibility at common law
At common law, Hong Kongs courts purported to follow the decision of
the House of Lords in Haughton v Smith ([1975] AC 470), to the effect that
an attempt that was doomed to failure because of factual (or physical) or
478
legal impossibility did not amount to a criminal attempt. Factual

impossibility here covered cases such as D placing his hand into anothers
pocket with the intention of stealing, only to find the pocket empty; D
would not be guilty of attempted theft because, the pocket being empty, it
was factually impossible for D to carry out his intention and commit theft
from that pocket. Legal impossibility covered the case of the person who
attempts to handle stolen goods only to find that as a matter of law, the
goods are no longer stolen (as in Haughton v Smith itself); in this case, D
was not liable for attempt, even though D believed that the goods were
stolen and thereby intended to handle stolen goods, because it was legally
impossible for D to handle stolen goods.
Factual and legal impossibility must be distinguished from two other
situations preventing D from carrying out his or her criminal intention.
The first is inadequate means for example, D did not use enough
explosive to blow open the safe. In this type of case, D remains criminally
liable for the attempt, provided that Ds intention to commit an offence is
proved. The second concerns a particular instance of legal impossibility,
sometimes called the imaginary offence. This arises when D carries out all
his or her intended acts for example, commits adultery mistakenly
believing that those acts (i.e. adultery) amount to an offence. D will not be
liable for an attempt to commit an offence in this case, since the object of
the attempt adultery is not an offence. In other words, D did not
intend to commit (acts amounting to) an offence.
The decision in Haughton v Smith was generally disapproved of by
commentators, particularly in relation to factual impossibility. Its effect
was mitigated to some extent by the subsequent adoption of a rule that D
could still be convicted of criminal attempt despite factual impossibility if
D could be proved to have acted with a general rather than specific criminal
intent. Thus, in Lee Shek ([1976] HKLR 636), an empty pocket case, the
Hong Kong Court of Appeal held that L was properly convicted of attempted
theft upon evidence that he slipped his hand into the pockets of victims on
at least three occasions. The fact that there may not have been anything to
steal in the last of these three pockets did not prevent L from being guilty
of attempted theft, since the evidence established a general intent to steal,
rather than a specific attempt to steal only from the third (empty) pocket.
In Cheung Wai-leung ([1991] 1 HKC 420), on the other hand, C was
acquitted of attempted theft when the prosecution failed to call any evidence
to establish that there was money in the bank account out of which C
unsuccessfully tried to withdraw funds using a stolen electronic teller card
(ETC). This, it was held, was a case of factual impossibility.
479
By way of contrast, in Ng Yun-tong ([1991] 1 HKLR 335), N was

convicted of attempted theft despite the fact that a cheque obtained by N
was stopped before N attempted to cash it. Similarly, in So Ching Kwan
([1993] 1 HKCLR 156), S was convicted of attempting to discharge a loaded
gun despite the fact that the gun jammed and would not fire. Both cases
were held to involve inadequate means, and not impossibility.
The common law position was summarized by the Hong Kong Court
of Appeal in R v David Lin Kuo Liang (No. 17) ([1997] 2 HKC 679), decided
after the enactment of the Crimes (Amendment) Ordinance in 1996 but in
relation to events before its enactment. L was convicted of attempting to
obtain property (namely, a chose in action being a bank debt in the sum of
HK$10 million) by deception, contrary to (now repealed) section 101B of
the Criminal Procedure Ordinance and section 17(1) of the Theft Ordinance.
L had falsely represented to H, an undercover police officer, that L acted
for and was authorized to receive deposits in Hong Kong on behalf of the
Agriculture and Commercial Bank of Cambodia. With the co-operation of
the Bank of America, a fictitious account in Hs favour (using an alias) was
created, and a cheque book was issued to H. H wrote out a cheque for
HK$10 million on his purported account and gave it to L, who issued a
deposit receipt and a passbook for HK$10 million both printed in the name
of the Agriculture and Commercial Bank of Cambodia. L appealed,
submitting that since Hs account was fictitious, the HK$10 million chose
in action which L allegedly attempted to obtain by deception from H never
existed; it was said therefore that it was factually impossible for
L to complete the attempt. This submission succeeded before the Court of
Appeal, with Litton VP concluding (at 683) that:
... the present case is likely to be the last conviction in Hong Kong
prior to the change in the law which came into force on 2 August
1996. By amendments to the Crimes Ordinance (cap. 200) which
became effective on that date, the law as enshrined in Haughton v
Smith has been reversed. ... The appellant was convicted prior to s.159G
coming into operation. It seems to us that the position here is
indistinguishable from Haughton v Smith. There is no escaping the
conclusion that, there being no chose in action as averred in the
particulars, the appellant could not have been convicted of the crime
of attempt as charged.15
15
L did not entirely avoid liability. He was alternatively convicted of attempting to take
deposits by an unauthorized institution, contrary to section 12(1) of the Banking Ordinance
(cap. 155).
480
Statutory abolition of the defence of impossibility

Save for the imaginary offence (Taaffe [1984] AC 539, below), neither
factual nor legal impossibility is now a defence to criminal attempt. Factual
impossibility is abolished by subsection 159G(2): D may be liable even
though the facts are such that the commission of the offence is
impossible. Legal impossibility is abolished by both subsections 159G(2)
and (4);16 in particular, subsection (4) shall be regarded as having had
an intent to commit [the offence attempted] deems D to have the
necessary criminal intention if D intended to commit an offence based on
the facts as D believed them to be. Using the example of stolen goods, D
is liable for attempted handling if D did a more than merely preparatory
act (the fact that the goods may not be stolen is irrelevant, according to
subsection 159G(2)) and believed (wrongly as it turns out at law) the
goods to be stolen, for D may then be said to have done more than merely
preparatory acts with what is to be regarded as, or deemed by section
159G(4) to be, the necessary intent to commit the offence of handling
stolen goods.
Despite the clear intent of these subsections, in 1985, the House of
Lords in Anderton v Ryan ([1985] AC 560) initially held that the equivalent
English provisions (section 1(2) of the Criminal Attempts Act 1981) had
not fully abolished the defence of impossibility from the law of criminal
attempts. The Lords held that someone charged with attempting to handle
a stolen video player was not liable where the video player was not actually
stolen as alleged, thereby purportedly preserving legal impossibility, on
the basis that Ds acts were objectively innocent.
However, within a year, in Shivpuri ([1987] AC 1), the Lords overruled
their decision in Anderton v Ryan, confirming that the effect of sections
1(2)(3) of the Criminal Attempts Act 1981 is to abolish both factual and
legal impossibility as defences to criminal attempts. In this case, S was
charged with attempting to be knowingly concerned in dealing with
prohibited drugs. S was arrested in possession of a suitcase containing what
16
It has been argued that subsection 159G(4) is superfluous: criminal attempt rests on
criminal intention; therefore, using the example of stolen goods, if D acts with the intention
of handling stolen goods, D will be liable for attempt according to this intention, upon
the commission of more than merely preparatory acts, even though the facts are such
[that the goods are not stolen] that the commission of the [intended] offence [of handling]
is impossible. Given the propensity for confusion in this area, the inclusion of subsection
159G(4) puts the matter beyond doubt.
481
S believed to be either heroin or cannabis, both prohibited drugs, with

more of the powdered contents being found in his flat. In fact, the powdered
contents were snuff, not drugs. Ss appeal against conviction was dismissed
by the Lords. Lord Bridge confirmed that since S had intended to commit
the full offence attempted by him, and had performed more than merely
preparatory acts, he was liable for the attempt by virtue of section 1(2) of
the Criminal Attempts Act 1981 (section 159G(2) of the Crimes Ordinance).
The Lords indicated that the accused in Anderton v Ryan should also have
been convicted (of attempting to handle stolen goods) on the basis that he
believed the video player had been stolen and thus had the necessary intent
to handle stolen goods in accordance with section 1(3) (section 159G(4)
of the Crimes Ordinance). Furthermore, Anderton v Ryans purported
distinction between objectively innocent acts and acts amounting to an
attempt was criticized by Lord Bridge (at 212):
What turns what would otherwise, from the point of view of the
criminal law, be an innocent act into a crime is the intent of the actor
to commit an offence. ... A puts his hand into Bs pocket. Whether or
not there is anything in the pocket capable of being stolen, if A intends
to steal his act is a criminal attempt; if he does not so intend his act
is innocent. ... These considerations lead me to the conclusion that
the distinction ... between innocent and guilty acts considered
objectively and independently of the state of mind of the actor cannot
be sensibly maintained.
One continuing uncertainty concerns legal impossibility: is it the case

that mistakes as to the civil law fall within the scope of subsections 159G(2)
and (4)? Suppose, for example, D agrees to buy a car and takes possession,
believing that he will not become the owner until he has paid for it; in
reality, by virtue of the Sale of Goods Ordinance (cap. 26), D is already the
owner. Suppose then that D kicks in a door, intending to damage the car,
after an argument with the vendor about delaying payment. Since the car
actually belongs to D, Ds conduct does not amount to criminal damage,
contrary to section 60(1) of the Crimes Ordinance, for that offence can be
committed only against property belonging to another. Is D nonetheless
guilty of attempted criminal damage, on the basis that Ds mistake as to
ownership, although a matter of civil law, concerns facts and thus bring D
within the scope of subsections 159G(2) and (4)? Or should this somehow
be distinguished from Anderton v Ryan and Shivpuri, for example, on the
basis that the mistake in each of those cases related to the nature of the
subject-matter of the charge (was it stolen, were they drugs?) and thereby
482
fell within the scope of facts as used in subsections 159G(2) and (4)?17 It
is difficult to see why ownership of the subject-matter of the attempt is any
different from the question of whether the goods are stolen. And clearly,
D intended to damage the car, believing it to be the property of another;
according to subsection 159G(4), this should be sufficient to establish the
criminal attempt. This would also mean, for example, that D attempted
theft by taking Ds own umbrella if D believed the umbrella was not Ds
and intended to steal it.
Referring back to the five Hong Kong cases outlined above (pp. 478
9), all of them (in particular, Cheung Wai-leung and R v David Lin Kuo
Liang) would now amount to criminal attempts.
According to the House of Lords in Taaffe ([1984] AC 539), the defence
of imaginary crime has not been abolished. In that case, T mistakenly
believed it was an offence to import foreign currency into the United
Kingdom; his mistaken belief did not make his subsequent acts an attempt,
since his intention to import currency could not be regarded (even if the
facts had been as he believed them to be) as an intention to commit an
offence. Similarly, if D mistakenly believes that it is an offence to have
consensual sexual intercourse with a girl aged 17, he is not guilty of criminal
attempt because he does not thereby intend to commit an offence the
offence intended by him does not exist, it is an imaginary crime. On the
other hand, if D has consensual sexual intercourse with a girl aged 17,
mistakenly believing her to be 15, he may be liable for attempt. In this
case, unlawful sexual intercourse with a girl under 16 may be an offence,
contrary to section 124 of the Crimes Ordinance, regardless of her consent;
accordingly, D intended to commit an actual offence, not simply an
imaginary crime. Applying subsections 159G(2) and (4), D may then be
convicted of criminal attempt based on this intention.
Miscellaneous
Withdrawal
Once D has committed a more than merely preparatory act with the
necessary intention, the offence of attempt is already thereby committed.
17
See, for example, Huskinson [1988] Crim LR 620, where D was not liable for attempted
theft by dishonestly using money for purposes other than those for which he believed that
he was required by law to apply it.
483
Even if D then abandons the attempt, or otherwise desists or withdraws

from further criminal conduct, D may still be convicted of the attempt.
Secondary participation in an attempt
Although an attempt to aid, abet, counsel or procure is not a valid charge
(section 159G(5) of the Crimes Ordinance; above pp. 4612), a person
may be liable for aiding, abetting, counselling or procuring an attempt
(Dunnington [1984] QB 472).
Application to existing references to attempt/special statutory
provisions
The new law of criminal attempts discussed in this section also applies to
existing statutory offences of attempt and to other provisions referring to
attempt. Existing statutory offences of attempt (e.g. section 14 of the OAPO)
are provided for in section 159I. Section 159I(1) states that sections 159I(2)
to (5) shall apply to attempts under a special statutory provision (defined
in section 159I(2) as an offence which (a) is created by an enactment
other than section 159G, including an enactment passed after this Part;
and (b) is expressed as an offence of attempting to commit another offence
...). By section 159I(3), all such attempts require proof of the same matters
that must be proved under section 159G, and by sections 159I(4)(5),
impossibility is likewise no longer a defence. Section 159J(3) adds that the
question of whether D did an act falling within section 159I(3) is a question
of fact.
Existing references to attempt are dealt with in section 159K(2): all
references in any enactment passed before this Part which fall to be
construed as references to the offence of attempt at common law shall be
construed as references to the offence under section 159G.
Trial and penalties
Procedure
The following rules apply:
(1) a person may be convicted of attempting to commit an offence even
though he or she was not charged with the attempt section 159G(3);
(2) statutory provisions referring inter alia to the institution and venue of
proceedings, time limits on the institution of proceedings, powers of
484
arrest, search and seizure, the imposition of pecuniary penalties, and

forfeiture, in relation to a statutory offence apply equally to attempts
sections 159H(1)(2) and 159J(4) (see Neil Pryde Ltd. v Bryan Chau
and Others [1995] 2 HKLR 125 re predecessor: section 101B/C of the
Criminal Procedure Ordinance).
Penalties
Section 159J(1) provides for maximum penalties as follows:
(1) if the offence attempted is murder or any other offence carrying a
mandatory sentence of life imprisonment, D is liable on conviction on
indictment to life imprisonment section 159J(1)(a);
(2) if the offence attempted is any other indictable offence, D is liable on
conviction on indictment to the same penalty as would apply upon
conviction on indictment of that offence section 159J(1)(b);
(3) if the offence attempted is triable on indictment or summarily, D is
liable on summary conviction to the same penalty as would apply upon
summary conviction of that offence section 159J(1)(c).
Jurisdiction
Attempt is a Group B offence for the purposes of the Criminal Jurisdiction
Ordinance (CJO), which endows Hong Kong courts with extended criminal
jurisdiction over inchoate offences and a range of offences under the Theft
Ordinance (cap. 210) and Crimes Ordinances (cap. 200) involving
dishonesty or fraud (referred to as Group A offences), even though the
particular offence may be largely committed abroad.
Under the CJO, a Group A offence is triable in Hong Kong if any
relevant event (by which is meant any act or omission or other event
(including any result of one or more acts or omissions) proof of which is
required for conviction of the offence section 3(1)) for the purposes of
the Group A offence occurred in Hong Kong, even though the offence is
primarily to occur abroad. Any such offence will amount to an offence to
which [section 159G(1)] applies (in accordance with section 159G(5)),
and an attempt to commit such an offence will likewise be triable in Hong
Kong.
In addition, section 4(3) of the CJO specifically extends jurisdiction
over attempts committed abroad:
485
(3) On a charge of attempting to commit a Group A offence, the

defendant may be guilty of the offence whether or not
(a) the attempt was made in Hong Kong;
(b) it had an effect in Hong Kong.
Further, section 4(1) allows a person to be convicted of attempting to

commit a Group A offence:
(a) whatever his citizenship or nationality, or whether or not he was
a permanent resident of Hong Kong at any material time;
(b) whether or not he was in Hong Kong at any such time.
Finally, section 6(2) provides that a person who attempts (i.e. does more
than merely preparatory acts) in Hong Kong to commit a Group A offence
where the attempt would in all respects be triable in Hong Kong but for
the fact that what the person charged had in view (i.e. the offence
attempted) would not itself be an offence triable in Hong Kong, may still
be convicted in Hong Kong of attempt, provided (as section 7(2) states)
that what [the person charged] had in view would involve the commission
of an offence under the law in force where the whole or any part of it was
intended to take place.
PART V
Offences
Against the
Person
10
Homicide
INTRODUCTION
Homicide is the killing of a human being by another. Homicide may be
lawful or unlawful. It is lawful if it results from the legitimate use of force
in the exercise of rights of self-defence or crime prevention (see Chapter 7,
p. 279), or from the lawful execution of a death sentence.1
If the killing is not lawful, it may amount to an offence. Four homicide
offences exist in Hong Kong: murder and manslaughter, at common law,
and the statutory offences of infanticide (section 47C of the Offences Against
the Person Ordinance (cap. 212) (OAPO)) and causing death by dangerous
driving (section 36 of the Road Traffic Ordinance (cap. 374); previously,
causing death by reckless driving).2
Not all unlawful homicides amount to an offence. There will be no
criminal liability if (1) the actus reus and mens rea of murder, manslaughter,
infanticide or causing death by dangerous driving cannot be proved, as in
1
Lawful executions no longer occur in Hong Kong since the death penalty was abolished in
1993; see Crimes (Amendment) Ordinance 1993 (Ord No. 24 of 1993). Prior to this, no
executions had been carried out since 1965; mandatory death sentences were instead
commuted by the Governor to life imprisonment.
Hong Kong criminal law also penalizes genocide (the killing of members of a national,
ethnic, racial or religious group; see section 9A of OAPO), unlawful abortion (see sections
46 to 47A of OAPO), child destruction (see section 47B of OAPO), and assisting suicide
(see sections 33AB of OAPO).
490
the case of an accidental killing, or (2) if the killing is wholly or partially

excused (e.g. D is suffering from insanity; see Chapter 6, p. 225), or (3) if
D successfully raises a defence (e.g. duress (except re murder); see
Chapter 7, p. 300).
Despite their antiquity, both murder and manslaughter remain clouded
by uncertainty and controversy in Hong Kongs criminal law, especially as
regards mens rea, but also, as evidenced by the recent decision of the House
of Lords in A-Gs Reference (No. 3 of 1994) ([1998] AC 245), as regards
certain aspects of its actus reus. Lord Mustill in this case was moved to
observe (at 250):
... [M]urder is widely thought to be the gravest of crimes. One would
expect a developed system to embody a law of murder clear enough
to yield an unequivocal result on a given set of facts, a result which
conforms with apparent justice and has a sound intellectual base. This
is not so in England [or, it could be added, in Hong Kong], where the
law of homicide is permeated by anomaly, fiction, misnomer and
obsolete reasoning.
Similar comments by both individual and academic commentators have

been made about manslaughter.
MURDER, MANSLAUGHTER AND INFANTICIDE: ELEMENTS IN

COMMON
Murder, the gravest of Hong Kongs homicide offences, manslaughter and
infanticide share common elements, derived from Cokes classic eighteenth
century definition of murder (Sir Edward Coke, Institutes of the Laws of
England, Vol. 3 (1797), p. 47):
[M]urder is when a man ... unlawfully kill[s] ... any reasonable creature
[in being] under the [Queens] peace, with malice aforethought, either
expressed ... or implied by law, ... [death occurring within a year and
a day] ....
Murder is characterized by the mens rea requirement of malice

aforethought. The remainder of this definition unlawful killing of any
reasonable creature in being under the Queens peace, [death occurring
within a year and a day] (though now excluding death within a year and
HOMICIDE
491
a day, which was statutorily abolished in 2000; see below) constitutes

the common actus reus of murder, manslaughter and infanticide.
Murder and manslaughter may, in certain circumstances, be prosecuted
in Hong Kong even though the offence may not have occurred entirely
within Hong Kongs territorial jurisdiction. Firstly, under section 8B of
OAPO, D may be tried in Hong Kong for murder or manslaughter (or with
being an accessory to murder or manslaughter), regardless of the citizenship
or nationality of the person (i.e. D, or the principal where D is charged as
an accessory) causing the victims death, even though the act (which
includes an act of commission or an act of omission and includes a series
of acts section 8B(2) of OAPO) takes place on the high seas or in any
other place outside Hong Kong (section 8B(1)(a) of OAPO), provided that
the victim dies in Hong Kong as a result of the act (section 8B(1)(b) of
OAPO) and the act would, if taking place in Hong Kong, constitute murder
or manslaughter or being accessory to murder of manslaughter (section
8B(1)(c) of OAPO).
Secondly, under section 9 of OAPO, D may be tried in Hong Kong for
murder or manslaughter or being an accessory to murder or manslaughter,
even though the victim being unlawfully stricken, poisoned, or otherwise
hurt ... [in Hong Kong] dies as a result of such stroke, poisoning, or
hurt only outside Hong Kong.
Reasonable Creature in Being

A reasonable creature in being in rerum natura means a human
being. Homicide requires the victim both to have come into being (i.e.
been born alive) at some time prior to its death, and also be still alive (i.e.
not be dead) at the time of Ds conduct.
For the purposes of homicide, a human comes into being when he or
she has been completely born with independent circulation and thereby
has achieved an existence independent of his or her mother. This test was
affirmed by the Full Court in Kwok Chak-ming (No. 2) ([1963] HKLR 349),
affirming Kwok Chak-ming (No. 1) ([1963] HKLR 226) in which Jennings
J followed English authority (see, for example, Senior (1832) 1 Moody CC
346; Enoch (1833) 5 C & P 539; West (1848) 175 ER 329; Shephard [1919]
2 KB 125; also Poulton (1832) 5 C & P 329).
Accordingly, if D unlawfully causes the death of a foetus in the womb,
or of an unborn child during its birth but prior to the point of independent
existence, this cannot amount to homicide or a homicide offence. Instead,
492
D may be statutorily liable for unlawful abortion in relation to the unborn

foetus (contrary to section 46 of OAPO; see Cheung Kam Kei [1995] HKLD
J39; see also section 47 of OAPO: unlawfully supplying or procuring the
means of carrying out an abortion) or child destruction, in relation to the
death of an unborn child during birth (contrary to section 47B of OAPO).
This latter provision makes it an offence to do a wilful act which causes
the death of an unborn child capable of being born alive before it has an
existence independent of its mother [emphasis added].
If a foetus or unborn child dies after being completely born (i.e. when
it is in being) either of injuries inflicted on it by D prior to or during birth
or as a result of being born prematurely because of Ds conduct (West
[1848] 175 ER 329), then D may possibly be liable for murder or
manslaughter upon proof of the other elements of the offence. This was
the view of the Hong Kong courts in Kwok Chak-ming (Nos. 1 and 2),
above, where D stabbed a pregnant woman in her abdomen, thereby
wounding the unborn child still in her womb. When the unborn child was
later born alive, but then died of the wound inflicted on it by D, D was
charged with murder. D sought a preliminary ruling as to whether this
could amount to homicide, in particular, murder. Jennings J examined a
range of historical sources, including the writings of Coke (who was of the
view that this could be murder) and Hale (who took a contrary view), and
concluded that the weight of authority supported Cokes view. D was
thereupon convicted of manslaughter. On appeal, the Full Court agreed,
stating (at 3545) that when a baby is born alive but subsequently dies as
a result of injury inflicted on it whilst in its mothers womb, the person
inflicting those injuries may, when the other ingredients of murder or
manslaughter are present, be convicted of such a crime in respect of that
child. This particular point that the death of a child after birth due to
injuries inflicted on it before birth or due to its prematurely induced birth
may amount to murder or manslaughter was recently affirmed by the
House of Lords in A-Gs Reference (No. 3 of 1994) ([1998] AC 245). However,
the Lords also cast doubt on the proposition that this could amount to
murder in a situation where D acted without the intention of causing
grievous bodily harm to or the death of either the unborn foetus or the
child after birth. This case is discussed further below (pp. 499500).
A child born in a badly deformed condition, even if not human in
form, and unlikely to survive long after birth is nonetheless a creature in
being for the purposes of the law of homicide (Rance v Mid-Downs Health
Authority [1991] 1 All ER 801, at 817, per Brook J). A decision actively to
terminate the childs life at the stage of birth may, therefore, amount to
HOMICIDE
493
murder, as might also, in exceptional circumstances, a decision to withhold

nutrition or treatment (see Arthurs case, discussed at [1985] Crim LR 705).
Death
Homicide requires the death of a human being. What constitutes death?
This has not been finally settled for the purposes of the law of homicide.
Until the mid-twentieth century, the legal test for death largely coincided
with that prevailing in medicine, i.e. whether a persons heart (blood and
circulation) and lungs (respiration) had stopped operating or ceased. Once
cardio-respiratory failure occurred, then death was taken to have occurred.
However, this test became inadequate once life-support machines were
developed, for these made it possible, by machine, to maintain a patients
blood circulation and respiration (or ventilation), and provide a patient
with food and water (nutrition and hydration) potentially for years in the
case of comatose patients in a persistent vegetative state. This created the
need for a new medical test of death, one which would tell doctors when
they could lawfully turn off a machine.3 This led to the development of a
new medical test based on the idea of brain (or brain stem) death. According
to this, death may be declared when tests show that those parts of the
brain stem responsible for regulating basic bodily functions (such as
respiration and circulation) have suffered irremediable damage and are no
longer functioning.4
This test, brain death, has been referred to in Hong Kong in several
homicide cases, but has not yet been finally adopted at the appellate level
as the legal test for death.5 In Chan Yu-keung ([1987] HKLR 276), for
3
4
This need was promoted by both economic considerations and the demand for organs for
transplant purposes.
If the patient is not brain dead, then medical staff may be acting unlawfully in turning off
the machine. Even if the patient is brain dead, medical staff may still be criminally liable
if their conduct in failing to provide life-support facilities constitutes a breach of their
duty to care for their patients; but see Airedale NHS Trust v Bland [1993] AC 789, in which
the House of Lords held that the failure to provide life-support facilities may not constitute
a breach of a doctors duty to provide care. See further, I. M. Kennedy, Switching Off Life
Support Machines [1977] Crim LR 443; Law Com. No. 230 (1995).
This is similar to the present position in England. Persons accused of homicide have several
times tried in England to avoid liability by arguing that death was caused not by their
actions, but by the subsequent actions of medical staff in turning off a life-support machine.
Such arguments have generally been rejected; see Malcherek and Steel [1981] 1 WLR 690,
[1981] 2 All ER 422 and Cheshire [1991] 1 WLR 844.
494
example, brain death was referred to by Roberts CJ (at 283) in directing a

jury on a murder charge brought against D for turning off the life-support
machine keeping his brother alive:
If you come to the conclusion that [the doctors] evidence raises a
reasonable doubt in your mind that the deceased might have been
brain dead before the accused removed the respirator, the prosecution
has not proved its case beyond reasonable doubt and you must acquit.
This arguably went too far, since the usual battery of tests for brain death
had not yet been carried out in relation to Ds brother. Medically speaking,
therefore, brain death could not be confirmed; and without this finding,
the doctors could not confirm that the victims respiration and circulation
continued only because of the respirator. Roberts CJ recognized this when
asked by the jury: Is brain stem death accepted by Hong Kong law as
necessary and sufficient conditions for death? He responded (at 286):
I am not aware of any Hong Kong cases on the subject of brain stem
death. ... I do know of English cases in which life support systems
have been switched off after the doctors concerned were satisfied that
brain death had occurred. These tend to establish that in England in
appropriate cases ... death should not be pronounced unless brain stem
death tests are carried out. However, this does not mean, of course,
that nobody can be said to be dead unless brain stem death tests are
carried out each time [emphasis added].
The jury accepted the invitation contained in this last sentence and acquitted
Chan.
Brain stem death has also been used by coroners as an acceptable
criterion for death in Hong Kong,6 despite concerns that doctors in Hong
Kong prefer not to certify brain stem death as the cause of death in the
case of comatose patients because the concept is not generally understood
by the local population.
Prior to the occurrence of death, D cannot be liable for homicide,
although D may still be criminally liable for his or her potentially fatal
conduct, whether by way of assault, wounding or grievous bodily harm,
according to the gravity of the harm done (below, Chapter 11), or as
attempted murder if the necessary intention to kill can be proved. Similarly,
6
See, for example, Definition of death crosses legal hurdle, South China Morning Post, 23
June 1986.
HOMICIDE
495
if the victim is already dead at the moment of Ds conduct, then D cannot

be convicted of a homicide offence. Instead, however, D might be convicted
of attempted murder, provided that the necessary intention can be proved
(see Chapter 9).
Under the Queens Peace

Prima facie, all persons within the realm are under the Queens peace,
including enemies of the realm. The exception relates to those persons
killed in the heat of war and the actual exercise thereof (Hale, The History
of the Pleas of the Crown Vol. 1 (1736), 433).
The Victims Death Must be Caused by Ds Conduct

The general principles of causation have been discussed elsewhere (see
Chapter 3). Causing death raises several additional issues.
Firstly, causing death in reality means causing the victims death to
occur earlier than would otherwise have been the case causing an
acceleration of death, as is sometimes said. In other words, the fact that
the victim may have been close to death for reasons unrelated to Ds conduct
will not prevent Ds liability for murder or manslaughter (or infanticide), if
Ds conduct in effect caused the victims death to occur even a moment
sooner.
Secondly, death may be caused by either an act or an omission, provided
that, in the case of an omission, it constitutes a breach of duty (see Chapter
3) and, for the purposes of manslaughter, is performed grossly negligently
or possibly recklessly (below, p. 537). This is a matter of common law so
far as murder and manslaughter are concerned, but is expressly stated in
section 47C of OAPO by any wilful act or omission so far as
infanticide is concerned.
Thirdly, the fatal conduct need not be physical in nature or involve
physical contact. It may include, for example, intentional acts causing mental
or psychological trauma to the victim, including frightening the victim,
leading the victim to do something (e.g. jump from an elevated place)
resulting in his or her death (see, for example, Hayward (1908) 21 Cox CC
692).
496
Death Within a Year and a Day

At common law, the victims death had to occur within a year and a day of
Ds conduct. This served as an important limitation on medically unfounded
prosecutions when medical science was rather more inexact than it is today.
This rule was affirmed twice during the twentieth century (Dyson [1908] 2
KB 454; Inner West London Coroner, ex p De Luca [1988] 3 WLR 286), but
has been statutorily abolished in a number of jurisdictions, including Hong
Kong. There were several reasons for this. Firstly, the rule was seen to
operate primarily as a somewhat arbitrary time limit on a persons potential
liability for homicide in an age when life-support machines can keep
someone alive for beyond a year and a day. Secondly, it meant that a
person who, for example, intentionally infects another with the HIV virus,
either sexually or through other means (such as by injection or exposure
to blood), leading to the victims death several years later of AIDS (the fatal
condition occurring when a persons natural immune system breaks down
completely as a result of HIV infection)7 or, perhaps, who intentionally
causes the grossly premature birth of a child which eventually succumbs
after a year because of complications caused by its premature birth, could
not be convicted of murder or manslaughter.
The rule was abolished in Hong Kong by section 33C of the Offences
Against the Person Ordinance (added by Ordinance No. 32 of 2000),
following the recommendation of the Law Reform Commission of Hong
Kong that the rule had long outlived its usefulness and is neither necessary,
appropriate, nor desirable given the present state of medical knowledge
and the widespread use of life support machines (Hong Kong Law Reform
Commission, Report on the Year and a Day Rule in Homicide (June 1997),
paras 8.2 and 8.3). Section 33C provides that the rule is abrogated for all
purposes. Due to the centralization of prosecutions in Hong Kong, the
Law Reform Commission did not consider it necessary to set a time limit
on prosecutions, beyond which the consent of the Secretary of Justice would
be required, as has occurred elsewhere (see, for example, section 2 of the
Law Reform (Year and a Day Rule) Act 1996 (England): three years time
limit).
See further: K. J. M. Smith, Sexual Etiquette, Public Interest and the Criminal Law (1991)
42 Northern Ireland Legal Quarterly 309; T. W. Tierney, Criminalizing the Sexual
Transmission of HIV: An International Analysis (1992) 15 Hastings Intl & Comp LR 475;
S. Bronitt, Criminal Liability for the Transmission of HIV/AIDS (1992) 16 Crim LJ 85.
497
HOMICIDE
Unlawful
In Hong Kong, homicide is unlawful unless the killing occurred as a result
of the legitimate use of force for the purpose of self-defence or crime
prevention. Formerly, homicide was also lawful if it involved the lawful
execution of a death sentence passed by a competent court, but capital
punishment was abolished in Hong Kong in 1993, and this no longer applies.
In addition, section 7 of the OAPO expressly provides that:
No punishment shall be incurred by any person who kills another by
misfortune, or in his own defence, or lawfully in any other manner.
MURDER
Murder, according to Cokes classic definition, is unlawful homicide (as
outlined above) committed with malice aforethought. In Hong Kong, it
carries a mandatory sentence of life imprisonment (section 5 of OAPO),
except in relation to offenders under the age of 18 at the time of the murder,
in respect of whom the sentence is discretionary.8
Malice Aforethought
Malice aforethought does not mean premeditation, ill-will or evil. Rather,
it requires the prosecution to prove the accused intended to kill or to
cause grievous bodily harm (R v Cunningham [1982] AC 566; A-Gs Reference
(No. 3 of 1994) [1998] AC 245). Grievous bodily harm means really serious
bodily harm (DPP v Smith [1961] AC 290).9
Prior to 1963, it was also possible to establish murder simply by showing
that D caused death while committing a felony, or while resisting a police
officer, or resisting or preventing lawful arrest, or effecting or assisting an
escape from lawful custody; this was known as the felony-murder rule,
8
9
See Long-Term Prison Sentences Review Ordinance (cap. 524).

It has sometimes been reduced to serious bodily harm; see, for example, Saunders [1985]
Crim LR 230. In Man Wai-keung [1992] 1 HKCLR 89, the Hong Kong Court of Appeal
stated: as a general rule we think it desirable that the formula really serious bodily harm
should be used when explaining to the jury the meaning of the words grievous bodily
harm.
498
and malice was effectively deemed. Constructive malice, as this was known,
was abolished in Hong Kong in 1963 by section 2 of the Homicide Ordinance
(cap. 339) (following England: section 1 of the Homicide Act 1957). Such
cases now amount to murder only if done with the same malice aforethought
(express or implied) as is required for a killing to amount to murder when
not done in the course or furtherance of another offence, i.e. with intention
to kill or cause grievous bodily harm (section 2 of the Homicide Ordinance).
The retention of intention to cause grievous bodily harm as a form of
malice aforethought has been several times challenged in the courts, on
the basis that the offence of causing grievous bodily harm with intent
(contrary to section 17(a) of the OAPO; England: section 18 of the Offences
Against the Person Act 1861) was formerly classified as a felony, and that
reliance on intention to cause grievous bodily harm is therefore a residual
application of the felony-murder rule. This argument has been repeatedly
rejected (in England, see Cunningham [1982] AC 566, and Vickers [1957]
2 QB 664, in which the Court of Criminal Appeal held that the expressions
express and implied malice in section 1 of the Homicide Act 1957 (Hong
Kong: section 2 of the Homicide Ordinance) respectively refer to intention
to kill (express) and intention to cause grievous bodily harm (implied)).
Most recently, the inclusion of intention to cause grievous bodily harm
was reaffirmed by the House of Lords in A-Gs Reference (No. 3 of 1994)
([1998] AC 245) and by the Court of Appeal in Hong Kong in HKSAR v
Coady ([2000] 2 HKC 12).
In HKSAR v Coady, reliance on intention to cause grievous bodily harm
was also challenged for being in breach of Hong Kongs Bill of Rights
Ordinance. The Court of Appeal, following several previous decisions,
resisted an invitation to reform this aspect of the law of murder, observing
that only the Court of Final Appeal could embark on such a change to a
firmly entrenched common law rule.
Inferring intention
The meaning of intention and the difficulties associated with it have been
discussed elsewhere (see Chapter 4). In Wong Tak-shing ([1989] 2 HKC
94), the Hong Kong Court of Appeal held that the golden rule laid down
by Lord Bridge in Moloney ([1985] AC 905), as explained by the House of
Lords in Hancock and Shankland ([1986] AC 242) and the English Court of
Appeal in Nedrick ([1986] 1 WLR 1025), should be followed in Hong Kong.
Accordingly, in a murder case, a trial judge should not, in general, explain
or elaborate on the meaning of intention to kill or cause grievous bodily
HOMICIDE
499
harm, except by way of explaining that it is not the same thing as motive
or desire, unless further explanation is strictly necessary having regard to
the way that the case is presented. The Court reiterated (at 101) that where
further explanation or elaboration proves to be necessary, then a judge
should do no more than direct a jury that in deciding whether to infer
intention to kill or to cause grievous bodily harm, they should ask
themselves (1) whether death or grievous (really serious) bodily harm was
a virtually certain consequence of Ds conduct, and (2) if so, whether D
foresaw that death or grievous bodily harm was a virtually certain
consequence of Ds conduct. If the jury are sure on both questions, then
the jury may infer the necessary intention. This approach has since been
affirmed by the House of Lords in Woollin ([1999] AC 82), subject to the
substitution of the term find for infer (see Chapter 4).
In A-Gs Reference (No. 3 of 1994) ([1998] AC 245), the House of Lords
was asked to decide whether a charge of murder may be laid where D
unlawfully injures a pregnant woman, causing the premature birth of her
unborn child, who subsequently dies of complications essentially arising
naturally from the fact of its premature birth. As outlined above, until the
foetus or unborn child is born alive, it does not exist as a human being
and therefore cannot be the victim of homicide. If born alive, then it becomes
a human being, and its subsequent death from injuries inflicted on it by D
before or during birth or from complications arising from its prematurely
induced birth may amount to homicide, provided that the necessary mens
rea for murder, malice aforethought can be proved. If Ds intention
to kill or cause grievous bodily harm was directed at the unborn child, or
what was described by Lord Mustill in A-Gs Ref (No. 3 of 1994) (at 261) as
the child which it will become, then the necessary mens rea exists, and
this may amount to murder. However, where Ds intention is directed only
at the pregnant woman, as was assumed by the Lords in A-Gs Ref (No. 3 of
1994), then it is more difficult to establish the necessary mens rea. One
arguable basis for doing so is by reliance on the transferred malice doctrine
(discussed in Chapter 4), which explains what was referred to by Lord
Bridge in Moloney (at 926) as the case where the accused shot at A and
killed B. This analysis was adopted in Hong Kong in Kwok Chak-ming
(No. 1) and Kwok Chak-ming (No. 2), referred to above, in which the Full
Court, affirming the ruling of Jennings J that both murder and manslaughter
could be charged, concluded (at 355):
It is, in our view, immaterial that ... the malice aforethought may
have been directed against the mother rather than the child. The
500
principle that where A, intending to kill or seriously injure B,

unintentionally but, in pursuit of that purpose, kills C may be indicted
for the murder of C, applies, we think, with equal force even where
C was only an embryo or foetus at the time when the malice was
manifested and the injury inflicted but is subsequently born alive and
dies of the injury.
However, the House of Lords in A-Gs Ref (No. 3 of 1994) rejected this
solution. Lord Mustill, after examining existing authorities on the doctrine
or, as he called it, the fiction of transferred malice, concluded that the use
of the doctrine to establish malice aforethought on the assumed facts was
not justified by the principles underlying murder and transferred malice.
Rejecting the view of the English Court of Appeal that the foetus or unborn
child could be identified with and treated as merely a part of the mother
(see [1996] QB 581, at 590) (so that Ds intent towards the mother could
be treated as equivalent to the same intent directed to the foetus or unborn
child), Lord Mustill concluded (at 2612):
To give an affirmative answer requires a double transfer of intent:
first from the mother to the foetus and then from the foetus to the
child as yet unborn. Then one would have to deploy the fiction (or at
least the doctrine) which converts an intention to commit serious
harm into the mens rea of murder. For me, this is too much.
... To make any sense of [the process of transferring intention
from the intended to the actual victim] there must ... be some
compatability between the original intention and the actual occurrence
... There is no such compatability here. [D] intended to commit and
did commit an immediate crime of violence to the mother. He
committed no relevant violence to the foetus, which was not a person,
either at the time or in the future, and intended no harm to the foetus
or to the human person which it would become. If fictions are useful,
as they can be, they are only damaged by straining them beyond their
limits. I would not overstrain the idea of transferred malice by trying
to make it fit the present case.
Acknowledging the thoughtful judgments in Kwok Chak-ming, Lord Mustill

nonetheless concluded that the assumed facts could not amount to murder
(although they could give rise to liability for manslaughter, discussed further
below).
HOMICIDE
501
MANSLAUGHTER
In general, an unlawful homicide not amounting to murder will instead
amount to manslaughter.10 Manslaughter is triable on indictment in the
Court of First Instance of the High Court of the Hong Kong SAR. On
conviction, an offender is liable to life imprisonment (section 7 of OAPO).
However, this is not mandatory: the sentencing judge retains the discretion
to impose any appropriate sentence, ranging from life imprisonment to an
absolute discharge.
Criminal practitioners commonly classify cases of manslaughter into
two distinct categories: voluntary manslaughter and involuntary
manslaughter. Voluntary manslaughter is used to refer to those unlawful
killings which prima facie amount to murder because committed with malice
aforethought, but which may be reduced to manslaughter because of the
existence of one or more of the three special defences to murder referred
to in the Homicide Ordinance (cap. 339): diminished responsibility,
provocation and suicide pact. Involuntary manslaughter covers all other
cases of manslaughter at common law.
Voluntary Manslaughter
A person charged with murder will be acquitted of murder and convicted
instead of manslaughter if he or she killed while suffering from diminished
responsibility, or under provocation or as a result of carrying out a suicide
pact. Manslaughter in these cases is known as voluntary manslaughter.
The purpose of these three defences is two-fold: firstly, to enable an accused
to avoid the stigma attached to the label murderer, and secondly, to avoid
the mandatory sentence of life imprisonment presently imposed upon a
person convicted of murder (instead, upon conviction of manslaughter, a
judge may sentence having regard to all the circumstances of the case).
Diminished responsibility
Diminished responsibility is provided for in section 3 of the Homicide
Ordinance (cap. 339). It is concerned with persons who were suffering at
10
It may also amount to the statutory offences of causing death by reckless driving (contrary
to section 36 of the Road Traffic Ordinance) or infanticide (contrary to section 47C of
OAPO).
502
the time of the killing from an abnormality of mind which substantially

impaired their criminal responsibility. Diminished responsibility is discussed
more fully elsewhere (see Chapter 6, p. 248).
Provocation11
A person who is provoked into losing his or her self-control and, as a
result of and while still in that state, commits an act, with intention to kill
or to cause grievous bodily harm, causing the death of the deceased, may
be entitled to be acquitted of murder and instead convicted of
manslaughter.12
At common law
Provocation has long been recognized as a defence to murder at common
law. The classic definition of provocation at common law was given by
Devlin J in R v Duffy ([1949] 1 All ER 932, at 932):
Provocation is some act, or series of acts done by the dead man to [D]
which would cause in any reasonable person, and actually causes in
[D], a sudden and temporary loss of self-control, rendering [D] so subject
to passion as to make him or her for the moment not master of his
mind [emphasis added].
As this makes clear, a sudden and temporary loss of self-control is the

central feature of the defence of provocation. Traditionally, this is taken to
refer to a state of uncontrollable anger, rage or resentment caused by the
provocative conduct, rather than, for example, a loss of self-control induced
by fear, panic or mental instability (see A. J. Ashworth, The Doctrine of
Provocation [1976] Camb LJ 292, at 297; compare Van Den Hook (1986)
161 CLR 158, at 1668, per Mason J).
This statement of provocation incorporates several restrictions on
provocation that were recognized at common law, including: (1) the
necessity for a provocative act (or series of acts, but not words), and (2)
the necessity for the provocative conduct to be done by the victim to D.
11
12
See generally, A. J. Ashworth, The Doctrine of Provocation [1976] Camb LJ 292.

Provocation is no defence if D fails to kill the victim; D may be convicted of attempted
murder; see Bruzas [1972] Crim LR 367. Provocation is, however, available as a defence
to a murder charge based on transferred malice; see Gross (1913) 23 Cox CC 455; Kwok
Chak-ming (No. 1) [1963] HKLR 226, at 233.
HOMICIDE
503
Devlin Js classic statement also incorporates an objective enquiry:

whether a reasonable person might have been provoked to lose self-control.
This emphasizes that provocation is concerned not merely with whether D
was provoked into losing self-control; if it were, everybody would be judged
according to his or her own standards of self-control, however high or low.
Instead, the criminal law requires every member of society to exercise at
least a minimum degree of self-control, idealized as the self-control to be
expected of a reasonable person within that society. Accordingly, as Devlin
Js formulation of provocation recognizes, provocation involves a dual test:
it is necessary to ask not only whether D in fact lost self-control, but also
whether, in the face of such provocative conduct, D ought nonetheless to
have kept self-control. This objective standard is encapsulated in the
reasonable person test.
At common law, the reasonable person test came to cause considerable
injustice. The way in which the test of provocation was formulated meant
that a trial judge was entitled to form an opinion on whether or not D had
met this minimum standard of self-control and also whether or not Ds
response was reasonably proportionate to the provocation. If, in the judges
view, this was not so, then the judge could simply refuse to leave provocation
to a jury as a possible defence, or in some cases leave it in such terms as
would ensure its failure. Over time, rules to this effect were formulated;
or, as Lord Steyn observed in R v Acott ([1997] 1 WLR 306, at 311): By
converting common sense into fixed rules of law, judges empowered
themselves to invoke those rules to withdraw cases from the jury. Bedder
([1954] 1 WLR 1119) illustrates the harshness that this position created.
B, aged 18, was charged with murder after he stabbed and killed a prostitute
who taunted him about his sexual impotence. B relied on provocation,
pointing to his sexual impotence as a matter which should be taken into
account in assessing provocation, but the trial judge directed the jury that
a reasonable man was by definition normal (i.e. sexually potent), and
that they were, therefore, to disregard Bs sexual impotence in assessing
whether a reasonable man might have responded as B did to a taunt about
sexual impotency. This effectively ensured that provocation would fail as a
defence, and B was convicted of murder. Sadly, the House of Lords upheld
the judges direction, compelling legislative reform of the defence of
provocation.13
13
For the common law prior to the enactment of the Homicide Ordinance in 1963, see Chan
Kwong [1952] HKLR 212; Ho Chun Yuen [1961] HKLR 433; Lee Chun Chuen (No. 2) [1963]
HKLR 443, PC, [1963] AC 220.
504
Section 4 of the Homicide Ordinance

The defence of provocation was given a statutory footing in Hong Kong in
1963. Section 4 of the Homicide Ordinance (reproducing section 3 of the
Homicide Act 1957 (England)) reads:
Where on a charge of murder there is evidence on which the jury can
find that the person charged was provoked (whether by things done
or by things said or by both together) to lose his self-control, the
question whether the provocation was enough to make a reasonable
man do as he did shall be left to be determined by the jury; and in
determining that question the jury shall take into account everything
both done and said according to the effect which, in their opinion, it
would have on a reasonable man.
When the House of Lords considered the effect of this provision in

1978 in DPP v Camplin ([1978] AC 705), the Lords accepted that
provocation had been given a new start (see also Lord Steyns summary in
Culmer [1997] 1 WLR 1296, especially at 13023, PC, and Acott [1997] 1
WLR 306, especially at 3101). Lord Diplock stated (at 716):
[Section 4] was intended to mitigate in some degree the harshness of
the common law of provocation ... . It recognises and retains the dual
test: the provocation must not only have caused the accused to lose
his self-control but also be such as might cause a reasonable man to
react to it as the accused did. Nevertheless it brings about two
important changes in the law. The first is it abolishes all previous
rules of law as to what can or cannot amount to provocation and in
particular the rule of law that ... words unaccompanied by violence
could not do so. Secondly, it makes clear that if there was any evidence
that the accused himself at the time of the act which caused the death
in fact lost his self-control in consequence of some provocation
however slight it might appear to the judge, he was bound to leave to
the jury the question, which is one of opinion not of law, whether a
reasonable man might have reacted to that provocation as the accused
did.
At the same time, the Lords accepted that section 3 (Hong Kong: section
4) was not intended to be a comprehensive restatement of the law of
provocation. Several important matters remain largely a matter of common
law.
Firstly, common law dictates that the effect of successfully raising
provocation is to reduce Ds conviction from murder to manslaughter.
HOMICIDE
505
Secondly, in accordance with general common law principles, although

section 4 stipulates that there must be evidence of provocation before the
defence is left to the jury, the burden of proof in relation to provocation
lies upon the prosecution.
Once provocation is properly raised, it is for the prosecution, apart
from proving the elements of murder, to negate or disprove provocation
(Cascoe [1970] 2 All ER 833; Lee Chun Chuen (No. 2) [1963] HKLR 443,
at 450, per Lord Devlin; Lee Sing Chan (1995) Cr App No. 572 of 1994,
CA; Acott [1997] 1 WLR 306, at 313, per Lord Steyn; see also Culmer
[1997] 1 WLR 1296, at 1306, per Lord Steyn, PC). This means the jury
must be sure either that when D killed, D was not suffering from a sudden
and temporary loss of self-control, or that no reasonable person would
have reacted to the provocation as D did. If the jury considers that D might
have lost self-control and that a reasonable person might have done likewise,
then they are not sure as required, and the defence will succeed; D must
be convicted of manslaughter, not murder (the use of would rather than
might may amount to a misdirection: Wong Wah Sing [1996] 2 HKC 139,
CA).
Thirdly, section 4 does not purport to define provocation, beyond
referring to Ds loss of self-control. Regard must therefore still be had to
Devlin Js classic definition which, as already seen, makes sudden and
temporary loss of self-control the defining characteristic of provocation.
There need not be a complete loss of control (Richens [1993] Crim LR
384), but the case law has maintained the necessity of identifying some
spark for Ds sudden and temporary loss of self-control.
The necessity for sudden and temporary loss of self-control has been
challenged in several cases concerned with domestic killings, in part on
the basis that it is based on a male-centred view of anger and retaliation
(Thornton [1992] 1 All ER 306; Ahluwalia [1992] 4 All ER 889; Pearson
(William) [1992] Crim LR 193). It has been argued that females do not
necessarily react to provocative conduct in the same, spontaneously
aggressive manner that men do. Instead, it has been argued that, some
women, and in particular women who have been subjected to long-term,
systematic physical and verbal abuse by their husbands or mates, may wait
lengthy periods, sometimes years, enduring the abuse and violence all that
time, before they one day react. Their slow burn anger, it is said, takes
hold and spills over into retaliatory violence, even though there may seem
to be no immediate spark, other than some relatively minor or trivial
incident. It has been argued that requiring such women to establish sudden
and temporary loss of self-control would severely and unjustly prejudice
506
their likelihood of successfully raising provocation, especially given the

need to show that a reasonable person might have reacted to the provocation
in the same way as D did.
So far, these attempts to negate or modify the necessity for a sudden
and temporary loss of self-control have failed. The English Court of Appeal
in particular has steadfastly reaffirmed the traditional sudden and temporary
requirement. However, in a concession to the force of this argument, the
court has at the same time held that regard may be had to Ds background
and personal history in assessing both the actuality and the reasonableness
of Ds reaction (see further, p. 517 et seq.).
Role of judge and jury
Section 4 (section 3 of the Homicide Act 1957) fundamentally changed the
manner in which provocation is dealt with at trial. Whereas previously a
trial judge was entitled to form an opinion as to whether D ought to have
kept self-control (i.e. the reasonable person test) and as to whether Ds
response was proportionate to the provocation, effectively enabling the judge
to prejudge the issue, section 4 provides that the preliminary question for
the judge is limited to whether there is evidence that D was provoked into
losing self-control.14 Where this is so, then however slight (Camplin, at
716, per Lord Diplock) or however tenuous (Rossiter (1992) 95 Cr App R
326) the provocation might appear to be to the judge, the trial judge must
leave provocation to the jury including, in particular, the question of whether
a reasonable person might also have lost self-control (Cambridge [1994] 1
WLR 971; Ip Siu Man [1985] 1 HKC 122; Vu Van Thang [1991] 2 HKLR
523). This is so even though the trial judge may be convinced the jury will
reject provocation on the ground that no reasonable person would have
reacted as D did. The success or failure of Ds claim of provocation thus
rests primarily with the jury, not the trial judge.
Even so, the trial judges task is far from easy, particularly given that
defendants often expressly choose not to raise the issue of provocation at
trial or give evidence in support of it because, for example, Ds defence is
that the killing was accidental or in self-defence; loss of self-control is
inconsistent with these defences, and therefore may not be expressly raised
14
In Gilbert (1977) 66 Cr App R 237, Lord Dilhorne said this actually entailed two questions:
Was there any evidence of provocation of the accused? and Was there any evidence that
the provocation caused him to lose his self-control?; followed in Tsui Shing-yau [1980]
HKLR 706.
HOMICIDE
507
by D (Lee Chun-chuen [1962] HKLR 450, at 453, PC; Tsui Shing-yau [1980]
HKLR 706, at 713). Provocation may even be expressly disclaimed by D.
Nonetheless, if the circumstances of the killing suggest that D may have
been provoked to lose his or her self-control more precisely, if there is
evidence of this then the judge ought to consider whether to leave
provocation to the jury. Evidence for this might be simply the nature of
the killing itself, as Roberts CJ observed in Tsui Shing-yau ([1980] HKLR
706, at 714): There was nothing to indicate that D was at any time in a
state of rage, let alone in such a state of rage as to induce a loss of selfcontrol. Nor is this the kind of case in which the nature of the wounds
inflicted may themselves, taken in conjunction with the other surrounding
circumstances, show a loss of self-control by D.
The question of whether there is evidence that D was provoked into
losing self-control involves two questions: (a) is there any evidence of
specific provoking conduct of the accused, and (b) is there any evidence
that the provocation caused [the accused] to lose self-control? (R v Gilbert
(1978) 66 Cr App R 237, cited with approval in HKSAR v Coady (No. 2)
[2000] 3 HKC 570, at 583, per Keith JA; see also Fong Ma-sum [1973]
HKLR 533; Chan Ka-shing [1997] HKLR 323; Ip Siu Man [1985] 1 HKC
122, at 131). If the trial judge concludes that both questions can be answered
in the affirmative, then the issue of provocation must be left to the jury
(Cambridge [1995] Crim LR 739; Dhillon [1997] Crim LR 295; Von Starke
v R [2000] 1 WLR 1270 (PC)). This was recently reaffirmed by the Court
of Appeal in HKSAR v Coady (No. 2) ([2000] 3 HKC 570).
Pang Bin-yee ([1992] HKCLR 67) provides an extreme illustration of
how difficult this task may be. P was convicted in 1982 of murdering a
two-year-old child in her care. The evidence before the court showed both
that the deceased child had suffered numerous injuries and also that the
child had repeatedly cried and played up while in the care of P, who was
herself pregnant at the time and, in her own words, temperamental. Her
defence at trial was accidental death the injuries causing death were
allegedly caused when the child accidentally fell from her bed. Provocation
was expressly denied. Having unsuccessfully appealed against conviction
at the time, ten years later, in 1992, the Court of Appeal gave P special
leave to appeal out of time and quashed her conviction. Following English
authority (Doughty (1986) 83 Cr App R 319), the court held that a babys
actions, crying included, could constitute provocative conduct. This being
so, and there having been some evidence, therefore, of a loss of self-control
(evidenced by Ps repeated beatings of the child shortly before its death),
provocation should have been left to the jury, even though, as the court
508
conceded (at 767, per Silke VP), it was unlikely the jury would have
thought that the provocation was enough to make a reasonable woman do
as [P] had done. However, this omission was enough to justify quashing
Ps murder conviction, substituting a conviction of manslaughter, and
imposing a sentence of imprisonment allowing Ps immediate release after
some eight years in prison.
On the other hand, if a trial judge, after considering the matter,
concludes that there is no evidence of provocative conduct, or no evidence
that D was provoked to lose self-control, then the judge may still refuse to
leave provocation to the jury for consideration. This was reaffirmed by the
House of Lords in Acott ([1997] 1 WLR 306) in which Lord Steyn, delivering
the unanimous judgment of the Lords, emphasized that mere speculation
is insufficient. There must be some evidence of specific provoking conduct,
otherwise it is in effect impossible for the jury to proceed to determine
whether and how a reasonable person might have reacted. He summarized
the law (at 3123) as follows:
Section 3 [Hong Kong: section 4] is only applicable if there is evidence
... that the person charged was provoked (whether by things done or
things said or by both together) to lose his self-control. A loss of
self-control caused by fear, panic, sheer bad temper or circumstances
(e.g. a slowdown of traffic due to snow) would not be enough. There
must be some evidence tending to show that the killing might have
been an uncontrolled reaction to provoking conduct rather than an
act of revenge. Moreover, although there is no longer a rule of
proportionality as between provocation and retaliation, the concept
of proportionality is nevertheless still an important factual element in
the objective inquiry. It necessarily requires of the jury an assessment
of the seriousness of the provocation. It follows that there can only be
an issue of provocation to be considered by the jury if the judge
considers that there is some evidence of a specific act or words of
provocation resulting in a loss of self-control. It does not matter from
what source that evidence emerges or whether it is relied on at trial
by the defendant or not. If there is such evidence, the judge must
leave the issue to the jury. If there is no such evidence, but merely the
speculative possibility that there had been an act of provocation, it is
wrong for the judge to direct the jury to consider provocation. In
such a case, there is simply no triable issue of provocation.
This approach has been applied in Hong Kong, by the Court of Final Appeal
in Zeng Liang Xin v HKSAR ([1997] 3 HKC 1) and the Court of Appeal in
HKSAR v Coady ([2000] 3 HKC 570).
509
HOMICIDE
In Cox ([1995] 2 Cr App R 513), the English Court of Appeal was of

the view that counsel at trial are under a duty, if they consider there may
be evidence of provocation, to draw this to the trial judges attention before
the judge sums up, invite the judge to consider whether it is sufficient to
leave provocation to the jury, and remind the judge that provocation must
be left to the jury if he or she agrees that there is such evidence.
Two-fold test for jury
When provocation is left to the jury pursuant to section 4, there are in
effect two questions for them to consider, as Lord Diplock affirmed in the
Privy Council in Phillips ([1969] 2 AC 130, at 137):
The test of provocation in the law of homicide is two-fold. The first,
which has always been a question of fact for the jury assuming there
is any evidence upon which they can so find, is Was the defendant
provoked into losing his self-control? The second, which is one not
of fact but of opinion, Would a reasonable man have reacted to the
same provocation in the same way as the defendant did?
The first of these questions is commonly said to be subjective in nature,

since it is concerned with Ds actual state of mind at the time of the killing
did D lose self-control?, whereas the second, being concerned instead
with whether D ought to have kept self-control in the circumstances, is
termed objective.
Factors affecting the assessment of provocation
Provocative conduct One of the principal reforms effected by section 4 was
to abolish all previous rules of law as to what can or cannot amount to
provocation (Camplin, above, p. 504). According to section 4, the
provocative conduct may be acts (things done) or words (things said) or
both. The acts or words need not be those of the deceased, but may be those
of a third person; nor does the conduct have to be directed at D, it is
sufficient if it has a provocative effect on D (Acott, above, at 1303). In Davies
([1975] QB 691), for example, the provocative conduct included intimate
conduct between Davies wife and her lover, observed by Davies though not
directed at him (applied in Leung Yuet-man [1991] 1 HKLR 300).
Furthermore, the provocative conduct does not have to be unlawful in
character, nor does it have to be done with the intention of provoking D
(Davies). These two points may be illustrated by Doughty and Pang Bing-yee,
510
above, both of which accepted that a babys conduct, including crying, could
constitute provocation. There must, however, be evidence of specific
provoking conduct (Acott, above). Acts that have been held not to be
provocative for this purpose include the action of a wounded man grasping
his assailants jacket (Chan Wing-yin (1995) Cr App No. 570 of 1995, CA) and
the act of hiring an assassin (Lai Yip Kie (1997) Cr App No. 367 of 1996, CA).
In several recent cases, particularly concerning domestic killings in
England, it has been held it is not only things done and said at the time of
the killing that may be taken into account. Regard may also be had to Ds
background and personal history, insofar as there may be a history of
incidents or events of a provocative nature to D; this is called cumulative
provocation.15 In this way, conduct that might otherwise seem to be trivial
in nature and unlikely to provoke a reasonable person to kill as D did, may,
considered in the light of such past events, be seen instead as the last straw,
finally snapping Ds self-control and thereby constituting the necessary
spark for Ds sudden and temporary loss of self-control. This approach has
been accepted in a number of cases, beginning especially with Thornton
([1992] 1 All ER 306), in 1991 and then in Ahluwalia in 1992.
R v Ahluwalia [1992] 4 All ER 889
Facts
Ahluwalia, an Asian woman, was charged with murdering her husband.
According to the evidence, she had endured years of violence and
abuse in what was an arranged marriage; in addition, the deceased
had openly maintained a relationship with another woman. One
evening, after an argument during which As husband had threatened
to beat her up, A arose from her bed, went downstairs, poured petrol
(which she had previously purchased) into a bucket, took the bucket
upstairs to where her husband was asleep, threw petrol around the
room, and set it alight. The husband was badly burnt and subsequently
died.
At trial, A denied malice aforethought but also raised provocation.
She was convicted of murder and sentenced to life imprisonment.
On appeal, it was argued that provocation should no longer require
A to suffer a sudden and temporary loss of self-control, but should
recognize As delayed or slow burn reaction to her history of violence
and abuse at the hands of her husband. Alternatively, it was said that
the years of violence and abuse had psychologically affected A, giving
15
See further, M. Wasik, Cumulative Provocation and Domestic Killing [1982] Crim LR 29.
511
HOMICIDE
rise to what is termed battered woman syndrome. This, it was

contended, was a relevant characteristic and ought to have been left to
the jury to take into account in considering whether a reasonable
person might have reacted as A had. Counsel for A also sought to
adduce additional medical evidence regarding As mental state, in an
attempt to raise diminished responsibility (which had not been raised
at trial).
Decision
Appeal allowed and conviction quashed in the light of the additional
evidence concerning As mental state. Retrial ordered (at which As
plea of guilty to manslaughter on the grounds of diminished responsibility
was accepted).
On the question of whether sudden and temporary loss of selfcontrol remained part of the law of provocation, Lord Taylor CJ
concluded (at 895):
... the phrase sudden and temporary loss of self-control
encapsulates an essential ingredient of the defence of provocation
in a clear and readily understandable phrase. It serves to underline
that the defence is concerned with the actions of an individual
who is not, at the moment when he or she acts violently, master
of his or her own mind.
However, in assessing this, Lord Taylor CJ emphasized (at 898)

that the trial judge is entitled to make clear to the jury, as had been
done in this case:
... that in considering acts done and words used, they were to
take account of the whole history of the marriage and not confine
their attention to what was said or done on the night of the killing.
... The jury can have been in no doubt that it was necessary for
them to consider the history of the marriage, the misconduct and
ill-treatment of [A] by her husband as part of the whole story,
culminating in what happened on the night of [the killing].
On the second point, concerning characteristics, Lord Taylor CJ

concluded (at 898) that in the case at hand:
... there was no medical or other evidence before the Judge and
jury, and none even from [A], to suggest that she suffered from a
post-traumatic stress disorder, or battered woman syndrome or
any other specific condition which could amount to a
characteristic... .
Accordingly, the trial judge had correctly disregarded this characteristic

in directing the jury (as to whether this can constitute a characteristic,
see below, p. 517).
512
In Pearson ([1992] Crim LR 193), the English Court of Appeal also

accepted that a history of provocative incidents against one person in
this case, a brother could be taken into account in assessing the success
or failure of provocation raised by someone else a second brother who
killed their father.
In Luc Thiet Thuan ([1996] 1 HKC 663; [1997] AC 131), the Privy
Council, on appeal from Hong Kong, recently acknowledged the existence
of cumulative provocation. Lord Goff of Chieveley, delivering the majority
judgment, observed (at 680):
... it may be open to a defendant to establish provocation in
circumstances in which the act of the deceased, 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] ... and so
precipitated [Ds] extreme reaction which led to the death of the
deceased. ... such a series of events might cumulatively constitute
provocation ... .
However, Lord Goff cautioned (at 681) that the question of whether this
could be applied in cases of battered woman syndrome must await a case
in which the point arises for decision (see also HKSAR v Coady (No. 2)
[2000] 3 HKC 570, at 586, per Keith JA).
Loss of self-control and cooling off There must be evidence that D was
actually provoked into losing self-control (Zeng Liang Xia v HKSAR [1997]
3 HKC 1, CFA). In Acott, above, Lord Steyn observed (at 312): it is an
integral part of the idea of provocation that the deceased aroused the anger
of the defendant and made him lose his self-control. Therefore, if D in fact
retained self-control, provocation cannot succeed, even though the
circumstances may have been such as would likely lead a reasonable person
to lose self-control.
Loss of inhibition or self-restraint as a result of provocative conduct
may not necessarily suffice (Cocker [1989] Crim LR 740: C finally
succumbed to his terminally ill wifes entreaties to kill her). Similarly, there
must be evidence suggesting that D was still suffering at the time of the
killing from the sudden and temporary loss of self-control caused by the
provocative conduct. If time has elapsed between the provocation and the
killing, this may cause difficulties, for most people regain their self-control
or cool off over time. Killing after sufficient time to cool off has
elapsed suggests that the killer may have been carrying out a premeditated
plan of revenge, which is the very antithesis of provocations sudden and
513
HOMICIDE
temporary loss of self-control. In Duffy, above, Devlin J put this as follows

(at 932):
Indeed, circumstances which induce a desire for revenge are
inconsistent with provocation, since the conscious formulation of a
desire for revenge means that a person has had time to think, to reflect,
and that would negative a sudden, temporary loss of self-control, which
is of the essence of provocation.
Even if the evidence suggests that D did not in fact cool off, but
remained in a state of passion for a considerably longer period than would
normally be expected, provocation may still fail as a defence if the time
lapse is such that any reasonable person would have regained self-control
or cooled off. This is essentially a question of degree, to be assessed having
regard to the facts of each particular case. It may be a matter of minutes,
hours, even perhaps days; obviously, the longer the time lapse between the
provocation and the killing, the more likely it is that both D and the
reasonable person cooled off, i.e. regained self-control. However, it is not
an ingredient of provocation that the loss of self-control must dissipate
quickly after the act of killing (Wong Wah Sing [1996] 2 HKC 139).
In Ibrams ((1981) 74 Cr App R 154), seven days elapsed between the
last provocative act of the deceased and his subsequent death at the hands
of I and two others. The three defendants submitted that the deceased had
threatened them with further violence, and they had acted with that fear in
their minds. However, the trial judge withdrew provocation from the jury,
and this was upheld on appeal, with the court commenting (at 159, per
Lawton J) that there is nothing in the reports comparable to the timeinterval which occurred in this case.
Ip Siu-man illustrates the operation of this requirement in Hong Kong.
R v Ip Siu-man [1985] 1 HKC 122
Facts
Ip was convicted of murdering his former girlfriend (G) and her sister
(S), and of wounding their mother (M) with intent, contrary to section
17(a) of the OAPO. The prosecutions case was that Ip had gone to Gs
flat, where she lived with M and S, to plead with G to have him back.
They would not let him in, but he returned about 30 minutes later. M
then called Ips parents to come and take him away. When his father
requested him to leave, Ip allegedly replied, I dont mind going home,
but once I go home, I will commit suicide. In response, a female voice
514
inside the flat allegedly said, Even if you die, I would not shed one
drop of tear. Allegedly distraught at this, Ip kept vigil outside the flat,
kneeling and sobbing, though he left briefly to urinate. Eventually, Ips
parents convinced him to leave with them, but they did not get very far
before he returned, by which time M had come out of the flat. M then
spoke to Ips parents along the corridor, apparently suggesting (out of
Ips hearing) that Ip was mad. As M made to pass him, Ip suddenly
grabbed her, dragged her along the corridor towards the flat, producing
a knife as he did so and stabbing her in the neck. He demanded to be
let in or he would kill M. When the door was opened, some 25 to 30
minutes after the words referred to above, Ip rushed into the flat and
attacked first G and then S with the knife, causing fatal injuries to both
of them.
At the conclusion of his trial, both parties made submissions on
the question of whether provocation should be left to the jury. The
judge decided not to leave provocation. On appeal, it was submitted
that he ought to have done so.
Decision
Appeal dismissed. McMullin VP, delivering the judgment of the Court,
reviewed relevant authorities both before and after the enactment of
the Homicide Act 1957 in England and the Homicide Ordinance in
Hong Kong. He concluded (at 129) that while:
... the preponderant weight of judicial opinion at the highest level
in England has been that the effect of these provisions was to take
from the judge the right to decide, as a preliminary matter, whether
the provocative incident relied upon was in itself sufficiently grave
to make the plea available to [D] ...
nonetheless (at 131):

... all authorities, judicial and academic, now converge upon the
view that it is the province of the judge to decide whether the
evidence is sufficient to disclose an actual loss of self-control. ...
In deciding [this preliminary question] ... he may legitimately have
regard both to the nature of the reaction and the length of the
interval separating it from its supposed cause. However, of these
two features it would seem that the paramount concern is the
speed of reaction. ... every element in the evidence indicative of
premeditation or delay or calculation must obviously tell against
the idea of a sudden and temporary loss of self-control.
Considering the facts of this case, he concluded (at 133):

It would be difficult to imagine anything much further removed
from the idea of a sudden and temporary loss of self-control. This
515
HOMICIDE
was not a case in which the initial rebuff was followed from time
to time throughout that 20 or 30 minutes by other acts or
expressions emanating from anybody and capable of exacerbating
or sustaining the initial insult ... . It is [the] element of immediacy
which is wholly lacking here.
The reasonable person test The second question, which is exclusively

for the jury and is a matter of opinion, is whether the provocation was
enough to make a reasonable person do as D did. This operates as an
objective restraint on uncontrolled aggression. As Ashworth explains (at
299): a primary purpose of the reasonable man test is to ascertain whether
the accused showed reasonable self-control in the fact of the provocation
given. In answering this, the jury is entitled, according to section 4, to
take into account everything both done and said according to the effect
which, in their opinion, it would have on a reasonable man.
This question broadly involves two matters on which the jury must
form their opinion: firstly, whether the provocation might have made a
reasonable person lose self-control (this operates as a test of the gravity of
the provocation), and, secondly, if so, whether he or she might have
retaliated in the same way as D in fact did (this assesses the proportionality
of Ds response).
What then is a reasonable standard of self-control, or, put differently,
who is the reasonable person for the purposes of assessing this? Related to
this is the question: how far can the peculiar characteristics of the defendant
be taken into account? These questions were considered by the House of
Lords in Camplin in 1978, but have proved to be a continuing source of
controversy.
DPP v Camplin [1978] AC 705
Facts
Camplin, a 15-year-old boy, was buggered by an older man. When the
man laughed at him, C allegedly lost self-control and hit the older man
over the head with a heavy frying pan, causing the latters death.
At his trial for murder, it was submitted that Cs age was a matter
which the jury should take into account in assessing whether a
reasonable person might have reacted as C did. The trial judge, applying
Bedder, above, ruled that age was not relevant to the reasonable person
test, and directed the jury to consider whether the provocation was
sufficient to make a reasonable man in like circumstances act as [D]
did. Not a reasonable boy ... or a reasonable lad; it is an objective test
a reasonable man.
516
C appealed; it was submitted that Cs age ought to have been

taken into account. The Court of Appeal agreed, quashed Cs conviction
of murder, and substituted a manslaughter conviction. Bedder was
distinguished on the ground that whereas Bedders sexual impotence
was an unusual or abnormal characteristic, a persons age is not.
The prosecution appealed to the House of Lords.
Decision
Appeal dismissed. As discussed above, Lord Diplock reviewed the law
of provocation generally in the light of the enactment of section 3 of
the Homicide Act 1957 (section 4 of the Homicide Ordinance), and
concluded that since words could now constitute provocation, it was
no longer possible to maintain the common laws disregard of the
characteristics of the accused in assessing the reaction of the reasonable
person. The logic of this was explained by Lord Diplock (at 717):
... now that the law has been changed so as to permit words
being treated as provocation, even though unaccompanied by any
other acts, the gravity of verbal provocation may well depend on
the particular characteristics or circumstances of the person to
whom a taunt or insult is addressed. To taunt a person because of
his race, his physical infirmities or some shameful incident in his
past may well be considered by the jury to be more offensive to
the person addressed, however equable his temperament, if the
facts on which the taunt is founded are true than it would be if
they were not. It would stultify much of the mitigation of the
previous harshness of the common law in ruling out verbal
provocation as capable of reducing murder into manslaughter if
the jury could not take into consideration all those factors which
in their opinion would affect the gravity of taunts and insults when
applied to the person to which they are addressed.
According to Lord Diplock (at 717), the reasonable person for the
purposes of provocation is:
... an ordinary person of either sex, not exceptionally excitable or
pugnacious but possessed of such powers of self-control as
everyone is entitled to expect that his fellow citizens will exercise
in society as it is today.
Significantly, regard may also be had to the characteristics of the person

charged with murder, unusual or not. A proper direction to a jury on
the question left to their exclusive determination, suggested Lord
Diplock (at 718), would be on the following lines:
The judge should state what the question is, using the very terms
of the section. He should then explain to them that the reasonable
man referred to in the question is a person having the power of
517
HOMICIDE
self-control to be expected of an ordinary person of the sex and

age of [D], but in other respects sharing such of [Ds] characteristics
as they think would affect the gravity of the provocation to [D],
and the question is not merely whether such a person would in
like circumstances be provoked to lose his self-control but also
would react to the provocation as [D] did [emphasis added].
Since Cs age was, by this test, relevant, the trial judge had fallen into
error by directing the jury to disregard Cs age in assessing the reaction
of the reasonable person.
In other words, the reasonable person test does not establish a purely
objective standard: Ds characteristics (other than those relating simply to
Ds ability to exercise self-control excitability, pugnaciousness, etc.)
may be taken into account, at least to the extent that the characteristic
affects the gravity [i.e. seriousness] of the provocation to D. This partial
identification of the reasonable person with an accused was previously
recognized in Hong Kong, even before the enactment of the Homicide
Ordinance, in Ma Wai-fun ([1962] HKLR 61) in which the Full Court asked
itself (at 76):
... what concessions should be made for racial peculiarities in a
multiracial community like Hong Kong? Is an American, a Japanese,
a Filipino or a Briton to be judged against the standard of the reasonable
Chinese or should there be several standards?
and concluded:
... in applying the English law of provocation to Hong Kong juries
ought to be told that the reasonable man, with respect to the particular
accused person on trial, is an ordinary Hong Kong resident of the
same race and way of life as the accused.
In addition to age (compare Ali [1989] Crim LR 734) and gender, account
may therefore be taken of characteristics such as race, ethnicity, religion,
or religious values (e.g. chastity: Burke [1987] Crim LR 336), physical
disability, and so on, at least where they affect the provocativeness of
what is done or said to D.
In Morhall ([1996] 1 AC 90), the House of Lords affirmed Camplin,
adding that characteristics for this purpose may include discreditable
characteristics, such as drug addiction, provided that as in Morhall
the provocative conduct of the deceased (words) was directed towards
518
[Ms] shameful addiction [in this case, to glue-sniffing] and his inability to
break himself of it (at 97, per Lord Goff of Chieveley) (see also Lau Sui-fu
(1997) Cr App No. 174 of 1995, CA). Lord Goff emphasized that the
justification for taking this characteristic into account rested on the fact it
affected the gravity (i.e. provocativeness) of the deceaseds conduct towards
M; it would not, therefore, be relevant merely because, for example, D was
intoxicated at the time as a result of sniffing glue.
Lord Goff added (at 98) that it is not only a defendants characteristics
strictly speaking that may be taken into account in this way as affecting the
provocativeness of what was done or said:
... in an appropriate case, it may be necessary to refer to other
circumstances affecting the gravity of the provocation to [D] ... as for
example [Ds] history or the circumstances in which he is placed at the
relevant time [emphasis added].
Once these characteristics or circumstances are determined, it is then for

the jury to take them into account when considering whether the
provocation was enough to cause a man possessed of an ordinary mans
power of self-control to act as [D] did (Morhall, at 98).
What if D suffers from some mental characteristic or peculiarity, for
example, mental disability or infirmity or psychiatric illness? Can this be
taken into account? In principle, the answer ought to be yes, provided
that the provocative conduct is directed at the mental characteristic in some
manner, for example, a verbal taunt directed at a persons mental retardation.
This is simply an application of the principle that a characteristic affecting
the gravity or provocativeness of what was done or said ought to be taken
into account. This was recognized by the English Court of Appeal in Newell
((1980) 71 Cr App R 331), in which the court (at 339) adopted as the law
of England a lengthy passage on characteristics in an earlier decision of the
New Zealand Court of Appeal, McGregor ([1962] NZLR 1069). In this
passage, the New Zealand Court observed that to be relevant, a characteristic
ought to be something definite and of sufficient significance to make the
offender a different person from the ordinary run of mankind, and also
have a sufficient degree of permanence to warrant its being regarded as
constituting part of the individuals character or personality, but that this
was wide enough to apply not only to physical qualities but also to mental
qualities and such more indeterminate attributes as colour, race and creed.
The New Zealand Court was careful to observe that there must be
some real connection between the nature of the provocation and the
particular characteristic of the offender by which it is sought to modify the
519
HOMICIDE
ordinary [person] test and, in relation to mental peculiarities, cautioned

that it is not enough ... that the offender should merely in some general
way be mentally deficient or weak-minded. To allow this ... would ... deny
any real operation to the reference made in [section 169 of the Crimes Act
1961 (New Zealand)] to the ordinary man, and it would ... go far towards
the admission of a defence of diminished responsibility without any statutory
authority ... to sanction it.
Applying this test, the court in Newell accordingly held that neither
Ns intoxication and use of drugs, nor his depression and grief over breaking
up with his girlfriend, needed to be taken into account, since the intoxication
and drugs were only temporary, and there was no connection between Ns
personal circumstances and the provocative conduct.
This approach is further illustrated in the following Hong Kong case.
R v Chan Ching Fung [1992] 2 HKCLR 190
Facts
Chan was convicted of murdering her two stepdaughters, aged 15 and
13, and attempting to murder her stepson, aged 17. The evidence
established that C had been on bad terms for some time with the
stepchildren who lived with her in the family flat. C alleged that after
quarrelling with them one evening, during which they repeatedly scolded
her and jabbed her in the head, she started a fire in the flat, allegedly
to frighten the stepchildren, using kerosene purchased by her earlier
that day. The two stepdaughters suffered serious burns leading to their
deaths. The charge of attempted murder arose out of an alleged attempt
by C to throw her stepson from the balcony of the flat when he was
awakened by the fire and confronted her.
At trial, Cs defence was diminished responsibility. Psychiatric
evidence was adduced on Cs behalf to establish that she (1) suffered
from chronic depression, (2) as a result, was more susceptible to loss of
self-control, (3) had a primitive personality and did not release her
anger in the normal way, and (4) suffered from neurosis arising out of
depression causing accelerated responses to everyday experiences. The
trial judge also left provocation to the jury, but made no mention of
these characteristics.
C appealed inter alia on the grounds that the judge should have
directed the jury to consider these characteristics in considering
provocation.
Decision
Appeal dismissed in relation to the two charges of murder, but allowed
520
for other reasons in relation to the conviction of attempted murder. In

relation to provocation, Fuad VP, delivering the judgment of the Court,
referred with approval to Camplin and Newell and the passage from
McGregor stated in Newell regarding characteristics. Applying the
principles laid down in that passage to the mental problems identified
by the psychiatric evidence, he concluded (at 200) that even if all or
any of these alleged aspects of Cs mental state and character could be
regarded as relevant characteristics in the sense of the word used by
Lord Diplock in Camplin (which Fuad VP seriously doubted), it could
not fairly be said that the provocative words and conduct directed by
the victims at C related to the alleged particular characteristics relied
upon. Accordingly, there had been no need for the trial judge to direct
the jury in relation to these mental characteristics.
The court added (at 200) that potential characteristics should be
identified by the judge in discussion with counsel, in the absence of
the jury, before directing the jury on provocation.
Characteristics subsequently recognized for this purpose included

mental retardation (Raven [1982] Crim LR 51), and strongly held religious
views on the virtue of chastity, where the provocative conduct involved
sexual harassment of the accused by the deceased (Burke [1987] Crim LR
336).
The relevance of battered woman syndrome as a characteristic has
been considered in a number of cases. In Ahluwalia, above, the court was
of the view that medical evidence that a particular defendant is actually
suffering from such a syndrome must be produced before it would be proper
to leave it to a jury as a relevant characteristic. On the other hand, in a
number of cases between 1980 and 1996, the courts were arguably less
demanding, allowing references to be made to other types of mental
characteristic, even though there was no connection as such between the
provocation and the mental characteristic. Rather, defendants simply argued
in effect that the mental characteristic rendered them incapable of exercising
the level of self-control exhibited by the ordinary person; in other words,
they were more easily provoked than the ordinary person as a result of
their mental state. For example, in Raven ([1982] Crim LR 51), Ds mental
retardation (a 22-year-old with a mental age of a 9-year-old) was permitted
to be taken into account even though there was no apparent taunt or
reference, despite the obvious difficulty for a jury in assessing how a
reasonable adult with a mental age of a nine-year-old might have reacted.
This liberal approach was applied in a series of English Court of Appeal
cases to battered woman syndrome, thereby enabling this characteristic to
HOMICIDE
521
be taken into account in assessing the level of self-control to be expected

of the reasonable person (in addition to Ahluwalia [1992] 4 All ER 889,
see Thornton [1992] 1 All ER 306 and Thornton (No. 2) [1996] 1 WLR
1174).16 Other cases to similar effect are Dryden [1995] 4 All ER 987
(eccentricity and obsessiveness) and Humphreys [1996] Crim LR 431
(immature and attention-seeking personality; compare Horrex [1999] Crim
LR 500: strong emotional attachment to person attacked by deceased
insufficient).
However, in Luc Thiet Thuan v R ([1996] 1 HKC 663; [1997] AC 131),
the Privy Council, on appeal from the Court of Appeal of Hong Kong,
rejected the inclusion of mental peculiarities or infirmities per se as
characteristics for the purposes of the reasonable person test. L alleged that
he lost control, or went mad, and stabbed and strangled the deceased,
with whom he had previously had an intimate relationship, when she made
disparaging comments about Ls sexual prowess while L and two others
were robbing her. At trial, L called medical evidence suggesting that L
suffered from brain damage making it difficult for L to control aggressive
impulses. The trial judge admitted this evidence for the purposes of
diminished responsibility, but made no reference to it in directing the jury
on provocation. L appealed unsuccessfully against his conviction of murder.
His submission that his mental infirmity (if it existed) ought to have been
referred to as a relevant characteristic for the purposes of provocation, was
rejected both by the Court of Appeal and then by a majority of the Privy
Council. Lord Goff of Chieveley, delivering the majority judgment (it should
be noted that only four judges sat in Luc with only one other Law Lord,
Lord Steyn, who dissented), affirmed the decisions of the House of Lords
in Camplin and Morhall (in which he had earlier delivered the unanimous
judgment of the Lords), and then explained (as he had foreshadowed in
Morhall) that the English Court of Appeal in Newell, and subsequently in
the cases noted above, had wrongly departed from the principles laid down
in Camplin, in particular by relying on the decision of the New Zealand
Court of Appeal in McGregor to permit mental infirmity to be treated as a
relevant characteristic regardless of whether the provocative conduct was
directed at that mental infirmity. In Hong Kong, as in England, he
emphasized, a statutory defence of diminished responsibility exists to
16
See further, D. Nicholsen and R. Sangvi, Battered Women and Provocation: The
Implications of R v Ahluwalia [1993] Crim LR 728. Battered woman syndrome has now
been classified in Britain as a mental disease: see Hobson [1997] Crim LR 759.
522
accommodate mental abnormality per se, unlike in New Zealand (where

McGregor has in any event been subsequently disapproved of). Importantly,
the burden of proving mental abnormality for the purposes of diminished
responsibility is expressly placed on the accused (on the balance of
probabilities) (see Chapter 6, p 248), whereas the burden of proving (or
rather disproving) the existence of a characteristic lies on the prosecution
beyond reasonable doubt. This creates the possibility that a defendant may
fail to prove the existence of mental abnormality on the balance of
probabilities for the purposes of establishing diminished responsibility, yet
would be entitled to rely on the same mental abnormality as a characteristic
for the purposes of provocation, provided there was some evidence to
support it and that it was not actually disproved beyond reasonable doubt
by the prosecution. For these reasons, Lord Goff concluded (at 678):
Their [Lordships] conclusion is that, on the principles [stated in
Camplin], there is no basis upon which mental infirmity on the part
of the defendant which has the effect of reducing his powers of selfcontrol below that to be expected of an ordinary person can, as such,
be attributed to the ordinary person for the purposes of the objective
test in provocation [emphasis added].
This would not totally exclude mental infirmity from consideration, as Lord
Goff observed (at 679):
It is ... consistent with Lord Diplocks analysis in ... Camplin and indeed
with ... Morhall ... , that mental infirmity of the defendant, if itself the
subject of taunts by the deceased, may be taken into account as going
to the gravity of the provocation as applied to the defendant [emphasis
added].
One further point made by the Privy Council in Luc concerned the
question of whether it is necessary for the provocative conduct actually to
have been directed at Ds relevant characteristic. Lord Goff accepted (at
682) that this would normally be factually so, but added that it need not
always be so, giving as an example the case of a defendant who is misled
because of previous events into believing that an innocent remark by the
deceased was so directed when in fact it was not.
This more restrictive approach to characteristics was affirmed by the
Court of Final Appeal in Hong Kong in Zeng Liang Xin v HKSAR ([1997] 3
HKC 1, at 7) and also Kong Kwong San v HKSAR ([1999] HKLRD 250) in
which it was said that Luc was wholly convincing.
HOMICIDE
523
In England, however, the English Court of Appeal chose not to follow

Luc, preferring to follow its own earlier decisions allowing mental
characteristics (other than irascibility or pugnacity) to be taken into account
(see, for example, Parker [1997] Crim LR 760, following Campbell (No. 2)
[1997] Crim LR 227), and this was recently affirmed by a 3:2 majority in
the House of Lords in R v Smith (Morgan) ([2001] 1 AC 146). In this case,
the trial judge had directed the jury that psychiatric evidence adduced by
Smith of a mental condition reducing Ss powers of self-control below that
of an ordinary person could be considered by the jury in determining the
gravity of the alleged provocative conduct to a reasonable person, but not
in assessing the level of self-control of that notional reasonable person.
Both the Court of Appeal (whose decision was cited to the Hong Kong
Court of Final Appeal in Kong Kwong San but not followed) and then the
House of Lords (though only by majority) held that this was a misdirection.
Contrary to Luc, all Ss characteristics, including this mental condition,
were to be taken into account in deciding both whether S was in fact
provoked and also whether the objective element of provocation was
satisfied. Eschewing the doctrinal and evidential distinctions between
provocation and diminished responsibility which had led the majority in
Luc to a contrary conclusion, Lord Hoffman observed (at 1734):
The general principle is that the same standards of behaviour are
expected of everyone, regardless of their individual psychological makeup. In most cases, nothing more will need to be said. However, the
jury should in an appropriate case be told, in whatever language will
best convey the distinction, that this is a principle and not a rigid
rule. It may sometimes have to yield to a more important principle,
which is to do justice in the particular case. So the jury may think
that there was some characteristic of the accused, whether temporary
or permanent, which affected the degree of control which society could
reasonably have expected of him and which it would be unjust not to
take into account. If the jury take this view, they are at liberty to give
effect to it.
It remains to be seen whether the Hong Kong Court of Final Appeal may
ultimately prefer Smith (Morgan) over Luc, despite its repeated affirmation
of Luc. For the time being, however, it must be assumed that the decision
in Luc should be followed.
Proportionality The reasonable person test requires the jury to consider
not only whether a reasonable person of Ds age and sex but otherwise
524
endowed (in accordance with Luc) only with such of Ds characteristics as

might affect the gravity of the provocation to D, might also have lost selfcontrol, but, in addition, whether such a reasonable person might have
retaliated in the same manner as D did (Phillips [1969] 2 AC 130, at 137).
This requires consideration of whether Ds actual mode of reaction was
reasonably proportionate to the provocation.
At common law, Ds response was required to be reasonably
proportionate. If Ds reaction was not reasonably proportionate, provocation
could be withdrawn by a trial judge (Mancini v DPP [1942] AC 1). This
was encapsulated in expressions such as fists might be answered with fists,
but not with a deadly weapon (Duffy [1949] 1 All ER 932).
Like other common law restrictions on provocation, this inflexible rule
was effectively abolished by section 4 of the Homicide Ordinance (Brown
[1972] 2 QB 229), but proportionality itself remains relevant (Acott [1997]
1 WLR 306, at 3123, per Lord Steyn). It is now treated as one of the
factors to be considered by the jury in deciding, in accordance with section
4, whether the provocation was enough to make a reasonable man do as
[D] did. To enable the jury to assess this, the trial judge ought to direct
the jury on the gravity of the provocation that D received (Jones (Peter)
[1987] Crim LR 701).
Self-induced provocation If one person, D, induces another, V, to do
something predictably provocative to D, causing D to lose self-control and
kill V, can D still raise provocation as a defence? In Edwards v R ([1973]
AC 648; [1972] HKLR 301), the Privy Council, on appeal from Hong Kong,
thought not. In its view, D could raise provocation only if the deceaseds
provocative conduct towards D went beyond the merely predictable results
of Ds initial conduct, or was extreme in nature. If the conduct of the
deceased was merely the predictable result of Ds conduct, it was selfinduced and could not constitute provocation (applied in Siu King-him
[1980] HKLR 126, at 1367).
This conclusion was rejected by the English Court of Appeal in Johnson
(Christopher) ([1989] 1 WLR 740), which concluded that Edwards ought
not to be interpreted as meaning that provocation which is self-induced
ceases to be provocation for the purposes of section 3 [section 4 of the
Homicide Ordinance]. In the view of Watkins J (at 744), the express
wording of section 3 of the Homicide Act 1957, as explained in Camplin,
meant that it was impossible to accept that the mere fact that a defendant
caused a reaction in others, which in turn led him to lose his self-control,
should result in the issue of provocation being kept outside a jurys
HOMICIDE
525
consideration. Any other conclusion, he held, would be contrary to the

statutory provision which requires provocation to be left to a jury if there
is evidence that D was provoked to lose self-control.
Johnson (Christopher) was subsequently followed in Hong Kong by the
Court of Appeal in R v Leung Ka-fai [1992] HKCLR 255. Counsel in this
case invited the Court to rule that Edwards had been decided per incuriam,
but MacDougall JA in the Court of Appeal rejected this submission, holding
that the clear words of Edwards regarding self-induced provocation must
be taken to mean what they say. Nonetheless, it was difficult, he added,
to resist the logic of the reasoning in Johnson, and so he concluded (at
264) that trial judges in Hong Kong should therefore direct juries in relation
to self-induced provocation in accordance with Johnson, rather than Edwards.
Suicide and murder
At common law, a person who intentionally kills another at the request of
and with the consent of the victim (euthanasia) is prima facie liable for
murder; consent is no defence to an intentional killing.17 Thus, strangling
a terminally ill patient or injecting him or her with a lethal drug remains
murder even if the victim consents. So also, turning off a life-support
machine may be murder (unless the patient is already brain dead: Chan
Yu-keung [1987] HKLR 276). If D is a medical practitioner, then according
to the House of Lords in Bland ([1993] AC 789) liability will depend not
on whether D turned off the machine, but rather on whether Ds failure to
turn it back on is a breach of Ds duty to provide care in the best interests
of his or her patients.
Furthermore, at common law, a person who committed suicide was
considered to have committed an offence in the nature of self-murder.
Accordingly, someone who aided, abetted, counselled or procured another
to commit suicide was liable as a party to murder, provided that death
occurred within a year and a day of Ds acts (Dyson [1823] Russ and Ry
523; Croft [1944] 1 KB 295). This was so even if both D and the victim
had agreed to die together, but D survived. If the agreement was for D to
kill the victim and then commit suicide, Ds act would prima facie amount
to murder.
These common law principles have been modified by statute.
17
See further, H. Biggs, Euthanasia and Death with Dignity: Still Poised on the Fulcrum of
Homicide [1996] Crim LR 878.
526
Abolition of offence of suicide

The offence of suicide was abolished in Hong Kong in 1967 by section 33A
of the Offences Against the Person Ordinance (UK: see section 1 of the
Suicide Act 1961). Those assisting another to commit (the former offence
of) suicide were made liable under a statutory offence of aiding, abetting,
counselling or procuring suicide or attempted suicide, enacted as section
33B of OAPO (see A-G v Able [1984] QB 795; McShane (1977) 66 Cr App
R 97). This offence is triable on indictment and punishable by up to 14
years imprisonment (section 33B(1) of OAPO ), but it may be prosecuted
only with the consent of the Secretary of Justice (formerly, the Attorney
General) (section 33B(3) of OAPO).
Suicide Pacts
Section 5 of the Homicide Ordinance provides that a person who kills
another or is party to a killing by a third party, pursuant to a suicide pact
between them, is liable for manslaughter instead of murder (section 5(1)).
According to section 5(3), a suicide pact means:
a common agreement between two or more persons [i.e. the deceased,
D and any others] having as its object the death of all of them, whether
or not each is to take his own life ... [emphasis added].
Ds conduct will be considered as done in pursuance of the suicide pact

only if it is done while ... [D] has the settled intention of dying in pursuance
of the pact (section 5(3)). The burden of proving that the deceased died
pursuant to a suicide pact lies on the person charged with murder (section
5(2); see also R v Lam Hon Wing [1987] 3 HKC 173). The standard of
proof is on the balance of probabilities.
Involuntary Manslaughter
Where an unlawful killing has occurred, but malice aforethought cannot
be proved, the person causing death will still be liable for manslaughter if
it is proved: (1) that D caused the death by the commission of an unlawful
and dangerous act (constructive manslaughter); (2) that D caused the death
by gross negligence; or, possibly, (3) that D recklessly caused death.
527
HOMICIDE
Constructive manslaughter: Causing death by an unlawful and

dangerous act
Constructive manslaughter involves deemed criminal liability. At one time,
in parallel to the felony-murder rule (which prior to 1963 deemed liability
for murder), a person was deemed to be liable for manslaughter if he or
she caused death while committing some other, less serious, unlawful act.
For a time, this even included the commission of a tort, such as trespass
(Fenton [1830] 1 LEW CC 179), whether or not it also amounted to an
offence, but this was rejected in Franklin ([1883] 15 Cox CC 163), holding
that the mere commission of a civil wrong is not in itself sufficient to give
rise to constructive liability. Instead, in the absence of gross or criminal
negligence, it must be proved that Ds conduct is unlawful because it
involves the commission of an offence. Subsequently, the courts have added
a further qualification: Ds conduct must also be dangerous.
The law relating to constructive manslaughter is commonly based on
the decision of the House of Lords in DPP v Newbury ([1977] AC 500),
recently restated by the Lords in A-Gs Reference (No. 3 of 1994) ([1998]
AC 245). In Newbury, Lord Salmon cited with approval the following
statement of law by Humphreys J in Larkin ([1943] 1 ALL ER 217, at 219):
Where the act which a person is engaged in performing is unlawful,
then if at the same time it is a dangerous act, that is, an act which is
likely to injure another person, and quite inadvertently he causes the
death of that other person by that act, then he is guilty of manslaughter.
He then concluded (at 507):

It makes plain (a) that an accused is guilty of manslaughter if it is
proved that he intentionally did an act which was unlawful and
dangerous and that that act inadvertently caused death and (b) that it
is unnecessary to prove that the accused knew that the act was unlawful
or dangerous.
In A-Gs Reference (No. 3 of 1994), Lord Hope, delivering the unanimous

judgment of the Law Lords on this point, referred to these passages and
summarized their effect (at 274):
The only questions which need to be addressed are (1) whether the
act was done intentionally, (2) whether it was unlawful, (3) whether
it was also dangerous because it was likely to cause harm to somebody
and (4) whether that unlawful and dangerous act caused the death.
528
(See also Goodfellow (1986) 83 Cr App R 23, at 27.)

An intentional act
It seems that constructive manslaughter is limited to deaths caused by a
criminal act and that a criminal omission will not suffice. This was the
view taken by the English Court of Appeal in Lowe ([1973] QB 702), in
which a father was convicted of the statutory offence of wilful neglect
(contrary to section 1(1) of the Children and Young Persons Act 1933,
carrying a maximum of two years imprisonment; Hong Kong: section 27
of the OAPO) after he failed to seek medical help for his ill nine-week-old
daughter. The court held that L was not also thereby liable for manslaughter
(carrying a possible sentence of life imprisonment) when the girl died,18
since there was, in Phillimore LJs view (at 709), a clear distinction between
an act of omission (such as wilful neglect) and an act of commission likely
to cause harm. Wilful neglect, a criminal omission, may be criminally
unlawful, but it appears it will lead to a conviction of manslaughter only
if the omission causing death actually involves gross negligence (or possibly
recklessness), giving rise to an independent basis of liability for
manslaughter, as discussed below (see also Khan [1998] Crim LR 830, in
which the English Court of Appeal suggested that the appropriate direction
where the prosecution alleges manslaughter by omission is gross negligence,
as laid down in Adomako, discussed below).
The act must be intentional. Lord Hope formulated this in several
ways in A-Gs Reference (No. 3 of 1994): the act was done intentionally, D
must be proved to have intended to do what he did, and D must have an
intention to do the act which constitutes the crime. The focus here is on
the act itself, not its consequence, death.
An unlawful act
The act must be criminally unlawful, that is, it must amount to or involve
the commission of an offence. However, it is insufficient if the act is criminal
(i.e. unlawful) only because it is a lawful act (e.g. driving a motor vehicle)
performed negligently. This restriction was recognized by the House of
Lords in Andrews v DPP ([1937] AC 576). In this case, A caused death
18
R v Senior [1899] 1 QB 283 to opposite effect was held to be no longer good law on this
point. However, see Sheppard [1981] AC 394, HL, re interpretation of statutory offence.
HOMICIDE
529
while driving in a dangerous manner, rendering him criminally liable under

the relevant road traffic legislation. This, said the Lords (at 585), did not
make A automatically liable for manslaughter:
There is an obvious difference in the law of manslaughter between
doing an unlawful act and doing a lawful act with a degree of
carelessness which the legislature makes criminal. If it were otherwise,
a man who killed another while driving without due care and attention
would ex necessitate commit manslaughter.
As with Lowe, above, liability for manslaughter should arise in this case
only if Ds conduct, his or her driving, is grossly negligent (or reckless), in
which case constructive liability is no longer appropriate.
In general, Ds act will be unlawful because it amounts to an assault
or battery. Where the prosecution relies on this, then it ought to prove all
the elements of assault or battery, including both actus reus and mens rea.
In Arobieke ([1988] Crim LR 314), for example, the deceased died while
attempting to cross electrified railway lines, allegedly to escape from D.
The English Court of Appeal held that although the deceased may have
been in fear of D, the prosecution had not proved any specific act by D
causing the deceased to apprehend immediate violence; the actus reus of
assault could not therefore be established.
More importantly, in Lamb ([1967] 2 QB 981), the English Court of
Appeal held that the mens rea of assault or battery must be proved if this
is relied on as the unlawful act. In this case, L pointed a revolver, several
chambers of which were known by him to be loaded with bullets, at a
friend as a joke and pulled the trigger, mistakenly believing that the chamber
revolved after the trigger was pulled. In fact, it revolved as the trigger was
pulled, the gun fired and Ls friend, who had similarly believed there was
no danger and was not therefore alarmed by Ls actions, was killed. L was
charged with manslaughter either by gross negligence or by unlawful and
dangerous act. L claimed the death was an accident, and that he had intended
neither to alarm nor to harm his friend. If accepted, this would negate the
mens rea of assault and battery (see Chapter 11). The judge directed the
jury that the act of pointing the revolver and pulling its trigger was in itself
unlawful and that Ls state of mind was therefore irrelevant. On appeal,
this was held to be incorrect, and Ls conviction was quashed. Sachs LJ
concluded (at 988):
... [F]or the act to be unlawful it must constitute at least ... a technical
assault. ... Another way of putting it is, that mens rea being now an
530
essential ingredient in manslaughter ... this could not in the present

case be established ... except by proving that element of intent without
which there can be no assault [emphasis added].
Ls conviction could perhaps have still been upheld on the alternative basis
his conduct was grossly negligent, but the Court of Appeal held that it
would be unsafe to allow conviction on this basis in the light of the judges
misdirection. Lamb was referred to with approval in Gray v Barr ([1971] 2
QB 554), a civil case, with Lord Denning MR observing (at 568):
In manslaughter of every kind there must be a guilty mind. ... In the
category of manslaughter relating to an unlawful act, the accused must
do a dangerous act with the intention of frightening or harming
someone, or with the realisation that it is likely to frighten or harm
someone, and nevertheless he goes on and does it, regardless of the
consequences.
Similarly, in Scarlett ([1993] 4 All ER 629), the English Court of Appeal

held that the mens rea of the alleged assault or battery must be proved:
The jury ought to be directed that [D] cannot be guilty of an assault
[i.e. battery] unless the prosecution prove that [D] acted with the
mental element necessary to constitute his action an assault [i.e.
battery], that is that [D] intentionally or recklessly applied force to
the person of another (see R v Venna [1976] QB 421, at 429, per
James LJ).
This also means there will be no unlawful act if Ds alleged assault or

battery is lawfully consented to,19 or is merely the reasonable use of force
in self-defence or for the purposes of crime prevention or lawful
chastisement (see further, Chapter 11).
However, in DPP v Newbury, the Lords purportedly rejected the view
that both actus reus and mens rea must be proved. The Lords expressly
doubted the correctness of the passage set out above from Gray v Barr
with Lord Salmon observing (at 508) that Barrs conviction of manslaughter
on the facts of the case does not mean that nothing short of such facts can
prove manslaughter and that although Lord Dennings comment might be
read otherwise, I doubt whether he intended that it should be. If he did,
then I am afraid I cannot agree with him. Manslaughter, he emphasized, is
19
Subject to the public policy and other limitations on consent; below, Chapter 11, p. 568.
HOMICIDE
531
a crime requiring only what is called a basic intention, which is an intention

to do the acts which constitute the crime, and Lamb, he suggested (at
509), is certainly no authority to the contrary. Lamb himself, suggested
Lord Salmon (at 509), was acquitted because luckily for him, there had
been a series of serious misdirections ....
On the other hand, the issue before the court in Newbury concerned
the meaning of dangerous, not unlawful. Counsel had argued that although
the question of whether Ds act is dangerous, i.e. whether it creates a risk
of harming another person, had formerly been assessed on an objective
basis, as is discussed below, this was no longer appropriate in the light of
the observations about mens rea in Lamb and Gray v Barr, and that D must
be proved to have intended or at least foreseen his or her act might harm
another. The difficulty with this argument is that the observations in Lamb
and Gray v Barr essentially related not to the dangerousness of Ds act,
but to whether it was unlawful, more specifically, whether it amounted to
assault or battery. Arguably, there was, therefore, no need for the Lords to
have laid down a rule that the mens rea of assault or battery does not need
to be proved if that is how Ds act is alleged to be unlawful. This seems to
be the interpretation subsequently adopted by the Lords in A-Gs Reference
(No. 3 of 1994) in concluding that the defendant in that case (who stabbed
his pregnant girlfriend, causing the premature birth and subsequent death
of her child) ought to have been convicted of manslaughter. Lord Hope,
speaking for the Lords, observed (at 270):
So far as the mens rea for the common law crime of manslaughter is
concerned, I consider that it is sufficient that at the time of the stabbing,
B had the mens rea which was needed to convict him of an assault on
the childs mother. That was an unlawful act ... [emphasis added].
adding that, It is plain that [the act] was unlawful as it was done with the
intention of causing her injury.
If, however, Ds conduct is alleged to be criminally unlawful other
than because it amounts to an assault or battery (or a related offence against
the person), then neither dangerous nor unlawful necessarily requires
proof of intention or recklessness on Ds part as to harming another. What
should still be proved, however, is the mens rea required for that conduct
to be an offence, i.e. unlawful. Suppose, for example, it is alleged that D
damaged property belonging to another (for example, by removing safety
supports on a construction site or, as in Newbury itself, by pushing a paving
stone of a bridge into the path of a train passing beneath), neither intending
532
nor foreseeing that his or her act might thereby harm another, resulting in
the death of a third person. In such a case, to establish that D committed
criminal damage (contrary to section 60(1) of the Crimes Ordinance) and
thereby committed an unlawful act, the prosecution ought to prove that D
possessed the mens rea stipulated in section 60(1), namely, that D
intentionally or recklessly damaged the property, knowing it belonged to
another; absent this, Ds act will not amount to criminal damage. However,
once this is proved, there is no additional need to prove D intended or
foresaw harm to anybody; instead, it will suffice that Ds act was objectively
dangerous (as discussed below).
A second uncertainty regarding unlawfulness arises from Cato ([1976]
1 WLR 110). C and the deceased injected each other with heroin supplied
by the deceased, leading to the latters respiratory failure and death. Although
the possession and supply of heroin were statutory offences under the
relevant English legislation of dangerous drugs, the act causing death in
this case, Cs act of injecting the deceased with heroin, was not; however, it
fell within the statutory offence of administering a noxious substance so as
to endanger life, contrary to section 23 of the Offences Against the Person
Act 1861 (Hong Kong: section 22 of the OAPO). C was convicted of this
statutory offence, and also, once causation was established, of manslaughter.
On appeal, Lord Widgery CJ, in the English Court of Appeal, expressed
the opinion (at 118) that Cs act injecting heroin was unlawful for
the purposes of manslaughter quite apart from section 23:
... [W]e think the unlawful act would be described as injecting the
deceased ... with a mixture of heroin and water which at the time of
the injection and for the purposes of the injection Cato had unlawfully
taken into his possession.
This is generally regarded as unsatisfactory. Either the court was judicially

creating a new offence (contrary to established convention that only the
legislature can create new offences), or it was giving unlawful act an
interpretation rendering it unnecessary to identify and prove a specific
existing statutory or common law offence. Neither analysis is readily
supportable and, given that the point was in any event incidental, Cato is
best ignored (though see also Kennedy [1999] Crim LR 65).
There is no need to prove that D knew the act was unlawful (DPP v
Newbury [1977] AC 500, at 507, per Lord Salmon). The question of whether
Ds conduct involved the commission of an unlawful act is a question for
the jury to decide (Jennings [1990] Crim LR 588).
533
HOMICIDE
Dangerous
Ds act must also be dangerous. This operates as an important limitation
on the class of unlawful acts that may give rise to liability for manslaughter.
Dangerousness is assessed objectively. This requirement was recognized in
Larkin ([1943] KB 174), in which Ls drunken girlfriend was killed when
she fell against a razor held up by L, allegedly to frighten someone talking
to her. Affirming Ls conviction of manslaughter, Humphreys J stated that
manslaughter required proof that Ls act was both unlawful and dangerous,
that is, an act which is likely to injure another person. This was further
explained by Edmund Davies J in Church ([1966] 1 QB 59, at 70),
emphasizing the objective nature of this requirement:
... [T]he unlawful act must be such as all sober and reasonable people
would inevitably recognise must subject the other person to, at least,
some risk of harm resulting therefrom, albeit not serious harm
[emphasis added].
C was charged with murder, but was convicted at trial of manslaughter

based on his violent attack on a prostitute who had taunted him about his
sexual performance, leading to her death when he subsequently threw her
dead body (as he believed it to be) into a river. Clearly, Cs initial attack
was both unlawful as a battery and, according to the above test, dangerous.
The fact that death was caused by Cs later act of throwing the body into
the river was overcome by combining Cs two acts, treating Cs conduct as
a series of acts which culminated in [Vs] death.
The objective nature of dangerousness was challenged in DPP v
Newbury ([1977] AC 500) in which two boys were convicted of
manslaughter after they jointly pushed part of a paving stone off a bridge
into the path of a train passing beneath. The stone crashed through the
glass window of the cab and killed a guard inside. On appeal to the House
of Lords, they argued that they ought not to be liable unless it was proved
they had at least foreseen the possibility of harm resulting from their act.
This challenge was rejected, with the Law Lords affirming the statements
of law in Larkin and Church to the effect that there is no need to prove that
harm was foreseen by the accused, and that dangerousness is an entirely
objective test based on whether a sober and reasonable person would
recognize the risk of harm.
This view was recently reaffirmed by the Lords in A-Gs Reference (No. 3
of 1994), above, with Lord Hope stating (at 270), Dangerousness in this
context is not a high standard. All it requires is that it was an act which
534
was likely to injure another person, and, All that need be proved is that
[D] intentionally did what he did, that the death was caused by it and that,
applying an objective test, all sober and reasonable people would recognize
the risk that some harm would result.
Harm means physical harm (Dawson (1985) 81 Cr App R 150),
including physical harm resulting from shock or fright, provided that the
risk of such physical harm was reasonably foreseeable at the time of the
act, and provided it can be proved that Ds act caused the physical harm.
Thus, in Dawson, it was a misdirection for the judge to tell the jury to
consider whether D and his accomplices, while attempting to rob a petrol
station, put their victim (an attendant at the petrol station), who suffered a
heart attack and died, in such terror that he might suffer emotional or
physical disturbance as would be detrimental. By using or, the judge left
it open to the jury to convict D and the others of manslaughter solely
because their acts created a risk of emotional disturbance.
Dangerousness is assessed having regard both to all the facts known
by D at the time of his or her act, including knowledge of the victims
particular characteristics (e.g. a weak heart), and also to such facts as D
ought reasonably to have known or realized at the time. In Dawson, for
example, there was no evidence that D or his associates actually knew the
petrol station attendant suffered from a heart condition, nor was there any
basis for saying this was apparent and ought to have been recognized by
them. Whether a sober and reasonable person would therefore have
considered their actions to have created a risk of physical harm, i.e. be
dangerous, was to be assessed without regard to this fact.
The facts known by D, or which D ought reasonably to have known,
include facts actually brought to Ds attention, or which ought to have come
to Ds attention, during the course of Ds unlawful act. This is illustrated by
Watson ([1989] 1 WLR 684), in which W and another man, after breaking
into a house, unexpectedly encountered its elderly (87 years old) occupant.
W verbally abused him but then left. The occupant died of a heart attack
some 90 minutes later. Ws conviction of manslaughter was quashed on
appeal since it was not proved that Ws acts, rather than the excitement
when the police and emergency services arrived, caused the victims heart
attack and death, but the English Court of Appeal affirmed the trial judges
direction to the jury that in assessing dangerousness, they were entitled to
take account of any knowledge acquired by W after entry, including the age
and frailty of the occupant. The unlawful act, said Lord Lane CJ (at 686),
comprised the whole of the burglarious intrusion and did not come to an
end upon the appellants foot crossing the threshold or windowsill.
535
HOMICIDE
On the other hand, according to the English Court of Appeal in Ball

((1989) 90 Cr App R 378), Ds mistaken beliefs are not to be attributed to
the reasonable person in assessing dangerousness. B said that he mistakenly
thought that he had loaded a blank (in fact, it was live ammunition) into
his shotgun before firing it at the victim. Discussing Bs appeal against
conviction of manslaughter, Stuart-Smith LJ concluded that:
The question whether the act is a dangerous one is to be judged not
by [Ds] appreciation but by that of the sober and reasonable man,
and it is impossible to impute into his appreciation the mistaken belief
[of D] that what he was doing was not dangerous because he thought
he had a blank cartridge in the chamber. At that stage, [Ds] intention,
foresight or knowledge is irrelevant.
Likewise, the fact D was intoxicated is irrelevant: dangerousness is

assessed according to whether a sober and reasonable person would have
foreseen a risk of causing harm. Where the victims death occurs while the
victim is fleeing from D (e.g. by jumping into a river and drowning, falling
down stairs, or leaping from a moving vehicle), reasonableness may enter
into consideration twice. Firstly, it arises in assessing whether the victims
reaction was a novus actus interveniens, breaking the chain of causation
between Ds act and Vs death (see Chapter 3, p. 89); secondly, it is relevant
to the assessment of dangerousness. Extra care, therefore, must be taken in
directing a jury in such cases. An appropriate direction in this regard was
set out by the English Court of Appeal in Mackie ((1973) 57 Cr App R
453) and approved by the Privy Council in DPP v Daley ([1980] AC 237,
at 245, per Lord Keith of Kinkel) (see also R v Williams and Davis [1992]
1 WLR 380 and commentary at [1992] Crim LR 198; R v Evans [1992]
Crim LR 659).
Directed at/aimed at the victim
Some cases have suggested another possible restriction on constructive
manslaughter: that the act must be directed or aimed at the victim. The
principal authority for this is the decision of the English Court of Appeal
in Dalby ([1982] 1 WLR 425) in which D unlawfully supplied a controlled
drug to a friend who later died after both injecting himself with it and then
having further an unidentified substance injected by a third party. The
English Court of Appeal quashed Ds conviction of manslaughter on the
ground it was insufficient merely to prove that D had unlawfully supplied
drugs to the deceased, unless it was further proved that Ds act was
536
objectively dangerous and was directed at the victim (see also Ball (1989)
90 Cr App R 378).
In Mitchell ([1983] QB 741), however, the English Court of Appeal
took a contrary position, holding that it is sufficient if Ds act is directed
at another in the sense that it is objectively likely to harm another (not
necessarily the victim) and it causes the victims death. Similarly, in
Goodfellow ((1986) 83 Cr App R 23), the English Court of Appeal took the
view (at 27) that the Court in Dalby was not suggesting that there had to
be an intention on Ds part to frighten or harm, or even a realization that
Ds acts were likely to harm or frighten the victim, but only that there
must be no fresh intervening cause between the act and the death.
Goodfellow was, therefore, liable for manslaughter when three members of
his family died in a fire set by G in an attempt to damage his Council flat
and compel the Council to rehouse him and his family elsewhere, even
though G himself clearly did not direct his act at either his victims or
anyone else. This has now been affirmed by the House of Lords in A-Gs
Reference (No. 3 of 1994), above, who concluded that a person who assaults
a pregnant woman, causing her childs premature birth and subsequent
death (because of its prematurity) is liable for manslaughter, even though
the assault was not directed at the victim, i.e. the unborn child. After
examining the above cases, Lord Hope concluded (at 272) that there is no
need to prove Ds act was directed at the actual victim; all that is necessary
is to show the unlawful act is dangerous in the sense it is likely to
cause harm to somebody and that it caused the victims death. Lord
Mustill, agreeing with Lord Hope, extended this after observing that all
that is needed, once causation is established, is an act creating a risk to
anyone. He added (at 263):
On a broader canvas, the proposition involves that manslaughter can
be established against someone who does any wrongful act leading to
death, in circumstances where it was foreseeable that it might hurt
anyone at all; and that this is so even if the victim does not fall into
any category of persons whom a reasonable person in the position of
the defendant might have envisaged as being within the area of
potential risk.
Applied to the facts of the case, this means that D may be liable for the
death of an unborn child, born prematurely as a result of an attack on its
mother, even though D was unaware that she was pregnant.
537
HOMICIDE
Gross negligence
The second traditional basis of liability for manslaughter involves gross or
criminal negligence. To make a person liable for manslaughter on this
basis, the prosecution must prove four elements: (1) D was under a preexisting duty of care towards the deceased; (2) D, in acting or failing to
act, breached that duty; (3) Ds conduct caused the death of the deceased;
and (4) the breach involved gross negligence.
For a time, from the mid-1980s, after Seymour and Kong Cheuk-kwan
(discussed below), through to the early 1990s, it appeared that gross
negligence may have been replaced by an alternative test founded on
recklessness. Indeed, Lord Roskill, speaking for the Privy Council in Kong
Cheuk-kwan ([1986] HKLR 648), on appeal from Hong Kong, not only
approved the use of recklessness as a test for manslaughter (discussed
below), but also cited with approval the observation of Watkins LJ in the
English Court of Appeal in Seymour ((1983) 76 Cr App R 211, at 216) that
it is no longer necessary or helpful to make reference to compensation and
negligence.
However, in 1995, the House of Lords in Adomako ([1995] 1 AC 171;
discussed below) reaffirmed the continued existence and primacy of gross
negligence manslaughter.
Meaning of gross negligence
The classic statement of gross negligence manslaughter is that of Lord
Hewart LCJ in Bateman ((1925) 19 Cr App R 8, at 112):
... [I]n order to establish criminal liability the facts must be such that,
in the opinion of the jury, the negligence of the accused went beyond
a mere matter of compensation between subjects and showed such
disregard for the life and safety of others as to amount to a crime
against the State and conduct deserving of punishment.
This, in truth, lays down no standard; rather, juries are left with the
task of determining whether a defendants conduct in any particular case is
so negligent that it is deserving of punishment. In explaining this to a
jury, a number of expressions have been used; Lord Hewart LCJ himself
noted the use of such as culpable, gross, wicked, clear and complete.
In Andrews v DPP, the nature of gross negligence manslaughter was further
explained.
538
Andrews v DPP [1937] AC 576

Facts
Late one night, while speeding to the scene of a company vehicle
breakdown, Andrews pulled out to overtake a car ahead of him. While
on the wrong side of the road, As vehicle struck and killed a pedestrian.
A, who did not stop, was convicted of manslaughter after the trial judge
directed the jury he was liable if he had been driving recklessly or in a
dangerous manner, contrary to the then road traffic legislation (section
11 of the Road Traffic Act 1930). A appealed unsuccessfully to the
Court of Criminal Appeal and then to the House of Lords, contending
that the trial judges direction was wrong at law, and that the jury
should have been directed to convict A only if gross negligence was
proved.
Decision
Appeal dismissed. It was a misdirection to state that a breach of the
road traffic provisions could in itself lead to liability for manslaughter,
but the trial judge had sufficiently directed the jury on the meaning
and nature of gross negligence as an alternative basis of liability.
Lord Atkin, delivering the speech of the Lords, approved Lord
Hewarts classic statement in Bateman of gross negligence manslaughter,
and continued (at 583):
The principle to be observed is that cases of manslaughter in
driving motor cars are but instances of a general rule applicable
to all charges of homicide by negligence. Simple lack of care
such as will constitute civil liability is not enough: for purposes of
the criminal law there are degrees of negligence: and a very high
degree of negligence is required to be proved before ...
[manslaughter] is established. Probably of all the epithets that can
be applied, reckless most nearly covers the case ... but it is
probably not all-embracing, for reckless suggests an indifference
to risk whereas the accused may have appreciated the risk and
intended to avoid it and yet shown such a high degree of
negligence in the means adopted to avoid the risk as would justify
a conviction [emphasis added].
While paying heed to Lord Atkins cautionary observation about the

use of recklessness to explain the very high degree of negligence necessary
for manslaughter, trial judges thereafter commonly used gross negligence
and recklessness almost interchangeably as the second basis of liability for
involuntary manslaughter. In Church (above), for example, in 1965, utter
recklessness was the standard used in directing the jury. Similarly, in Stone
HOMICIDE
539
and Dobinson ([1977] 1 QB 354), the jury direction was based on

recklessness. Stone and Dobinson, a de facto couple, both of whom suffered
from mental and physical deficiencies, were convicted of manslaughter after
they failed to obtain timely medical assistance for Stones seriously ill sister,
Fanny, who had come to live with them, leading to her death. The English
Court of Appeal, upholding their convictions, held that S and D had assumed
a duty of care for Fanny when they had taken her into their home.
Furthermore, rejecting a submission that S and D could be characterized
reckless for the purposes of manslaughter only if it was proved they actually
foresaw the likelihood or possibility of their omissions leading to death or
serious injury yet persisted in doing nothing, Lane LJ, after referring to
Bateman and Andrews, concluded (at 363):
What the prosecution have to prove is a breach of [the duty of caring
for the health and welfare of the infirm person] in such circumstances
that the jury feel convinced that the defendants conduct can properly
be described as reckless, that is to say a reckless disregard of danger
to the health and welfare of the infirm person. Mere inadvertance is
not enough. The defendant must be proved to have been indifferent
to an obvious risk of injury to health or actually to have foreseen the
risk but to have determined nevertheless to run it.
Two points require emphasis. Firstly, as Stone and Dobinson affirms,

this category of liability for manslaughter is not limited to cases of
recklessness in its traditional sense, i.e. actual foresight by D of the relevant
risk. In addition, it includes cases in which D is indifferent to an obvious
risk (Stone and Dobinson) and also cases in which D appreciates the risk
and intends to avoid it yet shows a high degree of negligence in the means
adopted to avoid the risk (Andrews). This emphasizes the broad nature of
this basis of liability and its objective basis (see also Li Wang-fat [1982]
HKLR 133).
On the other hand, as Stone and Dobinson also illustrates, the assessment
of liability is not purely objective, i.e. it is not simply a question of whether
Ds conduct fell seriously below that expected of a reasonable person in
Ds situation. Ds own state of mind remains relevant, at least to the extent
that regard should be had to Ds capacity to appreciate the risks associated
with his or her conduct, and also any genuine beliefs that D may have had
as to the adequacy of his or her acts.
The second point concerns the risk created by Ds breach of his or her
duty of care. In Bateman and Andrews, disregard for the life and safety of
others was referred to. In Stone and Dobinson, this is reduced to disregard
540
of danger to the health and welfare of the infirm person and injury to
health, setting a considerably lower threshold than risk of death or even
serious injury.
Stone and Dobinson was followed in Hong Kong in Cheung Ping-mui
([1991] 1 HKC 302). C, aged 16, was convicted of manslaughter after she
allegedly abandoned her newly-born baby in shrubbery behind a wooden
hut in the New Territories, leading to its death. Her conviction was
subsequently quashed by the Court of Appeal, but in so doing, the Court
accepted that a conviction of manslaughter could properly have been
founded either on the fact that she caused the babys death by an unlawful
and dangerous act, or on the basis of her gross negligence. Summarizing
the case, MacDougall JA observed (at 307), in a passage reproducing the
test from Stone and Dobinson:
A finding of guilty of manslaughter therefore depended on whether
the jury were sure that ... (b) in placing the baby on the ground next
to the television set in the backyard of the hut [D] showed a reckless
disregard of danger to the health and welfare of the helpless baby to
whom she owed a duty of care. Recklessness would be established if
the jury were sure that [D] had been indifferent to an obvious risk of
injury to the babys health or, that having appreciated that risk, she
had nevertheless decided to run it.
As already mentioned, the extensive use of recklessness in these and

related cases, combined with the House of Lords attempts in the early
1980s to introduce a broader notion of recklessness, gave rise to a view
that recklessness, and not gross negligence, ought to be the proper basis
for this category of manslaughter. This reached its high-water mark in
Seymour (HL) in 1983 and Kong Cheuk-kwan (PC) in 1985 (see below,
p. 544). However, when the statutory offence of causing death by reckless
driving was repealed in England in 1991, doubt was cast on the continued
use of recklessness to the exclusion of gross negligence in relation to
manslaughter. This issue eventually found its way to the House of Lords in
Adomako.
Adomako: The reaffirmation of gross negligence
Gross negligence manslaughter was reaffirmed by the House of Lords in
Adomako in 1994.
541
HOMICIDE
R v Adomako [1995] 1 AC 171

Facts
Adomako was one of four defendants convicted of manslaughter in
three unrelated cases, consolidated on appeal to the English Court of
Appeal (see Sulman, Prentice, Adomako and Holloway [1994] QB 302).
In one case, Sulman and Prentice, junior doctors, were alleged to have
improperly given injections, in breach of duty, causing death. Their
trial judge directed their jury using both gross negligence and a Lawrence
recklessness direction. Holloways case concerned an electrician who
was alleged to have wrongly installed electrical equipment in breach
of duty, causing death. At trial, the jury were directed solely in terms of
Lawrence recklessness. Adomako was an anaesthetist who was alleged
to have breached his duty by failing to notice and/or reconnect a tube
that became disconnected during an operation. As judge directed the
jury solely in terms of gross negligence, specifically inviting the jury to
look for a high degree of negligence.
On appeal, the Court of Appeal was invited to determine whether
the appropriate test in breach-of-duty cases is that of gross negligence,
or the test of Lawrence recklessness propounded by the House of Lords
in Seymour for use in motor manslaughter cases, and applied more
generally by the Privy Council in Kong Cheuk-kwan. The Court
concluded ([1994] QB 302, at 322) that apart from motor manslaughter
cases (which were ruled by the decision of the House of Lords in
Seymour), the proper test in manslaughter cases based on breach of
duty is the gross negligence test established in Andrews and Stone.
This required proof of three ingredients: (1) the existence of a duty of
care; (2) a breach of that duty causing death; and (3) gross negligence.
The Court of Appeal further observed (at 323) it would be
impossible to prescribe a standard jury direction on gross negligence
appropriate in all cases of breach of duty, but that based on the previous
authorities, it would be open to a jury to find gross negligence on proof
of any of the following (non-exhaustive) states of mind against D:
(1)
(2)
indifference to an obvious risk of injury to health;

actual foresight of the risk coupled with the determination
nevertheless to run it;
(3) an appreciation of the risk coupled with an intention to avoid
it but also coupled with such a high degree of negligence in
the attempted avoidance as the jury consider justifies
conviction;
(4) inattention or failure to advert to a serious risk which goes
beyond mere inadvertance in respect of an obvious and
important matter which [Ds] duty demanded [that D] should
address.
542
Accordingly, the court quashed the convictions of Sulman and Prentice,

and Holloway, since Lawrence recklessness had been included in their
jury directions. However, the court affirmed As conviction, since the
jury in his case had been directed only in terms of a high degree of
negligence, not recklessness. Adomako appealed to the House of Lords.
Decision
Appeal dismissed. Adomako was properly convicted on the basis of a
gross negligence direction.
Lord MacKay of Clashfern, LC, delivering the unanimous judgment
of the Lords, reaffirmed gross negligence as the proper basis of liability
for manslaughter in breach-of-duty cases. Answering the question of
law certified for consideration by the Lords, Lord MacKay stated (at
1889):
In cases of manslaughter by criminal negligence involving a breach
of duty, it is a sufficient direction to the jury to adopt the gross
negligence test set out by the Court of Appeal in the present case
following Bateman and Andrews ... and that it is not necessary to
refer to the definition of recklessness in Lawrence ... , although it
is perfectly open to the trial judge to use the word reckless in its
ordinary meaning as part of the exposition of the law if he deems
it appropriate in the circumstances of the particular case.
Dealing with the notion of negligence underlying gross negligence,

Lord MacKay emphasized (at 187) that:
the ordinary principles of the law of negligence apply to ascertain
whether or not [D] has been in breach of a duty of care towards
the victim who has died.
Then, addressing the meaning of gross negligence, Lord MacKay stated

(at 187) that:
This remains a question for the jury which must assess whether
the extent to which [Ds] conduct departed from the proper
standard of care incumbent upon him, involving as it must have
done a risk of death to the patient was such that it should be
judged criminal [emphasis added].
Admitting that this question involves an element of circularity it is

manslaughter, i.e. an offence, only if there was gross negligence, but
there is gross negligence only if a jury consider it so bad that it should
be judged criminal he nonetheless dismissed the submission that it
ought therefore to be rejected as the proper test, stating instead that it
remains:
HOMICIDE
543
... necessarily a question of degree and an attempt to specify that

degree more closely is I think likely to achieve a spurious precision.
The essence of the matter which is supremely a jury question is
whether having regard to the risk of death involved, the conduct
of the defendant was so bad in all the circumstances as to amount
in their judgment to a criminal act or omission.
In general terms, Adomako is a welcome return to an established (if

flawed) basis of liability. Its effect on reckless manslaughter (based on
Lawrence recklessness) is discussed further below, but several aspects of
the law relating to gross negligence may yet prove contentious. The first
arises out of Lord MacKays use of risk of death in setting the threshold
for gross negligence, a considerably more demanding criterion than risk
of injury to health, which was referred to by the English Court of Appeal
in both Stone and Dobinson and Sulman, Prentice, Adomako and Holloway,
and by the Hong Kong Court of Appeal in Cheung Ping-mui. The use of
risk of death has been described as appropriate to an offence called
manslaughter (Professor J. C. Smith, Commentary to Adomako [1994] Crim
LR 757, at 759; see also Singh [1999] Crim LR 582), but it does effectively
narrow the scope of manslaughter by gross negligence. The adoption of
this standard awaits express approval in Hong Kong.
Secondly, it is unclear how far the Court of Appeals four non-exhaustive
states of mind leading to a finding of gross negligence will prove to be
useful, especially since they speak of risks other than a risk of death.
Ostensibly, the question for a jury now is simply whether Ds conduct, in
breach of duty of care, was so bad in all the circumstances involving a
risk of death as to amount to a criminal act or omission. However, trial
judges will almost inevitably feel compelled to guide juries on what to look
for in deciding whether Ds conduct was so bad, and formulations such as
those of the Court of Appeal will undoubtedly prove an attractive starting
point. Again, this awaits clarification by the Hong Kong appellate courts.
The Lords decision in Adomako proceeded in part from the fact that
Seymour, which originally gave impetus to the development of reckless
manslaughter in place of gross negligence manslaughter (discussed further
below), can no longer be relied on since the underlying statutory provisions
on which it rested, i.e. causing death by reckless driving, had by then been
repealed in England. The equivalent statutory provisions in Hong Kong
(sections 36 and 37 of the Road Traffic Ordinance (cap. 376)) have now
also been repealed in Hong Kong, and there is no reason to suppose that
Adomako does not now also represent the law in Hong Kong.
544
Reckless manslaughter
Until the 1980s, the term reckless mainly featured in relation to
manslaughter as one of the terms commonly used to help differentiate gross
negligence in the criminal law from ordinary negligence under the civil
law. However, during the 1980s and 1990s, recklessness became more
than this, establishing itself for a time as a basis of liability for manslaughter,
perhaps even, it was suggested, to the exclusion of gross negligence.
The development of reckless manslaughter
The development of reckless manslaughter was largely the work of Lord
Roskill in three decisions, two in the House of Lords Government of
USA v Jennings ([1983] 1 AC 624) and Seymour ([1983] 2 AC 493) and
one in the Privy Council, on appeal from Hong Kong Kong Cheuk-kwan
([1986] HKLR 648). In this trilogy of cases, Lord Roskill advanced the
view that Lord Diplocks model direction in Lawrence ([1982] AC 510) on
the meaning of recklessness for the purposes of the statutory offence of
causing death by reckless driving (now repealed) also applied to
manslaughter, initially in relation to motor manslaughter cases, but then,
in Kong, more generally.
According to this, reckless manslaughter required proof firstly that
Ds conduct created an obvious and serious risk of causing physical injury
to another, and secondly that D took that risk (1) either having recognized
that there was such a risk of causing physical injury or (2) without having
given thought to the possibility of there being such a risk of causing physical
injury.20
The impetus for this development lay in Lord Roskills perception that
the elements of causing death by reckless driving and motor manslaughter
ought to be identical.
In Seymour, for example, Lord Roskill concluded (at 508) that:
Where manslaughter is charged and the circumstances are that the
victim was killed as a result of the reckless driving of the defendant
on a public highway, the trial judge should give the jury the direction
suggested in Lawrence but it is appropriate also to point out that in
order to constitute the offence of manslaughter the risk of death being
caused by the manner of the defendants driving must be very high
[emphasis added].
20
See also Reid [1992] 1 WLR 793; discussed above, p. 146.
545
HOMICIDE
In Kong Cheuk-kwan ([1986] HKLR 648), on appeal to the Privy Council

from the Court of Appeal of Hong Kong, Lord Roskill took this further,
pressing for the recognition of Lawrence recklessness as a general basis of
liability in all manslaughter cases, not just those involving motor
manslaughter.
R v Kong Cheuk-kwan [1986] HKLR 648
Facts
Kong was the captain of a passenger hydrofoil, the Flying Goldfinch,
travelling between Macau and Hong Kong. Inexplicably, it collided on
a clear day with another passenger hydrofoil, the Flying Flamingo,
travelling from Hong Kong to Macau, causing the death of two
passengers on the Flamingo. K and the first mate on look-out duty on
the Goldfinch and the two officers at the helm and on look-out duty on
the Flamingo were all charged with manslaughter. There was evidence
that the hydrofoils could be brought almost instantly to a halt simply
by turning off the engines, thereby causing them to drop onto their
hulls in the sea. Of the four, only K was convicted. The prosecution
framed its case on the basis that K and the others had been grossly
negligent in their navigation of the two hydrofoils, but the trial judge,
on counsels prompting, followed Archbold (forty-first edition, but also
reproduced in forty-second edition) and gave to the jury both a gross
negligence direction and a Lawrence direction. K appealed on the
ground that there had been a misdirection.
The Hong Kong Court of Appeal ([1984] HKLR 163) accepted that
the trial judge had not followed the model directions approved in
Lawrence and Seymour, but also held that his inclusion of a reference
to gross negligence did not in the circumstances vitiate the conviction.
K appealed to the Privy Council.
Decision
Appeal allowed. Ks conviction was quashed. There had been a
fundamental misdirection. Lord Roskill, giving the advice of the Privy
Council, criticized the passage in Archbold relied on by the trial judge.21
Referring to Jennings and Seymour, and observing that the present state
of the relevant law in England and Wales and thus in Hong Kong is
clear, he concluded (at 655) that a direction similar to that in Lawrence
and Seymour should have been given in this case, even though this
21
For a more recent case suffering from the same defect, see Wong Kui-wai v WBG Banks
(1993) MP No. 3476 of 1992.
546
case was not as such concerned with death by reckless driving or motor
manslaughter:
In principle their Lordships see no reason why a comparable
direction should not have been given in the present case as regards
that part of the case which concerned the alleged navigation of
the Flying Goldfinch by Kong and indeed as regards the alleged
navigation of the Flying Flamingo by the other two defendants.
Did their respective acts of navigation create an obvious and
serious risk of causing physical damage to some other ship and
thus to other persons who might have been travelling in the area
of the collision at the material time? If so did any of the defendants
by their respective acts of navigation so navigate either without
having given any thought to the possibility of that risk, or, while
recognising that the risk existed, take that risk?
Responding to queries about his reference in Seymour to a very high

degree of the risk of death, which ostensibly differed significantly from
the risk of causing physical harm stipulated in Lawrence itself, Lord
Roskill stated (at 6545) that his intention was:
... not to alter the pre-existing law as to manslaughter by
recklessness but only to point to those cases in which it still might
be thought appropriate to charge the common law rather than the
statutory offence [of causing death by reckless driving].
Such cases, he suggested, would be only the gravest cases.
Rejection of reckless manslaughter based on Lawrence

Lord Roskills intention that Lawrence recklessness should become the
second basis of liability at common law for manslaughter, to the exclusion
of gross negligence, was subsequently rejected by the House of Lords in
Adomako (above), in large part on the ground that the statutory offences of
reckless driving and causing death by reckless driving had been repealed.
Since Hong Kong, following England, has now also repealed these two
statutory offences, it seems inevitable that reckless manslaughter based on
a Lawrence direction is now also no longer part of the law of Hong Kong.
Manslaughter by subjective recklessness
A number of commentators (see, for example, Smith and Hogan, Criminal
Law, ninth edition, 1999, p. 377) have argued that subjective recklessness
may still constitute an alternative basis of liability at common law for
HOMICIDE
547
manslaughter. This would cover the case of the defendant who realizes or
foresees that his or her conduct is highly likely to cause serious bodily
harm; this state of mind is insufficient for murder but, it is said, should
suffice for manslaughter, regardless of whether his or her conduct in the
event is so bad in itself as to amount to gross negligence.
Reform of the Law of Murder and Manslaughter

It is perhaps surprising to find so much uncertainty in the law of murder
and manslaughter given its antiquity. One consequence of this has been a
constant judicial refrain over the last decade or so in favour of statutory
reform. This has been especially pronounced in relation to manslaughter.
In Scarlett ([1993] 4 All ER 629), for example, Beldam LJ in the English
Court of Appeal (at 638), referring to constructive manslaughter, expressed
the courts hope that serious consideration will now be given to
implementing proposals for a more modern and rational approach to the
law of manslaughter. Likewise, in Sulman, Prentice, Adomako and Holloway
([1994] QB 302), Lord Taylor of Gosforth CJ, speaking of the problems
associated with gross negligence manslaughter, noted the comments in
Scarlett and (at 339) prompted the English Law Commission to take the
opportunity to examine [the state of the law of manslaughter] as a matter
of urgency.
Reform proposals relating to murder and manslaughter have in fact
been considered on several occasions in England, including, in particular,
the Fourteenth Report of the Criminal Law Revision Committee (Cmnd 7844)
on offences against the person, and in 1996, the Law Commissions Report
on Involuntary Manslaughter (Law Com. No. 237). In the former report, the
Criminal Law Revision Committee proposed the codification of murder
and manslaughter, whereas in the latter, the Law Commission (UK)
proposed the abolition of the common law of involuntary manslaughter
and its replacement by two offences: reckless killing and killing by gross
carelessness.
There is an equally pressing need for reform in Hong Kong.
INFANTICIDE
Section 47C of the Offences Against the Person Ordinance provides:
548
Where a woman by any wilful act or omission causes the death of her
child being a child under the age of 12 months but at the time of the
act or omission the balance of her mind was disturbed by reason of
her not having fully recovered from the effect of giving birth to the
child or by reason of the effect of lactation consequent upon the birth
of the child, then, notwithstanding that the circumstances were such
that but for the provisions of this section the offence would have
amounted to murder, she shall be guilty of infanticide, and shall be
liable to be punished as if she were guilty of manslaughter.
Infanticide arises only where murder could otherwise be established

(would have amounted to murder)(i.e. the actus reus and mens rea of
murder must be proved), and only if the following two additional
requirements are established: (1) the victim must be a child aged under 12
months; and (2) the killer must be the childs mother, whose mind must
be disturbed either as a result of giving birth to that child (i.e. post-natal
depression) (but not any other) or as a result of breast-feeding (lactation)
that child (but not any other).22
If the mother is charged in the first instance with murder (e.g. Cheung
Ping-mui [1991] 1 HKC 302), she may nonetheless be convicted instead of
infanticide, provided that she raises the issue of infanticide by adducing
evidence that her mind was disturbed. Once infanticide is properly raised,
the prosecution must disprove infanticide beyond reasonable doubt if it
wishes to secure a conviction of murder.
If the child does not die, it appears that a charge of attempted infanticide
may lie, instead of attempted murder (Smith (KA) [1983] Crim LR 739).
CAUSING DEATH BY DANGEROUS DRIVING

Section 36 of the Road Traffic Ordinance (cap. 374) (as recently amended;
into effect on 1 July 2000) provides that a person who causes the death of
another person (including a passenger in the defendants own vehicle) by
22
Infanticide is based on the assumption that there is a direct relationship between the effects
of child-birth or breast-feeding, and killing. This has been doubted in recent years; see, for
example, Butler Committee, Report on Mentally Abnormal Offenders (UK: Cmnd 6244, 1975),
paras 19.2319.24. Compare Criminal Law Revision Committee (UK), Fourteenth Report:
Offences Against the Person (UK: Cmnd 7844).
HOMICIDE
549
driving a motor vehicle on a road dangerously commits an offence,

punishable on indictment by imprisonment for five years.
Dangerous driving is elaborated in section 36:
(4) A person is to be regarded as driving dangerously within the
meaning of subsection (1) if
(a) the way he drives falls far below what would be expected of
a competent and careful driver; and
(b) it would be obvious to a competent and careful driver that
driving in that way would be dangerous.
(5) A person is also to be regarded as driving dangerously within the
meaning of subsection (1) if it would be obvious to a competent
and careful driver that driving the motor vehicle concerned in its
current state would be dangerous.
(6) For the purposes of subsections (4) and (5), dangerous refers
to danger either of injury to any person or of serious damage to
property.
...
(8) In determining for the purposes of subsection (5) the state of the
motor vehicle, regard may be had to anything attached to or
carried on or in it and to the manner in which it is attached or
carried.
According to this, dangerous driving may be based firstly on the defendants

manner of driving (section 36(4)), by proving that:
(a) the way he drives falls far below what would be expected of a
competent and careful driver; and
(b) it would be obvious to a competent and careful driver that driving
in that way would be dangerous.
This requires the prosecution to prove both a significant departure from

acceptable standards falls far below the requisite standard this being
the actus reus of the offence when formulated in this way, and also that
this manner of driving created or involved an obvious risk of injury to
persons or serious damage to property, this being the requisite mens rea or
fault when formulated in this way. Both elements are primarily objective in
nature.
Secondly, it may be based on the state of the vehicle being driven by
the defendant (section 36(5)), upon proof that:
it would be obvious to a competent and careful driver that driving the
motor vehicle concerned in its current state would be dangerous.
550
In determining this, regard may be had to anything attached to or

carried on or in it and to the manner in which it is attached or carried
(section 36(8)), including, for example, driving an overloaded vehicle or
driving without properly securing the load (see Crossman [1986] RTR 49,
dealing with reckless driving). The question of whether the dangerous state
of the vehicle was obvious to a careful and competent driver depends on
whether the dangerous state could either be seen or realised at first glance
(R v Strong [1995] Crim LR 428 CA) (e.g. corrosion underneath vehicle
not obvious), or was particularly known to the driver (or perhaps to another
such as the owner, who procured the vehicle to be driven in that condition,
in which case that other may be liable even though the driver may be
acquitted; see R v Loukes [1996] 1 Cr App R 444 and R v Roberts and
George [1997] RTR 462).
Thirdly, and contrary to some early commentaries on the corresponding
English legislation, it seems that an allegation of dangerous driving may be
based on the condition of the driver, for example, where he or she was
intoxicated. This is not specifically provided for in section 36, but it was
part of the law of dangerous driving prior to its abolition and replacement
with reckless driving in 1972 (see R v McBride [1962] 2 QB 167; R v Thorpe
[1972] RTR 118). In R v Woodward [1995] RTR 138, the English Court of
Appeal reintroduced this notion as a basis for dangerous driving, holding
that the adverse effects of alcohol are relevant to whether the driver was
driving dangerously (see further Ash [1999] RTR 347; also Marison [1997]
RTR 457: diabetic driver who took the risk of suffering hypoglycaemic
episodes).
In determining the standard expected of a competent and careful
driver, or what would be obvious to such a driver, regard shall be had
(section 36(7)) to all the circumstances of the case, including:
(a) the nature, condition and use of the road concerned at the material
time;
(b) the amount of traffic which is actually on the road concerned at
the material time or which might reasonably be expected to be
on the road concerned at the material time; and
(c) the circumstances (including the physical condition of the
accused) of which the accused could be expected to be aware
and any circumstances (including the physical condition of the
accused) shown to have been within the knowledge of the accused.
Paragraph (c) introduces a slight element of subjectivity into what is

otherwise an objective test, insofar as a drivers actual knowledge of
HOMICIDE
551
circumstances making his or her driving dangerous may be used to establish

liability, even though these circumstances may not otherwise have been
obvious.
Death must be caused by the dangerous driving, requiring proof of
causation. Adopting earlier authority, it has been accepted this means the
dangerous driving must be a cause, but need not be the principal or even
a substantial cause, provided it is more than de minimis (R v Hennigan
(1971) 55 Cr App R 262, applied in R v Skelton [1995] Crim LR 635; R v
Kinsey [1996] Crim LR 35).
In addition to imprisonment and a fine, a person convicted of causing
death by dangerous driving must be disqualified from driving (unless the
court or magistrate for special reasons decides otherwise) for a minimum
of two years on first conviction (section 36(2)(a)) and three years for a
second or subsequent conviction (section 36(2)(b)).
11
Non-fatal Offences Against
the Person
INTRODUCTION
This chapter outlines a number of non-fatal, non-sexual offences against
the person. These offences are found in the Offences Against the Person
Ordinance (cap. 212) (OAPO), which is based on the Offences Against the
Person Act 1861 (UK) (OAP Act 1861), and include: common assault (i.e.
assault and battery, punishable with one years imprisonment (section 40
of OAPO)); assault occasioning actual bodily harm, punishable with three
years imprisonment (section 39 of OAPO); assaulting, resisting or wilfully
obstructing a police officer in execution of duty, punishable with two years
imprisonment (section 36(b) of OAPO); malicious wounding or inflicting
grievous bodily harm, punishable with three years imprisonment (section
19 of OAPO); and wounding or causing grievous bodily harm with intent,
punishable with life imprisonment (section 17(a) of OAPO). These offences
can be seen as a ladder of non-fatal offences, graded in terms of relative
seriousness (Ashworth, Principles of Criminal Law, third edition, 1999,
p. 321; referred to by Lord Steyn in R v Ireland, R v Burstow [1998] AC
147, at 153).
COMMON ASSAULT
Section 40 of OAPO (section 47 of the OAP Act 1861) provides:
554
Any person who is convicted of a common assault shall be guilty of an

offence triable either summarily or upon indictment and shall be liable
to imprisonment for one year [emphasis added].
Although this section refers to common assault, it actually encompasses

two separate offences at common law, namely assault and battery.1 Neither
assault nor battery is statutorily defined. According to the common law, an
assault is committed when D intentionally or recklessly causes another
person to apprehend the use of immediate and unlawful personal violence
(R v Savage, DPP v Parmenter [1992] 1 AC 699, at 740). A battery is
committed when D intentionally or recklessly inflicts unlawful personal
violence upon another person (Fagan v Metropolitan Police Commissioner
[1969] 1 QB 439). In Brown ([1994] 1 AC 212), Lord Templeman in the
House of Lords cited the following definition of assault and battery (set
out in the Fourteenth Report of the (UK) Criminal Law Revision Committee
on Offences Against the Person (1980, Cmnd 7844), para 158; adopted by
the (UK) Law Commission in 1992 (Law Com. No. 122)) with approval
(at 230):
At common law, an assault is an act by which a person intentionally
or recklessly causes another to apprehend immediate and unlawful
personal violence and a battery is an act by which a person intentionally
or recklessly inflicts personal violence upon another. ... [T]he term
assault is now, in both ordinary legal usage and in statutes, regularly
used to cover both assault and battery.
Battery is usually preceded by an assault for a victim usually apprehends

the infliction of personal violence before its actual infliction but this is
not always so (for example, the victim may be blind, or D may strike the
victim from behind).
The expressions assault and common assault are commonly used both
in statutory provisions and by judges to mean both assault and battery;
examples of this include section 39 of the OAPO (assault occasioning
actual bodily harm) and section 36(b) of the OAPO (assaulting a police
officer in the execution of duty).
Neither assault nor battery is an arrestable offence for the purposes of
section 101(2) of the Criminal Procedure Ordinance (cap. 221), since
A charge of common assault may therefore be duplicitous: Jones v Sherwood [1942] 1 KB

127.
NON-FATAL OFFENCES AGAINST THE PERSON
555
arrestable offence is defined in section 3 of the Interpretation and General

Clauses Ordinance (cap. 1) as an offence for which a person may be
sentenced to a term of imprisonment exceeding 12 months.
Until recently, assault and battery were generally treated as common
law offences. However, in England, it has been held that assault and battery
became statutory offences when they were codified in the OAP Act 1861,
and that a charge of assault or battery at common law is therefore defective
(DPP v Little [1992] 1 QB 645). Whether this is also the effect of the
reference to common assault in section 40 of OAPO has not yet been
tested in Hong Kong.
Assault
Actus reus
The defendant (D) must cause another person, the victim (V), to apprehend
the immediate application or infliction of unlawful personal violence on V.
Apprehension of personal violence
Personal violence includes the slightest degree of force, including a mere
touch, as Goff LJ observed in Collins v Wilcock ([1984] 1 WLR 1172, at
1177): It has long been established that any touching of another person,
however slight, may amount to a battery. It does not require any harm or
injury to occur beyond the touch itself. In Brown (Anthony) (above), Lord
Lowry explained this as follows (at 250):
The distinction between common assault and all other attacks on the
person is that common assault does not necessarily involve any
significant bodily injury.
However, not all cases of apprehension of a touch constitute an assault

(just as not all actual touches constitute battery) V must apprehend the
infliction of unlawful personal violence, and some touches, such as those
occurring in daily life, may not be unlawful for this purpose (below, p. 559).
The victim must apprehend; this involves proof of anticipation, but
not necessarily fear. Thus, a black belt martial arts instructor who realizes
he is about to be struck apprehends a blow, even though it may cause him
no fear. There must be actual apprehension. There is no assault if V knows
556
or believes that Ds conduct involves no actual threat to the victim, as

where D points a gun at V, which V believes to be unloaded (see Lamb
[1967] 2 QB 981).
Immediacy
The victim must apprehend the immediate infliction of unlawful personal
violence, not merely an immediate fear of violence in the future. It is
insufficient if Vs fear is of violence only at some distant time in the future.
Likewise, it is insufficient if it is apparent to V that D cannot immediately
inflict personal violence, e.g. D makes threatening gestures towards V while
passing by on a bus or while in police custody. However, immediacy has
increasingly been given a broad interpretation in the case law. In Smith v
Chief Superintendent, Woking Police Station ((1983) 76 Cr App R 234), for
example, immediacy was held to have been established when V, inside
her home, looked out her window and saw D standing in her garden looking
in at her. The English Divisional Court concluded (at 238):
In the present case D intended to frighten [the victim] who was
frightened ... [T]here is no need for a finding that what she was
frightened of, which [V] probably could not analyse at that moment,
was some ... terror of some potential violence. It was clearly a situation
where the basis of the fear which was instilled in [V] was that she did
not know what [D] was going to do next, but that, whatever he might
be going to do next, and sufficiently immediately for the purposes of the
offence, was something of a violent nature. In effect, as it seems to me,
it was wholly open to the justices to infer that her state of mind was
not only that of terror, which they did find, but terror of some immediate
violence [emphasis added].
In Constanza ([1997] 2 Cr App R 492), the English Court of Appeal

similarly rejected a submission that the victims fear of violence was
insufficiently immediate. In this case, D had harassed the female, V, with
repeated letters and (mostly silent) telephone calls, leaving V in a
psychiatrically depressed state (amounting to actual bodily harm; below,
p. 580), fearing that something could happen at any time. In affirming Ds
conviction of assault occasioning actual bodily harm, contrary to section
47 of the OAP Act 1861 (section 39 of OAPO), the court held (at 494) that
it was sufficient if V, as a result of Ds conduct, feared violence at some
time not excluding the immediate future. The court also held, as also did
the House of Lords in R v Ireland, R v Burstow (below), that an assault may
557
be committed even though V is not in the presence of D at the time of Ds

conduct.
By act or words
Presently, the law of criminal assault requires proof of an act (including a
gesture), although, as discussed below in relation to battery, there is some
recent authority supporting liability based on a failure to act in breach of
duty. Thus, raising ones arm as if to strike another could amount to an
assault, provided that it provokes V to apprehend immediate unlawful
violence.
Words alone I am going to break your legs may now amount to
an act for the purposes of assault. Traditionally, words were not sufficient
(Meade v Belt (1823) 1 Lew CC 184: no words or singing are equivalent to
an assault; followed in Hong Kong in Lam Leung-ping (1978) Cr App
No. 579 of 1977), though words accompanied by physical gestures or
physical activity could be an assault as where D demands payment from V
while rolling up his or her sleeves (Read v Coker (1853) 13 CB 850). Words
could also prevent liability where they indicate that D has no present
intention of carrying out some physical threat, as in Turberville v Savage
((1669) 1 Mod Rep 3), where D placed his hand on his sword and said, if
it were not assize-time [i.e. judges on circuit were in town], I would not
take such language from you; Ds words denied any present intention to
use force on the victim.
In R v Ireland, R v Burstow ([1998] AC 147), the House of Lords,
confronted with the significant social problem of the silent [telephone]
caller (i.e. a man repeatedly telephoning a female living alone and saying
nothing or breathing heavily, in a campaign of harassment), swept aside
this restriction. Lord Steyn concluded (at 162):
The proposition that a gesture may amount to an assault, but that
words can never suffice, is unrealistic and indefensible. A thing said
is also a thing done. There is no reason why something said should
be incapable of causing an apprehension of immediate personal
violence, e.g. a man accosting a woman in a dark alley saying, Come
with me or I will stab you. I would, therefore, reject the proposition
that an assault can never be committed by words.
Lord Hope, who agreed with Lord Steyns judgment and reasons, added
that assault is an ordinary English word which should be given its ordinary
meaning in the usage of the present day, concluding (at 166):
558
... [I]t is not true to say that mere words or gestures can never
constitute an assault. It all depends on the circumstances. If the words
or gestures are accompanied in their turn by gestures or by words
which thereafter cause immediate and unlawful violence, that will be
sufficient for an assault. The words or gestures must be seen in their
whole context.
The Law Lords went further, holding, in Ireland (the first of the two
consolidated cases on appeal), that silence saying nothing may even
in some circumstances amount to an assault. Ireland repeatedly telephoned
three female victims, often remaining silent when they answered. Making
such silent telephone calls could, the Lords held, amount to an assault for
the purposes of assault occasioning bodily harm. Lord Steyn (at 162)
explained why this should be so and what needs to be proved:
... [The silent caller] intends by his silence to cause fear and is so
understood. The victim is assailed by uncertainty about his intentions.
Fear may dominate her emotions, and it may be the fear that the
callers arrival at her door may be imminent. She may fear the possibility
of immediate personal violence. As a matter of law the caller may be
guilty of an assault; whether he is or not will depend on the
circumstances and in particular on the impact of the callers potentially
menacing call or calls on the victim [emphasis added].
Lord Hope likewise observed (at 166):

While he remained silent, there can be no doubt that he was
intentionally communicating with them as directly as if he was present
with them in the same room. But whereas for him merely to remain
silent with them in the same room, where they could see him and
assess his demeanour, would have been unlikely to give rise to any
feelings of apprehension on their part, his silence when using the
telephone in calls made to them repeatedly was an act of an entirely
different character. He was using his silence as a means of conveying
a message to his victims. This was that he knew who and where they
were, and that his purpose in making contact with them was as
malicious as it was deliberate. In my opinion, silent telephone calls of
this nature are just as capable as words or gestures, said or made in
the presence of the victim, of causing an apprehension of immediate
and unlawful violence.
It seems, therefore, that virtually any act anything done or anything

said can amount to an assault, provided the prosecution prove it induced
559
the victim to apprehend immediate and unlawful personal violence.

Immediacy thus operates as the central constraint on the scope of assault.
Whether this requirement of immediacy was actually satisfied on the facts
of Ireland was not, it should be emphasized, in issue, since Ireland had
pleaded guilty at trial.
This broad approach to assault is not without its critics. Glanville
Williams, for example, was of the view (Textbook of Criminal Law (second
edition) p. 176, London: Stevens & Son, 1983) that permitting assault to
cover this type of case would take it too far away from the common
understanding of the word, effectively turning assault into an offence about
mere threats, rather than conduct immediately preliminary to the
commission of a battery (see also commentaries on Constanza [1997] Crim
LR 576, Ireland [1997] Crim LR 434). This criticism is especially pertinent
in Hong Kong, given that the offence of criminal intimidation found in
section 24 of the Crimes Ordinance (cap. 200) (adopted from section 503
of the Indian Penal Code) already provides for criminal liability for
threatening any other person ... (a) with any injury to the person ... with
intent ... (i) to alarm the person so threatened or any other person ... (see
further Chan Chi Kwang (1978) Cr App No. 1144 of 1977; Chan Kai Hing
[1997] 3 HKC 575). However, this offence (punishable on summary
conviction to two years imprisonment and on conviction on indictment to
five years imprisonment (section 27 of the Crimes Ordinance)) requires
both a threat of injury and intent to alarm, and it is not at all clear that
these two elements can necessarily be implied merely from the making of
silent telephone calls.
Unlawful
In some circumstances, causing another to apprehend the immediate
infliction of personal violence will not amount to an assault, either because
it would be lawful (or at least not unlawful) to inflict personal violence
on V in such circumstances, or because it is lawful to cause such
apprehension. For example, V anticipates bodily contact with D who is
rushing to get onto a train, or a congratulatory slap on the back from D at a
social occasion, or bodily contact during a football game, or is scared by a
friend jumping out of the bushes late at night as a joke. In all these situations,
Vs apprehension arises out of ordinary daily events and, just as the actual
infliction of personal violence in such circumstances will not amount to a
battery, Ds act in causing Vs apprehension will not constitute an assault.
Alternatively, D might argue that any personal violence or force
560
anticipated by V would have been inflicted in the circumstances with Vs valid

consent, or in the lawful exercise of rights of self-defence or crime prevention,
or as a matter of necessity, or as a lawful means of disciplining and correcting
V. To convict D of assault, the prosecution must prove beyond reasonable
doubt that D was not entitled in the circumstances to inflict personal violence
of the type and degree apprehended (or not at all), or to cause Vs
apprehension; i.e. it must prove Ds conduct involved the infliction of
unlawful personal violence. This issue is discussed more fully below (p. 564).
Some authorities have suggested that Ds conduct has to be hostile in
nature (e.g. Wilson v Pringle [1987] QB 237, at 253; Collins v Wilcock
[1984] 1 WLR 1172, at 1177). This suggestion was considered by some of
the Law Lords in Brown (Anthony) ([1994] 1 AC 212), in considering
whether participants in consensual homosexual sado-masochistic acts
performed for sexual purposes thereby committed offences of assault
occasioning actual bodily harm (contrary to section 47 of OAP Act 1861;
Hong Kong: section 39 of OAPO) or wounding (contrary to section 20 of
the OAP Act 1861; Hong Kong: section 19 of OAPO). It was submitted
that the fact the acts were consensual negated criminal liability, since consent
negated unlawfulness which had to be proved by the prosecution;
alternatively, that hostility was an essential element of these offences, and
this did not exist where the defendants acts were consensual. This
alternative submission found some support among the majority of the Law
Lords. Lord Jauncey, for example, stated (at 244):
It was urged upon your Lordships that hostility on the part of the
inflicter was an essential ingredient of assault and that this ingredient
was necessarily lacking when injury was inflicted with the consent of
the receiver. ... The answer to this submission is to be found in the
judgment of the Court of Appeal in Wilson v Pringle ... where it was
said ... that hostility could not be equated with ill-will or malevolence.
The judgment went on to state:
Take the example of the police officer in Collins v Wilcock. She
touched the woman deliberately, but without an intention to
do more than restrain her temporarily. Nevertheless, she was
acting unlawfully and in that way was acting with hostility.
If the appellants activities in relation to the receivers were unlawful
they were also hostile and a necessary ingredient of assault was
present.2
2
Lord Lowry agreed with this; Brown (Anthony), at 254. However, see dissenting judgments:
Lord Mustill, at 261; Lord Slynn, at 280.
561
Read literally, this would seem to require proof of hostility as an essential

element of assault; but in reality, by equating proof of hostility to
unlawfulness, hostility adds nothing and has no independent meaning
(see further, commentary on Brown [1993] Crim LR 582, at 585).
Mens rea
The mens rea of assault is intention to cause the victim to apprehend
immediate unlawful personal violence, or recklessness as to whether the
victim might suffer such apprehension (Venna [1967] QB 421). For a while,
it was uncertain whether recklessness here meant Cunningham recklessness
(i.e. actual foresight of the relevant risk) (Spratt [1990] 1 WLR 1073; Nash
[1991] Crim LR 769) or Caldwell recklessness (i.e. foresight of or failure
even to consider the possibility of risk) (DPP v K (a minor) [1990] 1 WLR
1067), but this was settled in R v Savage, DPP v Parmenter, above, where
the House of Lords confirmed that recklessness for the purposes of offences
against the person, including assault and battery, means Cunningham
recklessness.
Since personal violence does not require the victim to suffer any actual
harm or injury, there is no need to prove D intended to cause harm or
injury.
D must intend to cause or be reckless as to causing apprehension of
unlawful personal violence. This was accepted by the English Court of
Appeal in (Williams (Gladstone) ([1987] 3 All ER 411), and requires proof
that D either knew he or she was not entitled in the circumstances to
inflict force (or the degree of force to be used) on the victim, or at least
actually foresaw that using such force might not be lawful in the
circumstances.
Consequently, if D honestly, but mistakenly, believes the factual
circumstances are such that D would be entitled to inflict force on the
victim (e.g. in self-defence, or in lawful correction, or because the victim
has consented, etc.), then even if Ds belief may be unreasonable, D is not
liable for assault. The prosecution will not be able to prove beyond
reasonable doubt Ds intention to use or recklessness as to using unlawful
force. If Ds mistaken belief was unreasonable in the circumstances, then
the prosecution may seek to assert that D never actually held any such
mistaken belief (see mistake, Chapter 4, p. 164) (see also Richardson [1999]
Crim LR 494: intoxicated mistaken belief in consent).
If, as has been discussed above, hostility appears to mean nothing
more than unlawfulness, then there ought to be no additional requirement
562
that D had a hostile state of mind towards the victim. Thus, if D attempts
to kiss a stranger, this may constitute an assault if it induces V to apprehend
the infliction of immediate and unlawful personal violence on her, even
though D may profess to have nothing but affection towards V (if D has
an indecent intention, then Ds conduct may amount to an indecent assault;
see Chapter 12, p. 622). On the other hand, if D mistakenly believes V is
his girlfriend and that she would consent, then this will not amount to an
assault since D neither intends to cause nor recklessly causes the
apprehension by V of the infliction of unlawful personal violence; in Ds
mind, he intends only to act with consent, i.e. lawfully.
However, in Wilson (Alan) ([1997] QB 47) (discussed below), where
Ds entitlement to rely on actual consent as a defence to a charge of assault
occasioning actual bodily harm was in issue, the English Court of Appeal
referred to the fact that Ds act branding his initials with a hot knife on
his wifes buttocks with her consent was done without any aggressive
intent. This feature was used to distinguish Ws deliberate consensual
infliction of actual bodily harm on his wife from the acts of the defendants
in Donovan ([1934] 2 KB 498) and Brown (Anthony) (above), where the
victims consent was held to be invalid on grounds of public policy (below,
p. 570).
For the purposes of the law relating to intoxication, assault is a basic
intent offence.
Battery
Actus reus
Infliction
The actus reus of battery is the infliction of unlawful personal violence
upon another person. As discussed above, personal violence includes the
slightest application of force, even a mere touch. There is no need for
actual physical or bodily contact between D and the victim. D may be said
to inflict personal violence, for example, if D throws a stone which hits
the victim, or if D sets a dog upon the victim (Plunkett v Matchell [1958]
Crim LR 252) or, as in DPP v K (a minor) (below), if acid left by D in a hot
air dryer is blown onto Vs face as a result of Vs own act in pressing a
button, or if D causes a person holding a baby to drop the baby (Haystead
v Chief Constable of Derbyshire [2000] Crim LR 758). For the purposes of
563
battery, personal violence includes force applied not only to the victims
body, but also to the victims clothing.
By act or omission?
Like assault, it is generally thought that battery requires an act and that a
mere omission will not suffice. This follows from the assumption that there
is no general duty under the criminal law to prevent harm to others and
that a failure to prevent the infliction of personal violence is, therefore,
only a mere omission and not a breach of duty to act. In Fagan v
Metropolitan Police Commissioner ([1969] 1 QB 439), the prosecution argued
that F ought to be under a duty to act where he had (unintentionally)
driven his car onto a police officers foot, but this submission was rejected
by the minority judge and left undecided by the majority, who interpreted
Fs conduct in refusing to move his car as a continuing act. DPP v K (a
Minor) ([1990] 1 WLR 1067) might suggest there is scope for battery by
omission. In this case, K, a schoolboy was convicted of assault occasioning
actual bodily harm, contrary to section 47 of the OAP Act 1861 (section 39
of OAPO), after he poured a tube of acid, previously removed by him from
a chemistry class, into a washroom hot air dryer to conceal it, intending to
remove it later. Before he could do so, another boy used the dryer and
suffered actual bodily harm when the acid was blown onto his face. It is
arguable that Ks liability in this case rested not on his act of pouring the
acid into the dryer, but instead on his subsequent failure to rectify the
danger created by him, in breach of a Miller type duty (Miller [1983] 2
AC 161; above, Chapter 3, p. 78).
Unlike assault, it seems that battery cannot be committed by mere
words (or gestures). For example, if D threatens V, thereby committing an
assault, and V, in fear, jumps from a first-floor window, sustaining injuries
in the fall, this may be prosecuted as an assault occasioning actual bodily
harm, but not, it seems, as a battery. In Ireland, Burstow, Lord Steyn also
rejected a submission that a silent caller whose repeated calls caused
psychiatric injury to his victim (which may amount to bodily harm; see
below) might be said to commit battery: it is not feasible, he said (at 161),
to enlarge the generally accepted legal meaning of what is a battery to
include the circumstances of a silent caller who causes psychiatric injury.
Unlawful
Battery, like assault, requires the personal violence to be unlawfully
564
inflicted. Unlawfulness is discussed more fully below. As with assault,

there is also authority that Ds conduct must be hostile in nature, but this,
as already discussed, appears to require nothing more than unlawfulness.
Mens rea
The mens rea of battery is intention to inflict unlawful personal violence,
or Cunningham recklessness, i.e. Ds actual foresight that personal violence
might be unlawfully inflicted by Ds conduct. As with assault, it is not
necessary to prove that D intended to harm or injure the victim, nor, unless
required by the decision of the English Court of Appeal in Wilson (Alan)
mentioned above, is it necessary to prove that D had a hostile state of
mind towards the victim except in the sense that D intended to inflict or
recklessly inflicted unlawful personal violence. If D honestly, but
mistakenly, believes the factual circumstances are such that he or she would
be entitled (if the belief were true) to inflict personal violence, then battery
is not committed, unless the prosecution proves that even on Ds mistaken
view of the facts, the infliction of force would be unlawful, e.g. because
even if V had consented as D believed, public policy would deny D the
right to rely on consent.
For the purposes of the law relating to intoxication, battery is a basic
intent offence.
Unlawfulness
In certain circumstances, a person is legally entitled to use force, even a
considerable degree of force, against another person. Where this is so, then
Ds conduct will not amount to an assault or battery. The principal
circumstances that D may rely on in this way involve the infliction of force:
1. during the ordinary contact of daily life;
2. with the consent, express or implied, of the victim;
3. in circumstances of necessity;
4. by way of lawful correction; and
5. in self-defence and crime prevention.
It is not entirely clear whether such circumstances ought to be viewed
as defences, or as simply negating the element of unlawfulness that the
prosecution must specifically prove. The practical distinction between the
two lies in the question of proof. On the first approach, the prosecution
565
need only prove that D caused apprehension of immediate personal violence

(in the case of assault) or actually inflicted personal violence (in the case
of battery), including even the slightest touch, to establish a prima facie
case of assault or battery. It would then be for D to tender evidence
suggesting that the infliction of force was, in the circumstances, lawful.
On the second approach, assault or battery will be prima facie
established only if the prosecution also proves that the personal violence
apprehended or inflicted would be or was inflicted other than in
circumstances entitling D to apply such force, i.e. not ordinary contact of
daily life, not consented to, etc.
It may be that the answer to this question differs according to the
particular circumstance relied on. Thus, self-defence, crime prevention,
necessity and lawful correction may be treated as defences, and therefore
do not have to be disproved in every case in order to establish a prima
facie case of assault or battery. Such proof would only be necessary if there
is evidence raising the particular issue.
Consent is more contentious. It was recently considered at length by
the House of Lords in Brown (Anthony) ([1994] 1 AC 212). As already
mentioned, the defendants in this case were variously convicted on a number
of counts of assault occasioning actual bodily harm, contrary to section 47
of the OAP Act 1861 (section 39 of OAPO), and maliciously wounding
and inflicting grievous bodily harm, contrary to section 20 of the OAP Act
1861 (section 19 of OAPO), arising out of what were said to be consensual
male homosexual sado-masochistic activities. The question of law considered
by the House of Lords concerned the necessity of proving that Ds acts
were done without consent:
Where A wounds or assaults B occasioning him actual bodily harm in
the course of a sado-masochistic encounter, does the prosecution have
to prove lack of consent on the part of B before they can establish As
guilt under section 20 or section 47 of the Offences Against the Person
Act 1861?
In answering no to this question, the majority went on to suggest that

consent is in the nature of a defence to assault and battery. Lord Jauncey,
with whom Lord Lowry agreed, commented (at 2467):
There was argument as to whether lack of consent was a necessary
ingredient of the offence of assault or consent, where available, was
merely a defence. There are conflicting dicta as to its effect. In R v
Coney (1882) 8 QBD 534 Stephen J referred to consent as being
566
no defence, whereas in A-Gs Reference (No. 6 of 1980) [1981] QB

715, Lord Lane CJ referred to the onus being on the prosecution to
negative consent. In Collins v Wilcock [1984] 1 WLR 1172, 1177,
Robert Goff LJ referred to consent being a defence to a battery. If it
were necessary, which it is not, in the appeal to decide which argument
was correct I would hold that consent could be a defence to assault
but that lack of consent was not a necessary ingredient in assault
[emphasis added].
Lord Lowry himself added (at 250): That consent is a defence to a charge
of common assault is a common law doctrine which the Act of 1861 has
done nothing to change.
It is unclear whether this view also applies to the first category of
circumstance rendering Ds infliction of personal violence lawful, i.e. the
ordinary contact of daily life. As discussed below, some authorities treat
this as a simple exception in its own right, others as a matter of implied
consent, and others still as an aspect of hostility discussed above.
Ordinary contact of daily life
In daily life, there are many occasions when bodily contact, in varying
degrees, occurs, e.g. entering a lift or the MTR (the mass transit railway),
alighting a bus or an escalator, walking down a busy street or through a
crowded shopping centre. Such contacts, or, equally, causing the
apprehension of such contacts, do not necessarily amount to battery or
assault. This has been explained on several bases. One view, noted by Robert
Goff LJ in Collins v Wilcock ([1984] 1 WLR 1172, at 1177), rests on implied
consent:
most of the physical contacts of ordinary life are not actionable because
they are impliedly consented to by all who move in society and so
expose themselves to the risk of bodily contact.
Another view is that bodily contact in such circumstances does not contain
the element of hostility that is said in some authorities to be necessary in
order to establish assault or battery (this was the preferred explanation in
Wilson v Pringle [1987] QB 237). A third view is that this is simply a
broad, common sense exception to the general rule that any touching may
amount to a battery. This was the preferred view of Goff LJ in Collins v
Wilcock (at 1177):
567
But, apart from [the] special instances where the control or constraint
is lawful [e.g. lawful correction, self-defence], a broader exception
has been created to allow for the exigencies of everyday life. ... So
nobody can complain of the jostling which is inevitable from his
presence in, for example, a supermarket, an underground station or a
busy street; nor can a person who attends a party complain if his
hand is seized in friendship, or even if his back is, within reason,
slapped ... Although such cases are regarded as examples of implied
consent, it is more common nowadays to treat them as falling within
a general exception embracing all physical contact which is generally
acceptable in the ordinary conduct of daily life.
The degree of physical contact generally acceptable in the ordinary

conduct of daily life is relatively low. This has most commonly been
considered in the context of assaults against police officers acting in
due execution of duty, contrary, for example, to section 36(b) of OAPO
(discussed below, p. 582), where D asserts that he used force on a police
officer only to defend himself against an unlawful use of force by the
police officer; if unlawful, then the police officer would not have been
acting in due execution of duty. In Collins v Wilcock, for example, a
policewoman seized a woman suspected of being a prostitute on the
arm in order to question her. The woman (who had not been arrested)
scratched the policewoman in an attempt to escape from her grip. It
was held that the policewoman had both exceeded her lawful authority
to use force as a police officer, and also used force beyond that justifiable
as the ordinary contact of daily life; her action was therefore unlawful,
i.e. a battery. Ds use of force in response was therefore lawful, as the
exercise of a right to use force in self-defence (at common law) or in
the prevention of crime (the battery being committed by the police officer)
(Hong Kong: pursuant to section 101A(1) of the Criminal Procedure
Ordinance).
This is consistent with earlier cases holding that repeated or persistent
contact by a police officer on a citizen may be outside the limits of acceptable
ordinary contact (e.g. Kenlin v Gardner [1967] 2 QB 510; Pedro v Diss
[1981] 2 All ER 59; see also Kerr v DPP [1995] Crim LR 394). In contrast,
in Donnelly v Jackman ([1970] 1 WLR 562), the court concluded that merely
touching the defendants shoulder to attract attention was generally
acceptable. In Mepstead v DPP ([1996] Crim LR 111), the court more
recently concluded that it may be acceptable for a police officer to take
hold of a persons arm not to detain or arrest him or her, but to draw the
persons attention to the content of what was being said to him or her,
568
provided that this contact lasted no longer than could reasonably be said
to be necessary for the purpose of attracting that persons atttention.
In Collins v Wilcock, above, Goff LJ emphasized (at 1178) that the
question is ultimately one of fact:
We do not say that more than one touch is never permitted ... In each
case the test must be whether the physical contact so persisted in has
in the circumstances gone beyond generally acceptable standards of
conduct; and the answer to that question will depend on the facts of
the particular case.
Consent 3
Victims sometimes consent, expressly or impliedly, to violence or harm
being done to them. In some cases, this consent may be relied on by the
party inflicting the violence or harm to avoid liability for an offence against
the person, whether it be assault and battery, or, exceptionally, more serious
offences against the person, including assault occasioning actual bodily
harm, contrary to section 39 of OAPO (section 47 of the OAP Act 1861),
and wounding or inflicting grievous bodily harm, contrary to section 19 of
OAPO (section 20 of the OAP Act 1861).
However, there are several important limitations on Ds entitlement to
rely on consent in this way. These limitations can be grouped under the
headings: (1) invalidity, (2) duress and fraud, and (3) public policy.
Invalidity
Consent may be held to be invalid and therefore cannot be relied on if:
(1) the party giving consent lacks the mental capacity to understand or
know the nature of the act that he or she is purportedly consenting to
(Howard [1965] 3 All ER 684);
(2) the victim is too young to comprehend or appreciate the nature of the
act that he or she is purportedly consenting to.
3
The UK Law Commission has published two consultation papers: Consent and Offences
Against the Person (Law Com. No. 134) (1994); Consent in the Criminal Law: A Consultation
Paper (Law Com. No. 139) (1995) recommending statutory codification of this area of the
criminal law. For commentary, see R. Leng, Consent and Offences Against the Person:
Law Commission Consultation Paper No. 134 [1994] Crim LR 480; S. Shute, The Second
Law Commission Paper on Consent (1) Something Old, Something New, Something
Borrowed: Three Aspects of the Project [1996] Crim LR 684; D. C. Ormerod and M. J.
Gunn, (2) Consent A Second Bash [1996] Crim LR 694.
569
In Burrell v Harmer ([1967] Crim LR 169), for example, a tattooist

was convicted of assault occasioning actual bodily harm, when the arms of
two boys, aged 12 and 13, tattooed by him became painful and inflamed.
Their purported consent was held to be invalid and therefore could not be
relied upon by the tattooist as a defence.
Duress and fraud
Consent procured by threats or fear may not be relied on to avoid liability
for an offence against the person.
Consent obtained by fraud or deception will be invalid only if the
fraud or deception related to the nature of Ds act or to Ds identity. Prima
facie, a deception relating only to the circumstances in which Ds act is to
take place or to the quality of the act will not negate the victims consent.
This was accepted in Clarence ((1888) 22 QBD 23) where D concealed
from his wife the fact that he was suffering from a sexually transmitted
disease. It was held that Ds concealment of this fact did not vitiate her
consent to sexual intercourse or the bodily contact thereby occurring;4 it
was merely a circumstance relevant to the occurrence of the act of sexual
intercourse. Similarly, in Bolduc v Bird ((1967) 63 DLR (2d) 82), the
Supreme Court of Canada held that a doctor did not commit (indecent)
assault on a female patient by performing a gynaecological examination in
the presence of another male, despite his having earlier obtained her consent
by misrepresenting that the other male was a medical intern. Her consent
was not vitiated by this deception, as it related only to the circumstances
in which the examination was to occur, not to the nature of the act itself.
More recently, in Richardson ([1999] QB 444), the English Court of
Appeal held that a dentist who had been suspended from practice did not
commit assault occasioning actual bodily harm on her patients by continuing
her practice. In the courts view, her patients consent to dental work was
not vitiated by Rs deception as to her current practising status; any such
deception, it was concluded, related merely to her qualifications or attributes,
not to her identity or to the nature of the act. This may be compared with
Tabassum ([2000] Crim LR 686) where the court held that a difference in
the nature and quality of the act medical versus non-medical
examination was sufficient to vitiate the purported consent of several
female victims who allowed T to conduct a breast examination in the belief
4
Consent was at that time deemed by virtue of being a wife. See now R v R [1992] AC 599
(discussed below, Chapter 12).
570
he was medically qualified (see also Lau Chun Hon [1995] 2 HKC 599:
sham medical examination).
Public policy
Public policy has a significant role to play in limiting Ds entitlement to
rely on consent ostensibly given by V.
Limitations Firstly, a person can never validly consent to his or her own
death at the hands of another, so as to negate the liability of that person
should death occur (Young (1838) 8 C & P 644; Cuddy (1843) 1 Car & Kir
210); intentionally killing another, even with their consent, prima facie
constitutes murder.
Secondly, although a victim may consent to the infliction of personal
violence so as to prevent liability for simple assault and battery, his or her
consent to Ds infliction of actual bodily harm on him or her cannot generally
be relied on in this way by D, unless the consent relates to an activity
falling within one or more exceptions recognized at common law. This is a
matter of public policy. In A-Gs Reference (No. 6 of 1980) ([1981] QB
715), Lord Lane CJ in the English Court of Appeal laid down (at 719) the
general principle in the following terms:
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 ... it is
immaterial whether the act occurs in private or in public; it is an
assault if actual bodily harm is intended and/or caused.
This principle was reaffirmed by a majority of the Law Lords in Brown

(Anthony), below, which now stands as the leading authority. According to
this, consent will be (prima facie) irrelevant if D either intended to cause
actual bodily harm (or greater) (as in A-Gs Reference (No. 6 of 1980), where
the parties engaged in a fist fight to settle a dispute), or if actual bodily
harm is caused, unless the activity resulting in the infliction of bodily harm
falls within one or more categories of exception (for good reason).
R v Brown (Anthony) [1994] 1 AC 212
Facts
Brown and the other defendants belonged to a group of homosexual
male sado-masochists, who willingly and enthusiastically participated
in the commission of acts of violence against each other for the sexual
571
pleasure such acts engendered in the giving and receiving of pain.

Their activities, carried on in private over many years, included genital
torture and violence to the buttocks, anus, penis, testicles and nipples
of the victims; for example, items such as fish-hooks and nails were
inserted into a willing victims penis. When videotapes of these
activities fell into the hands of the police, Brown and the others were
variously charged with malicious wounding and inflicting grievous
bodily harm, contrary to section 20 of the OAP Act 1861 (section 19 of
OAPO), and assault occasioning actual bodily harm, contrary to section
47 of the OAP Act 1861 (section 39 of OAPO).
B and the others submitted that although their acts involved the
intentional infliction of actual bodily harm and in some instances
wounding and grievous bodily harm, the acts took place in private,
were sexual in nature and undertaken for pleasure, and were carried
out with considerable attention to the health and safety of the participants
(so there would be no lasting or permanent injuries). It was submitted
that the threshold at which consent could no longer be relied on should
be higher than actual bodily harm, with the consequence that the
participants consent in this case could be relied on to negate liability
for the commission of the various offences charged, or that the activities
properly fell within a category of exception under which their consent
amounted to a defence to the charges.
Decision
Appeal dismissed, by a 32 majority (with strong dissents by Lords
Mustill and Slynn). Convictions affirmed.
In the opinion of the majority, where, as here, actual bodily harm
(and greater) was intentionally inflicted, then the victims purported
consent is prima facie irrelevant: it neither negates liability nor amounts
to a defence to the charges under sections 20 and 47 of the OAP Act
1861. Furthermore, there were no good reasons in the public interest
for recognizing consent in this case: the satisfying of sado-masochistic
desires did not fall within any recognized exception to the general
rule, nor would it be recognized as a new or further exception. Lord
Templeman observed (at 234):
... [T]he authorities dealing with the intentional infliction of bodily
harm do not establish that consent is a defence to a charge under
the Act of 1861. They establish that the courts have accepted that
consent is a defence to the infliction of bodily harm in the course
of some lawful activities. The question is whether the defence
should be extended to the infliction of bodily harm in the course
of sado-masochistic encounters.
572
This, he emphasized, could be decided only by consideration of policy

and public interest. Rejecting the submission that the activities here
were sexual in nature and that the injuries were simply incidental to
that, he concluded (at 236):
In principle, there is a difference between violence which is
incidental and violence which is inflicted for the indulgence of
cruelty. The violence of sado-masochistic encounters involves the
indulgence of cruelty by sadists and the degradation of victims.
Such violence is injurious to the participants and unpredictably
dangerous. I am not prepared to invent a defence of consent to
sado-masochistic encounters which breed and glorify cruelty and
result in offences under sections 47 and 20 of the Act of 1861.
For good measure, he added (at 237):

Society is entitled and bound to protect itself against a cult of
violence. Pleasure derived from the infliction of pain is an evil
thing. Cruelty is uncivilised.
Lord Jauncey likewise concluded (at 244):

The line properly falls to be drawn between assault at common
law and the offence of assault occasioning actual bodily harm ...
with the result that consent of the victim is no answer to anyone
charged with the latter offence or with a contravention of section
20 [of the OAP Act 1861] unless the circumstances fall within
one of the well known exceptions ... .
On the question of whether an exception should be recognized in this

case, there was, he said (at 246):
... no doubt that it would not be in the public interest that
deliberate infliction of actual bodily harm during the course of
homosexual sado-masochistic activities should be held to be
lawful.
Lord Lowry concluded (at 254) that the correct principle was stated in
A-Gs Reference (No. 6 of 1980) and there was no good reason for
adding sado-masochistic acts to the recognized list of exceptions.
Lords Mustill and Slynn in their dissenting opinions took the position
it was both impossible to discern any general theory of consensual
violence in the case law, and inappropriate to extend sections 47 and
20 of the OAP Act 1861 to cover consensual, sexually motivated
activities conducted in private.
573
Several issues remain contentious after Brown (Anthony). The first is

whether the victims consent is to be treated as irrelevant simply because
Ds conduct causes actual bodily harm, regardless of whether D intended or
even foresaw actual bodily harm. The principle laid down and affirmed in
A-Gs Reference (No. 6 of 1980) and Brown (Anthony) adopts this position,
but in both cases (as also, for example, in Donovan [1934] 2 KB 498),
actual bodily harm was intentionally inflicted; and two decisions of the
English courts concerning injuries inflicted during consensual heterosexualsexual activity (Boyea [1992] Crim LR 574; Slingsby [1995] Crim LR 570)
reached opposite conclusions.
The second arises out of the Lords characterization of the sadomasochistic activities of the defendants in Brown (Anthony) as torture and
cruelty, rather than as an eccentric or perverse form of sexuality.5 This has
been subsequently used by the English Court of Appeal to distinguish Brown.
In Wilson (Alan) ([1997] QB 47), D used a hot knife to brand his initials
on his wifes buttocks, apparently at her request. When her injuries came
to light, D was charged with assault occasioning actual bodily harm, contrary
to section 47 of the OAP Act 1861 (section 39 of OAPO). At trial, his
defence of consent was rejected, with the trial judge ruling he was bound
by Donovan and Brown (Anthony) to disregard consent where, as here, actual
bodily harm was intentionally inflicted. The Court of Appeal quashed Ds
conviction. In the opinion of Russell LJ (at 50), there was no factual
comparison to be made between the instant case and the facts of either
Donovan ... or Brown.
Unlike Brown, where there was, according to Russell LJ (at 50), sadomasochism of the grossest kind, involving inter alia, physical torture, in
Wilson, there was
no aggressive intent on [Ds] part. On the contrary, far from wishing
to cause injury to his wife, [Ds] desire was to assist her in what she
regarded as the acquisition of a desirable piece of personal adornment,
perhaps in this day and age no less understandable than the piercing
of nostrils or even tongues for the purposes of inserting decorative
jewellery.
Ds act, suggested Russell LJ (at 50), was analogous to tattooing, one of the
recognized consensual exceptions to the general prohibition affirmed in
See further, N. Bamforth, Sado-Masochism and Consent [1994] Crim LR 661.
574
Brown (Anthony). In Russell LJs view, neither public policy nor the public
interest demanded the criminalization of Ds act. Instead (at 50):
Consensual activity between husband and wife, in the privacy of the
matrimonial home, is not, in our judgment, normally a proper matter
for criminal investigation, let alone criminal prosecution.
The application of Wilson (Alan) remains unclear. One view is that it

simply recognizes an enlarged exception of tattooing and other forms of
personal adornment. This was the view taken by the Court of Appeal in
Hong Kong in Yuen Chong (below). However, another view is that it
recognizes a much broader exception for consensual harm done in private
between adults, much along the lines of the minority Lords in Brown
(Anthony). Of course, Wilson can be restricted to married couples, but it is
difficult to see why their consensual acts in private are deserving of any
greater protection than those of any other couple. This exception would
not, however, apply to acts of physical torture, consensual or not.
Exceptions In A-Gs Reference (No. 6 of 1980), Lord Lane CJ went on to
emphasize (at 719):
Nothing which we have said is intended to cast doubt on the accepted
legality of properly conducted games and sports, lawful chastisement
or correction, reasonable surgical interference, dangerous exhibitions,
etc. 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.
The ambit and scope of each of these exceptions was broadly discussed by
the House of Lords in Brown (Anthony). If Ds use of force occurs in
circumstances falling within one or more of these exceptions, then D will
be entitled to rely upon the victims expressed or implied consent as a
defence to the infliction of actual, or even in some cases grievous, bodily
harm.
Properly conducted games and sports Persons participating in games and
sporting activities expressly or impliedly consent to the normal physical
contact incidental to carrying out such activities.6 This consent may provide
See further, S Gardner, The Law and the Sports Field [1994] Crim LR 513.
575
D with a defence. That is, consent may be relied on as a defence by a

footballer who unintentionally breaks another players leg or nose in a tackle,
or a Thai boxer who breaks an opponents rib during a lawfully conducted
match. These activities are viewed as socially approved, and the participants
consent may be relied upon even though actual bodily harm or worse is
suffered, provided that D does not intentionally break the rules with a
view to causing such harm (Billinghurst [1978] Crim LR 553).
However, this exception only applies to properly conducted games
and sports; not all activities of a sporting nature fall within this exception.
For example, it has been held that a prize fight (i.e. a bare-fist fight to
submission) does not fall within this exception (Coney (1882) 8 QBD 534).
Similarly, in A-Gs Reference (No. 6 of 1980) itself, consent was not a valid
defence to charges of assault laid against two men who agreed to settle
their differences by a fist fight.
Rough and undisciplined play This category covers boisterous, unregulated
physical activities. It is illustrated by Jones (Terence) ((1986) 83 Cr App R
375), in which two boys suffered respectively a ruptured spleen and a broken
arm when they were tossed into the air by the defendants during activities
at a youth club. It was held that so long as the defendants did not intend
their activities to cause such injuries, their belief the victims were consenting
to such rough and undisciplined play was a defence to assault or battery
charges (see also Aitken [1992] 1 WLR 1006; Richardson and Irwin [1999]
Crim LR 494).
These first two categories of exception have been recognized and applied
in Hong Kong.
R v Erisman [1988] 1 HKLR 370
Facts
Erisman, aged 16, engaged in war games with three younger boys, in
which each of them, armed with a toy gun capable of shooting pellets,
tried to shoot members of the opposing team. A pellet fired from Es
gun hit one of the other boys in his right eye causing injury. At trial,
the magistrate rejected Es submission that the injury was suffered during
rough and undisciplined play, and convicted E of assault occasioning
actual bodily harm, contrary to section 39 of the OAPO. E appealed.
Decision
Appeal allowed. Conviction quashed.
Referring to the guidelines laid down in A-Gs Reference (No. 6 of
576
1980) and to Jones (Terence) (above), Roberts CJ concluded (at 3734)

that the magistrate had adopted too narrow a view of rough and
undisciplined play. In Roberts CJs view:
... [I]t would not be an offence if injury occurs during games,
such as rugby football, which are conducted on an organised
basis and carry a substantial degree of risk of injury; nor if a
person is injured when taking part in rough and undisciplined
games, such as an ad hoc football match, general scuffling and
pushing or playing of war-games of the kind with which we are
concerned in this case, provided always that: (a) the injured party
had consented to the game (or the defendant believed that he
had); and (b) the defendant did not intend to cause bodily harm.
He added (at 374):

I suggest that those responsible should not be over-zealous to
prosecute those who cause injuries in the course of rough and illdisciplined activities. It is indeed the nature of a normal boy to
take part in games and past-times which involve some degree of
risk of injury.
Reasonable surgical interference A person may consent to surgery and

the wounds or grievous bodily harm that this may entail (consent may
also be deemed where an emergency creates a need for action), provided
the surgery is for a purpose recognized by the law. This includes not only
life-saving operations but also surgery for therapeutic reasons (including,
it would seem, a sex-change operation; see Corbett v Corbett [1971] P 83),
provided that the perceived benefits of the surgery outweigh the risks
associated with it. However, this would not protect a surgeon who disabled
or disfigured another for the purpose of begging; this is not a valid
therapeutic purpose.
Cosmetic surgery appears generally to fall within this exception, unless
done for non-therapeutic reasons, such as to change the appearance of a
wanted criminal.
Physical adornment This category covers tattooing and other consensual
acts of body piercing done for the sake of personal adornment, as recognized
in Wilson (Alan), above. It is unclear, however, which parts of the body
this covers; presumably, the ears, nose, tongue, eyebrows, hips, even navel
are covered. What about the genitals? How is this to be distinguished, if at
all, from the dangerous acts of physical torture considered in Brown
(Anthony)?
577
Dangerous exhibitions, bravado and religious mortification In Brown

(Anthony), Lord Mustill (dissenting), for the sake of completeness (at 267),
included in a list of exceptions persons who agree to the infliction of harm,
or the risk of harm, as part of a dangerous exhibition, in a show of bravado
and by way of religious mortification. This last category, religious
mortification, was recently considered by the Court of Appeal in Hong
Kong in Yuen Chong ([1996] 3 HKC 205), concerning assault occasioning
actual bodily harm, contrary to section 39 of the OAPO. D, the master of a
sect of Taoists, arranged for V (who at one time had sought the sects
assistance in the administration of Chinese herbal medicine) to be beaten,
for alleged misconduct, five times with a rattan stick while kneeling before
an altar. V denied Ds assertion that he consented to the beating. Both the
trial judge and the Court of Appeal rejected Ds assertion that the beating
was a religious disciplinary rite and fell within an exception to the general
principle affirmed in Brown (Anthony) that consent is no defence to the
intentional infliction of actual bodily harm. Mayo JA, in the Court of Appeal,
observed that there was little evidence corporal punishment or physical
chastisement is an accepted form of punishment in the Taoist religion, and
did not consider that this type of activity should be excepted in the public
interest.
Categories not closed The categories of exception are not closed. However,
as Brown (Anthony), Wilson (Alan) and Yuen Chong all emphasize, public
policy plays a central role in determining whether new categories should
be recognized.
Necessity
In exceptional circumstances, D may be able to rely on necessity as a defence
to assault or battery. This has principally been recognized in relation to the
performance of medical procedures. For example, in In re F (mental patient:
sterilisation) ([1990] 2 AC 1), Lord Goff stated that acts which might
otherwise be unlawful as an assault or battery might be justified where,
inter alia, they were taken as a matter of necessity to assist another person
without his consent. Necessity may thus be relied on by a doctor who
provides emergency treatment which would otherwise amount to a battery,
provided the doctor does no more than is reasonably necessary in the best
interests of the patient. This exception may also be relied on to justify the
day-to-day medical care given to an unconscious or comatose patient, whose
consent obviously cannot be obtained.
578
In A-G v Chan Yuen Lung ([1989] 1 HKC 470), necessity was raised as
a defence to a charge of assault brought against the staff of an old peoples
home who repeatedly chained or otherwise restrained a mentally disturbed
inmate to his bed. At trial, the magistrate found that the force thereby
applied to the victim was just and necessary in the interests of the victim
and other inmates of the home. The Attorney General appealed by way of
case stated. Bewley J allowed the appeal. He held that although the common
law gave no right to institutions such as an old peoples home to manacle
its inmates, there was no statutory sanction on the imposition of such
physical restraint. Justification for this conduct might be found in the
principle of necessity. However, in his view, for this principle to apply, D
must show that (1) Ds conduct was done only to avoid consequences which,
if they had followed, would have inflicted inevitable and irreparable evil
upon D or upon others whom D was bound to protect; (2) no more was
done than was reasonably necessary for the purpose; and (3) the evil inflicted
was not disproportionate to the evil avoided. On the facts of the case, there
was, in Bewley Js view, no justification for chaining the victim night after
night on the basis of his behaviour in the past.
Necessity may not be used to justify a volitious intervention. Thus,
there may be an assault when medical treatment is provided contrary to
the known wishes of the assisted person, to the extent that he is capable of
rationally forming such a wish (see In re F, per Lord Goff).
Lawful correction
Parents and other persons in locus parentis have the legal right to discipline
or punish their children or those in their care, and may use a reasonable
degree of force in doing so provided the child is old enough to understand
the purpose of such punishment (Cleary v Booth [1893] 1 QB 465; Mackie
(1973) 57 Cr App R 453). This exception will not apply if D acts merely
out of anger or spite (Taylor (1983) Times LR 28 December), or other than
for the purposes of discipline. If D uses unreasonable force, then D may
still be liable (Smith (David George) [1985] Crim LR 42).
Self-defence and crime prevention
A person may lawfully use force on another person in self-defence or in
the prevention of crime. The use of force for these purposes is more fully
discussed elsewhere (see Chapter 7, p. 279).
579
Burden of proving unlawfulness

Once D alleges that he or she was legally entitled to use force, or that his
or her use of force was justified or excused and was lawful, it is for the
prosecution to prove beyond reasonable doubt both that the use of force
was unlawful, and that D intended to use such unlawful force or was
reckless as to such. In order to prove unlawfulness, the prosecution must
disprove Ds alleged entitlement to use force on the particular facts of the
case, either by showing that D does not fit within any of the established
categories of defence, or by showing that Ds actual use of force went beyond
the level permitted at law.
AGGRAVATED ASSAULTS
An assault may lead to heavier penalties if certain aggravating features are
present. These aggravating features may involve either more serious physical
harm or injury (e.g. assault occasioning actual bodily harm; wounding;
inflicting grievous bodily harm), or the existence of aggravating
circumstances (e.g. indecent assault (see Chapter 12); assaulting a police
officer in execution of duty), or the existence of an ulterior intent to commit
some other (more serious) offence.
Aggravated Assaults Based on More Serious Consequences:

Section 39 Assault Occasioning Actual Bodily Harm
Section 39 of the OAPO (derived from section 47 of Englands OAP Act
1861) provides:
Any person who is convicted of any assault occasioning actual bodily
harm shall be guilty of an offence triable upon indictment, and shall
be liable to imprisonment for 3 years.
This offence (which is also triable summarily; see section 92 of the

Magistrates Ordinance (cap. 227)) is an arrestable offence for the purposes
of section 101(2) of the Criminal Procedure Ordinance.
Assault here means assault or battery. The definition of occasioning
and actual bodily harm is a matter of common law.
580
Actus reus
The actus reus of assault occasioning actual bodily harm is established by
proving two matters: firstly, that D committed the actus reus of an assault
or battery, and secondly, that Ds conduct has occasioned actual bodily
harm.
Actual bodily harm is broadly defined. It means any hurt or injury
calculated to interfere with the health or comfort of the victim (Donovan
[1934] 2 KB 498, Miller [1954] 2 QB 282). The hurt or injury need not be
permanent, but it must be more than transient or trifling. Pain alone does
not amount to actual bodily harm, although it may evidence the existence
of such harm; this is a question of degree (Choi Wai Kwong [1989] 2 HKLR
31; see also Wong Ka Ching (1990) Mag App No. 1124 of 1990, [1990]
HKLD J23). Actual bodily harm may exist even though there is no observable
injury such as a bruise or swelling (Reigate Justices, ex parte Counsell (1984)
148 JP 193).
Bodily harm (for the purposes of actual bodily harm in section 39,
and grievous bodily harm in sections 17 and 19 of the OAPO) is not
restricted to physical harm, but includes recognizable psychiatric illnesses.
This view was adopted by the English Court of Appeal in Miller (above)
and ChanFook ([1994] 1 WLR 689), and was confirmed by the House of
Lords in R v Ireland, R v Burstow ([1998] AC 147). Ireland was convicted
of assault occasioning actual bodily harm, after his campaign of harassment
caused his female victims to suffer neurotic distress; Burstow was convicted
of inflicting grievous bodily harm, contrary to section 20 of the OAP Act
1861 (section 19 of OAPO), when his actions caused his victim to suffer
severe depressive illness. In both cases, medical evidence supporting the
existence of psychiatric illness was adduced; in the absence of such
psychiatric evidence, the question of whether the victim suffered bodily
harm ought not to be left to a jury. Psychiatric illness must be distinguished
from purely emotional or relaxed mental states. As Lord Steyn noted in
Ireland, Burstow (at 156): Neuroses must be distinguished from simple
states of fear, or problems in coping with everyday life. Where the line is
to be drawn must be a matter of psychiatric judgment.
Occasioning simply means causation. This was the view of the court
in Roberts ((1971) 56 Cr App R 95), where it was held that actual bodily
harm is occasioned so long as it is something that could reasonably have
been foreseen as the consequence of what D was saying and doing. In
Roberts, V suffered concussion and skin grazes when she leapt from Ds
moving car to escape Ds assault on her. These injuries amounted to actual
581
bodily harm. R argued that since he did not foresee V might jump out of
his moving car and suffer such injuries, he was not liable for the actual
bodily harm suffered by her. This submission was rejected by the court; the
victims action was reasonably foreseeable as a consequence of Ds conduct.
This view of occasioning was confirmed by the House of Lords in R v
Savage, DPP v Parmenter ([1992] 1 AC 699). In the first of these two cases,
consolidated on appeal, S intentionally threw beer at a former girlfriend of
Ss husband; in throwing the beer, S let go of the glass, causing it to shatter
and cut the victim. It was not clear from the evidence whether this was
intentional or accidental. At trial, S was convicted of unlawfully and
maliciously wounding the victim, contrary to section 20 of the OAP Act
1861 (section 19 of OAPO), but this was quashed by the Court of Appeal,
and a conviction of assault occasioning actual bodily harm substituted. It
was held that there was no requirement S intend or even foresee actual
bodily harm, as is discussed further below, nor was it necessary for the
bodily harm to be the direct result of Ss conduct, so long (as mentioned)
that it was reasonably foreseeable. In the House of Lords, Lord Ackner,
delivering the judgment of the Lords, confirmed (at 742) that:
The decision in Roberts ... [where the court stated that the word
occasioning raised solely a question of causation, an objective
question which does not involve inquiring into the accuseds state of
mind] was correct. The verdict of assault occasioning actual bodily
harm may be returned upon proof of an assault together with proof of
the fact that actual bodily harm was occasioned by the assault. The
prosecution are not obliged to prove that [D] intended to cause some
actual bodily harm or was reckless as to whether such harm would be
caused.
Mens rea
The mens rea of assault occasioning actual bodily harm is simply that of
assault or battery, i.e. intention or recklessness as to causing apprehension
or infliction of unlawful personal violence. As outlined above, the House
of Lords in Savage, Parmenter confirmed there is no need for the prosecution
to prove additionally that D intended to cause actual bodily harm, or was
reckless as to whether Ds conduct might cause such harm.
Recklessness for the purposes of establishing assault or battery means
Cunningham recklessness, i.e. actual foresight that Ds conduct might cause
V to apprehend or suffer the infliction of unlawful personal violence (R v
Savage, DPP v Parmenter).
582
For the purposes of the law relating to intoxication, the offence against
section 39 of the OAPO is a basic intent offence.
Unlawfulness
Unlawfulness is implied by virtue of its being an element of assault and
battery (above, p. 559), thus incorporating consent and the other
circumstances of lawfulness outlined above. Reliance on consent is
problematic since section 39 presupposes that Ds use of force has resulted
in actual bodily harm; as discussed, above, public policy may invalidate
consent merely because actual bodily harm is caused, even though it may
not have been intended or even foreseen. If so, then consent may be relied
on only if Ds conduct falls within one or more of the recognized exceptions
to the general rule confirmed in Brown (Anthony), above.
Aggravated Assaults Based on Existence of Aggravating

Circumstances: Section 36(b) Assaulting a Police Officer in
the Due Execution of Duty
There are several statutory offences dealing with assaults on police officers
acting in the (due) execution of duty. The most serious, so far as penalty is
concerned, is found in section 36(b) of the OAPO, which provides:
Any person who
(b) assaults, resists, or wilfully obstructs any police officer in the due
execution of his duty or any person acting in aid of such officer
... shall be guilty of an offence triable either summarily or upon
indictment, and shall be liable to imprisonment for 2 years.
In addition to assault, section 36(b) creates two other offences that

may be committed against a police officer acting in due execution of duty,
namely, resisting and wilful obstruction.
Other offences against police officers include:7
(1) section 63 of the Police Force Ordinance (cap. 232): assaulting, resisting
or refusing to assist a police officer acting in the execution of duty
(see, for example, Kam Man Fai [1983] 1 HKC 614; Ku Kat Sui [1989]
As to proceeding alternatively with a charge under section 36(b) where a specific statutory
offence of obstruction exists, see Li Tze Hei [1984] HKC 490.
(2)
(3)
(4)
(5)
583
2 HKC 526) liable on summary conviction to six months

imprisonment;
section 23 of the Summary Offences Ordinance (cap. 228): resisting or
obstructing a public officer (see Cheng Cheuk Ming [1993] 2 HKC 537)
liable on summary conviction to six months imprisonment;
section 27 of the Gambling Ordinance (cap. 148): obstructing a police
officer in execution of the powers conferred on him or her by the
Gambling Ordinance liable on summary conviction to three months
imprisonment;
section 30(2)(a) of the Moneylenders Ordinance (cap. 163): wilfully
obstructing an authorised person (includes a police officer) in the
performance of duties under the ordinance liable on summary
conviction to six months imprisonment (section 32(1)(b));
section 9 of the Quarantine and Prevention of Disease Ordinance (cap.
141): obstructing or impeding any police officer in the execution of
his or her duty under this ordinance liable on summary conviction
to a fine of HK$2,500.
It should be noted that not all these offences require proof of wilful
obstruction; in a number of instances, obstruction is enough.8
Actus reus
Assault, resisting, wilful obstruction
Only the first of the three offences created by section 36(b) assault
requires proof of an assault or battery. Resisting and wilful obstruction
may occur without an assault or battery. If, for example, D pulls away from
the grasp of a police officer, this in itself would not amount to an assault or
battery, since no force is actually inflicted on or threatened to be inflicted
on the police officer; however, this may constitute resisting (Sheriff [1969]
Crim LR 260; see also Chow Sai-leong [1989] 2 HKLR 385: D verbally
abused and waved a chopper at police officers after they informed her she
was under arrest).
There are also numerous offences of wilfully obstructing public officers or other authorized
persons in the execution of their duties under a variety of ordinances, e.g. section 53H(a)
of the Banking Ordinance (cap. 155), section 17(1)(a) of the Trade Descriptions Ordinance
(cap. 362), section 139 of the Public Health and Municipal Services Ordinance (cap. 132),
section 59(1)(a) of the Aviation Security Ordinance (cap. 494).
584
Resisting is a relatively self-explanatory term. In Ng Ming ([1994] 3

HKC 320), for example, D pushed the arresting officer and attempted to
run away (see also Chiu Yu To [1983] 2 HKC 420). Obstruction is less so.
It has been defined as the doing of any act which makes it difficult for the
police to carry out their duties (Rice v Connolly [1966] 2 QB 414, at 419),
and as conduct [which] in fact prevented the police from carrying out
their duty, or made it more difficult for them to do so (Lewis v Cox [1985]
QB 509). It does not require proof of an assault or battery. Warning someone
to desist temporarily from committing an offence so as to avoid detection
may amount to obstruction (Betts v Steven [1990] 1 KB1), as may hampering
arrest or assisting someone to escape. In Chung Chi-cheung ([1987] HKLR
1221), it was held that D, by rubbing human faeces on himself when the
police were about to search him, thereby obstructed them in the execution
of their duty.
In some circumstances, obstruction may include a failure to act. This
will be so where D is under a duty to assist the police, and he or she fails
to perform that duty (see Lunt [1993] Crim LR 534: D failed to open a
door to enable police to exercise a power of entry). Similarly, if D runs
away from a police officer wishing to question D, this may amount to
obstruction (Tsang Kam Pui (1993) Mag App No. 961 of 1992). In Lau Yin
Kum ((1997) Mag App No. 15 of 1997), Leong J observed that failing to
produce an identity card immediately on request, or demanding to see a
police officers warrant card (see section 18 of the Police Force Ordinance
(cap. 232)), ought not to amount to obstruction, since every citizen has a
right to demand a police officer on duty, whether or not in uniform, to
produce his warrant card for identification.
Police officer acting in due execution of duty
Police officer includes any member of Hong Kongs police force other
than a police cadet (section 3 of the Police Force Ordinance (cap. 232)).
Due execution of duty is a broad concept. In Waterfield ([1964] 1 QB
164), it was suggested that two matters must be considered: firstly, whether
the police officer had a duty or power to act in the circumstances, and
secondly, whether the police officer was lawfully exercising that duty or
power, Ashworth J observed (at 170):
In the judgment of this Court it would be difficult, and in the present
case it is unnecessary, to adduce within specific limits the general
terms on which the duties of police constables have been expressed.
585
In most cases, it is probably more convenient to consider what the

police constable was actually doing and in particular whether such
conduct was prima facie an unlawful interference with a persons liberty
or property. If so, it is then relevant to consider whether (a) such
conduct falls within the general scope of any duty imposed by statute
or recognized at common law and (b) whether such conduct, albeit
within the general scope of such a duty, involved an unjustifiable use
of powers associated with the duty.
A police officers duties may be either statutory or common law. The

general duties of police officers in Hong Kong are set out in section 10 of
the Police Force Ordinance and include:
(a)
(b)
(c)
(d)
preserving the public peace;

preventing and detecting crimes and offences;
preventing injury to life and property;
apprehending all persons whom it is lawful to apprehend and for
whose apprehension sufficient grounds exists; ...
(r) executing such other duties as may by law be imposed on a police
officer.
In order to carry out these duties, numerous statutory powers have

been conferred on police officers, including powers to stop, search, detain,
arrest and so on. Such powers are scattered throughout Hong Kongs
legislation. Some are general in nature, such as section 54 of the Police
Force Ordinance which provides:
(1) If a police officer finds any person in any street or other public
place, or on board any vessel, or in any conveyance, at any hour
of the day or night, who acts in a suspicious manner, it shall be
lawful for the police officer
(a) to stop the person for the purpose of demanding that he produce
proof of his identity for inspection by the police officer;
(b) to detain the person for a reasonable period while the police
officer enquires whether or not the person is suspected of
having committed any offence at any time; and
(c) if the police officer considers it necessary to do so
(i) to search the person for anything that may present a
danger to the police officer; and
(ii) to detain the person during such period as is reasonably
required for the purpose of such a search.
(2) If a police officer finds any person in any street or other public
place, or on board any vessel, or in any conveyance, at any hour
of the day or night, whom he reasonably suspects of having
586
committed or of being about to commit or of intending to commit

any offence, it shall be lawful for the police officer
(a) to stop the person for the purpose of demanding that he
produce proof of his identity for inspection by the police
officer;
(b) to detain the person for a reasonable period while the police
officer enquires whether or not the person is suspected of
having committed any offence at any time; and
(c) to search the person for anything that is likely to be of value
(whether by itself or together with anything else) to the
investigation of any offence that the person has committed,
or is reasonably suspected of having committed or of being
about to commit or of intending to commit; and
(d) to detain the person during such period as is reasonably
required for the purpose of such a search.9
Other statutory provisions confer specific powers on police officers in

particular contexts. For example, sections 17C and 17D of the Immigration
Ordinance (cap. 115) confer powers on police officers to demand proof of
identity, and to arrest without warrant any person who fails to produce for
inspection on demand proof of his identity ....
Police officers also have duties and powers originating in the common
law. Examples of this are the common law power to arrest and detain, and
use reasonable force to do so, to prevent someone from committing or
continuing to commit a breach of peace (see, for example, Duncan v Jones
[1936] 1 KB 218; Piddington v Bates [1960] 3 All ER 660; Howell [1982]
QB 416; see further, Glanville Williams, Arrest for Breach of Peace [1954]
Crim LR 578). The continued existence of these powers was confirmed by
the House of Lords in Albert v Lavin ([1982] AC 546). They may be
exercised by any person (Kelbie [1996] Crim LR 802), including a police
officer, who may rely on them in addition to any statutory powers applying
to the particular situation. A breach of peace was defined by Watkins LJ
in Howell (applied in Hong Kong: see, for example, Kam Man Fai [1983] 1
HKC 614; HKSAR v Wong Ying Yiu [1997] 3 HKC 453) as requiring proof
of
See further, P. Morrow, Police Powers and Individual Liberty in Civil Liberties in Hong
Kong (ed. R. Wacks, Oxford University Press, 1988), pp. 24377; G. Heilbronn, Police
Powers to Stop, Search and Detain: Recent Developments and Anomalies in Police Powers
in Hong Kong (Problems and Prospects Series, Faculty of Law, the University of Hong Kong,
1993), pp. 99120.
587
... an act done or threatened to be done which either actually harms

a person, or in his presence his property, or is likely to cause such
harm, or which puts someone in fear of such harm being done.
In Yong You Ching ([1997] 3 HKC 744), for example, Y was convicted
of assaulting a police officer acting in due execution of duty, contrary to
section 36(b), after she kicked and bit two officers while they were arresting
her for disorderly conduct likely to cause a breach of peace, contrary to
section 17B(2) of the Public Order Ordinance (cap. 245). Y, whose husband
was being spoken to by the police officers about a driving offence, swore at
them and continued doing so even after an unruly crowd had formed and
the officers had asked Y (and her husband) to stop swearing. Pang J
emphasized (at 746) that mere insulting behaviour per se ... is insufficient
to constitute a breach of the peace, but that the magistrate had correctly
applied the law to the facts:
A crowd was gathered and the road was blocked and emotions ran
high with language of incitement and words with reflection of violence
were used. I found that the situation was likely to develop into
disturbance if not controlled.
A breach of peace may take place in public or on private property

(McConnell v Chief Constable of the Greater Manchester Police [1990] 1 WLR
364; applied in Hong Kong: HKSAR v Yeung Kin Ping [1997] 3 HKC 478),
but does not as such amount to an offence (though it may constitute an
element of an offence; see, for example, sections 17, 17B(2), 18, 19 and 24
of the Public Order Ordinance (cap. 245); sections 5 and 16 of the Crimes
Ordinance (cap. 200); sections 46 and 48 of the Trade Unions Ordinance
(cap. 332)). Someone arrested for breach of peace may be brought before a
magistrate and be bound over to keep the peace.
A police officers duties and powers to act arise not only when an offence
is being or has been committed, but also, as section 10(b) of the Police Force
Ordinance recognizes, in order to prevent crimes and offences, i.e. to prevent
criminal activity in the future (see also Green v Moore [1982] QB 1044).
Duty does not mean obligation; it does not have to be proved that
circumstances arose which legally obliged the police officer to act, such
that a failure to do so might lead to civil liability (Coffin v Smith (1980) 71
Cr App R 221).
Once the duties and powers available to a police officer in a particular
case have been ascertained, it is then necessary to determine whether the
police officer is acting lawfully within the scope of these powers. If the
588
police officer exceeds the limits of the powers, e.g. if he or she acts without
proper cause, or uses more force than is permitted in the circumstances
(which may be only such physical force or contact as is acceptable in daily
life), or purports to exercise a power which in fact does not apply to the
case in hand, then the police officers actions may be unlawful, and he or
she will not be acting in due execution of duty.10
Determining whether a police officer is acting in due execution of duty
is not always easy. In Lee Yin-ping ([1979] HKLR 454), for example, police
officers entered premises believed by them to be an unlawful massage
parlour, without a proper search warrant. Their entry was therefore
unlawful. Upon entry, the officers found evidence giving them reasonable
cause to suspect Ls commission of an offence. Accordingly, they informed
L she was under arrest; L thereupon ordered them to leave her room,
verbally abused them, and subsequently waved a chopper at the police
officers while screaming threats at them. The Court of Appeal held that
although the officers initial entry was unlawful, a power of arrest
subsequently arose so that they were therefore acting in due execution of
their duty when they arrested L. Ls subsequent actions amounted to
resisting, contrary to section 36(b).11
If a police officer is not acting lawfully, then Ds conduct whether
assault, resisting or wilful obstruction will not lead to liability under
section 36(b). However, D may still be liable for common assault if the
degree of force used was unreasonable in the circumstances.
Mens rea
Assault requires proof of the mens rea of assault or battery; resisting
requires an intention to resist. In neither case is it necessary to prove that
D knew the victim was a police officer, or knew the police officer was
acting lawfully in execution of his or her duty (Forbes v Webb (1865) 10
Cox CC 362; see also McBride v Turnock [1964] Crim LR 456). However,
if D honestly but mistakenly believes the victim is not a police officer, and
D would be lawfully entitled (if that were so) to use force on or resist the
police officer (e.g. in self-defence), D may be able to rely on this mistaken
belief to negate the mens rea of assault or battery and thus avoid liability
10
11
Furthermore, the police officer may be liable for the commission of a tort, such as battery
or false imprisonment.
See further, Waterfield [1964] 1 QB 164, Kenlin v Gardiner [1967] 2 QB 510, Pedro v Diss
[1981] 2 All ER 59, Collins v Wilcock [1984] 1 WLR 1172.
589
for assaulting a police officer ((Gladstone) Williams (1987) 3 All ER 411;

Blackburn v Bowering [1994] 1 WLR 1324; Burley [2000] Crim LR 843;
Lee [2000] Crim LR 991). If D knows that the victim is a police officer, but
mistakenly believes the officer is acting unlawfully, then it seems this will
give D no defence (Fennell [1971] 1 QB 428).
The mens rea of obstruction under section 36(b) is wilful obstruction
(not all offences of obstruction require proof of this). Wilful is an essential
element of the offence (Leung Kam-wah (1992) Mag App No. 78 of 1992,
Kaplan J: charge sheet which omitted wilfully was defective). In Rice v
Connolly, above, it was held that wilful obstruction requires proof that D
intentionally obstructed the police officer. In Lewis v Cox, above, it was
held this requires proof that D intentionally did an act (which in fact makes
it more difficult for the police to carry out their duties) realizing that it
would have such an obstructive effect, whether or not Ds motive was to
obstruct. In this case, Cox opened the door of a police van, after a warning
not to do so, to speak to a friend who had been arrested. It was held that
since Coxs act in fact made it more difficult for the police to carry out
their duties (they could not drive away) and Cox realized this, he had
wilfully obstructed the police. This approach has been applied in Hong
Kong (Sizto Yuk Hing [1985] 1 HKC 138). In Hills v Ellis ([1983] QB 680),
D was liable when he intervened in a lawful arrest to inform the arresting
officer that in Ds view the officer was arresting the wrong person. Ds
deliberate intervention made it more difficult for the officer to carry out
his duty and D realized his intervention would have this effect. In Rice v
Connelly, it was also said that D must have acted without any lawful excuse;
however, it is generally thought this statement simply recognizes that D
may have a defence for acting as he or she did, and requires nothing
additional. In Collins v Wilcock, above, it was suggested a hostile intention
must be proved, but the better view seems to be that this is not necessary
(e.g. Moore v Green [1983] 1 All ER 663).
If D is alleged to have wilfully obstructed the police by failing to do
something in breach of a duty to assist the police, it should be proved that
D at least knew of the circumstances or facts giving rise to Ds duty to
assist (compare Lunt above).
Aggravating or ulterior intents

Examples of statutory offences exposing D to a greater penalty because of
his or her intent at the time of committing an assault or battery include:
590
(1) Section 36(a) of the OAPO: Assaulting any person with intent to
commit an arrestable offence (for arrestable offence, see section 3 of
the Interpretation and General Clauses Ordinance (cap. 1)). This offence
is triable summarily or upon indictment, and has a maximum sentence
of two years imprisonment;
(2) Section 36(c) of the OAPO: Assaulting any person with intent to resist
or prevent the lawful apprehension or detainer of himself or herself or
of any other person for any offence (see Cheng Cheuk Ming [1993] 2
HKC 537). This offence is triable either summarily or upon indictment,
and has a maximum sentence of two years imprisonment ;
(3) Section 118B of the Crimes Ordinance: Assault with intent to commit
buggery. This offence is punishable with up to ten years imprisonment;
and
(4) Section 10(2) of the Theft Ordinance: Assault with intent to rob. This
offence is punishable with life imprisonment.
WOUNDING AND GRIEVOUS BODILY HARM

Sections 17(a) and 19 of the Offences Against the Person Ordinance (based
on sections 18 and 20 of the OAP Act 1861) deal with wounding and
grievous bodily harm. The essential difference between the two is that
section 17(a) requires proof D wounded or caused grievous bodily harm
with intent to cause grievous bodily harm or to resist or prevent lawful
apprehension or detainer. Section 17(a) is triable on indictment only
(pursuant to section 92 and Second Schedule Part I of the Magistrates
Ordinance (cap. 227)), and punishable by life imprisonment, whereas
section 19 is triable both on indictment and summarily (section 92 of the
Magistrates Ordinance) and is punishable by up to three years
imprisonment. Each section in fact creates two offences, one based on
wounding and the other on grievous bodily harm.
Section 19: Malicious Wounding or Inflicting Grievous

Bodily Harm
Section 19 provides:
Any person who unlawfully and maliciously wounds or inflicts any
591
grievous bodily harm upon any other person, either with or without
any weapon or instrument, shall be guilty of an offence triable upon
indictment, and shall be liable to imprisonment for 3 years.
Actus reus
Section 19 creates two offences: malicious wounding, and malicious
infliction of grievous bodily harm. Both require proof of unlawfulness (see
above, p. 564).
Wounding
Wounding requires proof that the continuity of the whole skin has been
broken (Moriarty v Brooks (1834) 6 C & P 684). This excludes a surface
graze, i.e. one that does not break the whole skin. Likewise, an internal
rupture of a blood vessel is not a wound, as in A (a minor) v Eisenhower
([1983] 3 WLR 537) where a pellet fired from Ds air gun struck V near
the eye causing internal bleeding in the eye. Such internal bleeding was
held not to amount to a wound for the purposes of the OAP Act 1861.
Gough LJ did, however, accept that the whole skin for the purpose of
wounding includes the skin lining an internal cavity of the body if that
skin is continuous with the outer skin of the body. This would include,
for example, the inside of a persons lip, cheek or nose.
Grievous bodily harm
Grievous bodily harm means really serious bodily harm (DPP v Smith
[1961] AC 290). It has been held that it is not necessarily a misdirection
for a judge to refer merely to serious bodily harm, but in Man Yi-keung
([1992] 1 HKCLR 89), the Court of Appeal stated (at 92) that:
As a general rule we think it desirable that the formula really serious
bodily harm should be used when explaining to the jury the meaning
of the words grievous bodily harm.
In HKSAR v Lo Tak Chi ([2000] 1 HKC 385), the Court of Appeal

similarly preferred the use of the expression really serious harm, holding
that the injuries in question need not necessarily be permanent or dangerous,
provided they seriously interfere with comfort or health. In this case, the
victim was beaten into unconsciousness, suffering a chipped tooth, multiple
592
bruises and abrasions to his head, face and back, and a small cut to the tip
of his tongue; in the courts view, these could not be properly described as
grievous bodily harm.
A wound will often, but need not always, amount to grievous bodily
harm. Equally, grievous bodily harm may be inflicted without there being
any wound, e.g. a broken bone which does not puncture the skin.
Infliction
Grievous bodily harm must be inflicted, for the purposes of section 19,
whereas under section 17(a), it needs only to be caused. Is there any
difference? Inflict was traditionally thought to be narrower in meaning
than cause, emphasized by the fact the two terms appear in close proximity
to each other in the same statute. However, the House of Lords in R v
Ireland, R v Burstow ([1998] AC 147) rejected any supposed legislative
distinction arising from this proximity; the different terminology was said
to be simply historical, rather than intentional. There is, said Lord Steyn
(at 160), no radical divergence between the meaning of the two words;
earlier decisions of the House of Lords purportedly giving inflict a narrower
meaning (Wilson (Clarence) [1984] AC 242; Mandair [1995] 1 AC 208)
were described as being neutral on the issue. However, while agreeing
that for all practical purposes there is ... no difference, and that in the
context of a criminal act ... the words ... may be taken to be interchangeable,
Lord Hope went on to add (at 164) that:
There is this difference, that the word inflict implies that the
consequence of the act is something which the victim is likely to find
unpleasant or harmful. The relationship between cause and effect, when
the word cause is used, is neutral: It may embrace pleasure as well
as pain. The relationship when the word inflict is used is more precise,
because it invariably involves detriment to the victim of some kind.
That is not entirely satisfactory: it raises the question of whether, for

example, defendants such as those in Brown (Anthony) could be said to
inflict grievous bodily harm in this sense on their victims if, as was
contended in that case, the victims derived sexual pleasure from acts which
to others would involve pain. The House of Lords, in deciding Burstow, the
second of the two cases consolidated on appeal, also rejected two further
arguments that would have restricted the meaning of inflict. In large part,
this was the inevitable consequence of the Lords desire in this case to
establish a basis for convicting the silent caller and stalker. Once the
593
possibility of assault by words or even silent calls was accepted by the

Lords as it was, and bodily harm was held to include recognizable
psychiatric illness, then it became necessary to interpret inflict in section
20 of the OAP Act 1861 (section 19 of OAPO) in a manner such that a
silent caller or stalker could be convicted under that section.
The first argument rejected by the Lords asserted that infliction
impliedly requires proof of an assault (i.e. assault or battery). This argument
relied on a line of authority dating from the nineteenth century, including
Clarence ((1888) 22 QBD 23) in which D was acquitted of inflicting grievous
bodily harm on his wife by having sexual intercourse with her, thereby
infecting her with a venereal disease he was suffering from, partly on the
ground she consented (a wife was then deemed to have consented to sexual
intercourse) to his act, and there was therefore no assault. Cases such as
Martin ((1881) 8 QBD 54) took a contrary view. In that case, D was
convicted of inflicting grievous bodily harm after he placed an iron bar
across the exit door of a theatre and turned out the lights, resulting in
several persons sustaining serious injuries in the ensuing panic. Ds conduct
did not involve the direct application of force to the victims, nor did it
involve the commission of an assault or battery, but it was nonetheless
held that D had inflicted grievous bodily harm.
Lord Steyn, rejecting this view of the law, observed (at 159) that there
was conflicting authority on the point: no authority binding on the House
of Lords and no settled practice holding expressly that assault was an
ingredient of section 20 [section 19 of OAPO]. In addition, none of the
cases focused on the infliction of psychiatric injury. Arguably, given the
Lords in this case recognized the possibility of an assault by words or
silence, there would have been no difficulty in establishing that Burstows
conduct amounted to an assault, if this had been held to be necessary to
establish infliction.
The second argument rejected by the Lords maintained that inflict
impliedly requires a direct or indirect application of force to the body of
the victim something which could not be readily satisfied in relation to
a silent telephone caller or stalker whose actions cause a victim to suffer
psychiatric illness. This argument took its cue from two authorities in
particular: Salisbury ([1976] VR 452), an Australian decision of the Supreme
Court of Victoria, and Wilson (Clarence) ([1984] AC 242), in which the
House of Lords (at 25960) relied on a passage from Salisbury where it
was said that inflicts does not necessarily require proof of an assault and
that:
594
grievous bodily harm may be inflicted ... either where the accused has
directly and violently inflicted it by assaulting the victim, or where
the accused has inflicted it by doing something, intentionally, which
though it is not itself a direct application of force to the body of the
victim does directly result in force being applied violently to the body
of the victim, so that he suffers grievous bodily harm. Hence, the
lesser [offences] of assault occasioning actual bodily harm and common
assault ... are not necessarily included in the [offence] of inflicting
grievous bodily harm.
An example of this latter situation resulting in force being applied

violently to [Vs] body would be where D digs a hole in the ground
which V falls into sustaining serious injuries. Neither category, it should
be noted, would cover a case in which D simply frightens the victim into
doing something, such as jumping out of a window, leading to grievous
bodily harm, because of the requirement of directness in each limb of the
test.
Lord Steyn and Lord Hope concluded that the Lords in Wilson
(Clarence) ultimately left the point undecided, being content instead to
accept simply that inflict does not require an assault. The only other
authority of any weight, Clarence, was dealt with by Lord Steyn by noting
that the court in Clarence was not considering the infliction of psychiatric
injury, and that the case could, as a result, be disregarded: it no longer
assists (at 160). In Lord Steyns view, the correct meaning of inflict is to
be determined as a matter of current usage; without straining the language,
he concluded, one can nowadays quite naturally speak of inflicting
psychiatric injury.
The result, then, is that inflicting does not require or necessarily involve
the commission of an assault (i.e. assault or battery) or the direct or indirect
application of physical force on the victim. Related to the question of the
meaning of inflict is the question of whether a defendant who is charged
with inflicting grievous bodily harm, contrary to section 19 of the OAPO
(section 20 of the OAP Act 1861), but who is proved to have caused only
some lesser harm, usually actual bodily harm, may be convicted of assault
occasioning actual bodily harm, contrary to section 39 of the OAPO (section
47 of the OAP Act 1861), or even common assault. By statute, in such a
case, D may be convicted of the less serious offence if the allegations in the
charge on which D is tried amount to or include, expressly or by
implication, an allegation of the lesser offence (section 51(2) of the Criminal
Procedure Ordinance). This means that D may be convicted of assault
occasioning actual bodily harm only if an allegation that D inflicted grievous
595
bodily harm amounts to or includes expressly or by implication an allegation

of assault (i.e. assault or battery).
However, as just discussed, the House of Lords in Burstow confirmed
that an allegation D inflicted grievous bodily harm on V does not necessarily
amount to an allegation D committed an assault or battery against V. In
Wilson (Clarence) ([1984] AC 242), where this issue had earlier been
considered, Lord Roskill noted the absence of the word necessarily from
the relevant statutory provision, and, rejecting earlier contrary English Court
of Appeal authority in Springfield ((1969) 53 Cr App R 608), concluded
(at 261):
If inflicting can ... include inflicting by assault, then even though
such a charge may not necessarily do so, I do not ... see why on a fair
reading of section 6(3) [Hong Kong: section 51(2) of the Criminal
Procedure Ordinance] these allegations do not at least impliedly include
inflicting by assault,
provided that, he added:

... a trial judge must always ensure, before deciding to leave the
possibility of conviction to the jury under section 6(3), that that course
will involve no risk of injustice to the defendant and that he has had
the opportunity of fully meeting that alternative [offence] in the course
of his defence.
This approach was subsequently approved by the House of Lords in R v

Savage, DPP v Parmenter, above, where it was applied to Parmenter, who
had been charged at trial with unlawful wounding, contrary to section 20
of the OAP Act 1861 (section 19 of the OAPO), but convicted instead of
assault occasioning actual bodily harm. In passing, Lord Ackner observed
(at 740):
The allegation of inflicting grievous bodily harm or for that matter
wounding, as was observed by [the Court of Appeal in Savage]
inevitably imports or includes an allegation of assault unless there are
some quite extraordinary facts.
Mens rea
Both wounding and inflicting grievous bodily harm, contrary to section 19,
require proof that D acted maliciously. Maliciously involves proof that D
acted intentionally or recklessly. Recklessly is used here in the Cunningham
596
sense, i.e. actual foresight by D, as was affirmed by the House of Lords in

Savage, Parmenter.
It is not necessary to prove D intended or actually foresaw the prohibited
harm, i.e. a wound or grievous bodily harm. In Mowatt ([1968] 1 QB 421),
it was held that it is sufficient to prove D intended or foresaw that some
physical harm to some person, albeit of a minor character, might result.
This was affirmed by the House of Lords in Savage, Parmenter. Lord Ackner
concluded (at 752):
I am satisfied that the decision in Mowatt was correct and that it is
quite unnecessary that the accused should either have intended or
have foreseen that his unlawful act might cause physical harm of the
gravity described in section 20 [section 19 of the OAPO], i.e. a wound
or serious physical injury. It is enough that he should have foreseen
that some physical harm to some person, albeit of a minor character,
might result.
This must be read with one word of caution: the phrase should have
foreseen must be understood as meaning did foresee, not ought to foresee.
This is clear from Savage, Parmenter itself, since the Lords held that
maliciously requires proof that D intended or actually foresaw that his or
her act might cause harm. Furthermore, in relation to Parmenter, who had
handled his three-month-old son roughly thereby causing injuries, the trial
judge directed the jury based on Mowatt, expressly using the words should
have foreseen. Since this failed to make clear to the jury that Parmenter
would be liable only if he actually foresaw some physical harm, Parmenters
conviction of inflicting grievous bodily harm was quashed by the English
Court of Appeal, as affirmed by the House of Lords. Parmenter was instead
convicted of assault occasioning actual bodily harm; this, as has been seen,
requires proof only that D foresaw the infliction of unlawful personal
violence (i.e. the mens rea of assault and battery), not actual bodily harm
which needs only to be caused.
If D mistakenly believes facts exist which, if true, would entitle D to
conduct himself or herself in the manner resulting in the wound or grievous
bodily harm (e.g. in self-defence, or during properly conducted games or
sports, etc.), then D ought not to be liable under section 19, since it cannot
be said that D either intends or foresees an unlawful wound or unlawfully
inflicted grievous bodily harm. This is an aspect of unlawfulness, which
has been discussed above.
section 19 of the OAPO is a basic intent offence.
597
Section 17(a): Wounding or Causing Grievous Bodily Harm

with Intent
Section 17(a) provides:
Any person who
(a) unlawfully and maliciously, by any means whatsoever, wounds
or causes any grievous bodily harm to any person ...
with intent in any of such cases to maim, disfigure, or disable any
person, or to do some other grievous bodily harm to any person, or
with intent to resist or prevent the lawful apprehension or detainer of
any person, shall be guilty of an offence triable upon indictment, and
shall be liable to imprisonment for life.
As with section 19, this effectively creates two offences: unlawful wounding
with intent, and unlawfully causing grievous bodily harm with intent. Both
require proof of unlawfulness (see above, p. 564).
Actus reus
Wound and grievous bodily harm have the same meaning as in section
19. Grievous bodily harm must be caused rather than inflicted; this is
arguably broader than inflict and does not require proof of an assault or
the doing of an act which directly results in the application of force on the
victim (though, as discussed above, these restrictions may no longer apply
to inflict).
Mens rea
Section 17(a) is distinguished from section 19 by the ulterior intent that
must be proved for section 17(a), namely, that D acted:
with intent ... to maim, disfigure, or disable ... or to do some other
grievous bodily harm ... or with intent to resist or prevent the lawful
apprehension or detainer of any person.
With intent requires proof of intention (Belfon [1976] 1 WLR 741) (for
intention, see Chapter 4). Applied to section 17(a), this requires the
prosecution to prove that Ds purpose or aim was to cause grievous bodily
harm or to resist arrest, etc., or that Ds intention to bring about one of
these two consequences can be inferred from the fact that grievous bodily
598
harm or resisting arrest was foreseen by D as virtually certain to result

from Ds conduct. Recklessness will not suffice, nor will intention to do
some lesser physical harm.
Section 17 also requires proof that D acted maliciously. This may or
may not add anything to the requirement of intent. If, for example, D is
charged with maliciously causing grievous bodily harm with intent to cause
grievous bodily harm, then maliciously is essentially irrelevant; D will be
liable only if the specified ulterior intent is proved (Purcell [1986] Crim
LR 466). However, if D is charged with maliciously causing grievous bodily
harm with intent to resist arrest, then the prosecution ought to prove not
only that D intended to resist arrest, but also that D maliciously, i.e.
intentionally or recklessly, caused grievous bodily harm. It is unclear
whether, in this latter case, Ds intention or recklessness relates simply to
some physical harm albeit minor, as is the case under section 19, or whether
it requires proof that D intended or foresaw wounding or grievous bodily
harm.
On the other hand, maliciously appears to play a role in both cases by
virtue of its interaction with the requirement of unlawfulness. Specifically,
maliciously imports a requirement that D intends or foresees not merely
harm (whether the harm be only some physical harm, or wounding or
grievous bodily harm), but unlawful harm. This, in turn, would entitle D
to assert that he or she honestly, but mistakenly, believed the circumstances
to be such that he or she was entitled to act in the manner causing the
wound or grievous bodily harm to the victim for example, in order for
D to defend himself or herself against what D mistakenly believed to be
an imminent (fatal) attack by V. Unless the prosecution disproves this
assertion, i.e. proves that D held no such mistaken belief, then it will be
unable to prove that D acted maliciously, and D would be entitled to be
acquitted.
D does not have to regard the injury intended by him or her to be
grievous bodily harm; it is enough that D intended to cause the injury in
question and that it is regarded by a jury as really serious bodily harm.
section 17(a) of the OAPO is a specific intent offence.
12
Sexual Offences
INTRODUCTION
Part XII of the Crimes Ordinance contains a wide range of sexual offences.
These may be broadly divided into two categories.
Firstly, there are those offences involving acts which by their nature
involve sexual violence or violation, usually committed against an individual.
These are mostly contained sections 118 to 128 of the Crimes Ordinance.
They include rape (section 118), non-consensual buggery and gross
indecency (sections 118A to 118G), indecent assault (section 122), unlawful
intercourse with a girl under the ages of 13 (section 123) and 16 (section
124) or with a defective (section 125), and abduction of unmarried girls and
defectives for sexual purposes (sections 126 and 128). There are also several
related offences of indecent conduct, including indecency towards a child
(section 146) and indecency in a public place (section 148). In addition, Part
VI of the Crimes Ordinance provides for several incest-based offences.
The second category of offences broadly covers vice offences, i.e. those
offences involving the sexual exploitation of others, usually for the purposes
of profit. These are generally dealt with in sections 129145A and 153A
153O of the Crimes Ordinance. Soliciting and related prostitution offences
are dealt with in sections 147147F of the same ordinance.
Part XII of the Crimes Ordinance also contains a number of provisions
dealing with evidential, procedural and publication matters relating to the
hearing of sexually based offences.
600
This chapter will consider only two of these offences in detail: rape
and indecent assault.
OFFENCES INVOLVING SEXUAL VIOLENCE OR VIOLATION

Unlawful Sexual Acts
Several offences in Part XII use the expression unlawful sexual acts in
defining prohibited conduct. This applies to sections 119 and 120 (procuring
unlawful sexual acts), section 121 (administering drugs to enable unlawful
sexual acts), section 128 (abduction of defective from parent for sexual
acts), section 130 (exercising control over person for purpose of unlawful
sexual acts), and section 134 (detaining person for the purpose of unlawful
sexual acts). Unlawful sexual act is defined in section 117(1A) of the Crimes
Ordinance (as amended by section 2(2) of the Crimes (Amendment)
Ordinance, No. 90 of 1991) as follows:
(1A) For the purposes of this Part a person does an unlawful sexual
act if, and only if, that person
(a) has unlawful sexual intercourse;
(b) commits buggery or an act of gross indecency with a person of
the opposite sex with whom that person may not have lawful
sexual intercourse; or
(c) commits buggery or an act of gross indecency with a person of
the same sex.
Those offences using the expression unlawful sexual act thus cover a wide
range of sexually related activities. However, they do not include a mere
indecent assault.
Rape1
Rape is an offence contrary to section 118(1) of the Crimes Ordinance:
See generally Temkin, Jennifer, Rape and the Legal Process. London: Sweet & Maxwell,
1987.
SEXUAL OFFENCES
601
(1) A man who rapes a woman shall be guilty of an offence and shall
be liable on conviction on indictment to imprisonment for life.
Prior to 1976, the definition of rape was largely a matter of common law
(see DPP v Morgan [1976] AC 182). In 1976, it was codified in section
118(3) of the Crimes Ordinance:2
(3) A man commits rape if
(a) he has unlawful sexual intercourse with a woman who at the
time of the intercourse does not consent to it; and
(b) at that time he knows that she does not consent to the intercourse
or he is reckless as to whether she consents to it.
Actus reus
According to the definition in subsection (3), the actus reus of rape requires
proof firstly that D (a man)3 has sexual intercourse with a woman,4
secondly that it is unlawful, and thirdly that the female victim did not
consent to sexual intercourse with D.
Sexual intercourse
Sexual intercourse (sometimes referred to as carnal knowledge) refers to
penetration of the vagina by the penis. Sexual intercourse is deemed to be
complete (i.e. to have taken place) upon proof of the slightest penetration
of the vagina by the penis (section 65E of the Criminal Procedure Ordinance;
see also Lee Wing On [1994] 1 HKC 257: penetration must be proved;
This followed section 1(1) of the Sexual Offences Act 1956 (UK), as amended by the Sexual
Offences (Amendment) Act 1976. In the UK, these provisions have been further amended
by section 1 of the Criminal Justice and Public Order Act 1994, and now read: (1) It is an
offence for a man to rape a woman or another man. (2) A man commits rape if (a) he has
sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse
does not consent to it; and (b) at the time he knows that the person does not consent to
the intercourse or is reckless as to whether that person consents to it [emphasis added].
Man includes boy see section 117(2) of the Crimes Ordinance. However, note that
there is a common law presumption that males under the age of 14 are sexually incapable
of committing sexual intercourse see p. 604.
Woman includes girl see section 117(2) of the Crimes Ordinance. It is unclear whether
at law a transsexual (i.e. a male who has undergone a genital rearrangement to become
female) has a vagina and can be the victim of rape, but see Hides and Branston, Transsexual
Rape A Loophole Closed? [1997] Crim LR 565.
602
penetration with a part of the body other than the penis, or with an object,
is not rape). It is not necessary to prove complete penetration or ejaculation.
In R v Kaitamaki ([1985] AC 147), it was held that sexual intercourse is a
continuing form of conduct; it continues so long as the penis continues to
penetrate the vagina (see also Cooper [1994] Crim LR 531). Thus, the actus
reus of rape may occur where a man, having penetrated and begun sexual
intercourse with consent, continues with sexual intercourse after his victim
has withdrawn her consent.
If D has attempted penetration but failed, this will not amount to rape,
but it may amount to attempted rape contrary to section 159G(1) of the
Crimes Ordinance, provided that the necessary mens rea of rape is present.5
At common law, there is an irrebuttable presumption that a male under
the age of 14 is incapable of performing the act of sexual intercourse
(Groombridge (1836) 7 C&P 582; this presumption has been statutorily
abolished in England; see section 1 of the Sexual Offences Act 1993).
Accordingly, a boy aged under 14 cannot be convicted of rape as a principal
(nor of any other offence involving sexual intercourse (Waite [1892] 2 QB
600) or buggery (Tatam (1921) 15 Cr App R 132)), although he may be
liable as a secondary party, as also may a female.
Unlawful
According to subsection (3), the sexual intercourse must be unlawful.
Until recently, the expression unlawful in rape and other related offences
was generally taken to mean sexual intercourse outside marriage, i.e. other
than between husband and wife (Chapman [1959] 1 QB 100), reflecting
the fact that at common law, a husband was thought to be immune or
exempt from liability as a principal for raping his wife.6 This immunity,
judicially affirmed in Clarence ((1888) 22 QBD 23) on the basis that a wife
irrebuttably consented to sexual intercourse by marriage, became subject
to a number of qualifications. In Miller ([1954] 2 QB 282), the English
Court of Appeal confirmed that a husbands entitlement to sexual
5
In A-Gs Reference (No. 1 of 1992) [1993] 1 WLR 274, it was held that attempted rape may
lie even where D did not actually get to the stage of physically attempting penetration. It
remains unclear whether assault with intent to rape, applicable where Ds conduct is not
otherwise sufficiently proximate for the purposes of an attempt, remains an offence at
common law; see R v P [1990] Crim LR 323.
This view has been traced back to the writings of Hale (in 1736) and East (in 1803) in his
Treatise of the Pleas of the Crown, where he stated: A husband cannot by law be guilty of
ravishing his wife on account of the matrimonial consent which she cannot retract.
SEXUAL OFFENCES
603
intercourse did not also entitle him to use force or violence on his wife to
achieve sexual intercourse; if he did, he could be convicted of assault or an
aggravated assault, although he remained immune from rape. Secondly, a
husband lost this immunity if he and his wife were no longer legally cohabiting (Steele (1976) 65 Cr App R 22). Thirdly, this immunity did not
protect a husband from liability as a secondary party to the rape of his wife
by others (DPP v Morgan [1976] AC 182).
In R v R ([1991] 1 AC 599), the House of Lords reviewed this common
law immunity and concluded that it could no longer be justified. Lord
Keith, delivering the Lords judgment, observed (at 616):
The common law is ... capable of evolving in the light of changing
social, economic and cultural developments. Hales proposition [that
a husband is immune from prosecution for raping his wife] reflected
the state of affairs in these respects at the time it was enunciated.
Since then the status of women, and particularly of married women,
has changed out of all recognition in various ways which are very
familiar and upon which it is unnecessary to go into detail. Apart
from property matters and the availability of matrimonial remedies,
one of the most important changes is that marriage is in modern times
regarded as a partnership of equals, and no longer one in which the
wife must be the subservient chattel of the husband. Hales proposition
involves that by marriage a wife gives her irrevocable consent to sexual
intercourse with her husband under all circumstances and irrespective
of the state of her health or how she happens to be feeling at the time.
In modern times any reasonable person must regard that conception
as quite unacceptable.
Accordingly, the Lords ruled that the marital rape exemption is no longer
part of the common law of England and Wales.7 In reaching this conclusion,
the Lords rejected a submission that the reference to unlawful sexual
intercourse was statutory recognition of this immunity and meant sexual
intercourse outside marriage. There were, said Lord Keith (at 623), no
rational grounds for putting the suggested gloss on the word. The result
was that unlawful in the definition of rape has no acceptable meaning and
was therefore to be treated as mere surplusage which should be ignored
in analysing liability for rape. Welcome as this decision was, it nonetheless
attracted criticism for rendering the term unlawful in the statutory
This is also the law in Scotland (see S v HM Advocate [1989] SLT 469) and Australia (see
R v L (1992) 174 CLR 379, (1991) 103 ALR 577).
604
definition of rape void of meaning (see, for example, Vanessa Laird,

Reflections on R v R (1992) 55 Modern LR 386; M Giles, Judicial LawMaking in the Criminal Courts: the Case of Marital Rape [1992] Crim LR
407). In reaction, unlawful was deleted in 1994 from the English legislation
of rape (see Criminal Justice and Public Order Act 1994).
The common law marital rape immunity has been recognized in Hong
Kong, and has also been applied to concubines (Wong Lin Fai [1962] HKLR
673, at 677, per Hogan CJ; Chan Hing-cheung [1974] HKLR 196). The
application of the Lords decision in R v R to the law of rape in Hong Kong
has not been fully considered at the judicial level. It was touched on with
apparent approval by the Hong Kong Court of Appeal in HKSAR v Chan
Wing Hung ([1997] 3 HKC 472) in considering an appeal against several
convictions under section 119 of the Crimes Ordinance of procuring
another, by threats or intimidation, to do unlawful sexual acts in Hong
Kong. The particular unlawful sexual act relied on was unlawful sexual
intercourse (section 117(1A)(a)). C submitted that the trial judge had failed
to direct the jury on the meaning of unlawful in section 119 (note that
unlawful has been expressly deleted from the equivalent English provision,
section 2(1) of the Sexual Offences Act 1956). Power VP, for the court,
rejected this submission, concluding (at 475) that it was sufficient to hold,
following the judgment of Donovan J ... in Chapman ... that unlawful in
this context means illicit, that is outside the bounds of matrimony. Since
C and his victim were not married, this requirement was clearly satisfied;
there was no misdirection.
In making this ruling, Power VP also observed (at 475):
The word is clearly a survival from earlier times when intercourse
outside marriage was illicit and therefore unlawful. We do not think
that prolonged discussion of the history of this and similar sections
and of the niceties of antique usage will serve any real purpose. We
incline to the view that it would be proper to follow the course adopted
in R v R in which Lord Keith said that the word should be: treated as
being mere surplusage in this enactment. Lord Keith was conscious
that it might be suggested that the court was usurping the power of
the legislature when so holding as, indeed, we are.
It seems clear from this that R v R will be followed in Hong Kong. It is less
clear whether Power VP intended his remarks to be addressed only to section
119 and rape, or also to all other offences in the Crimes Ordinance referring
to unlawful sexual intercourse or sexual acts. If so, then this, it is submitted,
would go too far for it would mean that a husband whose wife is aged
SEXUAL OFFENCES
605
under 16 or is a defective may commit an offence (against section 124(1)

or 125(1) of the Crimes Ordinance) by having sexual intercourse with her
if she cannot validly consent to sexual intercourse.
Legislation to statutorily abolish the marital immunity in Hong Kong
is presently being considered.
Without consent
The essence of rape is sexual intercourse without consent. The prosecution
must prove beyond reasonable doubt that the victim did not consent. This
does not require proof that the victim demonstrated her lack of consent or
affirmatively communicated this to the defendant (Malone [1998] 2 Cr App
R 447). As a result, consent often gives rise to difficult evidential issues:
was there consent at all? If there was, was it obtained by force, fear or
fraud? Did D mistakenly believe that there was consent? In Olugboja ([1982]
QB 320), the English Court of Appeal held (at 331) that the issue essentially
involves a simple question of fact: at the time of sexual intercourse, did
the woman consent?
The meaning of consent remains a matter of common law. In Olugboja,
Dunn LJ emphasized (at 332) that consent should be given its ordinary
meaning, but added:
Although 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 on the one hand to reluctant
acquiescence on the other.
In this case, O had asserted that the victim apparently consented in

circumstances which, it was further submitted, would not vitiate her consent
and, further, that in such a case, a simple direction was inappropriate.
These submissions were rejected by the court, with Dunn LJ observing (at
331):
It is not necessary for the prosecution to prove that what might
otherwise appear to have been consent was in reality merely submission
induced by force, fear or fraud, although one or more of these factors
will no doubt be present in the majority of cases of rape.
The question for the jury, he added, remains the same was there consent?
although further elaboration may be necessary, with the jurys attention
being drawn to:
606
the dividing line ... between real consent ... and mere submission ...
[which] may not be easy to draw. Where it is to be drawn in a given
case it is for the jury to decide, applying their combined good sense,
experience and knowledge of human nature and modern behaviour
to all the relevant facts of the case.
This approach has since been followed in a number of cases (Larter

and Castleton [1995] Crim LR 75; McAllister [1997] Crim LR 233; HKSAR
v Lee Yuet Tong (1997) Cr App No. 711 of 1996).
As Dunn LJ observed, the distinction between real consent and mere
submission is not always an easy one to draw. Where force is used to
procure sexual intercourse, it may seem easy to say that any apparent
agreement by the victim is merely submission, not real consent, and
therefore rape. However, what if moral, economic or social pressure is
used to induce or procure agreement to sexual intercourse? Suppose, for
example, agreement is procured by a threat to end a long-term, hitherto
celibate relationship is this real consent or mere submission? What
about the aspiring film starlet who complies with a film directors demand
for sexual intercourse in the hope that this may further her acting career
does she consent or merely submit? Neither case would generally be
thought of as rape but the reason for this does not seem to lie in a
simple characteriztion of the victims agreement as real consent or mere
submission. In Olugboja, Dunn LJ (at 332) also repeated an off-made
comment (derived from Day (1841) 9 C&P 722) that:
There is a difference between consent and submission; every consent
involves a submission, but it by no means follows that a mere
submission involves consent.
The usefulness of this as a jury discretion has been challenged by a number

of commentators who have suggested that it may even be the wrong way
round, and would be better ignored in directing a jury (see, for example,
Smith and Hogan, Criminal Law, ninth edition, 1999, p. 459; see further, S
Gardner, Appreciating Olugboja (1996) 16 Legal Studies 275).
What circumstances will vitiate a purported consent? While regard
may be had for this purpose to the existence of violence or threats, fraud
or deception, on Ds part, the exact point at which such threats or fraud
will have this effect is not always clear.8
8
See further, V. Waye, Rape and the Unconscionable Bargain [1992] 16 Crim LJ 94; S.
Bronitt, Rape and the Lack of Consent (1992) 16 Crim LJ 289.
SEXUAL OFFENCES
607
Violence or the threat of violence, whether to the complainant herself

or to her relatives, will generally be regarded as vitiating consent (Olugboja
[1982] QB 320, at 322). It is also rape to have sexual intercourse with a
woman whose reason and sense and thus her ability to give valid consent
have been removed by alcohol or drugs (Camplin [1845] 1 Cox CC 220;
Lang (1975) 62 Cr App 50), or who is asleep (Larter and Castleton [1995]
Crim LR 75).
Similarly, it is generally said that consent will be invalid if it is given
by a child who is too young to understand the meaning of intercourse
(Howard [1966] 1 WLR 13). The burden of proving such lack of
understanding lies on the prosecution.
Mental deficiency on the part of the victim may also vitiate consent
(Barratt [1873] LR 2 CCR 81), although this may also pose considerable
evidential difficulties and lead instead to a charge under section 125 (see,
for example, HKSAR v Lee Yuet Tong (1997) Cr App No. 711 of 1996).
Fraud or deception, on the other hand, will have this effect only if the
deception or fraud relates either to the nature of the act itself, as in Flattery
([1877] 2 QBD 410) where D was convicted of rape after he induced the
complainant to have sexual intercourse with him by representing to her
that he was performing a surgical operation (see also Lau Chun Hon [1995]
2 HKC 599: consent vitiated by deception that act was in the nature of a
medical examination; Chan Wai Hung v HKSAR (2000) 3 HKCFAR 288:
consent vitiated by deception that act was in the nature of a first-aid
demonstration), or to Ds identity (Papadimitropoulos (1957) 98 CLR 249;
see also Lau Chun Hon [1995] 2 HKC 599). This restriction on the scope of
consent induced by fraud was affirmed by the English Court of Appeal in
Linekar ([1995] Crim LR 320), in which L obtained sexual intercourse
with a prostitute by falsely representing he would pay her agreed price. Ls
conviction of rape was quashed; his deception related neither to the act
sexual intercourse itself nor to his identity (L should perhaps have been
charged with procuring an unlawful sexual act by false pretences, contrary
to section 3(1) of the Sexual Offences Act 1956 (England); Hong Kong:
section 120(1) of the Crimes Ordinance)).
Fraud as to identity is primarily concerned with cases in which D
impersonates another person in order to gain his victims consent. One
specific instance of this is dealt with in section 118(2) of the Crimes
Ordinance:
(2) A man who induces a married woman to have sexual intercourse
with him by impersonating her husband commits rape.
608
If D obtains consent to sexual intercourse by impersonating someone

else, such as a complainants de facto husband or her boyfriend, it appears
this may also vitiate her consent and amount to rape. This was the
conclusion of the English Court of Appeal in Elbekkay ([1995] Crim LR
163), in which E, who had been staying with the complainant and her
boyfriend of 18 months, was alleged to have impersonated the complainants
boyfriend. One night, when both E and the complainant were drunk and
the complainants boyfriend had fallen asleep in another room, E entered
the complainants bedroom and initiated sexual intercourse. Thinking that
it was her boyfriend, the complainant, who had kept her eyes closed, allowed
E to penetrate her. Subsequently, when she opened her eyes, she realized it
was not her boyfriend. E was convicted of rape, despite his submission that
the complainant had in fact knowingly consented to sexual intercourse
with him. On appeal, E submitted that, unlike impersonation of a husband
which is specifically dealt with by statute, the mere impersonation of a
boyfriend did not vitiate the complainants consent. Accordingly, he
submitted, the actus reus of rape had not been proved. The Court of Appeal
rejected this submission, holding that the original statutory source of section
118(2) was merely declaratory of the common law9 and, further, that there
was no justification for finding such a fundamental difference between a
wife and a fiancee or girlfriend as that submitted on behalf of E.10
Fraud or deception in other respects for example, as to Ds wealth
or social status or marital intentions will not vitiate consent. Similarly,
fraud merely as to circumstances attending sexual intercourse will not
suffice. In Clarence ((1882) 22 QBD 23), for example, the fact that D was
suffering from a sexually transmitted disease did not vitiate his wifes consent
to sexual intercourse with him (it is not clear whether this case, which was
primarily concerned with a husbands liability for inflicting grievous bodily
harm, applies to rape in non-marital situations; it is unclear whether HIV
infection will be treated the same way) (compare Tabassum [2000] Crim
10
Prior to the enactment of the English precursor of this provision, namely, section 4 of the
Criminal Law Amendment Act 1885, it was unclear whether at common law, the obtaining
of intercourse by impersonation of a womans husband was rape. Barrow (1868) 11 Cox
CC 191 held that it was not, but a later Irish case, Dee (1884) 15 Cox CC 579, reached
the opposite conclusion, thereby preventing a husband from suing for divorce on the
grounds of adultery.
Even if consent is in fact vitiated by impersonation, Ds mens rea must still be proved. D
will not be liable unless he either knew the complainant did not consent or was at least
reckless as to this. His mistaken belief she had consented to sexual intercourse with him
may prevent liability.
SEXUAL OFFENCES
609
LR 686, in which the English Court of Appeal held that a deception as to

the quality of an act medical versus non-medical examination was
sufficient to vitiate the victims purported consent; see also Lau Chun Hon
[1995] 2 HKC 599 and Chan Wai Hung v HKSAR (2000) 3 HKCFAR 288:
consent vitiated by deception as to medical nature of physical examination).
In these cases, even if consent to sexual intercourse is not vitiated by
violence or threats or fraud, so there is no rape, D may still be criminally
liable. Section 119(1) of the Crimes Ordinance makes it an offence to
procure another person, by threats or intimidation, to do an unlawful sexual
act [this includes sexual intercourse] in Hong Kong or elsewhere,
punishable by up to 14 years imprisonment. Section 120(1) similarly makes
it an offence to procure another, by false pretences or false representations,
to do an unlawful sexual act in Hong Kong or elsewhere, punishable by up
to five years imprisonment. These provisions may apply both where consent
is vitiated and where it is not, but the penalty in each case is less than life
imprisonment available for rape, and neither offence could be said to carry
the same social opprobrium as a conviction for rape.
Mens rea
Intention or recklessness
The mens rea of rape is principally concerned with the absence of the
victims consent.11 According to the definition of rape in section 118(3)(b),
it must be proved D knows that she does not consent to the intercourse or
he is reckless as to whether she consents to it.
This follows the common law test, laid down by the House of Lords in
DPP v Morgan ([1976] AC 182). However, there was some uncertainty for
a time after the decisions of the House of Lords in Caldwell ([1982] AC
341) and Lawrence ([1982] AC 510), as to whether recklessness in the
context of rape was to be given its traditional Cunningham ([1957] 2 QB
396) meaning, requiring proof that D actually recognized or foresaw the
victim might not be consenting to sexual intercourse with him, or was to
be given the extended meaning advocated in Caldwell and Lawrence. In
Pigg ([1982] 1 WLR 762), shortly after Caldwell and Lawrence, an extended
meaning was seemingly adopted, for it was there said that D would be
11
In addition, D must presumably be proved to have intended to have sexual intercourse,

i.e. to penetrate. This would not normally be in issue but might arise if, for example,
D accidentally penetrated the victim while intending merely to rub himself against her.
610
reckless if he was indifferent and gave no thought to the possibility that

[the victim] might not be consenting in circumstances where, if any thought
had been given to the matter, it would have been obvious that there was a
risk that she was not consenting .... This was adopted in Hong Kong, in
Shing Hing-sang ([1983] HKLR 1) in which it was stated (at 5, per Roberts
CJ) that:
The views expressed by the English Court of Appeal in Pigg go no
further than to require the trial judge to ensure that the jury should
be told that a man is reckless either if he is indifferent or if he is
aware of a possibility of the woman not consenting but nevertheless
persists.
These formulations suggested that mere indifference to the possibility

that the woman is not consenting, without any necessary actual awareness
by D of this possibility, would satisfy the requirement of recklessness in
section 118(3)(b).
However, the English Court of Appeal in Satnam ((1983) 78 Cr App R
149) subsequently retreated from this formulation of the meaning of
reckless, holding that Caldwell and Lawrence had no relevance to the
meaning of reckless in rape. Instead, adopting the common law view of
recklessness advocated in Morgan, the Court of Appeal held that D is
reckless for the purposes of rape if he could not care less whether [the
woman] wanted [to have sexual intercourse or not], but pressed on
regardless . This formulation is more akin to the traditional Cunningham
test of recklessness, since it essentially requires proof that D has actually
recognized or foreseen that the victim may not be consenting, but pressed
on regardless because he could not care less (see also Khan [1990] 1 WLR
813 in which the English Court of Appeal, holding that the mens rea of
attempted rape is the same as that of rape itself, stated (at 819) that it must
be proved D either knows [the woman is not consenting] or could not
care less about the absence of consent).
In Sohn Young-shek John ([1990] 2 HKLR 121), the Court of Appeal in
Hong Kong emphasized (at 125) that when D puts his mens rea in issue, it
is essential for a trial judge to offer guidance to a jury as to the meaning of
the word reckless.
Mistaken belief
In DPP v Morgan ([1976] AC 182), the House of Lords held that under the
common law, a man who mistakenly believes a woman is consenting to
SEXUAL OFFENCES
611
sexual intercourse with him is not liable for rape; his mistake negates the
mens rea of rape, i.e. his knowledge or recklessness that she is not
consenting. Furthermore, such a mistake may be relied on even if it is an
unreasonable mistake in the circumstances (for mistake, see Chapter 4).
This common law principle applies equally to the statutory offence of rape.
Accordingly, if, on the evidence, D may have believed that there was consent,
then the prosecution will not have proved beyond reasonable doubt that D
had non-consensual sexual intercourse knowing that there was no consent
or being reckless as to this possibility. To succeed, the prosecution must
negative any evidence adduced in support of the existence of such a belief
on Ds part.
The Lords in Morgan recognized, nonetheless, that the reasonableness
or unreasonableness of any such belief is evidence which, at common law,
may be taken into account in deciding whether D may in fact have believed
that there was consent (see also McFall [1994] Crim LR 226). This principle
is now restated in section 118(4) of the Crimes Ordinance:
It is hereby declared that if at a trial for a rape offence [rape offence
means rape, attempted rape, aiding, abetting, counselling or procuring
rape or attempted rape, and incitement to rape section 117(1) of
the Crimes Ordinance] 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.12
In Cheung Moon-tong ([1981] HKLR 402), the Court of Appeal

emphasized (at 425) that where D asserts he believed the victim was
consenting, the essential question for the jury is whether D may indeed
have held such a belief:
... [T]he jury should [be] left in no doubt that a mistaken belief
genuinely held by [D] that the complainant was consenting to have
intercourse with him, however unreasonable such belief may to them
to have been, was a complete answer to the charge.13
12
13
This does not permit the accused to cross-examine the complainant as to her sexual
background and experience, contrary to section 154 of the Crimes Ordinance; see Barton
[1987] Crim LR 399.
See also Thomas (1982) 77 Cr App R 63 and S (1983) 78 Cr App R 149, on the necessity
for a judge to direct a jury that belief in the womans consent is a defence.
612
The Hong Kong Court of Appeal has several times reaffirmed this
approach (see, for example, Sohn Young-shek John [1990] 2 HKLR 121, at
125; Cheung Kin Shing [1995] 2 HKC 210, at 211; and HKSAR v Tam Kon
Chung [1998] 3 HKC 392, at 398).
On the other hand, if there is a stark difference between Ds evidence
and that of the victim, for example, D asserts the victim was a willing
participant, whereas she asserts she was comatose at the time, such that
there is no room for a genuine but mistaken belief by D that she was
consenting, then it is unnecessary and potentially confusing for a judge to
elaborate overly on the necessity for the prosecution to prove Ds knowledge
or recklessness of the absence of consent (Haughian and Pearson (1985) 80
Cr App R 334, at 341: referred to with approval by the Court of Appeal in
Hong Kong in Chow Siu Hei (1996) Cr App No. 692 of 1995 and HKSAR v
Wong Kwong-yick (1997) Cr App No. 594 of 1996; see also Yau Wai-hung
[1988] 1 HKLR 452 and Kwok Tak Ming Danny [1996] 4 HKC 395; compare
HKSAR v Tsang Sai Kit [1997] 3 HKC 790, where the fact that the victim
was willing to keep D company was taken to support a defence of honest
belief).
For the purposes of assessing the effect, if any, of Ds intoxication on
criminal liability, rape is a basic intent offence (see also re attempted rape:
Khan [1990] 1 WLR 813). Equally, a mistaken belief caused by Ds voluntary
drunkenness cannot be relied on to negate liability (Fortheringham [1988]
Crim LR 846).
Other Offences Involving Unlawful Sexual Intercourse

Section 123
This section prohibits a man from having unlawful sexual intercourse with
a girl under the age of 13. The consent of the girl is not a defence to this
offence. Furthermore, based on Prince ((1875) LR 2 CCR 154), the offence
is traditionally taken to impose strict liability as to the girls age (Poon
Ping-kwok [1993] 1 HKCLR 56, at 57); accordingly, a mistaken belief on
Ds part that the girl was over the age of 13, even if reasonable, traditionally
is not a defence. However, the correctness of this is now in doubt in the
light of the decision of the House of Lords in Re B (A minor) v DPP ([2000]
2 AC 428) that the prosecution must prove the absence of any honest
belief on the part of the defendant that the victim was above the specified
age (regardless of whether or not it was an unreasonable belief) once the
SEXUAL OFFENCES
613
issue of honest belief as to age is raised by the defendant, even in an agebased sexual offence (see Chapter 5, p. 206). The offence is triable on
indictment and punishable by life imprisonment.
Section 124
Section 124(1) makes it an offence for a man to have unlawful sexual
intercourse with a girl under the age of 16. The consent of the girl is not
a defence, unless the girl is either the mans lawful wife,14 or, as provided
for in subsection (2), the man believes her to be his wife and has reasonable
cause for the belief, despite the fact that the marriage is actually invalid
under section 27(2) of the Marriage Ordinance (cap. 181) because the girl
is under the age of 16. Applying section 150 of the Crimes Ordinance,15
the onus of proving this belief and reasonable cause for it lies on the accused,
on the balance of probabilities.
As with section 123, Re B (A Minor) has cast doubt on the correctness
of the traditional view that a mistaken belief the girl is 16 years old or
older is not a defence, even if the belief is reasonable (the traditional view
is set out in Poon Ping-kwok [1993] 1 HKCLR 56).16 The offence is triable
on indictment and punishable by five years imprisonment.
Section 125
This section makes it an offence for a man to have unlawful sexual
intercourse with a woman who is a mentally incapacitated person
(previously, defective; amended by Schedule 2, Item 2 of the Mental Health
(Amendment) Ordinance, No. 81 of 1997), this term being defined in section
117(1) as:
14
15
16
Unlawful must presumably be given this meaning for the purposes of this offence. Having
regard to section 27(2) of the Marriage Ordinance, this would apply only where the marriage
is valid under a foreign law.
Section 150: Where in any section in this Part the description of an offence is expressed
to be subject to exceptions mentioned in the section, proof of the exception is to lie on
the person relying on it. However, this section may contravene Article 11(1) of the Hong
Kong Bill of Rights Ordinance.
Note that the equivalent English statutory provision, section 6 of the Sexual Offences Act
1956, expressly provides a man aged under 24 who has not previously been charged with
a like offence with a defence of reasonable belief that the girl was 16 or over (section
6(3)).
614
a mentally disordered person or a mentally handicapped person (within

the meaning of the Mental Health Ordinance (Cap. 136))17 whose
mental disorder or mental handicap, as the case may be, is of such a
nature or degree that that person is incapable of living an independent
life or guarding himself against serious exploitation, or will be so
incapable when of an age to do so.18
As with sections 123 and 124, the victims consent to sexual intercourse
cannot be relied on as a defence (unless the defective is Ds wife, in which
case the sexual intercourse would not be unlawful). However, section
125(2) provides that a man will not be liable for this offence if he does not
know and has no reason to suspect [the victim] to be a mentally
incapacitated person at the time when sexual intercourse takes place. The
onus of proving that he falls within this exception appears to lie on the
accused, on the balance of probabilities (section 150 of the Crimes
Ordinance), though it might now be arguable that this is in breach of the
presumption of innocence in Article 11 of the Hong Kong Bill of Rights, in
the light of Re B (A Minor) holding that an honest belief may be relied on
to negate liability, even if it may have been unreasonable. The offence is
punishable by ten years imprisonment.
Incest
Sections 47 and 48 of the Crimes Ordinance enact several incest-based
offences. These offences may be committed whether or not the relationship
between the alleged parties to the act of incest is traceable through lawful
wedlock (section 49(1) of the Crimes Ordinance).
In each case, the consent of the Secretary of Justice to prosecution
must be obtained (section 51 of the Crimes Ordinance).
17
18
According to section 2(1) of the Mental Health Ordinance, mental disorder means:
(a) mental illness; (b) a state of arrested or incomplete development of mind which amounts
to a significant impairment of intelligence and social functioning which is associated with
abnormally aggressive or seriously irresponsible conduct on the part of the person
concerned; (c) psychopathic disorder; or (d) any other disorder or disability of mind which
does not amount to mental handicap, and mentally disordered shall be construed
accordingly; and mental handicap means sub-average general intellectual functioning with
deficiencies in adaptive behaviour, and mentally handicapped shall be construed
accordingly.
Whether a person is a mentally incapacitated person is a question of fact to be determined
by the jury; Hall (1988) 86 Cr App R 159. See also Chan Kin Sum [1995] HKDCLR 1:
schizophrenic not a defective.
SEXUAL OFFENCES
615
Offences by male
Section 47(1) makes it an indictable offence, punishable by 14 years
imprisonment (if the female is under 13 years of age, the maximum is life
imprisonment (section 47(1)(b) of the Crimes Ordinance); aged from 13
to under 16 years, then 20 years imprisonment is provided (section 47(1)(a)
of the Crimes Ordinance)) for a man19 to have sexual intercourse with a
woman who he knows is his granddaughter, daughter, sister (or half-sister;
section 49(1) of the Crimes Ordinance), or mother. The womans consent
to sexual intercourse is immaterial (section 47(2) of the Crimes Ordinance)
(though by consenting, a woman may thereby commit an offence under
section 48 of the Crimes Ordinance).
Section 47(3) makes it an offence, triable on indictment or summarily
and punishable by ten years imprisonment, for a man to attempt (for the
meaning of attempt, see Chapter 9) to commit the offence in section 47(1),
or to incite a girl under 16 who is to his knowledge his granddaughter,
daughter or sister to have sexual intercourse with him.
Offence by female
Section 48 makes it an indictable offence, punishable by 14 years
imprisonment, for a female aged 16 years20 or older to permit a man known
to be her grandfather, father, brother or son to have sexual intercourse
with her, with consent.
Buggery, Gross Indecency and Related Offences

Pre-1991
At common law, buggery includes anal intercourse by a man with a man or
a woman (sodomy) and anal or vaginal intercourse by a man or a woman
with an animal (bestiality) and was referred to in section 49 of the
Offences Against the Person Ordinance as the abominable crime of buggery,
committed either with mankind or with any animal. Prior to 1991, buggery
19
20
Man includes boy, and woman includes girl; see section 49(2) of the Crimes Ordinance.
Females aged under 16 are viewed as protected victims, and therefore cannot be made
liable as a secondary party to an offence committed by a man under sections 47(1) and
(3); see R v Whitehouse [1977] QB 868.
616
remained a common law offence under Hong Kong criminal law. It was
punishable by life imprisonment, and the consent of the parties was not a
defence (although it remained relevant to sentencing; see Tonti (1988) Cr
App No. 174 of 1988). Thus, a husband and wife were potentially criminally
liable for consensual sodomy performed in the privacy of their home, as
also would be two consenting adult males.
There also existed a related offence of gross indecency by one male
on or with another male, contrary to section 50 of the Offences Against the
Person Ordinance, which was punishable by two years imprisonment.
In 1983, the Hong Kong Law Reform Commission recommended that
these and several related sections in the Offences Against the Person
Ordinance (sections 51 to 53) should be repealed and replaced with sections
similar to those previously adopted in England in the Sexual Offences Act
1967, whereby some of these acts would no longer be criminal if committed
in private between consenting adults, whether male and female, or male
and male. This recommendation was finally adopted in 1991.21
Post-1991
Buggery, gross indecency and related offences are now dealt with in sections
118A118N of the Crimes Ordinance.
Buggery
Section 118M abolished the common law offence of buggery. Instead, section
118A enacts a general offence of non-consensual buggery committed by
one person on another. Buggery is not statutorily defined, and retains its
common law meaning; in the context of section 118A, which refers to a
person committing buggery with another person, it is limited to sodomy
(i.e. anal intercourse), whether heterosexual or homosexual. As with rape,
the offence is complete upon proof of penetration (section 65E of the
Criminal Procedure Ordinance). The offence is triable on indictment and
is punishable by life imprisonment.
Consensual buggery remains an offence in the following circumstances:
(1) under section 118C, where it is committed by one man with another
man, if either party is aged under 21;
21
See section 26 of the Crimes (Amendment) Ordinance, No. 90 of 1991. Note also, section
118N of the Crimes Ordinance, which prevents prosecution for past conduct except in
accordance with the new provisions.
SEXUAL OFFENCES
617
(2) under section 118D, if it is committed by a man on a girl under the

age of 21 (there appears to be no exception where the girl under 21
years is the mans wife);
(3) under section 118E(1), if it is committed by a man with a mentally
incapacitated person (previously, defective), whether male or female.
However, no offence is committed if the man does not know and has
no reason to suspect the other to be a mentally incapacitated person
(section 118E(2)). Furthermore, no offence is committed under this
section by a man committing buggery with a woman if he is, or believes
on reasonable grounds that he is, married to that woman (section
118E(3));
(4) under section 118F(1), where it is committed by a man with another
man, both being aged 21 or older, if it is committed otherwise than in
private. According to section 118F(2), otherwise than in private means
(a) when more than 2 persons take part or are present; or (b) in a
lavatory or bathhouse (defined in section 118F(3)) to which the public
have or are permitted to have access, whether on payment or otherwise.
All four of these offences involving consensual buggery are triable on
indictment. Sections 118C and 118D are punishable by life imprisonment,
buggery with a mentally incapacitated person contrary to section 118E(1)
is punishable by ten years imprisonment, and homosexual buggery
otherwise than in private contrary to section 118F(1) is punishable by five
years imprisonment.
Consensual buggery not falling within any of the above provisions, i.e.
consensual buggery between consenting adults aged 21 or older in private,
is no longer an offence.
Related offences include assault with intent to commit buggery, contrary
to section 118B (punishable by ten years imprisonment), and procuring
homosexual buggery, contrary to section 118G (punishable by two years
imprisonment).
Section 118L deals with the remaining aspect of buggery at common
law, namely, bestiality. This section provides that a person who commits
buggery with an animal is guilty of the offence of bestiality and is liable on
conviction on indictment to a fine of HK$50,000 and ten years
imprisonment.
Gross indecency
Several offences prohibit acts of gross indecency between males. Act of
618
gross indecency is not defined in the Crimes Ordinance. In Whitehouse

([1955] QLR 100), the Queensland Court of Criminal Appeal took the
view that gross meant simply plain, evident, obvious, but this was not
favoured by the Hong Kong Court of Appeal in Savage ([1997] HKLRD
428) where it seemed to Nazareth Acting CJ, without deciding the point,
that gross refers to indecency that is more serious than mere indecency:
possible formulations included a marked departure from decent conduct
(Quesnel (1979) 51 CCC 270, at 280), and an act ... which, under the
customs and morals of our times, would be considered grossly indecent by
any right-thinking member of the public (R v K and H (1957) 118 CCC
317, at 319). In Savage, gross indecency was held to include the act of
videotaping a 12-year-old girl in various stages of undress, the emphasis
being on her naked lower body.
Other examples would be acts of masturbation and fellatio. Such acts
need not necessarily amount to or include an indecent assault; for example,
they may be done with consent.
Section 118H prohibits the commission of acts of gross indecency by
one male on another male, if either is aged under 21. The consent of the
parties is not a defence.
Section 118J(1) prohibits a male from committing an act of gross
indecency on another male otherwise than in private, the latter phrase
being defined in sections 118J(2) and (3) in similar terms to that in section
118F, above. Having regard to section 118H, section 118J prevents males
aged 21 or older from doing in public those acts of gross indecency which
they might otherwise do to each other in private. As with section 118H,
the consent of the parties is not a defence.
Section 118I(1) prohibits a male from committing acts of gross
indecency with a mentally incapacitated male (previously, defective).
Consent is not a defence, but section 118I(2) provides an exception to
liability if the accused male did not know and had no reason to suspect
that the other male was a mentally incapacitated person.
Section 118K makes it an offence for a man to procure another man to
commit an act of gross indecency with a third man.
Each of the offences in sections 118H118K is triable on indictment
and punishable by two years imprisonment.
Gross indecency towards a child aged under 16
There is one further statutory prohibition on acts of gross indecency,
contained in section 146(1) of the Crimes Ordinance. This makes it an
SEXUAL OFFENCES
619
offence for a person (who may be male or female) (Faulkner v Talbot

[1981] 3 All ER 468) to commit an act of gross indecency with or towards
a child under the age of 16 years, or to incite a child under the age of 16
to commit such an act with or towards him or her or another. The consent
of the child to the act of gross indecency is not a defence (section 146(2)
of the Crimes Ordinance). Further, the offence is traditionally treated as
imposing strict liability in relation to the childs age; that is, the prosecution
does not need to prove knowledge or recklessness as to the childs age.
Furthermore, it was thought that a genuine (but mistaken) belief that a
child is above the age of 16 will not provide D with a defence (Poon Ping
Kwok [1993] 1 HKCLR 56, at 57; Savage [1997] HKLRD 428, at 431), but
this may no longer be correct in light of the decision of the House of Lords
in Re B (A Minor) ([2000] 2 AC 428; discussed in Chapter 5, p. 206) that
an honest mistaken belief may be relied upon, even if not based on
reasonable grounds, compelling the prosecution to prove the absence of
any such belief beyond reasonable grounds. Sexual gratification need not
be proved (Savage). Section 146(3) allows an exception if D is, or believes
on reasonable grounds that he or she is, married to the child. The offence
is triable on indictment and punishable by ten years imprisonment.
Procuring and Enabling Unlawful Sexual Acts

Several offences in the Crimes Ordinance deal with procuring and enabling
unlawful sexual acts.
Procuring unlawful sexual acts
Under section 119(1), it is an offence for a person (male or female) to
procure another person, by threats or intimidation, to do an unlawful sexual
act in Hong Kong or elsewhere [emphasis added]. It seems that the unlawful
sexual act procured by the accused must actually take place, whether with
the procurer or with a third party (who may be male or female), and whether
in Hong Kong or not, though in this latter case, it seems that the act of
procurement must take place in Hong Kong to establish jurisdiction. If the
unlawful sexual act does not take place, D may still be liable for incitement,
conspiracy or attempt to procure (see, for example, R v Harris [1991] 1
HKLR 389). In HKSAR v Chan Wing Hung ([1997] 3 HKC 472), the Hong
Kong Court of Appeal suggested that the reference to unlawful sexual acts
in section 119(1) is to be treated as mere surplusage, at least where the
620
unlawful sexual act is unlawful sexual intercourse (section 117(1A)(a));

if so, then a husband may be liable for procuring his wife by threats or
intimidation to have (unlawful) sexual intercourse with him. The offence
is triable on indictment and punishable by 14 years imprisonment.
Secondly, under section 120(1), it is an offence for a person to procure
another person, by false pretences or false representations, to do an unlawful
sexual act in Hong Kong or elsewhere [emphasis added]. According to
section 120(2), for the purposes of this offence, pretence and
representation include a pretence or representation relating to the past,
the present or the future and any pretence or representation as to the
intentions of the person using the pretence or representation or of any
other person. This is a wide definition and is not limited to such deceptions
as would suffice at common law to vitiate consent for the purposes of rape.
It would appear to include, for example, a representation by a male that he
intends to marry a female. As with section 119(1), it appears that the
unlawful sexual act procured by the accused must actually take place,
whether with the procurer or with a third party (who may be male or
female) and whether in Hong Kong or not, though in the latter case, the
deception must take place in Hong Kong to establish jurisdiction. The
offence is triable on indictment and punishable by five years imprisonment.
Thirdly, under sections 132 and 133, it is an offence for a person
respectively to procure a girl under the age of 21 and a woman who is a
mentally incapacitated person (previously, a defective) to have unlawful
sexual intercourse in Hong Kong or elsewhere with a third person. In
respect of mentally incapacitated women, section 133(2) provides an
exception from liability if the accused does not know and has no reason to
suspect her to be a mentally incapacitated person. It would appear that the
onus of proving this lack of knowledge or reasonable suspicion lies on the
accused person (section 150 of the Crimes Ordinance). Both offences are
triable on indictment; section 132 is punishable by five years imprisonment,
and section 133 by ten years imprisonment.
Enabling unlawful sexual acts
Under section 121(1), it is an offence for a person to:
apply or administer to, or cause to be taken by, another person any
drug, matter or thing with intent to stupefy or overpower that other
person so as to enable anyone to do an unlawful sexual act with that
other person.
SEXUAL OFFENCES
621
This offence, which may be committed by a male or a female, is complete

when the drug, matter or thing is applied, administered, or caused to be
taken by the accused with the stipulated intent; the unlawful sexual act
need not actually take place. The offence is triable on indictment and
punishable by 14 years imprisonment.
Abduction Offences
Three offences deal with the abduction of persons for sexually related
purposes. They are intended to protect specified classes of persons against
the possibility of seduction. The first, section 126(1), makes it an offence
for a person (who may be male or female), without lawful authority or
excuse, [to] take an unmarried girl under the age of 16 out of the possession
of her parent or guardian [see section 126(2)] against the will of the parent
or guardian. This does not require the prosecution to prove any sexual act
or intention on the part of the accused. Furthermore, following Prince
([1875] LR 2 CCR 154), it has traditionally been said that this offence
involves strict liability as to the girls age; thus, it is not necessary to prove
that D (who may be male or female) knew that the girl was aged under 16,
nor that he or she actually realized that there was a risk of this, nor even
that he or she ought to have recognized this risk. Instead, the accused may
be liable, as in Prince, even though he or she reasonably believed that the
girl was aged 16 or older, for example, having been misled in this regard
by the girl herself. However, the correctness of this is now in doubt, in the
light of Re B (A Minor) ([2000] 2 AC 428, above), in which the House of
Lords cast doubt on the correctness of the courts reasoning in Prince, and
held that a defendant is entitled to rely on an honest belief, reasonable or
not, that the victim was of the specified age, with the burden of disproving
honest belief lying on the prosecution beyond reasonable doubt.
Secondly, section 127 makes it an offence for a person (who may be
male or female) to take an unmarried girl under the age of 18 out of the
possession of her parent or guardian [see section 127(2)] against the will of
the parent or guardian with the intention that she shall have unlawful sexual
intercourse with men or with a particular man. Here, it is necessary to prove
a sexual purpose or intention against the accused, namely, that the victim
should have sexual intercourse, although, in the case of a male accused, he
need not intend the female to have sexual intercourse with himself.
Thirdly, it is an offence under section 128(1) for a person (who may
be male or female) to take a mentally incapacitated person [previously,
622
defective] out of the possession of her or his parent or guardian [see section
128(3)] against the will of the parent or guardian with the intention that
the mentally incapacitated person do an unlawful sexual act. This offence
requires proof of a sexual purpose or intention on the part of the accused,
but extends to any unlawful sexual act, not only unlawful sexual intercourse
as in section 127(1). Section 128(2) provides an exception, according to
which the accused person is not liable if he or she does not know and has
no reason to suspect the other to be a mentally incapacitated person. As
with section 125 (discussed above, p. 613), this requirement that a mistaken
belief be reasonable may now be open to challenge for breaching the
presumption of innocence in Article 11 of Hong Kongs Bill of Rights, in
the light of Re B (A Minor) holding that a defendant is entitled to rely on
an honest belief even if it was unreasonable, with the burden of disproving
honest mistake lying on the prosecution.
All three of these offences are triable on indictment. The offences under
sections 126 and 128 are punishable by ten years imprisonment, and that
under section 127 by seven years imprisonment.
Indecent Assault
Statutory offence and meaning
Indecent assault is an offence in Hong Kong, contrary to section 122 of the
Crimes Ordinance, which reads:
(1) Subject to subsection (3), a person who indecently assaults another
person shall be guilty of an offence and shall be liable on conviction
on indictment to imprisonment for 10 years.
(2) A person under the age of 16 years cannot in law give any consent
which would prevent an act being an assault for the purposes of
this section.
(3) A person is not, by virtue of subsection (2) guilty of indecently
assaulting another person, if that person is, or believes on
reasonable grounds that he or she is, married to that other person.
(4) A woman who is a mentally incapacitated person [previously,
defective] cannot in law give any consent which would prevent
an act being an assault for the purposes of this section, but a
person is only to be treated as guilty of indecently assaulting a
mentally incapacitated person by reason of that incapacity to
consent, if that person knew or had reason to suspect her to be
a mentally incapacitated person [emphasis added].
623
SEXUAL OFFENCES
Section 122(1) covers all indecent assaults, whether the accused is male or
female a person and whether the victim is male or female another
person (compare England and Wales which retain two offences, sections
14 and 15 of the Sexual Offences Act 1956, respectively dealing with
indecent assault on a woman and indecent assault on a man).
The meaning of indecent assault itself is not stated in the ordinance
and remains a matter of common law. According to the House of Lords in
Court ([1989] AC 28, at 456):
On a charge of indecent assault the prosecution must prove: (1) that the
accused intentionally assaulted the victim; (2) that the assault, or the
assault and the circumstances accompanying it, are capable of being
considered by right-minded persons as indecent; (3) that the accused
intended to commit such an assault as is referred to in (2) above.
Prior to Court, it was generally thought that indecent assault required

proof of only two elements, an assault and objective indecency. Thus, in
Mok Pak-wo ([1980] HKLR 347), it was held that the several accused
committed indecent assaults when, during the course of a robbery, they
took photographs of three female victims and two male victims whom they
had forced to undress in varying degrees. The accused argued that the
photographs taken by them could have been taken for blackmail purposes,
or to intimidate the victims into not reporting the robbery to the police,
and that the prosecution had, therefore, failed to prove the assaults involved
in taking the photographs were intended in the minds of the accused
themselves to be indecent. This argument was rejected by the Court of
Appeal, holding that it was sufficient to prove the acts of the accused
involved an assault or battery, which clearly they did, and that the assaults
were by their nature objectively indecent. There was no further need, it
was held, to prove a sexual or indecent intention in the minds of the robbers.
Court concluded there was a third element, broadly referred to as
indecent intention.
R v Court [1989] AC 28
Facts
Court, a 26-year-old shop assistant, seized a girl, aged 12, who had
come into the shop, bent her across his knee and struck her with his
hand about 12 times on her bottom. She was wearing shorts at the
time. When questioned by the police as to why he had struck the girl,
C allegedly replied, I dont know buttock fetish.
624
C was charged with indecent assault on a female, contrary to section

14(1) of the Sexual Offences Act 1956. He pleaded guilty to assault,
but denied indecent assault. He argued that his statement about buttock
fetish was neither admissible evidence, not having been communicated
to the victim at the time, nor was relevant in assessing whether his act
was objectively indecent. At trial, Cs statement was admitted, and he
was convicted.
The Court of Appeal dismissed his appeal, holding that although
there was no need to prove indecent intention, Cs statement of his
secret motive was nonetheless admissible evidence in order to assess
the nature of his act. The Court of Appeal certified the following question
of law for appeal to the House of Lords:
Whether it is correct that on a charge of indecent assault, the
prosecution must prove: (a) that the accused intentionally assaulted
the victim; and (b) that he was aware of the indecent circumstances
of what he did or was reckless as to their existence; but that it is
not necessary for the prosecution to prove in addition that the
accused had an indecent purpose or intention.
Decision
Conviction affirmed. Indecent assault required proof of three elements,
as stated above. Explaining the need for the third element of indecent
intention, Lord Ackner observed (at 41):
It cannot, in my judgment, have been the intention of Parliament,
that an assault can, by a mere mistake or mischance, be converted
into an indecent assault, with all the opprobrium which a
conviction for such an offence carries. To take one of the less
imaginative examples discussed in the course of the arguments, it
may be a common occurrence during travel on the London tube
during rush hours, for a person suddenly to realise belatedly that
the train has stopped at the very station where he wishes to alight,
without his having taken the wise precaution of getting close to
its doors. Such a person may well in his anxiety to get out, rather
than be carried on to the next stop, use unnecessary force in
pushing his way through his fellow passengers. If he thus came
into contact with a woman, then he would be guilty of having
assaulted her. If something that he was carrying, such as an
umbrella, became caught up, as it might well do, in her dress as
he pushed pass, thus tearing away her upper clothing, he would
in my judgment, be guilty only of an assault. He would not be
guilty of an indecent assault. The contrary result would appear to
be possible if the Court of Appeals test was applied. It would
certainly follow if the submission made in their cases by both
counsel for the appellant and the prosecution were right, that to
SEXUAL OFFENCES
625
establish the mental element in the offence of indecent assault,

no more need be established than for common assault.
Thus, concluded the Lords, an additional mental element an indecent

intention must be proved, to avoid the possibility that a simple
accident such as that mentioned by Lord Ackner might amount to an
indecent assault.
Applying these three elements to C, Cs act spanking the young
girl on her clothed buttocks was an intentional battery. Secondly, it
was at least capable of being considered indecent by right-minded
people, although it was not necessarily or inherently so it might, for
example, be done simply to punish, without any sexual overtones.
Thirdly, for this ambiguous act to be an indecent assault, it was necessary
for the prosecution to prove that it was performed by C with an indecent
intention. Accordingly, Cs admission of his sexual purpose or motive
was relevant and admissible for this purpose.
Actus reus
Assault
Assault here means either an assault or battery.22 Thus, in the first instance,
the prosecution must prove that D committed the actus reus of either an
assault or a battery. Rolfe ((1952) 36 Cr App R4) is an example of indecent
assault based on an assault strictly speaking: the accused exposed his penis
to a woman, and walked towards her while making indecent suggestions.
In Sargeant ([1977] Crim LR 50), D grabbed hold of a boy and forced him
(though without any further touch) to masturbate into a condom while in
public; the English Court of Appeal held this amounted to indecent assault,
contrary to section 15(1) of the Sexual Offences Act 1956. If an assault
is relied on, it is necessary to prove the victim was aware of Ds conduct;
if not, the actus reus of assault apprehension by the victim of immediate
and unlawful personal violence would not be established. This is not
necessary in the more usual case of indecent assault, where there is a
22
See, for example, Lord Ackner in Court ([1989] 1 AC 28, at 412): It is was common
ground before your Lordships, and indeed it is self-evident, that the first stage in the proof
of the offence is for the prosecution to establish an assault. The assault usually relied
upon is a battery ... . But the assault relied upon need not involve any physical contact
but may consist merely of conduct which causes the victim to apprehend immediate and
unlawful personal violence. In the case law on the offence of indecent assault, both
categories of assault feature.
626
battery, i.e. an actual touching (the slightest touch may be sufficient for
the purposes of the actus reus of battery; see Faulkner v Talbot [1981] 1
WLR 1528 and Collins v Wilcox [1984] 1 WLR 1172). Indecent assault
based on battery may therefore arise even though the person touched by
D in an indecent manner was asleep or unconscious, for this still amounts
to the infliction of unlawful personal violence (Court [1989] AC 28, at 42,
per Lord Ackner).
Consent
Assault and battery require the apprehension or infliction of unlawful
personal violence. If the victim consented to Ds act, this will negate liability
for an assault or battery and correspondingly indecent assault, provided
the consent is valid and effective at law. Consent is discussed more fully
elsewhere (see Chapter 11, p. 568). Briefly, consent may be invalid if the
victim is incapable (because of youth or mental disability) of validly
consenting, or if it is induced by force or threats, or by fraud as to the
nature of Ds act or Ds identity (Lau Chun Hon [1995] 2 HKC 599: sham
medical examination; see also Tabassum [2000] Crim LR 686).
In addition, in accordance with Brown (Anthony) ([1994] 1 AC 212),
public policy will limit Ds entitlement to rely on consent (otherwise validly
given) if Ds conduct is intended to cause or, it seems, actually causes
actual bodily harm, unless it falls within one or more categories of lawful
exception. The infliction of such harm during or for the purposes of sexual
activity does not readily fall within any lawful exception. Thus, in Donovan
([1934] 2 KB 498), where D obtained sexual pleasure by beating the victim,
it was held that any consent given by her could not be relied on as a
defence to a charge of indecent assault, since Ds conduct caused and had
been intended to cause actual bodily harm. Similarly, in Brown (Anthony)
([1994] 1 AC 212), a majority of the House of Lords held that public
policy did not justify the recognition of consent as a defence to sadomasochistic acts performed for sexual purposes, if actual bodily harm was
intended or caused. In Boyea ([1992] Crim LR 574), on the other hand,
the court allowed some leeway in the use of violence in sexual activity.
The court stated (at 575) that it ought to:
take account of the fact that social attitudes have changed, particularly
in the field of sexual relations between adults. As a generality, the
level of sexual vigour in sexual congress which was generally
acceptable, and therefore the voluntarily accepted risk of incurring
SEXUAL OFFENCES
627
some injury was probably higher now than it was [in Donovan] in
1934.
Even so, the court held that the actual injuries inflicted by B, resulting
from inserting his hand into the victims vagina and twisting it, went beyond
the risk of minor injury to which, if [the victim] did consent, her consent
would have been a defence.
In relation to indecent assault, several further restrictions on consent
must be borne in mind. Firstly, a wife is not deemed by virtue of the
marriage to have consented to the commission of indecent acts either on
her or by her on her husband. This was affirmed in R v Kowalski ((1988)
86 Cr App R 339) in which the court held that a husband who forced his
wife against her wishes to perform fellatio on him thereby committed an
indecent assault, even if this may have been as a prelude to lawful sexual
intercourse (compare Caswell [1984] Crim LR 111).
Secondly, section 122(2) provides that a boy or girl under the age of
16 cannot in law give any consent which would prevent an act being an
assault (i.e. assault or battery) for the purposes of section 122(1). That is,
conduct which could otherwise be validly consented to by a person aged
under 16 if charged as an assault or battery, e.g. a touch which inflicts no
bodily harm, cannot be validly consented to if charged as an indecent assault,
e.g. touching an intimate part of the body without inflicting any bodily
harm (see further Faulkner v Talbot [1981] 3 All ER 468; HKSAR v Choi
Fei Ngai [1998] 3 HKC 455). It is unclear whether it may be a defence for
D to say he mistakenly believed the boy or girl was aged 16 or older.
Traditionally, the offence is taken to involve strict liability as to the victims
age (Prince [1875] LR 2 CCR 154; Maughan (1934) 24 Cr App R 130), but
this is now subject to review in the light of Re B (A Minor) ([2000] 2 AC
428), in which the House of Lords held that an honest mistake as to the
victims age, even if unreasonable, may provide D with a defence, with the
burden of proving beyond reasonable doubt the absence of any such belief
lying on the prosecution (see further, Chapter 5, p. 206). This is also subject
to a further express exception, set out in section 122(3), whereby a person
who commits consensual acts with or on his or her husband or wife
may rely on the latters consent even though he or she is under 16, if they
are legally married23 or if D at least believes on reasonable grounds that
23
Section 27(2) of the Marriage Ordinance (cap. 181) presently invalidates any marriage
made in Hong Kong if either party is under 16; overseas jurisdictions may allow marriages
between persons under 16.
628
they are married (this latter requirement of reasonable grounds may also
be challengeable in the light of Re B (A Minor)).
Thirdly, section 122(4) similarly provides that a woman who is a
mentally incapacitated person (previously, a defective) cannot in law give
her consent to an act amounting to an indecent assault. D is not liable,
however, by reason of that incapacity to consent unless he or she knew or
had reason to suspect her to be a mentally incapacitated person (Hudson
[1966] 1 QB 448) (as with other similar provisions, this may now be
challengeable in the light of Re B (A Minor), holding that a defendant is
generally entitled to rely on an honest mistaken belief to negate liability,
even if it may have been unreasonable).
Objective indecency
Ds conduct must be adjudged to be indecent. This is assessed on an
objective basis, without regard to any indecent purpose or intention in the
mind of the accused. In Court, where the Lords were concerned with
indecent assault against a female, several expressions were used to indicate
the standard that the jury or judge must apply. Lord Ackner, for example,
thought (at 42) that Ds conduct must be so offensive to contemporary
standards of modesty and privacy as to be indecent, and Lord Griffiths
suggested (at 34) that it must be conduct that right-thinking people will
consider an affront to the sexual modesty of a woman.
In Lau Wai-tung ((1986) Mag App No. 763 of 1985), Downey Dep J
cautioned that this must be assessed having regard to local standards of
morality and decency and not simply by applying decisions from overseas
jurisdictions.
It seems that the essential question the jury or judge must ask
themselves in determining this issue is whether Ds act is capable, either in
itself or in the circumstances of the particular case (including what D did
and said), of being considered indecent in the eyes of right-minded persons.
If the answer to this question is no, in the circumstances of this case,
Ds act is not capable of being considered indecent, then a prosecution for
indecent assault must fail. This will be so even if D is motivated by and
derives some secret sexual or indecent pleasure from the act. Thus, conduct
which is devoid of indecency in itself, and is not accompanied by any overt
indications of indecency, cannot lead to liability for indecent assault. This
is illustrated by two cases decided prior to Court, George ([1956] Crim LR
52) and Thomas ((1985) 81 Cr App R 331), both of which were approved
by the House of Lords in Court. In George, the accused attempted to remove
SEXUAL OFFENCES
629
a shoe from the victims foot, giving him sexual pleasure. Assessed
objectively, in the absence of other acts or words by G at the time evidencing
or communicating this sexual or indecent purpose, the act of removing a
shoe from a persons foot would not be considered indecent by any rightthinking person. Accordingly, this conduct is not capable of being viewed
as indecent; G therefore did not commit an indecent assault. Similarly, in
Thomas, the accused derived secret sexual pleasure from touching the hem
of females skirts, an act which, in itself, no right-thinking person would
consider indecent. Ts secret sexual pleasure could not change this objective
assessment.
What about a stolen kiss? Several cases dealing with uninvited kisses
have concluded that in the absence of accompanying circumstances of
indecency, a kiss by itself is not indecent in nature; accordingly, an
uninvited kiss, without more, is not an indecent assault (though it may
constitute a battery). In Lam Chi Chee ([1992] HKLD L21), L, a male,
grabbed a 21-year-old female a stranger to him, although he alleged he
thought that she was a former girlfriend on the arm while she was
standing on an MTR (mass transit railway) platform, and tried to kiss her
on the face. At trial, the magistrate purported to apply Court and convicted
L of indecent assault. On appeal, Ryan J quashed the conviction, holding
that the mere act of kissing a woman, even a stranger, is not inherently
indecent right-minded persons observing such conduct would not in
their view consider anything indecent to have happened, nor were there
any other overt circumstances of indecency at the time changing the
character of such conduct (L had neither said nor done anything, such as
making indecent proposals or attempting to fondle other private or sexual
parts of the victims body, as in Leeson (1968) 52 Cr App R 185, where L
accompanied a kiss with suggestions that sexual activity should take place).
Lam Chi Chee was followed in Fong Chi Wai ([1996] 2 HKC 300),
with Gall J concluding (at 301):
In the case before me, there is no suggestion in the facts nor any
inference to be drawn that the appellant intended any other act than
the touching of the top of the shoulders and the kiss to the left side
of the face of the young lady. I cannot infer that a right-minded person
would consider that his actions took what was clearly an assault into
the realm of indecent assault.
Accordingly, Fs conviction of indecent assault was quashed, and a

conviction of common assault substituted.
630
These two cases are problematic. Their conclusion that a kiss in a

public place is not capable of being considered indecent flies in the face of
traditional standards of morality in Hong Kong, according to which Ds
conduct might well be considered an affront to contemporary local standards
of modesty and privacy, and therefore objectively indecent or at least capable
of being so. However, it is said to be logically necessary to treat a kiss in
public this way, otherwise it would mean that two young lovers, both
aged 15, engaging in a consensual kiss in public would necessarily thereby
commit indecent assault since neither could give valid consent so as to
prevent liability for indecent assault (section 122(2)).24
Gall J, the judge in Fong, reached a different conclusion in HKSAR v
Lau Kwai Chung ([2000] 3 HKC 658), where he affirmed a 40-year-old
mans conviction of indecently assaulting a 12-year-old girl by kissing her
without her consent, concluding that the circumstances accompanying the
non-consensual kiss (evidence of pre-meditation, use of sweets to attract
victim, taking victim to an isolated place) rendered it at least capable of
being considered indecent.
If the act is capable of being considered indecent either in itself or at
least in the circumstances of the particular case, then, applying Court, a
further distinction must be drawn. On the one side are acts which, either
in themselves or having regard to all the circumstances, are clearly
objectively indecent. Suppose, for example, a man touches a woman on
her genitals; in the absence of consent or some other lawful excuse (e.g. a
medical examination), all right-thinking persons would consider this act
inherently indecent. If it was deliberate, this conduct will generally amount
to indecent assault, with indecent intention being readily established, as is
discussed below.
On the other side are acts which, even taking the circumstances into
account, are not inherently indecent, i.e. not such that every right-thinking
person would inevitably declare it indecent, but are at least capable of being
considered indecent. The act is ambiguous a right-thinking person would
say maybe or it depends. This was the case in Court itself: Cs act of
spanking a 12-year-old girl across her clothed buttocks with his hand was
not inherently indecent; it might, for example, have been as a punishment.
However, in the absence of some such reasonable explanation, it might
also be thought of as indecent. It was therefore capable of being viewed as
24
See further, Glanville Williams, The Meaning of Indecency (1992) 12 Legal Studies 20,
pp. 2930.
SEXUAL OFFENCES
631
indecent; hence it could still amount to indecent assault if D did the act
with indecent intention.
Mens rea
Assault or battery
It must be proved firstly that D had the necessary mens rea for assault or
battery. At common law, this means either intention or Cunningham
recklessness (above, Chapter 11, p. 561). In Court, Lord Ackner appeared
to narrow this in his first element by requiring proof that D intentionally
assaulted the victim, apparently excluding recklessness. That seems right
so far as Ds conduct is concerned; if D pushes a female aside while trying
to get into a lift and, in so doing, accidentally touches her breast, it is
difficult to see how this could be characterized as an indecent assault.
However, recklessness may suffice in one respect. Where consent is in
issue, then D does not have to know that the victim did not consent. Instead,
it is sufficient if D realized that the victim might not be consenting, but
nonetheless went ahead with his or her act (Kimber [1983] 1 WLR 1118;
Parsons [1993] Crim LR 792).
On the other hand, in accordance with DPP v Morgan, D is entitled to
rely on an honest, but mistaken, belief that the victim consented, at least
in those cases where consent can be relied on as a defence. Following
Williams (Gladstone) ([1987] 3 All ER 411; approved in Beckford [1988]
AC 130), Ds mistake does not need to be reasonable (above, Chapter 4,
p. 170). Where consent cannot be relied on, for example, if the victim is
aged under 16, then Ds mistaken belief in consent will not provide him or
her with any defence.
Indecent intention
The third element introduced by the Law Lords in Court requires proof
that D intended to commit such an assault as is referred to in (2) above,
i.e. an assault which right-minded people would consider indecent.
This requirement, often referred to as indecent intention, becomes
important only once it is determined that Ds act is in the circumstances at
least capable of being considered objectively indecent. What indecent
intention then means appears to differ, depending on whether the case is
one in which the conduct in the circumstances is viewed as inherently
indecent or only ambiguously indecent.
632
Where Ds conduct is inherently (rather than ambiguously) indecent,

then it seems indecent intention will be proved largely by showing that D
intentionally did the act, knowing the circumstances and, if consent is in
issue, knowing he did not have consent or being reckless in that regard. It
is not necessary also to prove that D had any sexual or indecent purpose or
motive in his mind. Lord Griffiths in Court gave the following example
(at 35) to illustrate this:
A man might strip a woman in public with the motive of obtaining
sexual gratification or, alternatively, with the motive of revenge to
humiliate her; but whichever his motive he would undoubtedly be
guilty of indecent assault because his intentional stripping of her
clothing is an indecent affront to her sexual modesty.
In the same way, the accused in Mok Pak-wo, discussed above, could
be said to have acted with indecent intention; the result in that case would
remain the same after Court.25
A further illustration is provided by Hui Yau Tsen ([1991] HKLD F30),
in which the Court of Appeal considered the case of a doctor ostensibly
performing a medical examination. It was alleged that during a medical
examination, the doctor caressed and squeezed the breasts of a female patient
who came to him complaining of dizziness, fever and sore throat. On appeal
against his conviction of indecent assault, the Court of Appeal rejected an
argument that expert evidence should have been called to establish what
would be normal procedure for a medical examination in such a case. It is
important, said Yang CJ (at 5):
not to lose sight of the commonsense which a competent jury, properly
directed, would use. It was right that a jury should ask themselves
how responsible men and women would perceive and interpret Ds
acts as a medical doctor when treating a patient with the victims
symptoms.
Applying Court, he then concluded (at 7):

25
See also Yeung Siu Hung [1993] HKLD E24, in which Y was alleged to have touched the
victim seven or eight times under the armpit while on a bus. After citing Court, Jones J
concluded: having accepted [V]s evidence that [Y] did deliberately touch her, the question
that the magistrate had to decide was whether the circumstances were capable of being
considered by right-minded persons as indecent and that [Y] intended to commit such an
assault. The evidence clearly supported the magistrates finding that the assault was an
indecent assault and that [Y] intended to commit the assault.
SEXUAL OFFENCES
633
the acts described by the victim amounted to an assault which was

inherently indecent and not merely capable of being indecent. As no
explanation of any kind was offered by D for the acts complained of,
the judge was entitled to convict as charged.
The explanation contemplated here would presumably have to be one

directed at why it was medically necessary or appropriate for the accused
to perform the acts alleged in this case. A mere denial that it was for a
sexual or indecent motive would not suffice.
Where Ds conduct in the circumstances remains ambiguous, then to
prove indecent intention, it seems the prosecution must prove beyond
reasonable doubt that D intended his act to be sexual or indecent in nature.
According to Court, this must be determined by considering all the
circumstances, including any admissions by D that he or she had such a
sexual or indecent purpose or motive in doing the act. In other words, Ds
admission becomes the crucial piece of evidence enabling the trier of fact
to say: Well, if thats why D did this ambiguous act, then it was indecent.
Courts view of indecent assault, in particular, the addition of the third
element of indecent intention, is not without difficulty.26
In the first place, it has been criticized for departing from established
law by adding a requirement of indecent intention. Furthermore, the
rationale for doing so (set out above) is arguably flawed.
If one takes the view that to establish an indecent assault, it is necessary
not merely to prove no more than need be established for common assault,
as Lord Ackner suggested, but rather that the accused intentionally assaulted
(or battered) the victim, then this means it must be proved the accused
deliberately or intentionally performed the specific conduct amounting to
the assault or battery, knowing all the relevant circumstances rendering it
indecent. In the example given by Lord Ackner, this is clearly not so: the
passenger in a hurry may have intentionally pushed the female passenger,
thereby committing a battery on her, but he clearly does not deliberately,
i.e. intentionally, tear away her upper clothing, this being the specific feature
of his conduct which gives rise to its objectively indecent character. In the
absence of such deliberateness, or intention, in relation to this part of his
conduct, it is difficult to see why the passenger in a hurry would be liable
for indecent assault. On the other hand, if the passenger did intend this
specific feature of his conduct, then, since the conduct is inherently indecent
26
For criticism, see the strong dissent of Lord Goff in Court; and also Glanville Williams,
The Meaning of Indecency (1992) 12 Legal Studies 20.
634
in the eyes of right-thinking people, he would inevitably be liable for

indecent assault, whether or not his conduct in tearing away her upper
clothing was sexually or indecently motivated.
Lord Ackners passenger in a hurry could have been dealt with without
the need to introduce a third element of indecent intention specifically to
address this problem. The Lords themselves virtually acknowledged this in
discussing a further example, similar to that in Hui Yau Tsen, discussed
above, of a doctor carrying out an intimate examination on a young girl
whose consent (or that of her parents) has been obtained by false
representations by the doctor as to the necessity for the examination. If his
conduct is merely for sexual gratification, then clearly it would be an
indecent assault. However, Lord Ackner added (at 44):
I would not expect it would make any difference to the jurys decision
whether the doctors false representations were motivated by his desire
for the sexual gratification which he might achieve from such an
examination, or because he had some other reason, entirely of his
own, unconnected with the medical needs or care of the patient, such
as private research, which had caused him to act fraudulently. In either
case, the assault could be, and I expect would be, considered as so
offensive to contemporary standards of modesty or privacy that he, in
both cases, intended to assault the patient and to do so indecently. I
can see nothing illogical in such a result.
In other words, if the doctor deliberately did the acts which, objectively
viewed, are indecent, that is, he intentionally assaulted the victim in the
manner which is objectively indecent, then the doctor will be liable, whether
or not he was motivated by sexual gratification or pleasure. His supposed
indecent intention is in fact no more than his intentional assault, i.e. his
deliberate performance of the acts objectively adjudged to be indecent in
the circumstances, knowing that he had no valid consent. There is no need
for any additional requirement of indecent intention.
A second difficulty arises from the Lords affirmation of Pratt ([1984]
Crim LR 41). In this case, P, an adult male, forced two young boys aged
13, whom he had found night-fishing on his property, to undress, at gun
point, one shining a torch on the private parts of the other. P stood at
some distance, touching neither boy. His explanation or motive, he said,
was to search for cannabis which he thought the boys had previously taken
from him. At his trial for indecent assault, the Recorder allowed evidence
of this explanation to be put to the jury. This approach was affirmed by the
Lords (at 445, per Lord Ackner), on the basis that:
SEXUAL OFFENCES
635
[P] was entitled to put before the jury his explanation of his strange
conduct in order to contend that the prosecution had not established
that he intended to commit an assault which was indecent. If the jury
thought that his explanation might be true, they might decide that
right-minded persons would not think that what he had done in the
circumstances was indecent.
If, as seems correct, the conduct here would readily be viewed as inherently
indecent, i.e. so offensive to contemporary standards of modesty or privacy
as to be indecent, then Ps purpose or motive in committing these acts
should have been irrelevant to the determination of his liability for indecent
assault. P would have intentionally committed an assault viewed by rightthinking people as indecent. Yet, the approach affirmed by the Lords is
quite the opposite, allowing an accused to rely on his alleged lack of sexual
or indecent purpose or motive to deny the existence of an indecent
intention, thereby negating liability. However, if this were permissible here,
why then could not the doctor in the example above similarly assert that
he acted only for private research purposes, and not with any sexual or
indecent motive?
Specific or basic intent?
In Culyer ([1992] Times 17 April 1992), indecent assault was held to be an
offence of basic intent, despite the requirement that D act with indecent
intention, at least in those cases where, ostensibly, Ds act is inherently
indecent.
Where Ds act is in the circumstances capable of being considered
indecent, but is not inherently so, i.e. it is ambiguous and it is necessity to
prove D acted with indecent intention, then it is arguable that indecent
assault ought to be treated as an offence of specific intent; in which case,
voluntary intoxication could be relied on to negate the requirement of
indecent intention (Kingston [1995] 2 AC 355).
Indecent Exposure
Under section 148(1), it is an offence for a person without lawful authority
or excuse, in any public place or in view of the public, to indecently expose
any part of his body. In HKSAR v Ho Wing Cheong ([1977] 3 HKC 754),
Wong J in the Court of First Instance held that the question of whether D
exposed himself indecently is to be assessed objectively, and does not
636
require proof that D intended to expose himself in circumstances of

indecency. There is a statutory exception in section 148(2), providing that
a person under the age of 12 commits no offence by reason only of his
bathing unclothed. If D submits that he or she has lawful authority or
excuse for his or her conduct, then the burden of proving this lies on D on
the balance of probabilities (section 150 of the Crimes Ordinance). The
offence is punishable by six months imprisonment. 27
OFFENCES INVOLVING SEXUAL EXPLOITATION

Prostitution
Prostitution has been held to mean offering ones body for purposes
amounting to common lewdness for payment in return (De Munck [1918] 1
KB 635; Webb [1964] 1 QB 357). Prostitution is not per se an offence in Hong
Kong; however, there are numerous offences in the Crimes Ordinance
concerned with activities involving or related to prostitution. These include
soliciting and all the offences falling under the general heading of vice offences.
For the purposes of offences in the Crimes Ordinance involving
prostitution, prostitute means a prostitute of either sex (section 117(1) of
the Crimes Ordinance).
Soliciting
The law against soliciting seeks to prevent prostitutes of either sex from
plying their trade in public places.
Under section 147 of the Crimes Ordinance, a person commits an
offence if he or she in a public place28 or in view of the public, (a) solicits
27
28
See also section 12A of the Summary Offences Ordinance: participation in a live performance
in public that is of an indecent nature punishable by one years imprisonment. See Lee
Chee-chung [1987] HKLR 392.
Public place is defined in section 117(1) of the Crimes Ordinance as follows: (a) any
place to which for the time being the public or a section of the public are entitled or
permitted to have access, whether on payment or otherwise; and (b) a common part of
any premises notwithstanding that the public or a section of the public are not entitled or
permitted to have access to that common part or those premises. See further Wong Pikhar [1987] HKLR 373.
SEXUAL OFFENCES
637
for any immoral purpose; or (b) loiters for the purpose of soliciting for any
immoral purpose. This is concerned with street-walkers and others who,
for example, hang around in public toilets offering sexual services.
Immoral purpose is not fully defined in the ordinance, but includes
homosexual buggery and homosexual gross indecency (section 147(2) of
the Crimes Ordinance) (see also Crook v Edmondson [1966] 2 QB 81).
Soliciting is punishable by six months imprisonment.
Related to this is section 147A, which prohibits the public display of
signs advertising the services of a prostitute (punishable by 12 months
imprisonment), and sections 147B to 147E, endowing police officers with
powers of removal and such like in relation to such signs. Section 147F
makes it an offence to obstruct or fail to comply with a police officer
exercising such powers (punishable by six months imprisonment).
Vice Offences
There are a range of vice offences in the Crimes Ordinance involving
prostitution or related to prostitution. These offences generally focus not
on the prostitutes themselves, but rather on those persons who provide
prostitutes and their services to or for others, or who exploit others, forcing
them into prostitution and the performance of sexual intercourse or other
unlawful sexual acts.
Procuring, causing and encouraging prostitution and related
offences
Several offences focus on those who procure, cause and encourage
prostitution and related activities. These offences include:
(1) Section 129(1): this makes it an offence to traffick in persons to or
from Hong Kong for the purpose of prostitution. Consent on the part
of the person brought into or taken out of Hong Kong is not a defence
(section 129(2)). The offence is triable on indictment and punishable
by ten years imprisonment;
(2) Section 130(1): this makes it an offence to harbour and control others
for the purpose of unlawful sexual acts or prostitution. The offence is
triable on indictment and punishable by 14 years imprisonment;
(3) Section 131(1): this makes it an offence to procure or cause others to
become prostitutes. The offence is triable on indictment and punishable
by ten years imprisonment;
638
(4) Section 132(1): this makes it an offence to procure a girl under the age
of 21 to have unlawful sexual intercourse in Hong Kong or elsewhere
with a third person. A procurer must be aware that the girl to be
procured is under the age of 21 (Poon Ping Kwok [1993] 1 HKCLR 56,
at 578). The offence is triable on indictment and punishable by five
years imprisonment;
(5) Section 133(1): this makes it an offence to procure a woman who is a
mentally incapacitated person (previously, defective) to have unlawful
sexual intercourse in Hong Kong or elsewhere with a third person.
The procurer will not be liable if he or she does not know and has no
reason to suspect the other to be mentally incapacitated (section
133(2)). The offence is triable on indictment and punishable by ten
years imprisonment;
(6) Section 134(1): this makes it an offence to detain a person (a) against
his or her will for the purpose of his or her doing unlawful sexual acts,
or (b) on any premises or vessel, or in any place, kept as a vice
establishment. The offence is triable on indictment and punishable by
14 years imprisonment;
(7) Section 135(1): this makes it an offence for a person to cause or
encourage the prostitution of, or an unlawful sexual act with, a girl or
boy aged under 16 who is the responsibility of the former.29 The
persons who may be liable under this section are limited to the
categories set out in section 135(2): (a) any person who is her or his
parent [see section 135(4)] or legal guardian; (b) any person who has
actual possession or control of her or him, or to whose charge she or
he has been committed by her or his parent or legal guardian or by a
person having the legal custody of her or him; and (c) any other person
who has the custody, charge or care of her or him. Where it is shown
that the girl or boy in question is a prostitute or has done an unlawful
sexual act, then this state of affairs is deemed by section 135(2) to
have been caused or encouraged by any person who has knowingly
allowed the girl or boy to consort with, or to enter or continue in the
employment of, any prostitute or person of known immoral character.
The offence is triable on indictment and punishable by ten years
imprisonment;
29
Note that contrary to the heading, this offence does not appear to include causing or
encouraging a mere indecent assault on a girl or boy aged under 16, since indecent assault
is not included in the definition of unlawful sexual act in section 117(1A) of the Crimes
Ordinance.
SEXUAL OFFENCES
639
(8) Section 136(1): this makes it an offence to cause or encourage the

prostitution of a mentally incapacitated person (previously, defective)
in Hong Kong or elsewhere. As in other offences involving mentally
incapacitated persons, a person is not liable if he or she does not
know and has no reason to suspect the other to be a mentally
incapacitated person (section 136(2)). The offence is triable on
indictment and punishable by ten years imprisonment.
Living off the earnings of prostitution
Section 137(1) makes it an offence, triable on indictment and punishable
by ten years imprisonment, for a person to knowingly live wholly or in
part on the earnings of prostitution of another. Subsection (2) provides
that:
For the purposes of subsection (1), a person who lives with or is
habitually in the company of a prostitute, or who exercises control,
direction or influence over another persons movements in a way which
shows he or she is aiding, abetting or compelling that other persons
prostitution with others, shall be presumed to be knowingly living on
the earnings of prostitution, unless he or she proves the contrary.
The burden of proving the contrary is on the balance of probabilities (Leung

Cheong [1988] 1 HKLR 103; Lee Leung-wai [1988] 2 HKLR 448; compare
Cheung Yuet Pang [1991] 1 HKC 569).
Vice establishments
A number of vice offences involve what are termed vice establishments.
This term is defined in section 117(3) as follows:
Premises, vessel or any place shall not be treated as a vice establishment
for the purposes of this Part unless
(a) the premises, vessel or place are or is used wholly or mainly by
2 or more persons for the purposes of prostitution; or
(b) the premises, vessel or place are or is used wholly or mainly for
or in connexion with the organizing or arranging of prostitution.
The premises, vessel or place does not need to be used 24 hours per day
for these purposes to qualify as a vice establishment (A-G v Tong Pingwing [1982] HKLR 1), but a pattern of main use must be established (Wong
640
Chi Hung [1982] HKLR 361; Law Tin Ching (1990) Mag App No. 368 of
1993; Lam So Chun [1996] HKLR 28).
Offences involving or related to vice establishments include:
(1) Section 139(1): this makes it an offence to keep, manage, assist in the
management, or otherwise be in charge or control of, any vice
establishment (see, for example, Tam Wing-kwong [1988] 2 HKLR 313;
Wan Kiu Sang [1994] 3 HKC 589). If tried on indictment, the offence
is punishable by ten years imprisonment; if tried summarily, three
years imprisonment;
(2) Section 141(1): this makes it an offence for an owner or occupier of
any premises or vessel, and any person who manages or assists in the
management or control of any premises or vessel, to induce or
knowingly suffer a girl under the age of 16, a girl or boy under the age
of 21, or a boy under the age of 21, to resort to or be on such premises
or vessel respectively for the purpose of having unlawful sexual
intercourse with a man or for the purpose of prostitution, for the
purpose of committing buggery with a man, or for the purpose of
committing an act of gross indecency with a man. The offence is triable
on indictment and punishable by 14 years imprisonment;
(3) Section 143(1): this makes it an offence for an owner or tenant of any
premises or his or her agent to let the whole or part of the premises
knowing that it is to be kept in whole or part as a vice establishment,
or wilfully to be a party to the use of premises as a vice establishment.
This offence is triable on indictment and punishable by seven years
imprisonment. Sections 153A to 153O of the Crimes Ordinance provide
for the closure of premises and forfeiture of vessels used in connection
with offences under sections 139, 143, 144 or 145.
EVIDENTIAL, PROCEDURAL AND PUBLICATION RULES

APPLYING TO TRIAL OF SEXUAL OFFENCES
There are many special common law and statutory provisions and rules
regarding arrest, search and seizure, evidence, proof, and procedure in cases
involving sexual offences. Such statutory provisions in the Crimes Ordinance
include the following:
(1) Section 149, which entitles a court to convict a person charged with
certain sexual offences, of one or more specified alternative offences,
whether or not charged alternatively (section 149(1)). Thus, a person
SEXUAL OFFENCES
641
charged with rape may alternatively be convicted of procuring sexual

intercourse with another by threats (contrary to section 119 of the
Crimes Ordinance) or by false pretences (contrary to section 120 of
the Crimes Ordinance), or of administering drugs to obtain or facilitate
an unlawful sexual act (contrary to section 121 of the Crimes
Ordinance). However, this does not prevent a court from convicting a
person of an alternative offence in accordance with any other law
authorizing such a course (section 149(2)).
(2) Section 154, which imposes restrictions on the extent to which a
complainant in a jury trial for a rape offence (rape offence means
any of the following: rape, attempted rape, aiding, abetting, counselling
or procuring rape or attempted rape, and incitement to rape section
117(1) of the Crimes Ordinance) or indecent assault may be crossexamined about her or his sexual experience with any person other
than the defendant. Such questions may be asked only with the leave
of the judge in the Court of First Instance (or by a District Court
judge (section 155(3) of the Crimes Ordinance), or a magistrate in a
summary trial before a magistrate (section 155(1) of the Crimes
Ordinance)).
(3) Section 156, which imposes restrictions, applying as soon as an
allegation is made that a specified sexual offence30 has been committed,
on the publication or broadcast of information likely to lead members
of the public to identify any person as the complainant in relation to
that allegation; and section 157, which makes it an offence punishable
by six months imprisonment to publish or broadcast such information.
The publication or broadcast of such details may, however, be
authorized by a direction given by a judge or magistrate.
Corroboration31
Until recently, there were also a number of rules, some statutory, some
common law, requiring corroboration in cases involving sexual offences.
30
31
Under section 117(1) of the Crimes Ordinance: specified sexual offence means any of the
following, namely, rape, non-consensual buggery, indecent assault, an attempt to commit
any of those offences, aiding, abetting, counselling or procuring the commission or
attempted commission of any of those offences, and incitement to commit any of those
offences.
For a discussion of corroboration, see A. Bruce and G. McCoy, Criminal Evidence in Hong
Kong (looseleaf edition, Butterworths Asia, 2002), Division XIII.
642
The classic definition of corroboration was given in R v Baskerville ([1916]

2 KB 658, at 667, per Reading LCJ):
[E]vidence in corroboration must be independent testimony which
affects the accused by connecting or tending to connect him with the
crime. In other words, it must be evidence which implicates him, that
is, which confirms in some material particular not only the evidence
that the crime had been committed, but also that the prisoner
committed it.
It must be independent testimony in the sense that it is independent of

the witness to be corroborated (DPP v Kilbourne [1973] AC 729, at 750
1).
At common law, it was generally thought that corroboration was
desirable as a matter of practice in relation to the testimony of a victim of a
sexual offence, making it common for a judge to give a warning to the
jury, or to himself or herself if there is no jury, to the effect that it would
be unsafe to convict on the uncorroborated testimony of the victim. However,
in addition, several statutory provisions specifically required corroboration
as a matter of law in relation to particular offences (these included sections
119 to 121 and 130 to 133 of the Crimes Ordinance); where there was
only one witness (normally, the victim), then the defendant was entitled to
be acquitted unless the witness [was] corroborated in some material
particular by evidence implicating the accused.
However, these rules regarding corroboration in sexual offences were
abolished in Hong Kong in 2000. Section 4B of the Evidence Ordinance
(cap. 8) (see Evidence (Amendment) Ordinance, No. 43 of 2000) provides:
(1) Any requirement whereby at a trial by and before a judge and
jury it is obligatory for the judge to give the jury a warning about
convicting the accused of an offence under Part VI or XII of the
Crimes Ordinance ... on the uncorroborated evidence of a person
merely because that person is the person in respect of whom that
offence is alleged to have been committed is hereby abrogated.
(2) Any requirement that is applicable at a trial by a judge or
magistrate and corresponds to the requirement mentioned in
subsection (1) is hereby abrogated.
In addition, the specific requirements of corroboration in sections 119121

and 130133 were repealed.
PART VI
Offences
Against
Property
13
The Theft Ordinance: Theft, Robbery
and Handling
INTRODUCTION
The Theft Ordinance (cap. 210) (TO) contains more than 20 offences
broadly involving dishonest dealings with property. These offences include
theft, robbery and handling (covered in this chapter), and deception and
fraud offences (covered in Chapter 14).
The TO, enacted in 1970, was modelled on the UKs Theft Act (TA)
1968. Like that Act, it was intended to be a new start for offences of
dishonesty against property, doing away with numerous existing statutory
and common law offences, filling gaps in the body of offences, and
eliminating many of the complexities associated with these offences.1 The
TA 1968, and thus the TO, was largely based on the preparatory work and
Eight Report of the English Criminal Law Revision Committee (Theft and
Related Offences, Cmnd 2977, 1966), the aim of which was to create new
offences, expressed in language understood by the ordinary, literate citizen.
This laudable aim has been only partly achieved. Firstly, insofar as the
offences created by the Ordinance involve property and related civil law
concepts such as ownership, it is not self-contained. Inevitably, it builds
1
Section 34(1) of the TO expressly abolished the following offences at common law: larceny,
robbery, burglary, receiving stolen property, obtaining property by threats, extortion by
colour of office or franchise, false accounting by public officers, concealment of treasure
trove and cheating (except cheating the public revenue).
646
OFFENCES AGAINST PROPERTY
upon existing civil law principles and concepts, and these are by no means
readily accessible and comprehensible by the ordinary, literate citizen. An
example is the notion of equitable ownership referred to in section 6(1).
In addition, some of the provisions in the new legislation must be
understood as responses to defects in the old law, and it is therefore
sometimes useful, perhaps even necessary, to refer to the old to help explain
the new (e.g. section 6(4) was largely a response to Moynes v Coopper
[1956] 1 QB 439).
Secondly, a large body of case law on the interpretation and application
of the new offences has accumulated since 1968. This has inevitably reintroduced both layers of complexity and a considerable degree of
uncertainty owing to judicial inconsistency in the determination of criminal
liability. The principal example of this relates to the term appropriation,
which lies at the heart of the offence of theft. Over the course of 30 years,
the meaning of this term has been considered by the House of Lords on no
fewer than four occasions, initially producing a fundamental conflict of
meaning, leading ultimately to an interpretation that many commentators
consider does not sit easily with the ordinary citizens view of theft.
Thirdly, legislative provisions have often been read widely to ensure
that persons conducting themselves in a manner regarded by the courts as
manifestly criminal are convicted, despite doubts that the particular offence
was intended to cover the particular form of conduct. Furthermore, the
courts have adopted an interpretation of dishonesty that leaves its meaning
largely dependant on the view of ordinary citizens. This produces the result
that the question of whether conduct is or is not criminal depends upon an
indeterminate assessment by ordinary citizens, rather than on clearly stated
principles, although this reflects the early invitation of Lord Diplock in the
House of Lords in Treacy v DPP ([1971] AC 537) to treat the legislation as
expressed in simple language as used and understood by ordinary literate
men and women. This has sometimes been seized upon by judges as an
invitation to approach the interpretation of the TO as a matter of determining
simply whether the legislature would have intended to make a certain piece
or class of behaviour unlawful.2
Fourthly, new offences have been added to the legislation, some by
way of replacement of provisions that proved to be unworkable, some to
deal with new or unforeseen developments. Some of these new offences
reproduce additions to the UK legislation, particularly by way of the TA
2
See further: R. Brazier, The Theft Act: Three Principles of Interpretation [1974] Crim LR
701.
THE THEFT ORDINANCE: THEFT, ROBBERY AND HANDLING
647
1978, but others are of Hong Kongs own making, including, in particular,
fraud (section 16A) and procuring entries in bank records (section 18D).
Further, not all recent amendments to the UK legislation have been adopted
in Hong Kong (e.g. the Theft (Amendment) Act 1996 was not adopted).
THEFT
Theft is an offence contrary to section 9 of the TO which provides that:
Any person who commits theft shall be guilty of an offence and shall
be liable on conviction upon indictment to imprisonment for 10 years.
Theft is defined and elaborated in section 2. Section 2(1) provides that:

A person commits theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the
other of it; and thief and steal shall be construed accordingly.
Section 2(2) adds that it is immaterial whether the appropriation is made

with a view of gain, or is made for the thiefs own benefit.
Each element of the definition of theft in section 2(1) is itself further
defined or elaborated in sections 3 to 7 of the TO: dishonestly in section
3 (section 2 of the TA 1968); appropriates in section 4 (section 3 of the
TA 1968); property in section 5 (section 4 of the TA 1968); belonging to
another in section 6 (section 5 of the TA 1968): section 5; and with the
intention of permanently depriving the other of it in section 7 (section 6
of the TA 1968). Section 2(3) stipulates that these definitions (sections 3
to 7) apply only for the purposes of theft, except as otherwise expressly
provided.3
Actus Reus Elements

Theft requires proof that the defendant appropriated property belonging
to another.
Section 8(1) provides that section 5(1) (dealing with property) and section 6(1) (dealing
with belonging to another) apply generally.
648
Property
Property refers to the subject-matter of theft i.e. what can be stolen
rather than the notion of ownership itself (compare passing of property).
Section 5(1) gives property a broad definition for the purposes of the
TO:4
Property includes money and all other property, real and personal,
including things in action and other intangible property.
This definition is qualified for the purposes of theft in sections 5(2)

(6) in respect of land, flora (plants) and fauna (animals), so that although
these may be property within section 5(1) and may, consequently, generally
be obtained by deception (see Chapter 14, p. 743), they can only be the
subject-matter of theft i.e. can be stolen in certain defined
circumstances, as discussed below.
In general, the property alleged to have been stolen must be
particularized in the charge. However, where a series of thefts have occurred
over a period of time (e.g. a cashier takes small sums of money out of his
or her shop till over a period of weeks), and it is not possible to trace and
particularize individual items, then a charge may allege theft of a general
deficiency between specified dates (R v Tomlin (1954) 38 Cr App R 82;
applied to goods in Chan Shui-sing v R [1980] HKLR 310).
Money
Money refers to physical money or cash, i.e. coins and banknotes. It does
not include a credit balance in a bank account even though this is
commonly thought of as money in the bank since the relationship
between a bank and its customers is a debtor/creditor relationship (Ng
Wai-chun [1990] 1 HKLR 170, at 175, per Hooper J). Thus, when money
is deposited into a bank account, ownership of the banknotes and coins
transfers at the time of delivery to the bank teller (or when they are deposited
at an ATM). If the customers account is in credit after deposit, then the
bank is accordingly indebted to the customer. This debt is property for
the purposes of the TO, as a thing in action, not as money. If a customer
withdraws a sum in cash from his or her account, this both reduces the
Section 8(1) of the TO provides: Section 5(1) and section 6(1) shall apply generally for
the purposes of this Ordinance as they apply for the purposes of section 2.
649
credit balance (i.e. the banks indebtedness) and also converts the customers
thing in action wholly or partly back into money.
Things in action
A thing in action (or chose in action) is a type of property that does not
exist in physical form (although its existence may often be evidenced by
documents) but is enforceable by legal proceedings (by action) (compare
thing in possession). Examples of things in action are debts, cheques,
company shares, and copyright. Prior to the enactment of the TA 1968 in
the UK and the TO in Hong Kong, it was not possible to steal a thing in
action (or other forms of intangible property), since larceny (as theft was
previously known) could be committed in relation only to property that
was capable of being taken and carried away. All of the above things may
now be stolen, provided that the other elements of theft are also proved.
Stealing things in action and also obtaining such by deception have
often troubled the courts, and require careful analysis of what exactly has
been stolen or obtained, and from whom. Prima facie, a thing in action
belongs to the person entitled to bring the action (i.e. to sue to enforce
the thing in action); prima facie, it may be stolen from that person. Some
of the difficulties may be usefully illustrated by considering the theft of
credit balances and cheques.
Credit balances When V has a bank account with a credit balance, this
credit balance represents the banks indebtedness to V; this debt is a thing
in action and therefore property within section 5(1). Since this debt is
enforceable by V, the debt belongs to V, who may deal with it as he or she
wishes (if Vs account is overdrawn, then the reverse is true: V is indebted
to the bank, and Vs debt is a thing in action belonging to the bank). V
may, for instance, withdraw sums from the account, or transfer the whole
or part of it to another account.
This debt the credit balance may be stolen from V, but only if
care is taken in formulating the charge so as to avoid the effect of the
decision of the House of Lords in R v Preddy ([1996] AC 815) regarding
the legal effect of transfers between bank accounts. To explain, suppose a
bank teller, T, dishonestly debits Vs bank account, transferring the debited
sum to Ts own account (theft does not actually require the appropriation
to be for the thiefs own benefit see section 2(2) of the TO). The effect
of Ts conduct is twofold. Firstly, it reduces or extinguishes the credit balance
in Vs account, thus reducing or extinguishing the banks indebtedness to
650
V. This means that the thing in action owned by V the banks debt to
V is destroyed, wholly or partly depending on whether the whole or
only part of the credit balance was transferred. Secondly, the amount of
the transfer is credited to Ts account. This may result in a credit balance
(or increased credit balance) in Ts account or, if Ts account was overdrawn,
a reduction of Ts overdraft (i.e. of Ts indebtedness to the bank).
Until recently, it was usual to focus on the second of these effects,
charging T with theft (or, where T practised a deception, obtaining property
by deception) of the amount credited to Ts account what T has got
alleging that it belonged to V. However, the Lords in Preddy concluded
that this is not permissible. According to the Lords, the thing in action
got or obtained by T as a result of the credit to Ts account is a new thing
in action, representing the banks new indebtedness to T, and, as such,
belongs to T. Vs property i.e. the credit balance is wholly or partially
destroyed, not transferred to T. Thus, although T has obtained an item of
property corresponding in value to the value of the reduction in Vs original
property, this new item of property never belonged to V or anyone else.
Accordingly, held the Lords in Preddy, a person cannot be convicted under
section 17(1) of the TO (section 15(1) of the TA 1968) of obtaining property
belonging to another by deception, since the property obtained the
new thing in action never belonged to another prior to its being obtained
by him or her.5 Equally, concluded the courts, it cannot be stolen (see, for
example, HKSAR v Angelina Goh Swee Yan [2000] 2 HKC 711; explained in
HKSAR v Wong Cho Sum [2001] 3 HKC 268).
However, two means of avoiding this conclusion have been judicially
considered. The first involves reliance on section 6(3) of the TO, which
deems the thing in action acquired by T to belong to V, for the purposes
of the law of theft; this is discussed more fully below (p. 667). The second
involves focussing on the other effect of Ts conduct: the destruction or
reduction of Vs pre-existing thing in action. One of the rights of an owner
of a thing in action, such as a debt, is to take steps to destroy it, wholly or
in part. Applying this to a bank account, T, by taking steps resulting in Vs
account being debited, thereby assumes Vs right as the owner of the credit
balance to deal with it. The courts have accepted that this may amount to
an appropriation of property (i.e. the credit balance) belonging to V and
thus theft, if the other elements are proved. This solution (which is not
As outlined in Chapter 14, Preddy has since been avoided in England by the enactment of
an offence of obtaining a money transfer by deception (below, p. 745).
651
available on a charge under section 17(1) of the TO, since obtaining property
by deception is concerned with what the defendant has obtained, not what
has been destroyed) has been recently sanctioned in Hong Kong in HKSAR
v Wong Cho Sum ([2001] 3 HKC 268; see also R v Williams (Roy) [2001]
Crim LR 253: presentation of a cheque for payment causing diminution of
victims credit balance), and is discussed further below (p. 691).
A third alternative would be to charge the defendant with dishonestly
procuring by deception an entry in a bank record, contrary to section 18D
of the TO (there is no equivalent offence in the UK Theft Acts; instead,
offences of obtaining a money transfer by deception (section 15A of the TA
1968) and dishonestly retaining a wrongful credit (section 24A of the TA
1968) have been enacted).
If someone other than a bank teller dishonestly acts in a manner causing
the bank to debit Vs account, that person may be said to have stolen Vs
property, i.e. the debt. D may in this case have caused the debiting of Vs
account by Ds own act (as where D withdraws cash at an ATM from Vs
account). However, theft may also be based on D acting through the
innocent agency of another, such as a bank teller (as where D withdraws
cash at the counter, in which case it is actually the bank clerk whose acts
are the immediate cause of Vs account being debited; as to appropriation
by an innocent agent, see below, p. 675). This was the analysis adopted in
R v Hilton ([1997] 2 Cr App R 445), where H transferred funds out of a
charitable bank account under his control to settle Hs personal debts; it
was held that H thereby stole a sum equivalent to the reduction in the
credit balance from the charity.
If Vs account has a zero or debit balance, but V has arranged an
overdraft with the bank, the analysis is similar. An overdraft entitlement is
a contractual right to withdraw funds up to the overdraft limit; as such, it
is a thing in action and is thus property (Kohn (1979) 69 Cr App R 395).
If V has not used up the whole of the overdraft entitlement, then although
V may be a debtor of the bank in overall terms, Vs overdraft entitlement is
property belonging to V and may therefore be stolen from V. Thus, if D
causes Vs account to be debited (or further debited), up to the overdraft
limit, D may be said to have wholly or partly extinguished Vs contractual
right to withdraw funds pursuant to the overdraft. If dishonesty and
intention to permanently deprive can also be proved, D has prima facie
stolen property belonging to V, namely the thing in action represented by
the overdraft entitlement.
In HKSAR v Au Yeung Boon Fai ([1999] 3 HKC 605), the Court of
Appeal applied this analysis to credit card transactions. Specifically, Keith
652
JA concluded (at 612) that the difference between the debit balance on a
credit card account and the credit limit on that account represents property
which is capable of being the subject of a charge of theft. Accordingly, Au
committed theft when he twice allowed hotels to use credit card imprints
taken by them (as a deposit) from credit cards belonging to others to settle
As bills, despite A having promised the credit card holders that he would
pay the bills. The debits thereby incurred correspondingly reduced the credit
available to the credit card account holders. As conduct had thus partly
extinguished the credit card holders contractual entitlement to credit, and
this could amount to theft provided that dishonesty and intention were
also proved.
If V has no pre-arranged overdraft entitlement, or has fully used his or
her credit limit, then the relevant bank or credit card company has no legal
obligation to meet any further drawings or transactions by V on his or her
account. If the bank or credit card company chooses to approve or accept
further transactions, by V or by another, relating to Vs account in other
words, granting V additional credit and thus debiting Vs account this
cannot as such involve the theft of any specific property belonging to V (R
v Navvabi [1986] 1 WLR 1311), since nothing constituting property
belonging to V has been appropriated. Instead, appropriate charges might
be attempted theft, obtaining a pecuniary advantage by deception (contrary
to section 18 of the TO), or perhaps procuring an entry in a bank record
(contrary to section 18D of the TO).
Cheques Cheques raise similar difficulties. The concern here is not with
the actual use of a cheque as the means of obtaining payment from Vs
account for this will result in Vs account being debited, and may therefore
amount to the appropriation (by destruction or reduction) of Vs credit
balance (or overdraft entitlement). Rather, the concern is with theft of the
cheque itself. At its simplest, a cheque (or cheque form) is merely a piece
of paper; as such, it is property (personal property) within section 5(1).
This piece of paper belongs to the cheque account holder or the person in
possession or control of the cheque or cheque book (in accordance with
section 6(1) of the TO), and it may be stolen from this person simply by
taking physical possession of it (provided that it can be shown that D acted
dishonestly and intended to permanently deprive the holder of the piece of
paper; as to this, see Chan Man-sin below). However, charging a defendant
with stealing a cheque form (i.e. the piece of paper) generally will not
reflect the real nature of the theft, which usually relates to a signed cheque
and the sum of money stated on the cheque. More precisely, when a cheque
653
form has been duly completed by the account holder, V, for valuable
consideration and delivered, it creates a right of payment enforceable by
the person in whose favour the cheque is drawn, i.e. the payee against V.
The completed cheque thus creates a thing in action, but the person to
whom this thing in action belongs is not V; rather it is the named payee
(or anyone in whose favour the cheque is subsequently endorsed, or the
bearer if the cheque is for cash or subsequently endorsed to bearer).
The question is: can this thing in action be stolen? In some situations,
this is clearly so. Suppose, for example, V gives P a cheque drawn in favour
of P for the sum of HK$1000. The right to payment thereby created arises
in favour of P, who is accordingly the person to whom the cheque as thing
in action belongs. D subsequently takes the cheque. By his or her actions,
D assumes possession of the piece of paper, which provides D with the
means of dealing with the right of payment created by the cheque. Arguably,
this in itself amounts to the appropriation of Ps thing in action, even
more so if D then fraudulently endorses the cheque in favour of D, thereby
assuming the rights of the owner, i.e. P. Provided that the other elements
are proved, there seems little difficulty in charging this as theft of the cheque
as a thing in action with a value of HK$1000 from P, the payee (not from
V who drew the cheque, even though payment is to be made out of Vs
bank account).
This must be contrasted with the case in which D induces V (by a
deception) to write a cheque in Ds favour, i.e. making D the payee. Upon
receipt of the cheque, D may be said to have assumed the right of possession
of the piece of paper and thus appropriated it (as discussed below,
appropriation is a purely neutral term and may exist even though Ds
assumption of rights was with the consent (valid or not) of the owner of
the cheque book). However, does D also steal the cheque as a thing in
action? According to Preddy ([1996] AC 815), obiter, the answer must be
no. Before a cheque is drawn, concluded the Lords, no right to payment
exists. When that right first comes into existence, it arises in favour of the
payee, D in the above example, who is therefore the person to whom the
cheque (as a thing in action) belongs. Accordingly, the thing in action
obtained by D never belonged to another (Preddy overruling Duru [1974]
1 WLR 2 and Mitchell [1993] Crim LR 788 to the contrary, but see R v
Clark (Brian) [2001] Crim LR 572, where the authority of these dicta in
Preddy regarding cheques is queried). Accordingly, unless section 6(3) of
the TO, discussed below (p. 667), can be applied to deem the right to
payment to belong to V, it seems that D cannot be convicted of either
stealing the cheque as a thing in action, or having obtained it by deception
654
contrary to section 17(1) of the TO (Professor J.C. Smith offers another

solution: a completed cheque is a valuable security; Ds conduct may
therefore amount to dishonestly procuring by deception the execution of a
valuable security, contrary to section 22(2) of the TO).
Other difficulties affecting things in action (and also other forms of
intangible property) include: when does the appropriation occur? (see Ngan
[1998] 1 Cr App R 331) and where does the appropriation occur? These
difficulties are compounded in the modern world where transactions
involving debts and other things in action may take place in cyberspace
and involve both domestic and international transfer mechanisms. These
difficulties are considered elsewhere in this chapter (below, p. 699).
Other intangible property
Section 5(1) extends property, and thus theft (and also obtaining property
by deception, contrary to section 17 of the TO), to other intangible forms
of property (i.e. not amounting to a thing in action). The nature and
meaning of this expression was considered in A-G of Hong Kong v Daniel
Chan Nai-keung ([1987] 1 WLR 1339, [1988] 1 HKLR 70), in which D, a
company director, was charged with stealing textile export quotas (tradeable
government-issued licences to export textiles) from the company. It was
alleged that D sold (without authority) unused textile quotas that were
previously obtained by the company, at a gross undervalue to a second
company in which he had an interest. The Privy Council held that these
textile quotas, though not within the meaning of thing in action, were
intangible property within section 5(1) and thus capable of being stolen,
since they were something which is freely bought and sold and which may
clearly be the subject of dishonest dealing which deprives the owner of the
benefit it confers (at 1342, per Lord Bridge). In Preddy, Lord Goff referred
to these textile quotas as an asset capable of being traded on a market.
Some forms of intellectual property, such as patents, amount to
intangible property for the purpose of theft, but others, such as trade secrets
and confidential information, do not (see Oxford v Moss (1978) 68 Cr App
R 183: the contents of a university examination paper, obtained by a student
in advance, while confidential information, was not property capable of
being stolen; the examination paper itself was property, but there was no
evidence that D intended to permanently deprive the university of this
physical document).
655
Land, flora and fauna

Although land, flora (plants) and fauna (animals) prima facie fall within
the broad definition of property in section 5(1), they can be stolen only in
limited circumstances specified in subsections (2)(3)(4)(5) of the TO (no
such restriction applies to obtaining land, flora and fauna by deception,
contrary to section 17 of the TO).
Section 5(2): Land Section 5(2) states that land, or things forming part
of land and severed from it by [D] or by his directions, can be stolen only
in the following cases:
(a) when he is a trustee or personal representative, or is authorized
by power of attorney, or as liquidator of a company, or otherwise,
to sell or dispose of land belonging to another, and he appropriates
the land or anything forming part of it by dealing with it in breach
of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything
forming part of the land by severing it or causing it to be severed,
or after it has been severed; or
(c) when, being in possession of the land under a tenancy [tenancy
means a tenancy for years or for any less period and includes an
agreement for such a tenancy, but a person who after the end of
a tenancy remains in possession by virtue of any Ordinance or
otherwise is to be treated as having possession under the tenancy
section 5(3) of the TO], he appropriates the whole or part of
any fixture or structure let to be used with the land.
Land does not include incorporeal hereditaments (section 5(3) of

the TO) (e.g. an easement which is not therefore subject to these
limitations, and can therefore be stolen), but includes soil. Anything forming
part of land includes, for example, plants, fixtures and structures.
Li Kwai ((1986) D Ct No. 264 of 1985) provides an illustration of
section 5(2)(a). In that case, a trustee was convicted of theft by mortgaging
a property held by him as trustee for his own use and benefit, thereby
dealing with the property in breach of the confidence reposed in him.
Examples of (2)(b) would be where a farmer allows his or her sheep to
graze on anothers land without permission, thereby causing the grass
something forming part of the land to be severed, or where sand is
removed from anothers land. However, (2)(b) would not cover merely
moving a boundary fence onto anothers land, since this does not thereby
sever the land.
656
An example of (2)(c) would be where a tenant removes a built-in

wardrobe let with the premises. If done dishonestly and with intention to
permanently deprive the owner of it, this may amount to theft of the
wardrobe (compare Smith [1974] QB 354: not criminal damage if acted in
mistaken belief that fixture belonged to D). Section 5(2)(c) does not require
severance, merely appropriation; thus it could apply where a tenant
purported to sell the wardrobe to a subsequent tenant. Section 5(2)(c)
applies to a person in possession only as a tenant; it does not apply therefore
to a licensee, nor would it apply to a partner of the tenant, who would not
therefore commit theft under (2)(c) by removing the wardrobe (though he
or she may fall instead under section 5(2)(b)).
Section 5(4): Flora Section 5(4) provides that:
A person who picks mushrooms [including any fungus section
5(5)] growing wild on any land, or who picks flowers, fruit or foliage
from a plant [including any shrub or tree section 5(5)] growing
wild on any land, does not (although not in possession of the land)
steal what he picks, unless he does it for reward or for sale or other
commercial purpose.
This subsection applies only if D had a commercial purpose when D picked

the mushrooms or flowers, etc. Thus, a person who picks flowers, growing
wild, while on a country walk to give to his girlfriend, or picks and eats
wild strawberries, does not thereby commit theft. Subsection 5(4) does not
apply if D takes the whole plant (though section 5(2)(b) might then apply).
Section 5(6): Fauna wild animals Section 5(6) confirms that wild
creatures, tamed or untamed are property, but provides that a person
cannot steal a wild creature (not tamed nor ordinarily kept in captivity), or
the carcass of any such creature, unless either it has been reduced into
possession by or on behalf of another person and possession of it has not
since been lost or abandoned, or another person is in course of reducing it
into possession.
A wild animal kept in a zoo (thus ordinarily kept in captivity) may
therefore be stolen from the zoo (or even if it had escaped). However, a
wild animal (e.g. a snake) roaming free in Hong Kongs country parks
(thus not tamed nor ordinarily kept in captivity) cannot be stolen unless
someone, such as the government, had reduced it into possession or was in
the course of doing so.
657
Unlike subsection 5(4), where this subsection applies, there is no need

for D to act with a commercial purpose.
Other categories: Electricity, public telephones and telex systems, and
the human body and parts/products
Electricity is not property (Low v Blease [1975] Crim LR 513), but its
unauthorized use, waste or diversion, if dishonest, may amount to
abstracting electricity, contrary to section 15 of the TO.
Similarly, the dishonest use of a public telephone or telex system with
intent to avoid payment does not amount to theft, but is instead an offence
contrary to section 16 of the TO.
At common law, a human corpse is not property, though property
rights might be claimed over a human mummy or skeleton (see Doodeward
v Spence (1908) 6 CLR 406). Body parts, such as dissected human organs
in the hands of doctors for exhibition or teaching purposes, have been
treated as property for the purposes of section 5(1), though it is unclear
whether the same is true or not of live organs intended for use in organ
transplant operations or of a body preserved for medical students use (R v
Kelly [1998] 3 All ER 741, English Court of Appeal). Furthermore, body
products, such as a sample of urine (Welsh [1974] RTR 478), have been
held to be property and thus capable of being stolen. Presumably, this
applies also to a sample of human blood (Rothery [1976] RTR 550 Court of
Appeal: D convicted of stealing the container which held the blood; however,
if urine can be stolen, so also should blood).
Belonging to another
It must be shown that the property identified the subject-matter of the
alleged theft belonged to another at the time of the appropriation.
Belonging to is broadly defined in section 6(1) of the TO (section
5(1) of the TA 1968), but in addition, subsection (2) expressly deals with
trust property, and subsections (3) and (4) deal with several special cases
in which the property alleged to have been stolen ostensibly belongs at law
to the person alleged to have stolen it. Although the property must belong
to someone, it is not always necessary to be able to identify and name that
person; instead, it is sufficient to charge and prove theft from a person
unknown (Noon v Smith [1964] 1 WLR 1450).
658
Section 6(1)
Section 6(1) provides that:
Property shall be regarded as belonging to any person having
possession or control of it, or having in it any proprietary right or
interest (not being an equitable interest arising only from an agreement
to transfer or grant an interest).
The effect of this provision (which applies generally for the purposes of
the TO see section 8(1) of the TO) is that property is deemed to belong
to regarded as belonging to anyone having possession, control or
any proprietary right or interest in the property. As such, theft may be
committed against persons who would not ordinarily be called the owner
of the property.
Property may belong to more than one person for the purposes of
theft. Indeed, it is even possible for the owner to steal his or her own
property from another person; for example, the owner retakes possession
from another having possession or control (or perhaps a proprietary right
or interest in the property), assuming the other elements, in particular
dishonesty, can be proved.
Possession or control Theft may be committed against a person who
has merely possession or control of the property. To illustrate, suppose O,
the owner of a diamond necklace, lends the necklace to P for use in a
fashion show during which the necklace is actually worn by a model, C. D
snatches the necklace from Cs neck. In so doing, D thereby steals it from
C (who has control), P (who has possession) and O (who is the owner,
i.e. has proprietary rights).
The inclusion of possession and control ensures that a charge of theft
will not fail merely because the owner of the stolen property cannot be
identified; instead, the victim may be the person with possession or control
of it at the moment of theft. Equally, it enables a charge of theft to be
brought against the owner, if he or she dishonestly appropriates the property
from the person in possession or control of it. Thus, if the thief in the
above example was O (who planned to report the theft of the necklace
and claim its insured value), O could be convicted of stealing it from P or
C, assuming Os conduct was dishonest.
Thus, in R v Turner (No. 2) ([1971] 2 All ER 441), the English Court
of Appeal confirmed that the owner of a car could steal it by removing it
from the garage where it had been repaired, if T intended thereby to avoid
659
having to pay for the repairs (this could also now be charged as making off
without payment, contrary to section 18C of the TO). The car was regarded
as property belonging to another as against T, by virtue of the fact it was
in the possession and control of the garage in fact (compare R v Meredith
[1973] Crim LR 253, where the court took the view that property in the
custody of someone who has no right to retain the property as against the
owner is not to be regarded as property belonging to the custodian; thus,
no theft when M removed his car from a police compound). In reaching
this conclusion, the court observed that the trial judge had correctly directed
the jury not to consider the case on the basis the garage could claim a
repairers lien over the car. However, this assertion, which has been heavily
criticized, if upheld, means that an owner of property, who is ordinarily
entitled, in the absence of a lien, to simply retake possession of his or her
property from the person having possession or control of it (i.e. a bailee at
will), even against the latters protest, may steal it from the bailee at will
(to whom it belongs), merely because he or she chooses to retake possession
secretly (assuming that this makes his or her conduct dishonest).
In R v Kelly ([1998] 3 All ER 741), the court followed the approach of
the court in Turner (No. 2), holding that the fact of possession or control
suffices for the purposes of section 5(1) of the TA 1968 (section 6(1) of
the TO). Accordingly, body parts in the custody of the Royal College of
Surgeons were to be regarded as belonging to them by virtue of their
possession and control, regardless of whether they had any right to retain
the body parts. According to Rose LJ, it did not matter whether possession
was for a limited or an indefinite time.
Turner (No. 2) and Kelly thus hold that possession and control do not
have to be lawful. Accordingly, property may even be stolen from a thief,
despite the latter not having lawful possession (see further Meech [1974]
QB 549).
A person may have control of property without knowing that he or
she possesses it. In particular, landowners may be deemed to have control
of property located on their land. In Hibbert v McKiernan ([1948] 2 KB
142), for example, golf balls lost by golfers in a lake during play were
deemed to belong to the golf club. In Woodman ([1974] QB 754), the English
Court of Appeal held that scrap metal left on the site of a disused factory
by a scrap dealer belonged to the company having control of the site, even
though it was unaware that the scrap dealer had left some behind, since
the company had erected barbed wire fences intended to exclude persons
from the site. Accordingly, W committed theft when he subsequently
trespassed on the property and removed some of the scrap metal left behind.
660
The court observed that this presumption of control was not absolute and
would, for example, be rebutted where a third party had hidden drugs or
explosives on the land.
Abandoned property If property has been abandoned, then it belongs to
no one and so cannot be stolen. Thus, D does not commit theft by picking
up a newspaper left in the street. However, property will be considered
abandoned only if its owner intends to relinquish all his or her rights of
ownership. Thus, P still owns a HK$100 note dropped by him or her in the
street, and D may therefore commit theft by picking it up and keeping it
(provided that Ds conduct is dishonest; see section 3(1)(c) of the TO).
Similarly, it has been held that rubbish placed in bins for collection
may belong to the householder until collected, whereupon ownership passes
to the collecting agency. Accordingly, rubbish collectors might commit theft
by taking items for themselves (Williams v Phillips (1975) 41 Cr App R 5).
Treasure trove falls into a special category. Treasure trove refers to
articles of gold or silver hidden by their owner with the intention of
recovering them at a later date. At common law, absent the original owner,
the ownership of treasure trove vests in the Crown (R v Hancock [1990]
Crim LR 125). Accordingly, items found by treasure hunters may be
considered stolen from the Crown, as the owner, or, where the items are
found on private land, from the person having possession or control of the
land.
Proprietary right or interest Property belongs to anyone having any
proprietary right or interest in it. This covers what is ordinarily thought of
as ownership, but includes more than just the ordinary legal owner.
Furthermore, the property belongs to everyone who has any such right or
interest, and one such owner may steal the property from another owner.
The definition excludes equitable interests arising only from an
agreement to transfer or grant an interest. This means that property, for
the purposes of the TO, does not belong to someone who has agreed to
purchase that property, merely because he or she may have an equitable
interest arising from the agreement of sale; this in turn means that the
seller does not steal it from the buyer if he or she were, for example, to
resell the property rather than deliver it to the purchaser in accordance
with the terms of the agreement.
Clearly, other forms of equitable rights or interest must therefore be
impliedly included (otherwise, there would be no need expressly to exclude
the above category of case). Accordingly, where property is held on trust,
661
the property belongs, pursuant to section 6(1), to both the trustee and
also the beneficiaries; and the trustee may therefore steal the property from
the beneficiaries. In Clowes (No. 2) ([1994] 2 All ER 316), for example, D
controlled a fund containing both his own money and that of investors.
The Court of Appeal ruled that the mixed fund was held on trust for the
investors who were entitled under the civil law to a first charge on the
mixed fund. Accordingly, when D appropriated a sum from the mixed fund,
he was appropriating property which the investors could claim to have an
equitable interest in, and this brought it within the wording of section 6(1)
(see also R v Arnold [1997] 4 All ER 1). Where a trust is established, then
ownership of the trust property may alternatively be established pursuant
to section 6(2), discussed below.
Determining whether a person has an equitable proprietary interest for
the purposes of section 6(1) may not always be simple. One particular
illustration of this involves constructive trusts. In certain circumstances,
equity will impose a constructive trust on property received or held by a
person in favour of another person. Where this is so, then the person in
whose favour the constructive trust is declared prima facie obtains a
beneficial or equitable interest in the property, and the property will, in
accordance with section 6(1), for the purposes of theft (and also obtaining
property by deception, contrary to section 17(1) of the TO), belong to
that person. However, constructive trusts present criminal lawyers with a
number of difficulties. Firstly, it may be uncertain whether or not the
circumstances of a particular case are sufficient to give rise to a constructive
trust under the civil law, since the law relating to constructive trusts is in
a constant state of development and redefinition. In some circumstances,
this will be clear; in others, it will not be. One example relates to payments
by mistake in what circumstances will a recipient of a mistaken payment
be taken to hold the property or its proceeds on constructive trust for the
payor? In Shadrokh-Cigari ([1988] Crim LR 465), for example, discussed
further below, the English Court of Appeal held that a bank that had made
a mistaken payment to the defendant retained an equitable interest in the
money, i.e. the property received by the defendant was held by him on
constructive trust for the benefit of the paying bank. This finding in turn
enabled the court to hold that the proceeds of the mistaken payment
obtained by the defendant belonged to the bank, pursuant to section 6(1),
and could therefore be stolen by the defendant. One difficulty with this
decision is that there remains uncertainty under the civil law as to the
correct basis for imposing a constructive trust in relation to a mistaken
payment. On the other hand, the ownership of mistaken payments is also
662
expressly dealt with in section 6(4) of the TO, discussed below. Section
6(4) thus provides an alternative means of establishing that property or its
proceeds belongs to another, even where the position may be unclear under
the relevant civil law principles.
A second general difficulty with constructive trusts is that not all
constructive trusts necessarily involve the recognition of proprietary rights
or interests. Instead, a constructive trustee may simply be held liable to
account, i.e. to be under an obligation to pay over a sum of money to
restore the parties to their original position, creating only a creditor-debtor
relationship. An illustration of this difficulty arises out of A-Gs Reference
(No. 1 of 1985) ([1986] QB 491), in which D, the manager of a public
house (i.e. bar) contractually obliged to sell beer from a particular brewery,
secretly sold beer purchased by him from elsewhere. The English Court of
Appeal rejected a submission that the proceeds of these secret sales were
held by D on constructive trust for the brewery, and thus belonged to the
brewery for the purposes of theft. The court held that even if there was a
constructive trust, it did not create an equitable proprietary interest in
favour of the brewery, nor, added the court, were the proceeds received on
account of the brewery such as to bring section 6(3) into play; see further
below. Like Shadrokh-Cigari, there is considerable uncertainty over the
correctness of the Courts view of the civil law principles applied by it,6
particularly in the light of the Privy Councils subsequent decision in A-G
of Hong Kong v Reid ([1994] 3 All ER 1), a civil case, that bribes received
by a fiduciary were held on a proprietary constructive trust. In this case,
the Privy Council was asked to consider whether or not the government of
Hong Kong was entitled to claim an equitable proprietary interest in
monetary bribes received by R, a New Zealander, as a reward for obstructing
prosecutions while acting DPP in Hong Kong. The government wished to
trace the bribes into real property purchased by R with the proceeds in
New Zealand. Overruling long-standing English authority to the effect that
the only remedy available to a principal whose agent has received secret
payments from a third party is to have an account, and not a proprietary
remedy (Lister v Stubbs (1890) 45 Ch D 1), the Privy Council held that R
was a constructive trustee of the money received by him for the benefit of
the government, thereby establishing a proprietary interest in favour of the
government. If this is followed in the criminal context, A-Gs Reference
For criticism, see P. Smart, The Constructive Trust in the Law of Theft [1986] New LJ
913.
663
(No. 1 of 1985) may eventually be overruled, although there is also strong

authority to the contrary, including Lord Wilberforces assertion in Tarling
v Government of the Republic of Singapore ((1978) 70 Cr App R 77) that
[t]he making of a secret profit is no criminal offence.
Property must belong to another at time of appropriation If the alleged act
of appropriation takes place only after the entire proprietary interest in
property (and not merely possession) has passed to D under the civil law,
then theft cannot be charged. This is illustrated by Edwards v Ddin ([1976]
1 WLR 942), in which D drove into a petrol station, filled his tank with
petrol and then, having decided not to pay, drove away (the evidence was
equivocal on whether or not D intended, before filling his tank, to drive
away without paying; if so, this would amount to theft, if D poured the petrol
himself (thereby appropriating it), or obtaining by deception, if a station
attendant poured it (McHugh (1977) 64 Cr App R 92)). Under the civil law,
ownership of the petrol had already passed to D (along with possession and
control) (see section 19 of the Sale of Goods Ordinance). At the moment D
drove off, the petrol no longer belonged (in any sense under section 6(1))
to the petrol station, and therefore could not be stolen by him.
This type of case, and others like it, such as eating a meal in a restaurant
and then deciding to leave without paying (Corcoran v Whent [1977] Crim
LR 52), may now be dealt with by the offence of making off without
payment, contrary to section 18C of the TO (section 3 of the TA 1978).
Section 6(2): Trust property
When property is held on trust, it will ordinarily belong to both the trustee
(proprietary right or interest at law) and also the beneficiaries of the trust
(equitable proprietary rights), in accordance with section 6(1). For the
sake of completeness, section 6(2) additionally provides that:
Where property is subject to a trust, the person to whom it belongs
shall be regarded as including any person having a right to enforce
the trust, and an intention to defeat the trust shall be regarded
accordingly as an intention to deprive of the property any person
having that right.
Ordinarily, it is unnecessary to rely on section 6(2) (see, for example, R v

Li Kwai D Ct, Crim Jur Case No. 264 of 1985). However, section 6(2)
covers one situation where section 6(1) might not apply a trust that has
no readily identifiable beneficiaries, such as some forms of charitable trust.
664
Section 6(2) deems property held on such a trust to belong to the person
having a right to enforce the trust. Trusts having no identifiable beneficiaries
are enforceable by the Secretary of Justice (section 57A of the Trustee
Ordinance). Accordingly, by virtue of section 6(2), property held under
such trusts would be regarded as belonging to the Secretary of Justice and
therefore may be stolen from her by the trustee.
Section 6(3): Property received from or on account of another
Section 6(3) of the TO (section 5(3) of the TA 1968) provides:
Where a person receives property from or on account of another, and
is under an obligation to the other to retain and deal with that property
or its proceeds in a particular way, the property or its proceeds shall
be regarded (as against him) as belonging to the other.
This subsection provides a means of establishing theft against a person

who receives property from or on account of another subject to a condition
that the property or its proceeds be retained and dealt with in a particular
rather than general way, even though the circumstances of receipt would
ordinarily result in the passing of legal ownership of the property to the
recipient. It achieves this result by deeming the property (or its proceeds)
received by the recipient to belong to the other, from whom it may therefore
be appropriated and, if done dishonestly and with intention of permanently
depriving, stolen.
For section 6(3) to apply, two conditions must be satisfied: (1) D must
receive the property from or on account of another, and (2) D must be
under an obligation to the other to retain and deal with that property or
its proceeds in a particular way. Significantly, these conditions would
ordinarily be satisfied where there is a trust, but in such a case, there is no
immediate need to rely on section 6(3). Instead, either section 6(1) or
section 6(2) may be relied upon to establish that the trust property belongs
to someone other than the trustee, i.e. the beneficiaries of the trust, based
upon their equitable proprietary right or interest in the property or its
proceeds.
This suggests that section 6(3) was intended to cover cases where the
circumstances of receipt perhaps do not go far enough to establish a trust;
alternatively, it enables theft to be established without requiring proof of a
trust relationship (see also R v Hallam and Blackburn [1995] Crim LR 323:
convicted of theft despite uncertainty as to whether section 5(1), (2) or (3)
of the TA 1968 applied to establish property belonged to another). This
665
appears to have been accepted by the English Court of Appeal in R v Arnold

([1997] 4 All ER 1), where Potter LJ commented (at 9) that there was:
no good reason to introduce words of limitation in relation to the
interest of the transferor, save that at the time of handing over the
property to the recipient he should lawfully be in possession of it in
circumstances which give him a legal right vis--vis the recipient to
require that the property be retained or dealt with in a particular way
for the benefit of the transferor.
Section 6(3), he added, could apply even where the recipient is at law the
true owner,
if by agreement he recognises a legal obligation to retain or deal
with the property in the interest and/or for the benefit of the transferor,
but subsequently, in knowing breach of that obligation,
misappropriates it to his own unfettered use.
An example would be if D agrees to paint Vs apartment and, pursuant to

their agreement, V gives D an advance of HK$10,000 to buy paint. Although
ownership of the money prima facie passes under the civil law to D upon
its delivery to D, and D is ostensibly free to use it his own money
however he wishes, D clearly receives the money pursuant to a contractual
obligation to retain and use it for a particular purpose, namely buying
paint. Accordingly, section 6(3) will deem the money (or its proceeds if D
has, for example, deposited the money in a bank account) to belong to V
for the purposes of theft (regardless of the legal position on these facts
under the civil law). If D then dishonestly spends that money on something
other than paint, this will prima facie amount to the dishonest appropriation
of property belonging to V with the intention of depriving the owner of it,
and thus theft.
Obligation in section 6(3) means a legal obligation, rather than just a
moral or social obligation (R v Gilks [1972] 3 All ER 280: gaming debt not
legally enforceable). It seems that the question of whether the recipient was
under an obligation of the prescribed nature is for the trial judge to
determine as a matter of civil law (compare R v Hall [1973] QB 126 and
Hayes (1977) 64 Cr App R 82). Where the transaction giving rise to the
obligation is wholly in writing, then the judge should direct the jury that
the recipient was under the requisite obligation (Clowes (No. 2) [1994] 2
All ER 316), but otherwise the judge should direct the jury on the facts that
it will need to find for the requisite obligation to arise (Mainwaring (1981)
666
74 Cr App R 99; Dunbar [1994] 1 WLR 1484; Breaks and Huggan [1998]
Crim LR 349). It seems the recipient must be personally aware of the
existence of the obligation before section 6(3) may apply; thus, it is
insufficient that an agent of the recipient knew (see Wills (1991) 92 Cr App
R 297 at 301: Whether a person is under an obligation to deal with property
in a particular way can only be established by proving that he had knowledge
of that obligation. Proof that the property was not dealt with in conformity
with the obligation is not sufficient in itself, per Farquharson LJ).
Ordinarily, for this obligation to arise, both the recipient and the party
from whom the property is received must understand that the property is
to be kept separate (McHugh (1993) 97 Cr App R 335).
The operation of section 6(3) may be illustrated by the following cases.
In Hall ([1973] QB 126), H, a travel agent, received money from clients for
the purchase of airline tickets, but was not otherwise given any special
instructions as to how to deal with the money. H paid this money into his
businesss general account, rather than a separate account, and it was
subsequently depleted. When H failed to arrange trips and was unable to
repay the money, he was charged with theft. The English Court of Appeal
held that H was not guilty of theft because he had not received the money
under any such special arrangement as would give rise to an obligation to
retain and deal with either the money or its proceeds (represented by the
credit to his bank account), as required by section 6(3). The relationship
between H and his customers was merely that of creditor and debtor
(compare Re Kumar [2000] Crim LR 504).
In Davidge v Bunnett ([1984] Crim LR 297), D was convicted of stealing
money given to her by her flatmates to pay their communal gas bill, which
she instead spent on other things. The Divisional Court held that D was
under an obligation to use the money in a particular way, namely to pay
the gas bills, thus bringing section 5(3) of the TA 1968 (section 6(3) of the
TO) into play.
In DPP v Huskinson ([1988] Crim LR 620), on the other hand, Hs
conviction of stealing the proceeds of a government cheque for housing
benefit, part of which he spent on himself instead of paying off arrears of
rent, was quashed by the English Divisional Court on the ground there
was no basis for imposing on H any such legal obligation as that required
for the purposes of section 5(3) of the TA 1968. The court considered
whether the legislation under which the benefit was paid could be so
interpreted, but concluded it was not possible to read the legislation as
expressly or impliedly imposing an obligation on a recipient of housing
benefit to use it only to pay off arrears of rent.
667
In Klineburg and Marsden ([1999] 1 Cr App R 427), K and M, through

a company, sold timeshare apartments in Italy to English customers. When
the customers paid the purchase price, it was on the understanding
(engendered by oral and written representations by K and M) that their
payments would be held by an independent trust company, Timeshare
Trustees International (TTI), which would act as stakeholder pending
completion of the apartments. Some 237 purchasers paid over 500,000
between October 1990 and November 1991, but only 233 was placed
with TTI. K and Ms convictions of theft of the purchasers payments were
affirmed on the basis that the money paid to K and Ms company was
received subject to an obligation to retain and deal with it and its proceeds
in a particular way, within section 5(3) of the TA 1968. K and M had
clearly breached this obligation, at least in relation to such of the payments
as were understood to be paid to TTI (some purchasers were informed that
their payments would be paid to a firm of solicitors in relation to these
payments, no breach was proved), thereby stealing those payments (see
also Floyd v DPP [2000] Crim LR 411). Reaching this conclusion, the Court
emphasized that section 5(3) of the TA 1968 is essentially a deeming
provision by which property or its proceeds shall be regarded as belonging
to another, even though on a strict civil law analysis, it does not.
This view of section 5(3) of the TA 1968 was applied by the Hong
Kong Court of Appeal to section 6(3) of the TO in HKSAR v Li Ting ([2000]
2 HKLRD 129). In this case, Li, a District Board member, received payments
from a group of hawkers in his district to fund a bid by L to the Housing
Authority to become the single market operator at a new extended market
to be set up in his district; if successful, L would lease stalls in the market
to the hawkers. The sums paid to L varied from HK$20,000 to HK$120,000,
and were paid on the condition that the whole amount would be returned
unconditionally within one month if Ls bid was unsuccessful. The payments
were by way of cheques or cashier orders made out to L personally. The
prosecution alleged that L never used the money paid to him for the purpose
agreed. After the announcement on 5 September that his bid was
unsuccessful, L sought to delay refunding the payments. Eventually, on 5
October, he issued personal cheques to the hawkers; these cheques were
all dishonoured upon presentation. L was acquitted on 13 counts of evasion
of liability, contrary to section 18B(1)(b) of the TO, but convicted of 12
counts of theft subsequently added to the charge sheet. On appeal, L
submitted he had lawfully received the cheques and cashier orders, and
that, on the authority of Preddy, when they were paid into his personal
account, the credit balance i.e. debt owed by the bank to L as account
668
holder and chose in action thereby created, belonged to L. Accordingly,

it was submitted that, at the moment he later allegedly stole the money,
there was no property belonging to another for the purposes of the theft
charges. The prosecution submitted that L received the cheques and cashier
orders subject to an obligation to retain their proceeds (i.e. the credit to
his bank balance) in a particular way, bringing the case within section 6(3)
which deemed the proceeds i.e. the credit balance to belong to the
hawkers. Dismissing Ls appeal, Wong JA for the Court concluded, applying
R v Arnold ([1997] 4 All ER 1) and Klineburg, that Preddy had no application
to a case such as this, which was governed by section 6(3). Ls arguments
were accordingly rejected.
Professor J.C. Smith, commenting on Klineburg (Commentary, [1999]
Crim LR 417), has supported this analysis where the payments are made in
cash or by cheque: a cash or cheque is property received from the payor,
and the subsequent credit to the recipients bank account clearly represents
its proceeds, to which section 6(3) may apply. However, this analysis, he
argues, cannot readily be applied where the payment is by way of electronic
transfer to the recipients bank account. In such a case, following Preddy,
nothing is received from the transferor the credit to the recipients
bank account is a new item of property belonging from its creation to the
recipient. Nor, argues Smith, can it be said that the credit is property received
on account of the transferor, since it is clearly intended to be for the
recipient. Accordingly, there being no property received from or on account
of another, the recipients credit balance cannot therefore be said to be the
proceeds of such property which could then be deemed by section 6(3) to
belong to another. In other words, the first of the two conditions laid down
in section 6(3) would not have been satisfied.
Professor Smiths analysis has been applied by the Hong Kong Court
of Appeal, in HKSAR v Angelina Goh Swee Yan ([2000] 2 HKC 711). In this
case of theft and evasion of liability (see further Chapter 14, p. 758), G was
given two cheques drawn by C in favour of G, ostensibly by way of
repayment by C of principal and interest on a loan made by G to C (in fact,
the money lent by G was obtained from A). G deposited these cheques into
her own bank account, but used it for Gs own purposes instead of
transferring the sum on to A. It was alleged that G thereby stole property
belonging to A. Allowing Gs appeal against her conviction of theft (but
substituting a conviction of evading liability by deception), the Court of
Appeal concluded that the credit balance in Gs bank account could not be
treated as the proceeds of property (the cheques) received from C under
an obligation, since C was unaware of A and thus imposed no condition on
669
its receipt by G. For the same reason, held Keith JA (at 731) for the majority,
the cheques themselves could not be viewed as property received on account
of A (though the court left open the possibility that A might have been
entitled to claim that the credit balance was held by G on trust for A,
thereby bringing either section 6(1) or 6(2) into play). Accordingly, section
6(3) was inapplicable for the purposes of establishing the charge of theft.
In R v Williams, R v Lamb ([1995] Crim LR 77), it was held that a
solicitor acting for both the mortgagor and mortgagee bank could be under
an obligation to the bank to retain and deal with mortgage moneys received
by his mortgagor client, falling within section 5(3) of the TA 1968 (section
6(3) of the TO), even though the solicitors mortgagor client was the owner
and legal recipient of the money. In this case, the solicitor, L, was convicted
of stealing the sum of 3000 (retained by him out of the mortgage moneys
advanced to his mortgagor client and applied by him for his own purposes)
from the mortgagee bank; this sum belonged to the mortgagee bank by
virtue of section 5(3).
The meaning and operation of section 6(3) (section 5(3) of the TA
1968) was also considered in A-Gs Ref (No. 1 of 1985), discussed above. In
this case, the English Court of Appeal held that the manager of a public
house (bar) who made profits by secretly selling his own beer in breach of
his contractual obligations with a brewery did not steal the proceeds by
keeping them. The proceeds were neither held on constructive trust for the
benefit of the brewery, nor received by the manager on account of the
brewery for the purposes of section 5(3) (section 6(3) of the TO). The
correctness of the courts analysis of the law in this case has been questioned
above, but one point arising is that there may be a difference between
receiving property on account of another, and receiving property in
circumstances making the recipient liable to account to another for the
value of the property. This may be contrasted with Brewster ((1979) 69 Cr
App R 375), in which B, an insurance broker, was convicted of the theft of
insurance premiums collected by him for which he had to account to his
principal, the insurance company. Unlike A-Gs Ref (No. 1 of 1985), in this
case, the contract between B and the insurance company stated that all
premiums received by him were at all times to be the property of the
company; thus, it was possible to say that the premiums were received on
account of the insurance company.
One category of case that has been several times considered involves
money collected for charity. In Lewis v Lethbridge ([1987] Crim LR 59), the
English Divisional Court ruled that a person who received L54 in sponsorship
money for a colleague who ran the London Marathon was under no legal
670
obligation to deal with the money received by him in any particular way;
accordingly, section 5(3) of the TA 1968 (section 6(3) of the TO) was
inapplicable. In this case, the charity to receive the sponsorship money
neither provided L with a collection box nor made him subject to any other
obligation to keep the funds collected by him separate. Had either of these
steps been taken, then the court might well have been persuaded to accept
that L was placed under an obligation to retain and deal with the money
received by him in a particular way (as in Brewster, above). In R v Wain
([1995] 2 Cr App R 660), the court was persuaded to the contrary view,
affirming Ws conviction of stealing sums collected for charity. In this case,
W had arranged a number of fund-raising events for a charity. He deposited
the money collected by him into a separate bank account opened by him in
the name of the charity. With the consent of the charity, W then transferred
the credit balance in the charitys account to Ws own account and issued a
cheque to the charity for the amount due. This cheque, along with several
subsequent cheques, was dishonoured. W appealed against conviction,
relying on Lewis v Lethbridge. Dismissing his appeal, the English Court of
Appeal, applying Davidge v Bunnett above, held that W was under an
obligation to retain the proceeds of the money collected, if not the actual
notes and coins. Accordingly, the sums credited to Ws own account were to
be regarded as property belonging to another by virtue of section 5(3) of the
TA 1968 (section 6(3) of the TO). The court disapproved of Lewis v
Lethbridge, with McGowan LJ commenting that [Macpherson J in Lewis v
Lethbridge] was forgetting that s 5(3) referred not merely to dealing
with that property but also its proceeds. This decision itself is not free of
criticism, insofar as McGowan LJ, reaching his conclusion, commented that
W was by virtue of s 5(3) plainly under an obligation . The concern
with this is that McGowan LJ seems to be saying that section 6(3) itself
creates the obligation to retain and deal with the property in a particular way.
However, this plainly cannot be so; the existence of an obligation is one of
the two conditions that must be satisfied for section 6(3) to apply. In addition,
if, as the court appears to accept, W became a trustee of the sums donated
at the events organized by him, then either section 6(1) or section 6(2) could
apply to establish that the proceeds held by W belonged to another.
A somewhat anomalous case is Meech ([1974] QB 549), in which it
was held that a recipient of a cheque was under an obligation to retain and
deal with it in a particular way if he or she believed himself or herself to be
under such a duty, even though this was not in fact so. Since section 6(3)
requires proof that the recipient was under an obligation, this seems wrong;
instead, such facts should be charged as attempted theft.
671
Section 6(4):Property got by mistake

Section 6(4) of the TO (section 5(4) of the TA 1968) deals with property
got by mistake. It provides that:
Where a person gets property by anothers mistake, and is under an
obligation to make restoration (in whole or in part) of the property or
its proceeds or of the value thereof, then to the extent of that obligation
the property or its proceeds shall be regarded (as against him) as
belonging to the person entitled to restoration, and an intention not
to make restoration shall be regarded accordingly as an intention to
deprive that person of the property or proceeds.
When a person mistakenly gets property belonging to another, ownership

of the property does not necessarily pass to the transferee. For example, if
A lends As property to D, mistakenly thinking that D is B, A does not
intend to transfer ownership of the property to D (or B) it is only a loan
intended to pass possession. A remains the owner; in this case, the property
still belongs to A pursuant to section 6(1) of the TO, for the purposes of
theft (and also obtaining property by deception, contrary to section 17(1)
of the TO). Even if the transaction is intended to transfer ownership, this
may still fail to occur if the mistake upon which the transaction and
purported transfer is based is a fundamental mistake, making the transaction
void ab initio. In such cases, the transferor remains the owner of the property,
and the property still belongs to the transferor, pursuant to section 6(1)
of the TO, for the purpose of theft (and obtaining property by deception).
If the mistake is not one that prima facie prevents ownership from
passing as intended (the transaction is only voidable), or the issue is perhaps
uncertain or unresolved (keeping in mind Lord Roskills assertion in Morris,
discussed below, that it is wrong to introduce into this branch of the
criminal law questions whether particular contracts are void or voidable on
the ground of mistake or fraud or whether any mistake is sufficiently
fundamental to vitiate a contract), section 6(4) provides an alternative
means of establishing theft. It deems the property mistakenly transferred to
the recipient (or its proceeds in the recipients hands) to belong to another,
namely the person entitled to restoration of the property or its proceeds or
the value thereof. Section 6(4) reinforces this position by expressly providing
that an intention not to make restoration shall be treated as an intention
to deprive (though not necessarily to permanently deprive).
Section 6(4) was intended to reverse Moynes v Coopper ([1956] 1 QB
439), in which an employee who received a pay packet mistakenly
672
containing an overpayment was held not to have stolen the overpayment

when, having later discovered the overpayment, he spent it. In the view of
the court, even if this conduct was dishonest, ownership of the overpayment
passed at law to the recipient; accordingly, when D spent the money, he
did not convert property belonging to another. In A-Gs Reference (No. 1
of 1983) ([1985] QB 182), the English Court of Appeal confirmed that
section 6(4) now enables this to be prosecuted as theft. The overpayment
in this case was mistakenly made directly into a bank account. The account
holder thereby obtained an increase in her credit balance; this increased
credit (i.e. the debt or right of action against the bank) represented the
property or its proceeds. Since this debt arose out of property was gotten
by the mistaken overpayment, the recipient was clearly under a legal
obligation to make restoration of its value. Pursuant to section 6(4), the
proceeds held by her were accordingly regarded as belonging to the
transferor. Their subsequent retention or use by the recipient could amount
to the appropriation of property belonging to another; if dishonesty and
intention of permanently depriving were also proved, this could amount to
theft (followed in R v Stalham [1993] Crim LR 310).
For section 6(4) to apply, two conditions must be satisfied: (1) D must
get the property by anothers mistake, and (2) D must be under an
obligation to make restoration (in whole or in part) of the property or its
proceeds or of the value thereof.
Obligation here means a legal obligation, rather than just a moral or
social obligation (R v Gilks [1972] 3 All ER 280). According to A-Gs
Reference (No. 1 of 1983), an obligation to make restoration means an
obligation to make restitution. An obligation merely to pay for the property
(e.g. where the goods were transferred pursuant to a sale of goods), or to
pay a debt, will not suffice. Where a transaction is voidable because of a
mistake, it may be arguable that there is no legally enforceable obligation
bringing section 6(4) into effect until the transaction has actually been
avoided by the transferor. Even if the restitutionary obligation is held to
arise automatically by virtue of the mistake (though perhaps subject to
defences such as change of position), it will be very difficult to prove that
the recipient dishonestly appropriated the property or its proceeds (by
retaining or dealing with them), unless the mistake giving rise to the
restitutionary obligation is brought to the attention of the recipient.
The obligation may relate to restoration of the property, or its proceeds,
or the value thereof. In Davis ((1989) 88 Cr App R 347), the English
Court of Appeal held that proceeds may include money received from a
third party. In this case, Ds local authority mistakenly continued to send
673
D cheques for a housing benefit to which D was not entitled. D took these
cheques to various third parties who cashed them for D. It was held that D
got the cheques by mistake, and was under a legal duty to make restoration
of them or their proceeds or their value. The cash obtained by D represented
the proceeds of the property; by section 6(4), this cash was deemed to
belong to another, namely, the local authority, from whom it could
therefore be stolen.
One continuing uncertainty affecting the operation of section 6(4)
relates to the possibility of equitable ownership arising in favour of a
mistaken transferor simply by virtue of the mistaken payment; if correct,
then section 6(1) will apply, and there is no need to rely exclusively on
section 6(4). This possibility was recognized in Shadrokh-Cigari ([1988]
Crim LR 465). In this case, the English Court of Appeal applied ChaseManhattan Bank NA v Israel-British Bank (London) Ltd. ([1981] Ch 105),
an earlier civil case which had controversially held that an innocent party
mistakenly making an overpayment automatically retains an equitable right
in the overpayment. In Shadrokh-Cigari, this was applied where a bank
mistakenly transferred money to a bank account administered by S as
guardian of a child. S realized that an overpayment had occurred and
induced the child to sign documents authorizing the bank to issue drafts
in Ss favour. His conviction of theft of the drafts was upheld on the basis
that the overpayment belonged to the original paying bank, either because
that bank retained an equitable interest in the overpayment which was
traceable into the drafts, thus bringing section 6(1) into effect, or because
S was under a duty to restore the proceeds or value of the property got by
him by mistake, bringing the case within section 6(4). Chase-Manhattan
Bank NA was later held by the House of Lords in Westdeutsche Landesbank
Girozentrale v Islington London Borough Council ([1996] AC 669) to be
wrong insofar as it suggested that an equitable interest arose automatically
upon the mistake being made; instead, in the view of the Lords, this
equitable interest arose only once the recipient was aware of the mistake.
Since the defendant in Shadrokh-Cigari was clearly aware of the mistake,
the actual decision seemingly stands, leaving open the possibility that both
section 6(1) and section 6(4) may be available in a case of mistaken payment.
Section 6(5)
Section 6(5) provides that the property of a corporation sole shall be
regarded as belonging to the corporation notwithstanding a vacancy in the
corporation.
674
Appropriation
Theft requires proof that the defendant appropriated property belonging
to another. The term appropriation was introduced to replace notions such
as trespassory taking and carrying away that were part of the former law
of larceny, in the belief that appropriation was a term with an ordinary
meaning and with the hope it would be readily understood by ordinary
people. This hope proved over-optimistic, and the meaning of appropriation
has featured repeatedly in the case law since the concept was introduced in
England in 1968 and subsequently adopted in Hong Kong.
The nature of appropriation
Appropriation is elaborated in section 4 of the TO (section 3 of the TA
1968), which reads:
(1) Any assumption by a person of the rights of an owner amounts
to an appropriation, and this includes, where he has come by the
property (innocently or not) without stealing it, any later
assumption of a right to it by keeping it or dealing with it as
owner.
(2) Where property or a right or interest in property is or purports
to be transferred for value to a person acting in good faith, no
later assumption by him [i.e. the purchaser in good faith] of rights
which he believed himself to be acquiring shall, by reason of any
defect in the transferors title, amount to theft of the property.
In Morris ([1984] AC 320), the House of Lords observed that this section
(section 3 of the TA 1968) represents only a partial definition of
appropriation; a view that is consistent with the intentions of the Criminal
Law Revision Committee in its report leading to the TA 1968 (see Eighth
Report, Theft and Related Offences (Cmnd 2977, 1966), para 34).
Any assumption of the rights of an owner
Normally, theft conjures up images of conduct that are objectively or
manifestly inconsistent with the owners rights: D secretly takes property
belonging to another, or snatches it out of the owners possession. Ds
conduct is overtly hostile or adverse to the owners rights. This accords
with the ordinary persons understanding of theft; it is also evident in the
primary dictionary meaning of appropriation: take possession of, take to
oneself, especially without authority (Oxford Shorter English Dictionary).
675
Any right As the above two instances of theft secretly taking or

snatching property illustrate, a thief will not generally become the
owner of the property at law; in most instances, theft is simply based on
taking possession of the property. Since the right to possession of property
is merely one of the rights of an owner others include the right to sell
it, the right to lend it, the right to use or consume it, and (in relation to a
bank account) the right to debit or credit the account (see Chan Man-sin v
A-G of HK [1988] 1 All ER 1) does this mean that a person may be said
to have assumed the rights of an owner for the purposes of section 4(1)
without necessarily assuming all the rights of the owner? This was accepted
by the House of Lords in R v Morris ([1984] AC 320); according to Lord
Roskill, any assumption of any of the rights of an owner will suffice (in
Morris, this included switching labels on goods in a supermarket; another
example would be a cashier underpricing goods in a supermarket (Pilgram
v Rice-Smith [1977] 2 All ER 658; R v Bhachu (1976) 675 Cr App R 261).
Although it is arguable this goes too far, and rights for this purpose would
be better restricted to rights exclusive to the owner, Lord Roskills view
has since been judicially approved (see Gomez [1992] AC 442).
By act or combination of acts An appropriation may consist of a single
act or a combination of acts. This was also accepted in Morris, with Lord
Roskill stating (at 333) that an appropriation:
is the doing of one or more acts which individually or collectively
amount to [an assumption] . of the owners rights which constitute
appropriation under [section 4(1)] I do not think it matters where
there is more than one such act in which order the successive acts
take place, or whether there is any interval in time between them.
By the acts of others: Innocent agents A person may appropriate property

even though the immediate act assuming the rights of the owner is
performed by another person, if that other can be treated as the innocent
agent of the former. A simple example would be where D tells S, a child, to
remove a bicycle belonging to V and hide it. D does not himself or herself
take possession of the bicycle, but Ss act will be treated as the act of an
innocent agent and attributed to D, who can therefore be said to have
appropriated the bicycle for the purposes of theft. Similarly, the act of a
clerk innocently completing documents on Ds instructions, whereby D is
able dishonestly to obtain funds, may be treated as the act of an innocent
agent, so that D can be said to have appropriated the funds. In cases like
this, it is often said that D set in motion a chain of events involving the
676
intervening acts of innocent agents (see, for example, Stringer (1992) 94

Cr App R 13). In Hilton ([1997] 2 Cr App R 445), the English Court of
Appeal held that H appropriated, and thus stole, funds in a bank account
by dishonestly sending instructions by fax to that bank requiring it to
electronically transfer funds out of that account to another account. This
was applied in HKSAR v Wong Cho Sum ([2001] 3 HKC 268), where the
Court of Appeal held that this analysis might even be applicable where the
innocent agent in question is the victim. This case concerned a modelling
scam, whereby female victims were fraudulently induced to pay over fees
as a condition of obtaining non-existent modelling work. In some instances,
payments were made by cash, in others by withdrawals by one of the
defendants at an ATM from the victims bank account, and, in one instance,
by the victim herself electronically transferring funds by ATM from her
account to an account operated by the defendants. Referring to Hilton, Stock
JA for the Court observed (at 277) that:
It is evident that it matters not what the mode of appropriation is,
what mode is adopted whereby the fraudster assumes the rights of the
owner of the balance of the bank account of the victim thereby causing
a transfer of funds. What is central is that there is an act of
appropriation by the fraudster or his agent.
It was submitted that this analysis should not apply where the act resulting
in the transfer of funds was performed by the victim herself, but Stock JA
robustly rejected this, citing Hinks as authority for the view that it is
sufficient if it can be shown that the defendant directly participated in the
very act of transfer itself, thereby engaging in an appropriation (for further
commentary on this, see below, p. 692).
Appropriation without taking possession Although theft often involves
taking possession of the victims property (at least where it can be physically
possessed), this is not required by section 4(1). Accordingly, theft may
occur even though the thief never takes possession of the stolen property.
In Pitham and Hehl ((1976) 65 Cr App R 45), for example, the English
Court of Appeal concluded that D appropriated and thus stole a household
load of furniture belonging to V by dishonestly offering to sell it to P, even
though D was not in possession and never took possession of the furniture.
When P, the buyer, subsequently took delivery of the property, P was
consequently liable for handling stolen goods, not theft (quaere: unlike R v
Bloxham ((1944) 29 Cr App R 37), the buyer in Pitham knew that D did
not own the furniture, leading some commentators to suggest that Pitham
677
would have been better treated as a conspiracy to steal; see, for example,
Glanville Williams, Textbook of Criminal Law (second edition, London:
Stevens & Son, 1983), p. 764).
Where the property is a chose in action or other form of intangible
property that cannot be physically possessed, then appropriation will usually
involve the exercise of the rights of the owner of the property, without D
ever taking possession of the property. For example, in Ex p Osman ([1990]
1 WLR 277), the English Divisional Court held that D may commit theft
by sending a telex to a bank asking it to transfer funds out of a particular
account (even if the bank does not comply with the request) since this
involves the exercise (and thus assumption and appropriation) of the
account holders right to deal with the funds in the account. (Compare
Navvabi [1986] 1 WLR 1311: drawing a cheque backed by cheque card on
a bank account with insufficient funds to meet the cheque was not an
appropriation since the act did not relate to any identifiable property, merely
a contractual right against the bank.) And in A-G of Hong Kong v Daniel
Chan Nai-keung ([1987] 1 WLR 1339), C was convicted of stealing textile
export quotas by selling them and transferring them to another company
(in which he was interested) at a considerable discount to their commercial
value.
Appropriation: Instantaneous or a continuing act? 7 Although an
appropriation, and thus theft, may be said to occur almost instanteously,
i.e. when a person does an act evidencing the assumption of the owners
rights, the courts have not always viewed appropriation in this way and on
occasion have treated appropriation as a continuing act. In robbery cases
in particular, where it is necessary to prove that force was used or threatened
either before or at the time of stealing (section 10 of the TO), the courts
have been willing to adopt an expansive view of appropriation and thus
stealing, to enable conviction. In Hale ((1978) 68 Cr App R 415), for
example, the English Court of Appeal held that H committed robbery when,
having entered a house and taken a jewellery box, he then used force on
the occupant by tying her up; this was possible only if the appropriation
(i.e. the act constituting the stealing) was treated as still continuing when
H tied up the victim. Similarly, if the victim of a pickpocket were suddenly
to realize what has happened and grab hold of the thief, the use of force by
the thief at that point to escape might be viewed as occurring at the time
See G. Williams, Appropriation: A Single or Continuous Act? [1978] Crim LR 69.
678
of the theft, and thus constitute robbery, even though the effect of Gomez
and Hinks on appropriation, discussed below, means that merely touching
property belonging to another, for example, a bag, is already an
appropriation of it (as in Corcoran v Anderton (1980) 71 Cr App R 104:
liable even though D immediately dropped the bag and did not run off
with it).
This must be contrasted with the offence of handling stolen goods
(section 26 of the TO) which requires proof that the actus reus of handling
occurred otherwise than in the course of the stealing. Since handling is a
more serious offence than theft, the courts have sometimes adopted a
narrower, more instantaneous view of appropriation to secure or uphold a
conviction. In Pitham and Hehl ((1976) 65 Cr App R 45), for example,
mentioned above, the English Court of Appeal took the view that the
unauthorized, dishonest offer to sell furniture belonging to another
amounted to its appropriation, so that the subsequent delivery of the
property to P was otherwise than in the course of the stealing and thus
amounted to handling stolen goods.
These conflicting views of appropriation were considered by the
English Court of Appeal in R v Atakpu; R v Abrahams ([1993] 3 WLR 812),
along with the question of whether a person may repeatedly appropriate
property each time he or she assumes the rights of an owner. In this case,
the appellants were convicted of conspiring to steal cars hired by them in
Germany, using false documents, with the intention of selling them in the
UK. At trial, the judge directed that an appropriation of the vehicles took
place within the UK. The Court of Appeal allowed their appeals, holding
that the cars were appropriated in Germany (applying Gomez, it did not
matter that the appellants had obtained possession of the cars with the
(fraudulently induced) consent of the hire company) and had thus been
stolen outside the UK. Accordingly, the theft was complete before the
appellants returned; the object of the conspiracy was not therefore an offence
within jurisdiction, unless the subsequent acts of the appellants could be
treated as a further appropriation. Referring inter alia to Pitham and Hehl
and Hale, Ward J stated (at 81920) that:
[I]t would seem that (1) theft can occur in an instant by a single
appropriation but it can also involve a course of dealing with property
lasting longer and involving several appropriations before the transaction
is complete; (2) theft is a finite act it has a beginning and it has an
end; (3) at what point the transaction is complete is a matter for the jury
to decide upon the facts of each case; (4) though there may be several
appropriations in the course of a single theft or several appropriations
679
of different goods each constituting a separate theft as in Skipp [1975]

Crim LR 114, no case suggests that there can be successive thefts of the
same property (assuming of course that possession is constant and not
lost or abandoned, later to be assumed again).
Determining when a theft is complete (i.e. as a finite act) requires, in the

view of the court, a flexible approach, having regard to the facts of each
case; in this regard, the Court endorsed a suggestion by Smith and Hogan
(Criminal Law, ninth edition, 1999, p. 513) that one way of testing this is
to ask whether or not D is still on the job.
Appropriation by an authorized or consensual act
Commonly, theft is thought of in terms of conduct that is hostile or adverse
in some manner to the rights of the property owner secretly taking
someones property or purse-snatching, for example. In the majority of cases,
therefore, the act of appropriation will be unauthorized or non-consensual.
What if this is not so? What if the act alleged to be the appropriation was
authorized or consented to by the owner of the property? In the language
of section 4, can D still be said to assume the rights of an owner (and
thereby commit theft, assuming dishonesty and intention can also be proved)
by doing something with the authority or consent of the owner?
This issue has repeatedly confronted the courts since the enactment of
the TA 1968 in England and its counterpart, the TO, in Hong Kong. The
leading authorities, principally four decisions of the English House of Lords
Lawrence v MPC ([1972] AC 626), R v Morris ([1984] AC 320), DPP v
Gomez ([1993] AC 442) and R v Hinks ([2001] 2 AC 241), have come down
in favour of the view that D may still commit theft in such circumstances
(only Morris takes a contrary view). According to the House of Lords,
appropriation is a purely neutral term; as such, it includes acts done by D
with the consent of the owner of the property allegedly stolen by D.
One aspect of this issue concerns the relationship between theft and
obtaining property by deception, contrary to section 17(1) of the TO. If D
obtains property belonging to V with Vs consent, inducing that consent by
deception, Ds conduct prima facie falls within section 17(1). That being
so, the question arises as to whether Ds conduct may instead be
characterized as an appropriation of the property, disregarding any question
of whether it may have been done with Vs consent (which may be voidable
because of the deception), thereby enabling D to be charged with theft.
According to the authorities, this is permissible, with the result that in
such cases, there is an almost complete overlap between theft and obtaining
680
property by deception: either may be charged, but a charge of theft has the
advantage that neither deception nor inducement will need to be proved.
Lawrence/Morris In its first consideration of this issue, in Lawrence v MPC
([1972] AC 626), shortly after the enactment of the TA 1968, the House of
Lords concluded that theft may be committed even though the victim
purportedly consents to the taking of the property. L, a taxi driver, was
convicted of theft by taking more than the lawful fare when a passenger
opened his wallet and told L to take the correct fare, L having already
falsely represented to the passenger that the sum of 1 tendered by him
was not enough. On appeal, L argued that the passenger had consented to
L taking additional money, and that the prosecution had consequently failed
affirmatively to prove that Ls conduct was not done with the victims
consent as required under the previous law of larceny. This argument was
rejected by the Lords. What mattered, concluded the Lords, is whether a
defendants actions amount to a dishonest appropriation; consent, if given
or believed to have been given, might negate dishonesty, but there is no
need to prove its absence in order to establish an appropriation. Viscount
Dilhorne stated (at 632) that:
Belief or the absence of belief that the owner had with such knowledge
consented to the appropriation is relevant to the issue of dishonesty,
not to the question whether or not there has been an appropriation.
That [i.e. appropriation] may occur even though the owner has
permitted or consented to the property being taken.
Although this conclusion is expressed in general terms, the facts of Lawrence

involved consent obtained by deception. Accordingly, the Lords conclusion,
insofar as it referred simply to consent, was arguably obiter, leaving open
the question of whether an appropriation could exist where there is real,
rather than void or voidable, consent.
In affirming Ls conviction, the Lords also accepted that there is an
overlap between theft and obtaining property by deception; the two offences
are not mutually exclusive. Accordingly, the fact that L might have been
charged with obtaining by deception did not prevent L from being
alternatively charged, as he was, with theft.
These issues came back before the Lords in Morris ([1984] AC 320) in
1983, particularly since a number of cases had chosen not to follow
Lawrence, instead taking the view that there could be no appropriation if
Ds act was authorized or consented to by the owner of the property (e.g.
Eddy v Niman [1981] Crim LR 502: placing goods in a supermarket basket
681
not theft (even if done with an intention to steal), since act was done with
supermarkets consent; compare McPherson [1973] Crim LR 191: placing
goods in own bag could be an appropriation). In Morris, M and another
defendant in a separate consolidated appeal, Burnside, put cheaper price
labels on goods taken from supermarket shelves. In Ms case, he paid the
lower price at the checkout counter before being arrested; in Bs case, he
was arrested at the checkout counter before paying. Both M and B were
charged with theft. M accepted that he would have been liable for obtaining
goods by deception (by switching the price labels) had he been charged
with that, but argued that there was no appropriation for the purposes of
theft prior to his payment at the counter, whereupon ownership of the
goods passed to him (even though the transaction was voidable because of
Ms fraud). B likewise argued that he had not done anything amounting to
an appropriation prior to his arrest. The question for the House of Lords
was therefore whether label-switching amounted to an appropriation of
the supermarkets property, although the question of law certified for the
Lords asked more specifically whether there was any dishonest
appropriation on these facts. Significantly, the actual act that was relied on
as the appropriation, i.e. label-switching, was clearly an unauthorized act
a supermarket gives its customers authority or consent to take goods off
the shelf, examine them and place them in a basket, but clearly does not
authorize them to switch labels.
The Lords dismissed the appeals, concluding (inevitably it might be
thought) that the label-switching in this case, clearly done with the intent
of paying the lesser price, amounted to a dishonest appropriation of the
goods. In reaching this conclusion, however, Lord Roskill, delivering the
unanimous judgment of the Lords, addressed the question of whether there
can be an appropriation if the conduct in question is authorized or consented
to, and, despite re-affirming Lawrence, concluded (at 332) that an authorized
or consensual act cannot amount to an appropriation:
In the context of section 3(1) [section 4(1) of the TO], the concept
of appropriation involves not an act expressly or impliedly
authorised by the owner but an act by way of adverse interference with
or usurpation of [the owners] rights [emphasis added].
Observing (at 332) that the mere removal [of goods] from the shelves
without more is not an appropriation (this is no longer correct in the light
of Gomez and Hinks), Lord Roskill also suggested, inconsistently with his
own formulation of appropriation, that label-switching itself may not amount
682
to an appropriation, unless done dishonestly and with intention to steal,

giving the following example (at 332):
[I]f a shopper with some perverted sense of humour, intending only
to create confusion and nothing more, both for the supermarket and
for other shoppers, switches labels, I do not think that that act of
label switching alone is without more an appropriation
This confuses the question of whether the actions of a practical joker amount
to a dishonest appropriation, with the simple reality that a shopper clearly
has no authority to switch labels (whether as a practical joke or otherwise).
Subsequently, the Lords in Gomez concluded that label-switching itself does
amount to an appropriation.
On the question of the overlap between theft and obtaining by
deception, Lord Roskill added that it would ordinarily be preferable, where
the shopper has actually paid for the goods, to charge obtaining by
deception, leaving theft for those cases where D is arrested prior to payment.
Noting that liability in some of the previous cases (e.g. Dip Kaur [1981]
1 WLR 578) had been made to depend on a determination of whether a
contract was void or voidable on the grounds of mistake or fraud, Lord
Roskill suggested that it is wrong to introduce [such questions of civil
law] into this branch of the criminal law. Such difficult questions, he
added, should so far as possible be confined to those fields of law to which
they are immediately relevant. In his view, they should not be relevant
questions under the TA 1968.
In many respects, Lord Roskills view of appropriation requiring
proof of an act adversely interfering with or usurping the owners rights
seems intuitively right. Why should the mere removal of goods from a
supermarket shelf an objectively neutral act, and one authorized by the
supermarket potentially give rise to a charge of theft (assuming that
dishonesty and intention can be proved)? Not surprisingly, therefore, Lord
Roskills reformulation of appropriation attracted considerable academic
support. As already mentioned, subsequent decisions have however rejected
it in favour of an objectively neutral view of appropriation.
One concern about Lord Roskills formulation is whether it confuses
evidential and substantive issues. That is, the reason why taking goods off
the supermarket shelf is not theft is not because it is not an appropriation,
but because in the absence of any other overt acts, or perhaps a confession,
it will be virtually impossible for the prosecution to prove beyond reasonable
doubt that D acted dishonestly (or with intention to deprive permanently);
683
all D has done is act in a manner clearly authorized by the owner, i.e. the
supermarket, and this will of itself be insufficient to raise any inference of
dishonesty and intention. Normally, therefore, one would expect D to be
arrested only at a later stage, such as when D attempts to leave the store
without paying for goods, so that there is a clear evidential basis for inferring
dishonesty. What this emphasizes is that the crucial feature in establishing
dishonest appropriation is not the appropriation itself, but whether it is
(and can be proved to be) dishonest.
This in turn reveals a potentially important aspect of this judicial debate:
how much scope does a trial judge have to withdraw a charge of theft from
the jury? As is explained below, dishonesty is essentially a jury issue.
Ordinarily, therefore, a judge will not be entitled to withdraw a charge of
theft (or any other offence of dishonesty) simply because he or she considers
that D did not act dishonestly; this will be for the jury. If appropriation is
an objectively neutral term, then this will reinforce the centrality of
dishonesty in determining whether there was a dishonest appropriation
and thus theft. However, if appropriation requires proof of an act by way
of adverse interference with or usurpation of the rights of an owner, then
a judge seemingly has greater scope for withdrawing theft from a jury,
since he or she would be entitled to decide that there is no evidence of any
such act, effectively denying the jury an opportunity to assess whether D
acted dishonestly. An objectively neutral view of appropriation thus leaves
the determination of a defendants liability much more in the hands of the
jury, whose view of the defendants honesty or dishonesty will often be
difficult to predict, especially given the open-ended nature of the current
test of dishonesty (below, p. 704).
Over the following decade, these two views of appropriation battled
for supremacy, with Lawrence inter alia gaining the support of the English
Court of Appeal in a civil case, Dobson v General Accident Fire and Life
Assurance Corp plc ([1990] QB 274), while Morris gained its own support
in the English Court of Appeal in Gomez (before it was overturned on
appeal). In Dobson, the court had to interpret the term theft in an insurance
policy on house contents. D had been defrauded out of a gold watch and
diamond ring, receiving a worthless building society cheque in payment.
Was this theft, so that he was covered? The Court of Appeal, while
suggesting possible means of reconciling Lawrence and Morris, ultimately
preferred Lawrence. Accordingly, the buyer committed theft when he took
possession of the items, even though possession was transferred to him
with Ds (voidable) consent; D was therefore covered by his insurance policy
for the theft of these items.
684
Gomez In 1992, the House of Lords returned to this issue in R v Gomez

([1993] AC 442). G, the assistant manager of an electrical goods shop,
agreed to supply electrical items worth more than 16,000 to his co-accused
in return for two building society cheques known by G to have been stolen.
G cleared this transaction with the shop manager, who agreed to it only
after he was told, falsely, by G that the cheques were good for payment.
The cheques were later dishonoured, and G was charged with theft. The
Court of Appeal, following Morris, held that G was wrongly convicted of
theft. In its view, when the buyer took possession of the goods, it was with
the express authority of the manager pursuant to a contract that was voidable
because of Gs fraud (but not void) and which had not at that time been
avoided. Accordingly, in its view, there was no unauthorized act amounting
to an appropriation.
The following question was certified for appeal to the Lords:
When theft is alleged and that which is alleged to be stolen passes to
the defendant with the consent of the owner, but that has been obtained
by a false representation, has (a) an appropriation within the meaning
of s 1(1), TA 1968 taken place, or (b) must such a passing of property
necessarily involve an element of adverse interference with or
usurpation of some right of the owner?
Re-affirming Lawrence and rejecting Lord Roskills formulation of

appropriation in Morris, the Lords, by a 4:1 majority (Lord Lowry
dissenting), restored Gs conviction of theft, answering yes to part (a), i.e.
taking with consent can amount to an appropriation, and no to part (b),
i.e. appropriation does not always require proof of an act adversely
interfering with or usurping the rights of the owner of the property.
Appropriation, said Lord Keith, includes adverse acts, but, he concluded
(at 460):
it does not necessarily follow that no other act can amount to an
appropriation and in particular that no act expressly or impliedly
authorized by the owner can in any circumstances do so.
Emphasizing that the actual decision in Morris was correct, Lord Keith
continued (at 464):
but it was erroneous, in addition to being unnecessary for the decision,
to indicate that an act expressly or impliedly authorised by the owner
could never amount to an appropriation. There is no material
685
distinction between the facts in Dobson and those in the present case.
In each case the owner of the goods was induced by fraud to part
with them to the rogue. Lawrence makes it clear that consent to or
authorisation by the owner of the taking by the rogue is irrelevant.
Lawrence must be regarded as authoritative and correct, and there is
no question of it now being right to depart from it
Lord Browne-Wilkinson was of the view (at 495) that Lord Roskills
concept of adverse interference with or usurpation of rights wrongly
introduce[d] into the word appropriation the mental state of both the owner
and the accused, when these states of mind are relevant only to whether
there is a dishonest appropriation. In his view, appropriation, taken in
isolation, is an objective description of the act done irrespective of the
mental state of either the owner or the accused. In his view, it was
impossible to reconcile Lawrence and Morris as regards the irrelevance of
consent in determining whether there is an appropriation; the views
expressed in Morris to the contrary were therefore incorrect.
Accordingly, when the buyer took possession of the electrical goods,
this amounted to an appropriation. It was irrelevant that possession was
taken pursuant to a voidable contract or with the managers (and thus the
owners) express authority.
In reaching this conclusion, the Lords condemned to the dust-bin
several cases, such as Skipp ([1975] Crim LR 114) and Fritschey ([1985]
Crim LR 745), that were inconsistent with Lawrence, concluding that they
were wrongly decided (at 464 per Lord Keith). Likewise, several judicial
attempts at reconciling Lawrence and Morris, based, for example, on possible
distinctions between consent and authority, were discarded.
Lord Lowry dissented strongly, essentially taking the view that
Parliament had intended there to be a fundamental distinction between
theft and obtaining property by deception, with appropriation for the
purposes of theft involving a unilateral, not a consensual, act. In his view,
the ordinary meaning of appropriation is take possession of, take to oneself,
especially without authority. Unlike the majority, Lord Lowry considered
it proper in the face of uncertainty as to the meaning of appropriation to
look at the Eighth Report of the Criminal Law Revision Committee on
which the TA 1968 was based. This report took the position that
appropriation should bear its ordinary-language meaning, and that a
defendant who deceives his or her victim into passing ownership of property
(rather than mere possession of it) should be charged with obtaining
property by deception, not theft.
686
The effect of the majoritys decision in Gomez is several-fold.8 Firstly,

the Lords effectively accepted that appropriation is an entirely neutral term;
whether an act is an appropriation is to be determined without considering
consent (whether true consent, or voidable because obtained by fraud). As
long as the act involves an assumption of any of the owners rights, including
the simple right to possession, then it may amount to an appropriation.
Thus, not only is label-switching an appropriation, but simply picking up
an item from a supermarket shelf (perhaps even just touching it on the
shelf) may amount to an appropriation, since it involves the exercise and
thus assumption of the owners right of possession. This means that shoppers
appropriate property the moment when they touch or pick up an item in
a supermarket, even though this is entirely consensual. Picking up an item
is therefore not merely preparatory to later conduct amounting to theft,
such as concealing the item and trying to leave the store, but itself an
appropriation and thus possibly theft, not merely attempted theft. Whether
it is theft will depend upon whether D has a dishonest state of mind at the
time; if so, then taking the goods off the shelf is theft (proving dishonesty
and thus theft may, of course, present considerable evidential difficulties).
This implication was not always clearly understood, and courts on occasion
continued to insist on proof of some objectively adverse act by a defendant
before there could be an appropriation. Gallasso ((1992) 98 Cr App R
284) provides an example. G, a nurse, handled the affairs of several mentally
handicapped adult patients. For this purpose, she opened trust accounts
for each patient, with herself as the sole signatory. She then used money
deposited into each account to pay for each patients living expenses. In
one particular instance, a cheque for 1,800 was deposited into an account
at the time when it was opened. Subsequently, G withdrew money from
this account for her personal use. She was convicted of theft of 1,800,
based on her having received and paid the cheque for that amount into the
account, rather than on her subsequent withdrawals. Allowing her appeal,
Lloyd LJ, in the English Court of Appeal, held that G did not appropriate
the sum of 1,800 when she received the cheque and then paid it into the
8
Some of the articles inspired by Gomez include: P.R. Glazebrook, Thief or Swindler [1991]
CLJ 389; C.M.V. Clarkson, Authorised Acts and Appropriation (1992) 55 Modern LR 265;
M.J. Allen and S. Cooper, Rethinking Appropriation (1992) 56 Jnl of Crim Law 87; M.
Giles and S. Uglow, Appropriation and Manifest Criminality in Theft (1992) 56 Jnl of
Crim Law 178; A. Halpin, The Appropriate Appropriation [1991] Crim LR 426; A. Halpin,
Appropriation: the issues [1992] New LJ 978; S. Cooper and M.J. Allen, Appropriation
after Gomez (1993) 57 Jnl of Crim Law 186; S. Shute and J. Horder, Thieving and
Deceiving: What is the Difference? (1993) 56 Mod LR 548.
687
appropriate trust account, no matter how dishonest her state of mind was
at that time. In Lloyd LJs view, by paying in the cheques, the applicant
was not assuming the rights of the owner. On the contrary, she was affirming
those rights, by placing the cheque in trust accounts of which he was the
named beneficiary. In his view, Gomez did not require him to hold that
every touching is an appropriation; accordingly, G did not appropriate the
cheque simply by taking it out of the envelope in which it was sent to her.
However, this is exactly what Gomez does require, as re-affirmed and further
elaborated in Hinks; consensual or non-consensual, adverse or not, as long
as G did something involving the exercise and thus assumption of the
rights of an owner, such as paying the cheque into the account, there was
an appropriation. Gallasso must therefore be considered wrong on this point.
Secondly, the Lords concluded that consent is relevant only to the
mens rea element of dishonesty. This recognizes that consent is indeed
referred to in section 3(1)(b) of the TO, which expressly states that a person
who appropriates property belonging to another in the belief that he would
have the others consent if the other knew of the appropriation and the
circumstances of it is not to be considered dishonest. What this does not
address, however, is the situation where the owner has in fact given consent,
but D neither knows this nor has any belief along the lines stated in section
3(1)(b): can this still be theft if D happened to act with a dishonest state of
mind? This is one of the issues addressed by the Lords in Hinks, discussed
below.
Thirdly, they re-affirmed the almost total overlap between theft and
obtaining property by deception where property is obtained with consent
induced by deception. In such cases, the prosecution may charge either
theft or obtaining property by deception virtually without restriction (one
exception relates to land, which generally cannot be stolen but may be
obtained by deception).
On the other hand, although Gomez clearly intended to affirm an
objectively neutral view of appropriation, one possible uncertainty remained,
arising out of the fact that Gomez itself clearly involved acts done with
consent obtained by fraud, as expressly stated in the certified question for
the Lords. Arguably, Gomez did not resolve the question of whether an act
done with the full and informed consent of the owner, not induced by
deception or fraud, may amount to an appropriation. Suppose, for instance,
that V, without any deception, lawfully gives Vs property to D, i.e. makes
a gift to D. Suppose, however, that there is something in the circumstances
that might lead an ordinary honest person to consider Ds receipt and
retention of the gift to be dishonest in some broad sense. Is there an
688
appropriation in this case, so that it may be theft if dishonesty is in fact

established? In Mazo ([1997] 2 Cr App R 518), the English Court of Appeal
held that if a donor is of sound mind and the gift is otherwise valid at law,
then the recipient does not steal the property, even though D may have
exhibited dishonesty in some respect. Since the trial judge had not
adequately directed the jury to consider these issues, Ms conviction was
quashed even though there was evidence suggesting that the donor lacked
the necessary capacity to make a valid gift. In R v Kendrick and Hopkins
([1997] 2 Cr App R 524), on the other hand, the English Court of Appeal
upheld the defendants conviction of conspiracy to steal, since the evidence
clearly established that the donor, who was 99 years old, was mentally
incapable of making a gift. Accordingly, although the trial judge had not
clearly directed the jury to consider the extent of the donors incapacity,
there was no misdirection or basis for concluding that the conviction may
have been unsafe. Ultimately, when this issue subsequently found its way
to the House of Lords, in Hinks, the Lords concluded that the receipt of a
gift could amount to an appropriation and therefore theft, even though the
donor may have had sufficient capacity to make the gift.
Hinks In R v Hinks ([2001] 2 AC 241), it was alleged that H, a woman
aged 38, became friendly with the victim, V, a man aged 53 of limited
intelligence, while providing care for him. It was alleged that H subsequently
took advantage of V by getting him to give her money and other property.
Specifically, it was alleged that each day, over a period of about eight months,
H accompanied V to his local building society where he withdrew the daily
maximum amount of 300, giving the cash to H, who deposited it into her
bank account. Eventually, V withdrew and gave all of his savings, totalling
approximately 60,000, to H; he also gave H his television set. H was charged
with several counts of theft of sums of money withdrawn by V and given
to H, as well as theft of the television set. There was psychiatric evidence
that V was nave and trusting and did not appreciate the value of the assets
that he transferred to H. It was also said that although V was capable of
making a decision to divest himself of money, he was unlikely to have
made such a decision alone. The prosecution alleged that when H was
questioned about the transfers, she denied having any money from V,
save for one cheque V had given her as a loan. The prosecution alleged
that Hs actions, in taking advantage of V, were, in the circumstances,
dishonest.
At trial, H was convicted on all but one of the six counts laid against
her. The Court of Appeal dismissed Hs appeal, holding that an appropriation
689
may take place even though the owner has consented to his property being
taken by the defendant. In its view, whether a valid gift had been made
was not an issue that the jury needed to consider on a theft prosecution.
Hinks appealed. The question of law certified for the Lords asked whether
the acquisition of an indefeasible title to property [e.g. by a valid gift] is
capable of amounting to an appropriation of property for the purposes of
theft.
The House of Lords, by a 4:1 majority (Lord Hobhouse dissenting),
held that the acquisition of an indefeasible title to property may amount
to an appropriation of that property for the purposes of section 4(1) of
the TO. Hs conduct in receiving Ds gifts could therefore amount to theft,
provided that H was proved to have acted dishonestly. The Lords split
3:2 (Lord Hutton dissented along with Lord Hobhouse on this issue) on
the question of whether dishonesty needed to be addressed by them on
appeal and, if so, whether the trial judges direction on dishonesty was
acceptable or should have specifically directed the jury to consider Ds
capacity to make a gift. In the view of the majority, there was no need
for the Lords to consider dishonesty; in their view, the jury was clearly
convinced of Hs dishonesty, and nothing further would be gained by reexamining the law.
Lord Steyn, for the majority, approached the certified question on the
basis that its answer depended on interpreting the words of section 3(1) of
the TA 1968 [section 4(1) of the TO], which required the Lords simply to
implement their previous decisions. Lawrence, he concluded (at 249),
decided that it is unnecessary [for theft] to prove that the taking was without
the owners consent; although Lord Roskill in Morris had taken a different
view, the majority in Gomez had re-affirmed Lawrences interpretation of
appropriation. Lord Steyn summarized (at 250) the conclusions of the
majority in Gomez as being:
(1) The meaning of the relevant provisions must be determined by
construing the statutory language without reference to the report which
preceded it (2) The observations of Lord Roskill in Morris [that
appropriation involves not an act expressly or impliedly authorized
by the owner but an act by way of adverse interference with or
usurpation of those rights] were unnecessary for the decision of that
case; they were in clear conflict with the ratio of Lawrence ; and
they were wrong. (3) Lawrence must be accepted as authoritative and
correct (4) Any act may be an appropriation notwithstanding that
it was done with the consent or authorisation of the owner.
690
Lord Steyn added (at 250) that the Lords in Gomez were expressly invited
to hold that there is no appropriation where the entire proprietary interest
passes, but rejected this submission in terms which unambiguously rule
out the submission that section 3(1) [section 4(1) of the TO] does not
apply to a case of a gift duly carried out . Gomez, he concluded (at 251),
gives effect to section 3(1) by treating appropriation as a neutral
word .
Lord Steyn considered whether there was any reason to review the
interpretation of appropriation adopted in Gomez, concluding (at 252) that
there was not. Although rather telling examples for a narrower
interpretation of the meaning of appropriation were presented to the Lords,
Lord Steyn was ultimately unpersuaded. Any restatement in narrower terms,
he felt, would be likely to place beyond the reach of the criminal law
dishonest persons who should be found guilty of theft, and it was,
accordingly, better to maintain a neutral interpretation of appropriation
even though it might be over-inclusive in certain instances. In such cases,
he suggested (at 252), a prosecution is hardly likely and if mounted, is
likely to founder on the basis that the jury will not be persuaded that there
was dishonesty in the required sense.
Specifically concerning Hinks, Lord Steyn emphasized (at 253) that he
had no lurking doubt about her guilt. She had been convicted by a jury
who, in his words (at 253), had found that she had acted dishonestly by
systematically raiding the savings in a building society account of a
vulnerable person who trusted her. Her convictions were, in his view,
entirely safe.
Lord Hobhouse, dissenting, was of the view that it was wrong to
interpret appropriation in isolation from the other elements of theft,
especially dishonesty. He concluded (at 276) that:
[T]he relevant law is contained in sections 1 to 6 of the Act. They
should be construed as a whole and applied in a manner which presents
a consistent scheme both internally and with the remainder of the
Act. The phrase dishonestly appropriates should be construed as a
composite phrase. It does not include acts done in relation to the
relevant property which are done in accordance with the actual wishes
or actual authority of the person to whom the property belongs. This
is because such acts do not involve any assumption of the rights of
that person within section 3(1) [section 4(1) of the TO] or because,
by necessary implication from section 2(1) [section 3(1) of the TO],
they are not to be regarded as dishonest appropriation of property
belonging to another.
691
He also noted the inevitable consequence of the adoption of a neutral view

of appropriation (at 273):
If the criterion appropriates is to become less discriminating, the
criterion dishonestly has to become more discriminating in order to
retain the meaning of the composite phrase in its context in sections
1 to 6 of the Act.
This re-emphasizes a point made above (p. 686) while discussing Morris:
once appropriation is treated as a purely objective, neutral term, whereby
conduct may amount to an appropriation even if done with the full and
informed consent of the owner of property, criminal liability essentially
hangs on a finding of dishonesty. Since dishonesty is fundamentally a
question for the jury, a trial judge retains only a limited degree of control
over whether or not theft should be left to the jury. As Lord Steyn
acknowledges in Hinks, this then leaves prospective defendants dependant
on the common sense and goodwill of the prosecution not to prosecute in
cases potentially amounting to theft only because of the over-inclusive
interpretation of appropriation adopted by the courts. However, this creates
a potential danger that conduct which at worst is only morally questionable
such as taking advantage of a vulnerable person is left to a jury
which may convict as a means of expressing its disapproval of the conduct,
despite there being nothing in the conduct per se which would invalidate
the victims transfer of property to the defendant. Indeed, the victim may
have fully consented to Ds conduct. Suppose, for example, that V, knowing
that D is in financial difficulties and has resorted to begging, deliberately
leaves money in a place where V knows that D will find it, intending D to
have it, i.e. to make a gift of it to D. D finds the money and, despite assuming
that it belongs to someone, takes it. If Ds actions are viewed as dishonest,
then D may be convicted of theft, even though, unknown to D, V actually
consented to D having the money.
Appropriation in Hong Kong
In general, the Hong Kong courts have been content to follow the latest
pronouncement of the Lords on appropriation. Most recently, for example,
in HKSAR v Wong Cho Sum ([2001] 3 HKC 268), the Court of Appeal
readily expressed its willingness to follow and apply the interpretation of
appropriation adopted by the Lords in Gomez and affirmed in Hinks.
In Wong, W and others were alleged to have operated a modelling
692
scam, whereby young women were approached and told they had potential
as models, and were then persuaded to pay substantial sums of money as
advance payment for a recruitment fee or as payment for a portfolio of
photographs. Various methods of payment were used: some victims paid
in cash, others were persuaded to give their credit cards and PINs to the
defendants who used them to electronically transfer funds from the victims
account to a bank account operated by the defendants. In one instance, the
victim personally effected the electronic transfer of funds. In respect of this
instance, it was argued there could be no appropriation since the transfer
was done with the consent of the victim. Rejecting this submission, Stock
JA, for the Court, concluded (at 281):
The fact that such diminution in the credit balance was effected with
the consent of the holder of the account does not preclude the act by
which that diminution has been effected from being an appropriation:
see Gomez. As Lord Browne-Wilkinson observed : the word
appropriation in isolation [is] an objective description of the act
done irrespective of the mental state of either the owner or the accused,
an approach endorsed in the recent decision of the House of Lords
in Hinks.
Stock JA also rejected a further submission, based on the writings of

Professor J.C. Smith, that there could be no appropriation where the act
resulting in the electronic transfer of funds to the defendants bank account
was done by the victim personally. Stock JA observed (at 281) that:
The charge with which we are presently concerned is not a case where
the defendants have merely accepted a transfer of funds as a result of
some act instigated by their misrepresentation. D4 has in the present
case actively assisted in the very act of transfer itself. It is clear from
the evidence that she influenced and coerced [the victim] to make the
transfer, went with her to ensure that it was done, stood by her to
ensure that it was done, providing the account number without which
the transfer could not be effected. It matters not whether one concludes
that the act was done at her direct command, or by [the victim] as
D4s agent. It suffices to conclude, as one safely can, that she directly
participated in the very act of transfer itself, thereby engaging in an
appropriation. Her conduct was no different from that of [H] in Hinks
who influenced and coerced the victim to withdraw money and
who accompanied him to the bank to make sure that the moneys
were withdrawn.
693
Care must be taken with this reference to Hinks. While Hinks undoubtedly
supports the view that this type of conduct may be considered dishonest,
in Hinks, the charges of theft (save for the count relating to the television
set) were based on Hs receipt of cash withdrawn by the victim; her act of
receiving the cash constituted her appropriation of it. In Wong, the only
thing received by the defendants in this particular instance was the credit
to their bank account and, as the Court accepted, applying Preddy ([1996]
AC 815), a credit to a bank account cannot be the subject-matter of a
charge of theft since it is a newly created chose in action which did not
belong to another. Instead, as Stock JA recognized (at 281), the charge of
theft was based on the diminution of the victims credit balance, and the
act of appropriation was therefore the act of diminution of the [victims]
credit balance. In the view of the Court, although the victim herself pressed
the buttons to effect this diminution, D4 directly participated in this act,
thereby engaging in an appropriation.
Aspects of appropriation
Appropriation by later assumption after coming by it innocently If a person
obtains possession of property belonging to another (inevitably thereby
appropriating it, having regard to the current meaning of that term), but
does not have the necessary dishonesty or intention so as to make this
initial appropriation an act of theft, he or she may still commit theft by a
subsequent act of appropriation done with the necessary dishonesty and
intention. This is expressly provided for in section 4(1) which states that
appropriation includes, where [D] has come by the property (innocently
or not) without stealing it, any later assumption of a right to it by keeping
or dealing with it as owner.
An illustration would be where D lawfully borrows a friends book
(thus, comes by it innocently without stealing it), but then decides to
keep it and, for example, writes his or her own name in it (i.e. keeps it as
owner), or instead sells it to another person (i.e. deals with it as owner).
In each scenario, there are two acts of appropriation: the first when D
obtains possession (consent being irrelevant), the second when D
subsequently writes his or her name in the book or sells it. What if D has
done neither of the latter two acts, but merely decides to keep the book?
In Broom v Crowther ((1984) 148 JP 592), the English Divisional Court
held there was no assumption and thus no appropriation by D merely by
keeping property acquired by D, suspecting it to be stolen, in Ds room
while D decided what to do with it, leaving open the possibility there might
694
be an assumption and appropriation if D went the next step and decided

to keep it.
Appropriating a chose in action9 Because a chose in action is a form of
intangible property, it is not possible to appropriate a chose in action simply
by taking possession of it. Rather, it is necessary to show that D has done
an act that can be characterized as assuming the rights of the owner, i.e.
the rights of the person who may enforce the chose in action. Usually, this
will require proof that D has done an act that exercises or purports to
exercise the rights or at least one of the rights of the owner.
Determining whether a chose in action has been appropriated has
presented the courts with a number of difficulties, particularly in relation
to theft from bank accounts. As outlined above (p. 649), when a bank
account is in credit, the bank is indebted to the account holder. This
indebtedness is a chose in action enforceable by the account holder who
may exercise certain rights in relation to the account and its credit balance
(if the account has zero or debit balance, the account holder may still be
entitled to enjoy credit if an overdraft has been agreed). In particular, the
account holder may, by various means, instruct the bank (giving it the
mandate) to withdraw or transfer funds from the account, thereby reducing,
perhaps even extinguishing, the credit balance (or, in the case of an
overdraft, thereby drawing down on the overdraft up to the contractually
agreed limit). This may be done, for example, by use of an ATM, by
completing a slip at the counter, by drawing a cheque on the account (if it
is a cheque account), or by giving telex instructions. All of these involve
the account holder giving instructions affecting his or her account.
Accordingly, if someone else performs one or more of these acts, that person
is thereby purporting to exercise the rights of the account holder the
owner of the chose in action.
It ought to follow, therefore, that doing such acts involves assuming
the rights of the owner and thus amounts to an act of appropriation. In the
light of Gomez and Hinks, this ought to be so even if Ds act are lawfully
done, i.e. are done with the authorization or consent of the owner.
Support for this view may be found in Chan Man-sin v R ([1988] 1
WLR 196; [1987] 2 HKC 56). In this case, the Privy Council held that that
the drawing, presenting or negotiating of what were in fact forged cheques
would amount to a usurpation of the account holders rights, and thus an
See further: E. Griew, Stealing and Obtaining Bank Credits [1986] Crim LR 356.
695
appropriation. These actions could therefore amount to theft, although other

offences against the TO might also be available (e.g. deception offences,
fraud). Although expressed in the language of Lord Roskill in Morris, the
Privy Councils conclusion in Chan would clearly apply to the objectively
neutral view of appropriation now adopted. Two points arising from Chan
may be emphasized. Firstly, the decision confirms it is not necessary for
the prosecution to prove that D usurped (or assumed) all the rights of the
account holder. Secondly, as discussed more fully below in relation to
intention (see p. 707), the fact the cheques were forged and thus a nullity,
obliging the bank to reverse any debit made to the account when the cheques
were presented (see Tai Hing Cotton Mill Ltd. v Liu Chong Hing Bank Ltd.
[1986] AC 80), so that the account holder was not permanently deprived
of anything, did not prevent Ds actions from being theft. It was entirely
immaterial, in the opinion of the Privy Council, that the end result of the
transaction may be a legal nullity, for it is not possible to read into section
4(1) any requirement that the assumption of rights there envisaged should
have a legally efficacious result.
One continuing uncertainty in cases like this, particularly involving
cheques, is determining when the appropriation takes place. Is it when D
makes out the cheque? Is it when D presents the cheque? Or is it only
when Ds acts have their intended effect and the cheque is honoured and a
debit entry made in the banks records? In many cases, it will not matter;
the transaction initiated by Ds act will have carried through to its
completion, and theft will be established. However, on occasion, it has
been relevant to determine this question. Suppose, for example, the victims
account had a credit balance at one point, but not at another. Is it still an
appropriation if it never has any effect? Preddy, holding that the chose in
action obtained by D when funds are credited to Ds bank account never
belonged to another, has brought greater focus on this problem, since one
of the means of avoiding this constraint has been to charge defendants
with theft by diminution of the credit standing to the account of the victim.
Does D assume the owners rights over the credit balance in the latters
account merely by taking steps leading to the debiting of the account, or
only when Ds acts take effect and the account is actually debited, i.e.
diminished?
A second uncertainty arises where Ds act (e.g. presenting a cheque)
takes place in Hong Kong, but the consequential effect (e.g. debiting the
bank account on which the cheque is drawn) takes place in another
jurisdiction (or vice versa). Where does the theft take place? In Hong Kong?
Or in the other jurisdiction? This jurisdictional problem has been partly
696
overcome by the Criminal Jurisdiction Ordinance, discussed below (p. 699),

which provides that a charge of theft may be laid in Hong Kong so long as
a relevant event occurs in Hong Kong. Relevant event for this purpose is
not confined to the act of appropriation jurisdiction may arise, for
example, so long as Ds acts had an effect in Hong Kong.
As a matter of common law, the position is less clear. In Kohn ((1979)
69 Cr App R 395), the English Court of Appeal was of the view that theft
occurs only when the transaction initiated by D by the presentation of a
cheque is carried through to its completion (though the Court in Navvabi
[1986] 1 WLR 1311 thought that Kohn was obiter on this point). If there
are no funds in the account when it comes to be debited, then D seemingly
cannot be said to have appropriated property belonging to another (unless
D is charged with theft of the cheque itself, but see discussion above, p. 652,
regarding theft of cheques). Similarly, in Tomsett ([1985] Crim LR 369),
the English Court of Appeal held that T, a telex operator employed by a
bank in England, appropriated money sent by his bank to New York only
when the telex took effect. Since the telex took effect in New York, there
was no appropriation in England, and the English courts consequently
lacked jurisdiction (like Hong Kong, they will do, under the Criminal Justice
Act 1993, once it is brought into effect). Kohn was followed in Williams
(Roy) ([2001] 1 Cr App R 362), with the English Court of Appeal observing
(at 3689) that Lord Lane CJ in Kohn had stated in robust terms that
the act of effecting the reduction of the credit balance in the losers account,
and the transfer of a like sum to the defendants account, amounted to an
appropriation within the meaning of section 1 of the Act. In R v Hilton
([1997] 2 Cr App R 445), where the debiting of the victims account resulted
electronically upon receipt of Ds faxed instructions, rather than by D
drawing and presenting a cheque, the English Court of Appeal seemingly
accepted (at 456) that theft does not occur until funds are actually
transferred from the victims account: [D] appropriates [a credit balance]
by assuming the rights of the owner of the balance and so causing the
transfer to be made out of the account.
These cases may be contrasted with R v Governor of Pentonville Prison,
ex p Osman ([1988] Crim LR 611), in which the English Divisional Court
held that there was an appropriation, and thus theft, when D, the chairman
of a company, allegedly dishonestly sent a telex instructing a New York
bank to transfer funds from the companys bank account to another
unconnected bank account, which was allegedly used to make corrupt
payments to D. These steps themselves amounted to the appropriation,
and the court consequently had jurisdiction to try a charge of theft. In
697
Ngan ([1998] 1 Cr App R 331), the English Court of Appeal was of the
view that D appropriates a credit balance at the moment when D presents
a cheque drawn on that account for payment, without needing to prove
that the account was thereupon debited.
The view expressed in these latter cases seems more in line with the
prevailing notion that any assumption of any of the rights of an owner may
amount to an appropriation. According to this, once it is shown that D has
given instructions by some means cheque, telex, counter for dealing
with the funds in the victims account, then D has already thereby assumed
one of the rights of the owner of the credit balance, and thus committed an
act of appropriation. Whether Ds instructions are subsequently carried out
should be largely irrelevant.
If an account holder himself or herself draws a cheque on his or her
account when there are insufficient funds in the account to cover the cheque,
this will not seemingly amount to theft (though it may give rise to other
offences under the TO), even if the bank in fact chooses to honour the
cheque, i.e. extends credit to the account holder. This was the conclusion
of the English Court of Appeal in R v Navvabi ([1986] 1 WLR 1331), in
which N drew cheques on his account supported by a cheque guarantee
card, despite there being insufficient funds in the account to meet the
cheques. Allowing Ns appeal against his conviction of theft, the Court
reasoned that although N was not authorized to draw a cheque backed by
his cheque card (there being insufficient funds in his account), delivery of
the cheque to the payee conferred on the payee merely a contractual right
to payment against the bank. As such, N did not assume any right to deal
with any property belonging to the bank, i.e. the banks funds. When the
bank subsequently honoured the cheque and transferred funds to meet the
payment, the transfer was a result of the banks decision to carry out its
contractual obligation, rather than the performance of instructions given
by N. Accordingly, there was no appropriation by N (the outcome may
have been different if the bank could have been treated as Ns agent in
making the payment).
Appropriation by directors of company property A company director may
be convicted of stealing company property, even though the transaction
whereby the director obtains the property may have been consented to or
authorized by the company acting through its board of directors. This was
accepted by the Privy Council in A-G of HK v Daniel Chan Nai-keung ([1987]
1 WLR 1339: If the proposition is that the director of a company who
has a general authority to sell the companys property cannot be guilty of
698
theft if he sells the property even dishonestly and in fraud of the company,
it is clearly erroneous, at 13401, per Lord Bridge; see also R v Phillipou
(1989) 89 Cr App R 290 and A-Gs Reference (No. 2 of 1982) [1984] QB
624), although there were also decisions to the contrary holding, applying
Morris, that there could be no appropriation if the transaction in question
was authorized or consented to by the company (see R v Roffel [1985] VR
511 and R v McHugh (1988) 88 Cr App R 385). Although unnecessary to
the decision, the point was subsequently considered and effectively settled
by the House of Lords in Gomez ([1993] AC 442). Applying their view of
appropriation as an objectively neutral act, Lord Browne-Wilkinson, with
the agreement of the other Lords (save for Lord Lowry), concluded (at
49697) that theft may be established if dishonesty can be proved:
Whether or not those controlling the company consented or purported
to consent to the abstraction of the companys property by the accused,
he will have appropriated the property of the company. The question
will be whether the other necessary elements are present, viz was
such appropriation dishonest and was it done with the intention of
permanently depriving the company of such property? The pillaging
of companies by those who control them is now all too common. It
would offend both common sense and justice to hold that the very
control which enables such people to extract the companys assets
constitutes a defence to a charge of theft from the company. The
question in each case must be whether the extraction of the property
from the company was dishonest, not whether the alleged thief has
consented to his own wrongdoing.
Bona fide purchaser for value: Section 4(2) of TO Section 4(2) provides
that a bona fide purchaser of property cannot be convicted of theft merely
by later asserting or exercising rights in relation to the property, even though
it may have come to the purchasers attention in the meantime that the
party from whom the property was purchased had a defective title. Section
4(2) reads:
Where property or a right or interest in property is or purports to be
transferred for value to a person acting in good faith, no later
assumption by him of rights which he believed himself to be acquiring
shall, by reason of any defect in the transferors title, amount to theft
of the property.
This protects a person who purchases stolen property, not knowing or

suspecting that it is stolen. If he or she later finds out, but resolves not to
699
return the property, this will not amount to theft (although his or her
subsequent conduct may still amount to an appropriation, provided that
the property can still be said to belong to another). An example is provided
by Adams ([1993] Crim LR 72; see also Wheeler (1991) 92 Cr App R 279),
in which A, a motorcycle enthusiast, spent 350 on parts said to have been
recovered from a motorcycle involved in a crash (in fact, they were stolen).
Although A became suspicious several days later that the parts might be
stolen, he did not commit theft merely by keeping and using the parts. The
protection granted by section 4(2) applies only to a purchaser for value: if
D were simply given the property, section 4(2) would not provide D with
any protection from theft by a later assumption.
A purchaser for value might still be criminally liable, if, after discovering
the defect in title, he or she were then to sell the property without disclosing
this fact. In this case, the seller may be liable for obtaining the sale price by
deception, contrary to section 17(1) of the TO.
Jurisdiction: Must the appropriation take place in Hong Kong? Prima facie,
the actus reus of an offence in the case of theft, the appropriation
must take place in Hong Kong for it to be triable in Hong Kong. On occasion,
Ds conduct and its effect on property belonging to another may take place
partly in Hong Kong and partly elsewhere. For instance, D in Hong Kong
sends a telex to an overseas bank giving instructions for funds to be
transferred out of an account at that overseas bank; Ds act occurs in Hong
Kong, but its effect (debiting of a bank account) takes place overseas. Or
D1, while overseas, writes out a cheque drawn on a Hong Kong bank
account and gives it to D2 who presents it in Hong Kong after returning to
Hong Kong. In cases like these, the question is: where does the appropriation
take place? In order to answer this, a further determination seemingly needs
to be made: what constitutes the appropriation? Is it Ds act alone, or is it
the combination of Ds act and its effect on property? As outlined above
(p. 696), support for both answers may be found at common law.
Fortunately, this difficulty has been substantially overcome by the
provisions of the Criminal Jurisdiction Ordinance (cap. 461) (CJO). This
ordinance provides that a person may be tried and convicted in Hong Kong
of what are called Group A offences (this includes theft and other related
offences against the TO and Crimes Ordinance; see section 2(2)(a) of the
CJO), if any of the events which are relevant events in relation to the
offence occurred in Hong Kong (section 3(3) of the CJO). Relevant event
for this purpose means any act or omission or other event (including any
result of one or more acts or omissions) proof of which is required for
700
conviction of the offence (section 3(1) of the CJO).10 In determining

whether or not a particular event is a relevant event, it is irrelevant where
the event occurred (section 3(2) of the CJO). Accordingly, theft may be
prosecuted in Hong Kong provided that either the act of appropriation, or
any act forming part of the appropriation, or any dealing with property
belonging to another resulting from any such act or omission, occurred in
Hong Kong.
If the view of appropriation adopted in Atakpu, discussed above (p. 678),
were adopted, the CJO would still not confer jurisdiction on the Hong
Kong courts on comparable facts, since the appropriation and thus theft
occurred when the cars were hired overseas. There were no subsequent
acts done by the defendants after their return to the United Kingdom in
relation to the cars that could amount to a later appropriation and constitute
a relevant act within jurisdiction for the purposes of the CJO (although a
charge of conspiracy to steal could probably be brought instead).
By way of further clarification, section 5 of the CJO provides that
property is obtained in Hong Kong if the property is either despatched
from or received in Hong Kong (section 5(a)), and that there is a
communication in Hong Kong of any information, instruction, request,
demand or other matter if it is sent by any means (i) from Hong Kong
to elsewhere; or (ii) from elsewhere to Hong Kong (section 5(b)). Section
4 additionally provides that a person may be guilty of a Group A offence
whatever his or her citizenship or nationality, and whether or not he or
she is or was a permanent resident of Hong Kong at any material time
(section 4(1)(a), subject to section 4(5)), and whether or not he or she
was in Hong Kong at any material time (section 4(1)(b)).
Jurisdiction is further extended by virtue of section 6 of the CJO, which
provides that a person may be guilty of conspiring to commit a Group A
offence or conspiracy to defraud (section 6(1)), or attempting or inciting
to commit a Group A offence (section 6(2)) (the Ordinance collectively
refers to these four offences conspiracy, attempt and incitement to commit
a Group A offence, and conspiracy to defraud as Group B offences
see section 2(3)), even though the Group A offence conspired at, attempted
or incited is not intended to take place in Hong Kong, provided that certain
events take place in Hong Kong. In the case of conspiracy to commit a
Group A offence, section 6(1) of the CJO requires only that a party to the
10
The question of whether enactment of the CJO has abolished the common law rules
regarding jurisdiction in relation to Group A and B offences was left undecided by the
Court of Appeal in HKSAR v Man Kwok Wan [2000] 1 HKC 778, at 785.
701
agreement (or his or her agent) have done something in Hong Kong in
relation to the agreement before its formation, or became a party in Hong
Kong, or did or omitted something in Hong Kong in pursuance of it,
provided also firstly that the conspiracy would be triable in Hong Kong but
for the Group A offence which the parties had in mind not being intended
to take place in Hong Kong (section 6(1)), and secondly, that the conduct
intended would constitute an offence under the law where the conduct
was intended to take place (section 7(1)). In relation to attempting or
inciting a Group A offence, section 6(2) of the CJO requires proof that the
conduct constituting the attempt or incitement took place in Hong Kong
(section 6(2)(a)), subject also to similar provisos as those applying to
conspiracy (see sections 6(2)(b) and 7(2)).
Mens Rea Elements

Theft requires proof that the defendant acted dishonestly and with the
intention of permanently depriving the owner of the property.
Dishonesty
Theft, like most of the offences in the TO, requires the defendant to have
acted dishonestly. When the law of theft was reformed, dishonesty was
preferred over other terms (such as fraudulently, used under the prior
law) because dishonesty was felt to be something which laymen can easily
recognize when they see it, whereas fraud may seem to involve
technicalities which have to be explained by a lawyer (The Criminal Law
Reform Committee, Eighth Report, Theft and Related Offences (Cmnd 2977,
1966), p. 20). The question of whether a defendants appropriation was
dishonest is therefore to be assessed by the jury or trier of fact, using the
current standards of ordinary decent people and giving dishonesty its
ordinary meaning (R v Feely [1973] QB 530, applying Brutus v Cozens
[1973] AC 854, where the House of Lords held that ordinary English words
should be left for the jury). This has been recognized by the courts, through
their adoption of a two-step test for assessing dishonesty, laid down in
Ghosh ([1982] QB 1053), discussed below.
Dishonesty is not expressly defined in the TO. However, for the
purposes of theft, several statutory provisions deal with the meaning of
dishonesty. Section 2(2) (section 1(2) of the TA 1968) provides that: It is
immaterial whether the appropriation is made with a view to gain or is
702
made for the thiefs own benefit. Thus, a person may dishonestly
appropriate anothers property by throwing it away, thereby causing the
owner to lose it, or by destroying it; it is irrelevant that the thief does not
gain any benefit from the property.
Section 3(1): Statutory exceptions
More significantly, section 3(1) of the TO (section 2 of the TA 1968)
expressly provides that for the purposes of theft (for other offences, reliance
must be placed on the common law), a persons appropriation of anothers
property is not to be regarded as dishonest in the following three situations.
Section 3(1)(a): If he believes he has a legal right to deprive the owner of
the property This protects a defendant who makes a mistake as to his or
her rights under the civil law (see, for example, Tsang Ming Hung [1987] 1
HKC 147 and Ng Shui-sang (1995) Mag App 812 of 1994). It would apply,
for example, where D believed that ownership had passed to D under a
prior transaction, or that D had been given permission to borrow the
property (Kell [1985] Crim LR 239) or to take it in lieu of wages (Wootten
[1990] Crim LR 201). In Forrester ([1992] Crim LR 793), on the other
hand, it was held that section 2(1)(a) of the TA 1968 did not apply where
F took various items from a house in which he was formerly a tenant,
intending to sell them if the landlord did not repay 200 paid as a deposit.
F believed he had been improperly asked to leave and that the landlord
had unfairly retained the deposit; this was merely a belief in a moral (not
a legal) right (although section 3(1)(a) might not apply, a claim of moral
right to property might mean that D did not act dishonestly under the
general principles discussed below). Similarly, a mistake as to the criminal
law will not bring section 3(1)(a) into play.
If D appropriates property in the belief it belongs to D, and this belief
is correct, then there is no need to rely on section 3(1)(a). Theft will fail
because its actus reus property belonging to another will not be
established.
Section 3(1)(b): If he believes the owner of the property would have consented
to its appropriation, had he known of the particular circumstances
This would protect a person who, for example, took bread from a basket of
groceries delivered to his or her neighbours door, believing, based on past
experiences, that his or her neighbour would consent, or who took money
out of shop receipts as an advance on his or her salary (Flynn [1970] Crim
703
LR 118). The belief must be belief in a true consent and not, for example,
belief in consent obtained by deception or in an unauthorized manner (AG of HK v Daniel Chan Nai-keung [1987] 1 WLR 1339, [1988] 1 HKLR 70:
improperly obtained company consent could not be relied on).
In the recent decision of the House of Lords in Hinks, it was held that
a defendant may be dishonest even though the victim has actually consented
(see above) (compare Cheung Wing Shun [1984] HKC 403: actual consent
to the property being taken will negate mens rea).
Section 3(1)(c): If he finds property, and believes that the owner cannot
reasonably be found This protects a person who, for example, keeps
property found by him or her in circumstances suggesting it has either
been abandoned (R v Cheung Chung-yau Mag App 33 of 1985; note that if
the property has actually been abandoned, then it will no longer belong to
another, and the actus reus of theft cannot be established), or lost. In the
latter case, the finder must also believe the owner cannot be found by
taking reasonable steps. Whether reasonable steps are available will depend
upon the particular facts of the case. In some instances, a belief that no
reasonable steps are available might even suffice, as where D finds a HK$20
note on the street how could its owner reasonably be found? If, instead,
a bag containing HK$100,000 was found on the street, considerable efforts
to locate its owner would ordinarily be expected, and D would likely lack
credibility and be disbelieved if D asserted that he or she thought that no
reasonable steps were available to locate its owner. However, the question
is what D honestly believed, not whether the belief was reasonable. If D
honestly believed that no reasonable steps were available to locate the owner,
then this will negate dishonesty in accordance with section 3(1)(c), and D
cannot be convicted of theft by keeping or dealing with the property (R v
Small [1987] Crim LR 777).
If, having found and kept property in the belief that no reasonable
steps are available to locate its owner, D subsequently learns the identity of
the owner, Ds conduct thereafter may amount to an appropriation of the
property. Whether it is a dishonest appropriation and thus theft will then
depend upon the application of the general common law test for dishonesty,
not section 3(1).
If D can raise a reasonable doubt over whether D had a belief within
one of these three exceptions, then D must be found not dishonest and
cannot be convicted of theft. In all three cases, the test is based on what
the defendant believed and is thus subjective in nature. Accordingly, the
belief does not have to be reasonable, although its reasonableness will be
704
relevant in assessing whether D may have honestly believed (a) or (b) or

(c) (R v Holden ([1991] Crim LR 478).
Section 3(2)
Section 3(2) of the TO provides that the fact a person may be willing to
pay for appropriated property is irrelevant. So, for example, D is not entitled
simply to take an item of property having sentimental value to D from its
owner, offering instead to pay whatever price its owner wants; this may
still amount to theft, provided it is dishonest. Similarly, the fact D has
money in his or her wallet and offers to pay when stopped for shoplifting
would not prevent Ds liability for theft.
Assessing dishonesty at common law
When dishonesty must be assessed, the common law requires proof both
that the defendants conduct was dishonest according to the standards of
ordinary decent people and also that the defendant knew the conduct would
be regarded as dishonest according to those standards. This objective/
subjective test was laid down in Ghosh ([1982] QB 1053), in which G, a
surgeon acting as a locum in a hospital, claimed fees not due to him for
performing operations. Dismissing his appeal against conviction for
dishonestly obtaining money by deception, contrary to section 15(1) of the
TA 1968 (section 17 of the TO), the English Court of Appeal rejected
arguments that the test for dishonesty under section 15 should involve
either a purely objective test (in accordance with Feelys decision that
dishonesty should be assessed by the current standards of ordinary decent
people), or a solely subjective test (see, for example, Boggeln v Williams
[1978] 2 All ER 1061), commenting that a solely subjective test would
involve the abandonment of all standards but that of the accused himself,
and to bring about a state of affairs in which Robin Hood would be no
robber. Instead, ruled the Court (at 1064):
In determining whether the prosecution has proved that the D has
acted dishonestly, a jury must [1] first of all decide whether according
to the ordinary standards of reasonable and honest people what was
done was dishonest. If it was not dishonest by those standards, that
is the end of the matter and the prosecution fails. If it was dishonest
by those standards, then [2] the jury must consider whether the D
himself [must have] realised that what he was doing was by those
standards dishonest [numbering added].
705
In Lightfoot ([1993] Crim LR 137), the English Court of Appeal, approving

Ghosh, also emphasized the importance of maintaining a distinction between
a persons knowledge of the law (i.e. the fact that a defendant can often
truthfully claim not to know the precise legal provisions making his conduct
criminal) and his appreciation that he was doing something which, by
ordinary standards of reasonable and honest people, was regarded as
dishonest. It is the latter which is relevant to dishonesty.
This test has been generally adopted for the purpose of assessing
dishonesty under the TO, and also for related offences such as conspiracy
to defraud at common law.
Both limbs of this test have been criticized.11 The first limb presupposes
that there is some objectively discernible standard of honesty. In many
instances, this will be so; nearly everyone would agree the conduct is
dishonest. However, in other, more borderline cases, this may not be so
easily asserted. What is dishonest in Central may not be equally viewed as
dishonest in Tuen Mun; what is dishonest judged by current standards
might be viewed differently several years from now because of changing
social values, and vice versa. This creates the possibility that different juries
or judges might view the same set of facts differently. Is it, for example,
dishonest to keep excess change or additional banknotes produced by an
ATM? Probably so; but what about buying pirated software or musical
products? Or bringing in and eating or drinking ones own food and drink
at a concert where such practices were specified on the tickets as prohibited?
The second limb is also open to criticism. Suppose there is evidence D
may have genuinely believed his or her conduct was honest, but only
because his or her worldview and beliefs regarding honesty differs from
those of ordinary citizens. Is D still dishonest? According to Lord Lane LJ
in Ghosh, this may still be established (at 1064):
Robin Hood or those ardent anti-vivisectionists who remove animals
from vivisection laboratories are acting dishonestly, even though they
may consider themselves to be morally justified in doing what they
do
Would an ordinary citizen agree that D is necessarily dishonest? What if D

is proved to have taken food belonging to another to give to the homeless
or poor out of a strong moral commitment to caring for such persons?
11
See, for example, E. Griew, Dishonesty: Objections to Feely and Ghosh [1985] Crim LR
341, and A. Halpin, The Test for Dishonesty [1996] Crim LR 283.
706
Despite these criticisms, the Ghosh test continues to represent the law
in England. It has likewise been adopted and repeatedly applied in Hong
Kong (see Kwok Yuen-sum (1985) Cr App 561 of 1984; Tam Chung-shing
(1988) Cr App 490 of 1988; Sze Sing-ming [1991] 2 HKLR 481; HKSAR v
Ma Pui Ying [1998] 1 HKLRD 41; HKSAR v Goh Swee Yan Angelina [2000]
2 HKC 711).
On the other hand, it is not always necessary to give a Ghosh direction
(Squire [1990] Crim LR 343). In Price ([1990] Crim LR 200), the English
Court of Appeal said that a Ghosh direction is necessary only if a defendant
asserts that he or she believed his or her conduct was in accordance with
the ordinary persons idea of honesty (Price [1990] Crim LR 200; Yuen
Yun Yu (1990) Mag App 1605 of 1990). In R v Sze Sing Ming ([1991] 2
HKLR 481), the Hong Kong Court of Appeal, dismissing the defendants
appeal against conviction for procuring the making of an entry in a bank
record by deception (contrary to section 18D of the TO), approved this
approach. Power JA stated (at 491) that:
the Court of Appeal in Hong Kong has never held that a Ghosh
direction is necessary in all cases involving commercial dishonesty.
Nor has any practice grown up in Hong Kong which requires that
a full Ghosh direction be given in such cases. We have no hesitation
in respectfully agreeing that the law in Hong Kong is the same as that
stated in Price.
In some circumstances, it may even be misleading to give a Ghosh

direction (Roberts (1987) 84 Cr App R 117).
Where a Ghosh direction is given, then the test should be put to the
jury in the order stated (Green [1992] Crim LR 292).
Intention of permanently depriving
Theft requires proof the defendant appropriated the property with the
intention of permanently depriving the other of it. It is Ds intention that
matters; there is no need to prove the owner of property was actually
deprived of the property, though this will normally be so. An intention to
deprive temporarily is prima facie insufficient (R v Warner (1970) 55 Cr
App R 260), although borrowing or lending may suffice in certain
circumstances expressly provided for in section 7.
Often, intention may be inferred from the conduct constituting the
appropriation, as where D pickpockets another persons wallet. Where this
is not so, especially where the conduct of the defendant constituting the
707
appropriation of the property was done with the consent or authorization

of the owner (see appropriation, discussed above), for example, where D
takes goods off a supermarket shelf and puts them into a supermarket
trolley, there will need to be clear evidence of intention if theft is to be
established.
The meaning of intention
The prima facie meaning of intention of permanently depriving can be
inferred from section 7(1) (section 6(1) of the TA 1968), which provides
that:
A person appropriating property belonging to another without meaning
the other permanently to lose the thing itself is nevertheless to be regarded
as having the intention of permanently depriving the other of it if his
intention is to treat the thing as his own to dispose of regardless of
the others rights; and a borrowing or lending of it may amount to so
treating if, but only if, the borrowing or lending of it is for a period
and in circumstances making it equivalent to an outright taking or
disposal.
Accordingly, meaning the other to lose the thing [i.e. the property] itself
can be taken to be the ordinary meaning of intention in this context.
Whenever possible, the issue of intention should be left to the jury without
further elaboration (R v Lloyd [1985] 1 QB 829).
However, section 7 also provides that intention may be established, or
deemed, by proof of other states of mind. Its effect, it has been said, is that
there are circumstances in which a defendant may be deemed to have the
intention permanently to deprive, even though he may intend the owner
eventually to get back the object which has been taken (Lloyd, above, at
834).
Firstly, section 7(1) provides that a person may be regarded as having
the necessary intention (i.e. deemed to have it) if the prosecution proves
that D had an intention to treat the thing [i.e. the property] as his own to
dispose of regardless of the others rights. The operation of this provision
was considered by the Privy Council in Chan Man-sin v A-G of Hong Kong
([1988] 1 WLR 196; [1987] 2 HKC 56), on appeal from Hong Kong. C, an
accountant for two companies, forged ten cheques totalling HK$4,800,000
on the companies bank accounts. C was charged with theft of the debt
(thing in action) owed by the companies bank to the companies (instead
of with forgery or obtaining pecuniary advantage by deception). C argued
708
inter alia that intention was not proved, since the debit made by the bank
upon presentation of the cheques would have to be reversed upon discovery
of the forgery; accordingly, he contended, it could not be proved he intended
the companies to lose anything. The Privy Council rejected this argument,
holding (at 199, per Lord Oliver) that Cs conduct fell within section 7(1):
Quite clearly [Chan] was purporting to deal with the companies property
without regard to their rights.
It has been argued (see Smith, J.C., The Law of Theft (eighth edition,
1997, p. 80, para 2132) that this ignores the words dispose of which
operate as a limit on this extension, and require proof of something akin to
the dictionary meaning of these words, namely: To deal with definitely: to
get rid of; to get done with, finish. To make over by way of sale or bargain,
sell (Shorter Oxford Dictionary). According to Professor Smith, it should
not be enough merely to prove D intended to treat the property as his or
her own to use. This view received some support from Cahill ([1993]
Crim LR 141), but in DPP v Lavender ([1994] Crim LR 297), the English
Divisional Court preferred a broader view, according to which a person
may be said to treat property as [ones] own to dispose of simply by dealing
with it, i.e. by using it. Accordingly, L was held to have acted with intention
within section 6(1) of the TA 1968 (section 7(1) of the TO) by removing
doors from a council house undergoing repair and installing them on
another council house tenanted by his girlfriend. He did not intend thereby
to get rid of them, but, in the courts view, that did not matter; he had
treated them as his own to use regardless of the owners rights.
The proof of intention in relation to cheques has caused some
difficulties. Early authorities (see especially Duru [1974] 1 WLR 2, now
overruled by Preddy [1996] AC 815) held that a defendant who obtains a
cheque drawn in his or her favour from another (whether by deception,
forgery or otherwise) intends to deprive that other permanently of both
the thing in action represented by the right to sue on the cheque, and the
cheque form itself. The House of Lords in Preddy has now overruled the
first limb of this analysis, on the basis that the thing in action created by
the cheque never belongs to anyone other than the drawee, i.e. D. The
second limb suffers from the fact that the cheque form itself will be returned
in the normal course to the victim (or at least held for the victim by his or
her bank), and D is unlikely to have intended to deprive the victim of it
permanently. Two other solutions can be suggested. Firstly, as Professor
J.C. Smith has argued, a cheque, when drawn, may constitute a valuable
security and, as such, may be the subject-matter of theft (see J.C. Smith,
Obtaining Cheques by Deception or Theft [1997] Crim LR 396, at 401).
709
Secondly, Ds presentation of a cheque results in the victims bank account

being debited; assuming that it was in credit (or that an approved overdraft
existed), Ds conduct has the effect of destroying, wholly or partly, the
victims existing right of action (thing in action) against the bank. D may
therefore be said to have stolen not the cheque itself, but the debt owed by
the bank to the victim upon which the cheque was drawn.
Apart from its natural or ordinary meaning, intention to treat the
property as ones own to dispose of regardless of the owners rights may
also be deemed to exist by proof of one of two further states of mind
expressly provided for in section 7(1)(2).
Borrowing or lending: Section 7(1)
Section 7(1) provides that the act of borrowing or lending property
belonging to another (e.g. D borrows Vs book, and D lends Vs book to X)
may amount to treating the property as ones own to dispose of (so treating
it), but only if the borrowing or lending is for a period and in
circumstances making it equivalent to an outright taking or disposal. An
intention to borrow or lend property belonging to another in such a manner
will correspondingly amount to an intention to treat it as ones own to
dispose of regardless of the others rights.
When will a borrowing or lending be equivalent to an outright taking
or disposal? In R v Lloyd ([1985] 1 QB 829), the English Court of Appeal
held that this required proof D returned the property (or intended to return
it) only in a fundamentally altered state, such that its virtue had effectively
been destroyed: a mere borrowing is never enough unless the intention
is to return the thing in such a changed state that it can truly be said that
all its goodness or virtue has gone. In Lloyd, film reels were temporarily
removed from a cinema for unlawful copying and then returned. Ls
conviction for conspiracy to steal was quashed on the grounds the films
still retained some goodness they still had commercial and practical
value, since they could be projected to paying audiences, and audiences
would have paid for their seats. Copying the films in itself neither
amounted to, nor was equivalent to, an outright taking or disposal (compare
Downes (1983) 77 Cr App R 260: vouchers transferred by D thereby lost
their essential character as vouchers intention to permanently deprive
established, even though vouchers would return to their original owner).
In Lloyd, Lord Lane LJ also offered the view (at 836) that section 7 should
be interpreted so that nothing is construed as an intention permanently to
deprive which would not prior to the 1968 Act have been so construed.
710
This somewhat restrictive view of the effect of section 7 has been

questioned in later cases. In Fernandes ([1996] 1 Cr App R 175), for
example, Auld LJ, for the court, was of the view (at 188) that:
section 6(1) [section 7(1) of the TO], which is expressed in general
terms, is not limited in its application to the illustrations given in
Lloyd. The critical notion is whether [D] intended to treat the
thing as his own to dispose of regardless of the others rights. The
second limb of subsection (1), and also subsection (2), are merely
specific illustrations of the application of that notion. [S]ection
6(1) may apply to a person in possession or control of anothers
property who, dishonestly and for his own purpose, deals with that
property in such a manner that he knows he is risking its loss.
This was subsequently applied in Marshall ([1998] 2 Cr App R 282) to

uphold the convictions of several defendants who obtained and resold used,
but unexpired, London Underground train tickets to other travellers. The
tickets, it was held by the English Court of Appeal, belonged at all times to
the London Underground, which retained the exclusive right to deal with
them. By reselling the tickets, the defendants had demonstrated their
intention of treating the tickets as their own to dispose of regardless of
London Undergrounds rights.12
This requirement may also be satisfied where D takes property with
the intention of keeping it only temporarily until settlement of a dispute
with its owner, or until a ransom is paid for its return. In Coffey ([1987]
Crim LR 498), for example, the English Court of Appeal quashed Cs
conviction of obtaining property by deception, contrary to section 15 of
the TA 1968 (section 17 of the TO) (which also requires proof of intention
to permanently deprive), since a direction on section 6(1) (section 7(1) of
the TO) had not been given. C claimed that he intended to keep machinery
obtained by him by a worthless cheque until a dispute with its owner had
been settled. The jury should have been directed to consider whether Cs
conduct was equivalent to an outright taking or disposal, having regard to
the period that he intended to keep the machinery and the condition placed
on its return. An example of the second situation is provided by R v Leung
Wing Hong ([1993] 2 HKCLR 149), in which L took Vs mobile phone,
agreeing to return it only after V had paid him HK$4,000. Yang CJ concluded
that Ls intention not to return the phone unless he was paid amounted to
12
See further: J.C. Smith, Stealing Tickets [1998] Crim LR 723.
711
an intention to treat the property as his own to dispose of regardless of Vs

rights (see also Scott [1987] Crim LR 235: S took a pair of curtains from a
store, bringing them back the next day and asking for a refund).
If the property borrowed or lent by D is money (e.g. D borrows money
from his or her employers cash float, intending to repay it out of his or her
salary two days later), this will generally fall within this provision, even
though D intends to repay the sum borrowed or lent, since repayment will
not be with the same notes and coins (the fact that D intends to repay may,
however, negate dishonesty) (see, for example, R v Velumyl [1989] Crim
LR 299).
Parting with property under condition: Section 7(2)
Without prejudice to the generality of subsection (1), where a person,
having possession or control (lawfully or not) of property belonging
to another, parts with the property under a condition as to its return
which he may not be able to perform, this (if done for purposes of his
own and without the others authority) amounts to treating the
property as his own to dispose of regardless of the others rights.
This subsection catches a person who pledges or pawns property in his or

her possession; even though he or she may intend to redeem it at a later
date, if he or she may not be able to perform the condition for its return,
then his or her conduct falls within section 7(2). What is not clear is whether
the expression may not be able to perform is assessed entirely objectively,
or requires proof that D realized he or she might not be able to perform
the condition.
Property obtained by mistake: Section 6(4)
In addition, section 6(4) expressly provides that where a person gets
property by mistake and is under an obligation to make restoration, an
intention not to make restoration shall be regarded as an intention to
deprive (though it must still be proved that D intended not to make
restoration permanently).
Conditional intention
What if D says that he or she had not made up his or her mind as to
712
whether to keep the thing permanently; that D intended, for example, to

keep an object picked up by him or her (thereby appropriating it) only if it
was valuable? This state of mind, called conditional intention, might be
raised not only on a charge of theft, but also robbery, burglary, going
equipped for stealing, and also an attempt to commit these offences. Does
it amount to an intention to permanently deprive? The answer appears to
be no. The problem is illustrated by Easom ([1971] 2 QB 315), in which
E removed a handbag from a woman in a cinema (not realizing that she
was a policewoman operating undercover after a spate of handbag snatchings
in cinemas), examined its contents and then, having found nothing valuable,
discarded the bag and its contents. The court concluded that D lacked the
necessary intention permanently to deprive at the relevant time, and
therefore could not be convicted of theft (the solution now is to charge D
instead with attempted theft).
ROBBERY
Section 10 of the TO provides that:
(1) 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 or puts or seeks to put any person in fear of being
then and there subjected to force.
(2) Any person who commits robbery, or an assault with intent to
rob, shall be guilty of an offence and shall be liable on conviction
upon indictment to imprisonment for life.
In addition to robbery, subsection (2) enacts an offence of assault with

intent to rob. Only robbery is dealt with here.
Robbery requires proof of theft; each element of theft must therefore
be proved (R v Shendley [1970] Crim LR 49). Robbery is, in this sense, an
aggravated form of theft, and consequently has a higher maximum sentence
of life imprisonment (compared to ten years imprisonment for theft).
Actus Reus Elements

The prosecution must prove the actus reus elements of theft, namely, that
the defendant appropriated property belonging to another. Importantly,
713
given the meaning now adopted for appropriation (see above, p. 674), in
particular, that the assumption of any of the rights of an owner will suffice,
robbery may be committed even though the defendant does not succeed in
taking away property. For example, D pushes V, grabs hold of Vs bag
when V drops it and tries to run off. However, V grabs hold of the strap,
and D runs away empty-handed. By grabbing hold of the bag, D has already
committed an act amounting to an appropriation. Since force was used,
this could amount to a robbery, provided that the other mental elements
can be proved, even though D failed to take away any property (see, for
example, Corcoran v Anderton (1980) 71 Cr App R 104; compare Au Lai
Hong [1992] 2 HKC 217: not robbery where D snatched without needing
to apply force since no resistance) (alternatively, it may amount to an assault
with intent to rob).
Use or threatened use of force
In addition, the prosecution must prove D either used force on any person,
or put or sought to put any person in fear of being then and there subjected
to force. Force is not defined in the TO. It is an ordinary English word,
and its meaning should therefore be comprehensible to laypeople.
Accordingly, it is for the jury to determine whether force was used or
threatened (Dawson (1976) 64 Cr App R 170). Jostling the victim could
therefore amount to the use of force.
Immediately before or at the time of and in order to
It must also be proved that D used the force (or threatened force)
immediately before or at the time of the theft, i.e. the moment when D
appropriated property belonging to another, and in order to commit theft.
The courts have been somewhat liberal in their interpretation of this
requirement. In Chan Siu-ming ([1984] HKC 159), for example, it was
submitted that this requirement was not satisfied where some 30 minutes
had elapsed between the making of a threat and the act of stealing. Roberts
CJ, for the Court of Appeal, rejected this submission, ruling (at 165) that:
We consider that section 10 should be construed to mean that a
robbery is committed if the victim, at the moment of stealing, is still
in fear of being subjected to force as a result of some act done, or
threat used, against him earlier on. The act of theft will thus follow
immediately upon a fear of violence instilled into the victim, even if
the victim was put in fear at an earlier stage.
714
Similarly, although a thief ought not to be liable for robbery merely by

using force to escape, appropriation (as part of the theft component of
robbery) has occasionally been viewed as a continuing act for the purposes
of robbery, enabling a conviction for robbery based on acts subsequent to
the theft, including the use of force during a struggle to escape (see Hale
(1978) 68 Cr App R 415, approved in Gregory (1983) 77 Cr App R 41; see
also Lockley [1995] Crim LR 656: use of force on shopkeeper after theft of
cans of beer). On the other hand, if D was fighting with another person,
and the wallet of that other happened to fall on the ground, D would not
commit robbery by taking the wallet, since the earlier force was not used
in order to steal. To similar effect, in Donaghy ([1981] Crim LR 644), D
threatened the life of a taxi-driver, demanding that he drive D from
Newcastle to London. On arrival in London, D stole 22 from the driver,
but he was acquitted of robbery because his earlier threats had not been
made in order to steal the money.
The victim of the force or threat of force does not have to be the
person against whom the theft is committed. The use or threatened use of
force on any person will suffice; accordingly, D may commit robbery by
using force on a security guard outside a jewellery shop, before stealing
items from the shop.
Where the prosecution relies on the threat of force, then it must also
prove that the threat was to put the victim then and there in fear of force.
A threat of force in the future would not be sufficient (though a charge of
blackmail might then be available). The definition of robbery includes not
only successful threats (i.e. the victim is put in fear), but also attempts to
put a person in fear of force seeks to put. It does not matter, therefore,
that the victim is not actually put in fear.
Section 10(2) requires the force to be used on a person. Does this
mean against a person, so that D would not commit robbery by grabbing
hold of Vs bag and pulling it out of Vs grasp; here, the only use of force
is arguably against the bag? In Clouden ([1987] Crim LR 56), the English
Court of Appeal convicted C of robbery based on similar facts, concluding
that section 8 of the TA 1968 (section 10 of the TO) did not require a
distinction to be drawn between force on the person and force on property.
The question of whether force was used on a person should simply be left
to the jury, taking account of all the circumstances (though this conclusion
is contrary to the considered opinion of the Criminal Law Revision
Committee, whose Report provided the basis for the TA 1968 see para
65).
715
Mens Rea Elements

The prosecution must prove the mens rea elements of theft, namely,
dishonesty and intention to permanently deprive (the meaning of these
terms is discussed above, p. 701). Accordingly, D may rely on an honest
belief in a legal right to deprive the owner of the property to prevent liability
for theft, and thereby also avoid liability for robbery (Skivington [1968] 1
QB 166; Robinson [1977] Crim LR 173: R held not to have committed
robbery by demanding repayment by V of a debt owed by Vs wife to R,
even though R had a knife to reinforce his demand, since R honestly believed
that he had a legal right to the money and was not therefore dishonest (see
section 3(1)(a) of the TO, discussed above, p. 702); see also R v Ng Shuisang (unrep; Mag App No. 812 of 1994)), although the use of force to
enforce such a claim might itself amount to common assault or an aggravated
assault.
It also seems probable that the force must be proved to have been
applied intentionally or at least recklessly by the defendant.
For the purposes of the rules relating to intoxication, robbery, like
theft, is a specific intent offence (R v Yeung Ka Wah [1992] HKLD 299).
HANDLING STOLEN GOODS

The offence of handling is provided for in section 24(2) of the TO (section
22 of the TA 1968):
(2) Any person who handles stolen goods shall be guilty of an offence
and shall be liable on conviction to imprisonment for 14 years.
Handling is defined in section 24(1):

(1) A person handles stolen goods if (otherwise than in the course of
the stealing) knowing or believing them to be stolen goods he
dishonestly receives the goods, or dishonestly undertakes or assists in
their retention, removal, disposal or realization by or for the benefit
of another person, or if he arranges to do so.
Section 24(2) creates one offence of handling (R v Wong Wai Hung [1997]
3 HKC 146, at 148, per Liu JA; compare Lord Bridge in Bloxham [1983]
AC 109), though it may be committed in a variety of ways (one analysis
716
identified up to 18 different ways of handling). Two limbs are sometimes

identified: dishonestly receiving, and dishonestly undertaking or assisting
in the retention, removal, disposal or realization of stolen goods or arranging
to do so.
Handling is usually viewed as a more serious offence than theft, since
the existence of fences (as professional handlers are sometimes called)
both promotes and facilitates organized theft. This is reflected in the higher
maximum penalty 14 years imprisonment (compared to ten years for
theft).
Actus Reus Elements

Handling requires proof D handled goods that have been previously stolen
and did so otherwise than in the course of their actual theft.
Goods
Section 8(2) of the TO defines goods as including, except in so far as the
context otherwise requires, money and every other description of
property except land, and includes things severed from the land by stealing
(compare definition of property in section 5 for the purposes of theft).
Every other description of property is wide enough to include things
in action (unless it could be asserted that the context otherwise requires).
In A-Gs Reference (No. 4 of 1979) ([1981] 1 All ER 1193), the English
Court of Appeal accepted that things in action in that case, the balance
in a bank account are included. If so, then a person may handle stolen
goods by, for example, dealing (in one of the prescribed ways) with a credit
balance in a bank account if that balance represents the proceeds of stolen
goods. However, in the light of the decision of the House of Lords in Preddy
([1996] AC 185) that a credit to a bank account creates a new thing in
action, it may be difficult to establish that the credit is stolen goods for
the purposes of section 24 (though section 26(2) may assist to establish
this).
Stolen goods
The goods must be stolen goods. If this is not so, then the offence of
handling is not committed, even if D may have believed that they were
stolen (Haughton v Smith [1975] AC 476) (D may instead be guilty of
717
attempted handling; for attempt, see Chapter 8). An admission by D that D

was told the goods were stolen is only hearsay and not evidence that the
goods were in fact stolen (Porter [1976] Crim LR 58; Overington [1978]
Crim LR 692).
Section 26 of the TO (section 24 of the TA 1968) gives stolen goods
an extended meaning. Firstly, section 26(1) provides that references to
stolen goods apply whether the stealing occurred in Hong Kong or
elsewhere provided that the stealing (if not an offence under [the Theft]
Ordinance) amounted to an offence where and at the time when the goods
were stolen (by virtue of section 26(4), below, stealing here includes goods
obtained by blackmail and by deception within section 17(1) of the TO).
This ensures that persons in Hong Kong can be convicted of handling goods
stolen elsewhere (e.g. in mainland China). The fact that the goods were
stolen within the meaning of a foreign law must be proved (Ofori (No. 2)
(1994) 99 Cr App R 223; HKSAR v Wu Yat Kwong [1999] 3 HKC 853).
Secondly, section 26(2) provides that references to stolen goods
include:
in addition to the goods originally stolen and parts of them (whether
in their original state or not)
(a) any other goods which directly or indirectly represent or have at any
time represented the stolen goods in the hands of the thief as being
the proceeds of any disposal or realization of the whole or part of the
goods stolen or of goods so representing the stolen goods; and
(b) any other goods which directly or indirectly represent or have at
any time represented the stolen goods in the hands of a handler
of the stolen goods or any part of them as being the proceeds of
any disposal or realization of the whole or part of the stolen goods
handled by him or of goods so representing them.
Lastly, section 26(4) provides that references to stolen goods (including

such references in section 26(1)(2) and (3)) include goods obtained in
Hong Kong or elsewhere either by blackmail or by deception within section
17(1) of the TO (see also R v Lam Chiu Va [1996] 1 HKC 302). Steal,
theft and thief are all to be construed accordingly.
Goods may cease to be stolen before the handler deals with them. This
will be so if the goods were restored to the owner or other lawful custody
(e.g. an agent of the owner), as provided for in section 26(3):
No goods shall be regarded as having continued to be stolen goods after
they have been restored to the person from whom they were stolen or
to other lawful possession or custody, or after that person and any other
718
person claiming through him have otherwise ceased as regards those

goods to have any right to restitution in respect of the theft.
It appears that goods also cease to be stolen once they are taken into police
possession (Haughton v Smith, above: though the fact of effective possession
and restoration was there conceded by the prosecution). In A-Gs Reference
(No. 1 of 1974) ([1976] QB 744), the English Court of Appeal held that the
question of whether this has occurred is a question of fact. In that case, a
police constable saw stolen goods on the back seat of a car, removed part
of the starter motor and kept watch on the car. The court held that it was
for the jury to decide whether the constable had already made up his mind
to take possession of the goods and prevent their removal, or whether he
merely intended to stop the driver for questioning (compare GLC Police
Commissioner v Strecker (1980) 71 Cr App R 113: marking goods to record
that they had been stolen did not evidence possession).
The latter part of section 26(3) means that goods will also cease to be
stolen where, for example, having been obtained by deception (thus prima
facie passing ownership), they were then sold by the deceiver to a bona
fide purchaser for value without notice.
Otherwise than in the course of the stealing
These words ensure that the offence of handling stolen goods cannot occur
until the conduct by which the goods become stolen goods has been
completed. A thief may be liable for the offence of handling, but only by
distinct conduct subsequent to the initial appropriation, such as by assisting
another to sell the property (R v Dolan (1975) 62 Cr App R 36; HKSAR v
Man Kwok Wan [2000] 1 HKC 778, at 782, per Keith JA). Such conduct
may also amount to a second act of appropriation and thus theft.
When does the course of stealing end? One view is that theft is
instantaneous, being complete the moment when appropriation occurs,
thereby enabling a second act in relation to the goods to amount to handling
(see also, above, p. 677). This was the view of the English Court of Appeal
in Pitham and Hehl ((1976) 77 Cr App R 45), in which P and H went with
X to his friends house (the friend being in prison), where X offered to sell
them the furniture in the house. The English Court of Appeal held that X
had appropriated the furniture goods at the moment when he showed
it to P and H and invited them to buy it. Theft being instantly complete, P
and H could therefore be convicted of handling the furniture (see also
Gregory (1982) 77 Cr App R 41). This analysis has been criticized and
719
appears to give no meaning to the words in the course of stealing. Professor

Griew, for example, has argued that on principle, the course of stealing
must last for some time beyond the first moment of appropriation or
obtaining (Griew, Edward, The Theft Acts (seventh edition, London: Sweet
& Maxwell, 1995), para 15.46). Other cases (including some dealing with
robbery; see above, p. 714) have taken a broader view, allowing the course
of stealing to extend beyond the immediate moment when the appropriation
takes place (see, for example, R v Hale (1978) 68 Cr App R 415). In Atakpu
and Abrahams ([1994] QB 69), for example, the court preferred to leave it
to the common sense of a jury to decide that the appropriation can continue
for so long as the thief can sensibly be regarded as in the act of stealing
so long as he is on the job.
Although the fact that Ds conduct occurred otherwise than in the
course of stealing appears to be an essential ingredient of handling, authority
suggests this fact needs to be proved by the prosecution only when there is
a live issue as to whether the defendant was still in the course of stealing
or handling (Griffiths (1974) 60 Cr App R 14; Cash [1985] QB 801; A-G of
Hong Kong v Yip Kai-foon [1988] AC 642 discussed further below).
Forms of handling
Handling is a general term (and potentially misleading, since handling
does not necessarily require touching of the goods). A charge of handling
requires proof the defendant acted in one of the following four ways specified
in section 26(1):
(1) D received the goods;
(2) D undertook the retention, removal, disposal or realization of the goods
by or for the benefit of another person;
(3) D assisted in their retention, etc., by or for the benefit of another person;
or
(4) D arranged to do any of (1), (2) or (3).
The meaning and scope of each type of conduct is a matter of common
law.13
As a general rule, the charge should indicate which form of handling
is alleged; if it is unclear which form of handling was committed by D,
then the indictment should include separate counts for each possible form.
13
See further: J. Spencer, The Mishandling of Handling [1981] Crim LR 682.
720
If charged under one part, D cannot be convicted under another (Nicklin

[1977] 1 WLR 403).
Receiving
Generally, receiving involves obtaining possession or control of the goods.
Control may exist when D has an exclusive degree of control, even though
it may not involve possession against all others with the exception of the
rightful owner or the thief (HKSAR v Ho Wai Lun [2001] 3 HKC 557: H
had sufficient control where he borrowed a bicycle, knowing that it was
stolen, even though it was only lent on condition it be returned to lender).
Receipt need not necessarily involve physical possession by the handler
himself or herself; receipt by an agent may suffice. Receiving (and arranging
to receive) may be for the handlers own benefit, and need not be by or for
the benefit of another.
Undertaking/Assisting in the retention, removal, disposal or realization
of the goods by or for the benefit of another person
The defendants conduct undertaking or assisting must directly relate
to one or more of the stated objectives the retention, removal, disposal
or realization of the stolen goods the objective of which must be by or
for the benefit of another person (Sloggett [1972] 1 QB 430). It seems that
some positive conduct must be proved, and not merely the fact that D used
stolen property left on a relatives premises (Sanders (1982) 75 Cr App R
84). In R v Kanwar ((1982) 75 Cr App R 87), the English Court of Appeal
suggested (at 89) that:
something must be done by the offender, and done intentionally and
dishonestly, for the purpose of enabling goods to be retained. Examples
of such conduct are concealing or helping to conceal the goods, or
doing something to make them more difficult to find or identify.
It was held that refusing to answer police questions did not per se amount
to assisting, but telling lies to the police for the purpose of enabling another
to retain stolen goods could constitute assisting in their retention. As this
case shows, handling may be based on something said by the defendant,
and does not necessarily require proof of any physical acts in relation to
the stolen goods.
Undertake means accept the obligation or the responsibility to do the
necessary act (R v Tsang Chi Ho [1997] 3 HKC 36).
721
Assisting has been interpreted relatively narrowly. In Coleman ([1986]

Crim LR 56), for example, it was held that C did not assist in the disposal
of money stolen by his wife merely by letting her spend the money on
their flat; but the result would have been different had he instructed her to
spend the money in specific ways. Assisting appears to require a positive
act of encouragement or helping, although it may cover omissions if there
is a legal duty to act (Brown [1970] 1 QB 105: B liable for allowing another
to leave stolen goods on his property).
Retention requires proof of a positive act such as concealment or
misleading the police (Kanwar (1982) 75 Cr App R 87), and not merely
keeping goods after discovering that they were stolen (Broom v Crowther
(1984) 148 JP 592; compare R v Pitchley (1973) 57 Cr App R 30). Removal
appears to refer to the physical movement or transfer of the goods. D may
thus handle stolen goods simply by moving them for another person from
one place to another D thereby assists in their removal by or for the
benefit of another. Disposal catches dumping, giving away and destruction.
The activities undertaken or assisted by the defendant must be by
another person or for the benefit of another person. This is an essential
ingredient under the second limb of the definition of handling which must
be included in the charge and proved (R v Tiu Chun Kit (1997) Cr App No.
234 of 1996, CA; R v Tsang Chi Ho, above). In R v Bloxham ([1983] 1 AC
109), the prosecution charged B with handling stolen goods a car
purchased by B, not then knowing that it was stolen by undertaking its
disposal selling it to a third party when B later suspected that it
might have been stolen. B argued that the sale was for Bs own benefit, not
for the benefit of the purchaser, and that his actions were not therefore for
the benefit of another person. The House of Lords agreed, quashing Bs
conviction. The purchase involved another person, but it could not be said
that the purchase disposal or realization was undertaken by B either
for the benefit of another person (B undertook it for Bs own benefit) or
by that other person (compare R v Tokeley-Parry [1999] Crim LR 578).
Arranging to do any of the above
Arranging may include preparatory steps, but only where these steps take
place after the goods have been stolen. Arranging to handle goods
beforehand is not sufficient (R v Park (1988) 87 Cr App R 164; applied in
R v Wong Wai Pong [1996] 1 HKC 313). However, it might amount to
conspiracy to handle.
722
Mens Rea Elements

Handling requires proof of dishonesty, and knowledge or belief that the
goods are stolen (as that term is interpreted for the purposes of handling
see above).
Dishonesty
Dishonesty is assessed by reference to the Ghosh test, discussed above
(p. 704) (see Roberts (1987) 84 Cr App R 117: no need to give second part
of the Ghosh test in handling cases if no evidence that D believed D was
not dishonest by the standards of ordinary decent people).
Knowledge or belief
Knowledge or belief relates to whether the goods are stolen, and there is
no need to prove that the handler knew the identity of the thief or of the
owner or the nature of the goods (McCullum (1973) 57 Cr App R 645).
The requisite knowledge or belief must be proved at the time of the activities
on which the charge of handling is based (Atwal v Massey [1971] 3 All ER
881). Thus, it would not amount to handling if D found out only after the
receipt of goods that they were stolen (R v Wong Wai Pong [1996] 1 HKC
313), though subsequent dealing with them might amount to handling in
one of its other forms (e.g. by selling for the benefit of another).
Knowledge and belief are assessed subjectively (R v Wong Tin Sang
(1985) Mag App No. 811 of 1984). In Atwal, above, the English Court of
Appeal held it was a misdirection to direct the jury that it was sufficient if
A ought to have known from the circumstances that the goods were stolen.
Belief was considered in Hall ((1985) 81 Cr App R 260). The English
Court of Appeal observed (at 264) that a person:
may be said to know that goods are stolen when he is told by
someone with first hand knowledge that such is the case . Belief
may be said to be the state of mind of a person who says to himself:
I cannot say I know for certain that these goods are stolen, but there
can be no other reasonable conclusion in the light of circumstances
What is not enough is mere suspicion.
Although broadly approved in Atwal, subsequent cases have doubted its

usefulness (see, for example, Forsyth [1997] 2 Cr App R 299). The difficulty
with the direction proposed in Hall is that it appears to draw a distinction
723
between mere suspicion and stronger suspicions, effectively leaving it to

a jury to convict on the basis of strong suspicion, rather than knowledge
or belief. However, suspicion, it seems, is not enough (Griffiths, above,
Grainge [1974] 1 WLR 619), not even strong suspicion (Pethick [1980]
Crim LR 242; Moys (1984) 79 Cr App R 72; applied in R v Chung Shi Shun
(1985) Cr App No. 530 of 1984, CA). Although wilful blindness is often
treated as a form of knowledge, it seems that it will not suffice for the
purposes of handling. It has been suggested that it may be better to avoid
giving a direction on the meaning of belief unless the case is one in which
Ds state of mind has been characterized as involving only suspicion (R v
Harris (1987) 84 Cr App R 75; R v Toor (1987) 85 Cr App R 116).
D must believe that the goods are stolen; it is not enough that D believes
this is likely or even highly probable.
Proving knowledge or belief
Section 29(3) of the TO provides that once there is evidence D had
possession of the stolen goods, or undertook or assisted or arranged to
undertake or assist in their retention, removal, disposal or realization, then
the following evidence is admissible for the purpose of proving that D knew
or believed the goods were stolen: (1) evidence that D has had in his or her
possession, or has undertaken or assisted in the retention, removal, disposal
or realization, of stolen goods from any theft taking place not earlier than
12 months before the handling charged; and (2) evidence that D has been
convicted of theft or handling within the previous five years.
Doctrine of Recent Possession

The prosecution is also aided in its prosecution of theft and handling cases
by a common sense presumption of fact, known as the doctrine of recent
possession.14 This presumption, which is simply an aspect of circumstantial
evidence, states that if someone, D, is found in possession of recently stolen
goods, and offers no explanation for their possession when asked about it,
or offers an explanation which is proved to be untrue, then a jury or court
is entitled (though not bound) to infer that D either stole the goods or
14
The doctrine also applies to offences other than theft of handling, such as robbery (see,
for example, HKSAR v Lau Tai Heung [1999] 4 HKC 60).
724
dishonestly handled them (R v Aves [1950] 2 All ER 330; Cham Kam v R

[1959] HKLR 586; R v Ball (1983) 77 Cr App R 131; HKSAR v Zheng Wan
Tai [2000] 1 HKC 627).15 For the purposes of handling, the doctrine entitles
a jury or court to infer that D knew or believed the goods were stolen (as
that term is defined for handling, above). These inferences may be drawn
only if they are the only reasonable inferences on the evidence. If there is
any doubt as to whether D knew or believed the goods to be stolen, then D
must be acquitted in the absence of other evidence (R v Smythe (1980) 72
Cr App R 8).
The meaning of recent possession is not laid down or fixed in terms
of days or any other period of time. It depends upon the individual
circumstances of each individual case (R v Lai Chi Shing [1987] HKLR
422; HKSAR v Sze Sun Man [1998] 4 HKC 231; R v Li Chi Ho (1997) Mag
App No. 1330 of 1996: three months not recent).
Although some authorities have suggested otherwise (Sloggett [1972]
1 QB 430; followed in R v Wong Wai Hung [1997] 3 HKC 146), the doctrine
applies to both general forms of handling, i.e. receiving, and also undertaking
or assisting (R v Ball, above; HKSAR v Tai Kwok Hei [1998] 3 HKC 241;
HKSAR v Zheng Wan Tai, above).
The doctrine of recent possession may not be relied on where there is
direct evidence as to how goods came into Ds possession (HKSAR v Do
Van Ve (1997) Cr App No. 543 of 1997, CA).
Alternative Verdicts
When D is found in possession of stolen goods in circumstances suggesting
that D is liable for either theft or handling, how should the prosecution
proceed? If theft seems the more likely offence, then generally the
prosecution should charge theft. However, section 32 of the TO provides
that handling is an alternative offence to theft (and also for robbery, burglary,
aggravated burglary, obtaining property by deception, and obtaining
pecuniary advantage by deception), of which the accused may instead be
convicted if theft is not proved at trial but handling is.
If it is unclear whether theft or handling is the appropriate charge,
then both may be charged (Shelton (1986) 83 Cr App R 379). However,
15
See McCoy, Gerard, and Bruce, Andrew, Criminal Evidence in Hong Kong (looseleaf edition,
Butterworths Asia, 2002), para 115.
725
since theft and handling are mutually exclusive (handling must be otherwise
than in the course of the stealing), D cannot be convicted of both in relation
to the same goods at the same time (as mentioned above, D may be both a
thief by his or her initial dealing with the goods, and also a handler by his
or her later dealing with the goods).
What if it is clear that D was either the thief or a handler, but the
evidence is insufficient to allow the jury to decide one way or the other?
This issue was addressed by the Privy Council in A-G of HK v Yip Kai-foon
([1988] AC 642), on appeal from the Hong Kong Court of Appeal. In this
case, Y was charged with several counts of robbery; he was alternatively
convicted of handling, pursuant to section 32 of the TO. On the question
of how to direct a jury, Lord Ackner noted earlier authority that the jury
should be directed to convict of the offence which it seems more probable
D committed, but this option was rejected by him (at 656) on the basis
that:
[N]ot only was such a direction quite uncalled for in this case
but such a direction is wrong in law. It detracts, or may be thought
to detract, from the obligation of the jury to be satisfied beyond
reasonable doubt that the accused is guilty of the particular offence
before they enter such a verdict.
The correct approach, observed the Privy Council, involves two stages:
First, [the jury] had to ask themselves whether they were satisfied
beyond reasonable doubt that [D] was guilty of robbery [or theft].
If they were not so satisfied, they would then proceed to the second
stage, and ask themselves whether the prosecution had satisfied them
in relation to each of the ingredients of the alternative offences of
handling
If there is still no majority in favour of convicting of one offence or the

other, then the jury should be discharged and a retrial ordered.
The Privy Council then addressed a second, interrelated aspect of this
issue: before a jury may convict of handling, must it be satisfied beyond
reasonable doubt that Ds conduct was otherwise than in the course of the
stealing? Lord Ackner noted the view that this phrase sets out an essential
ingredient of the offence, but rejected a contention that it is therefore
necessary for the prosecution to affirmatively prove this element and for a
trial judge to direct a jury specifically to consider it. Noting that this
contention had been twice rejected by the English Court of Appeal (R v
726
Griffiths (1974) 60 Cr App R 14, at 156, per James LJ; R v Cash [1985]
QB 801, at 805, per Lord Lane CJ), Lord Ackner concluded that the
prosecution only needs to prove this element affirmatively when the question
whether Ds conduct was in the course of the stealing or otherwise is in
issue. Where, as in the case before the Privy Council, the jury acquits D of
theft (the first stage), then (at 658):
the issue of whether or not [D] was the thief [is] no longer a
live issue. The presumption that he was innocent of the theft of the
goods, which existed when he went into the dock, was thus never
rebutted. Accordingly, there is no necessity for the judge to make any
but a passing reference to [otherwise than in the course of the
stealing]. It called for no specific direction.
Professor J.C. Smith has suggested (The Law of Theft (eighth edition, 1997),
para 1346) that this is a rather novel use of the presumption of innocence
to convict the person presumed to be innocent. The Privy Councils solution,
he suggests, is entirely arbitrary, depending simply on which offence
theft or handling is considered first. By considering and rejecting theft
first, the jury will inevitably convict D of the more serious offence of
handling. A contrary position has been adopted by the High Court of
Australia, in Gilson v R ((1991) 172 CLR 353), with the majority holding
that where a person is charged with theft and handling alternatively, and
the jury is satisfied that he or she was guilty of one or the other but is not
sure which, the verdict should be guilty of the less serious offence.
14
The Theft Ordinance: Deception and
Fraud Offences
INTRODUCTION
Part III of the Theft Ordinance (TO) contains a number of offences all
requiring proof that a particular end result was brought about by the
defendants dishonest deception. These include obtaining property by
deception (section 17) (section 15 of the Theft Act (TA) 1968), obtaining
pecuniary advantage by deception (section 18) (section 16 of the TA 1968),
obtaining services by deception (section 18A) (section 1 of the TA 1978),
evading liability by deception (section 18B) (section 2 of the TA 1978),
procuring an entry in bank records by deception (section 18D), and
procuring the execution of a valuable security by deception (section 22(2))
(section 20(2) of the TA 1968). A new offence of fraud, based on deceit,
was also recently added to the TO (section 16A).
Some of these offences mirror their counterparts in the UK Theft Acts
1968 and 1978 (noted in brackets), but others differ in various respects.
The offence of fraud has no English counterpart. Other recent additions or
amendments to the UK Theft Acts have not so far been introduced in Hong
Kong. Care must therefore be taken with some of the UK case law relating
to the offences in the Theft Acts 1968 and 1978, as it may be partly or
wholly inapplicable in Hong Kong.
This chapter will consider these deception offences, along with false
accounting (section 19) (section 17 of the TA 1968) and suppression of
documents (section 22(1)) (section 20(1) of the TA 1968).
728
The equivalent offences at common law were abolished (section 34 of

the TO).1
DECEPTION OFFENCES
The offences in sections 17, 18, 18A, 18B, 18D, and 22(2) (referred to
herein as deception offences) all require proof of deception, discussed
below. In addition, these offences, along with the offences in sections 18C,
19 and 22(1), all require proof of dishonesty.
The meaning of dishonesty is a matter of common law (Woolven (1983)
77 Cr App R 231; section 3 applies only for the purposes of theft section
2(3) of the TO); when it is necessary to direct on dishonesty, then the
Ghosh test (discussed above, Chapter 13, p. 704) applies (Kwok Yuen-sum
(1985) Cr App No. 561 of 1984). This was applied in Chan Lai-hoong
((1990) Mag App No. 1443 of 1989), in which C was charged with obtaining
property by deception by using credit cards issued to her fiancee to purchase
goods worth more than HK$10,000 from several shops in Hong Kong. C
had her fiancees permission to use the cards, and he later paid the credit
card bills. C was alleged to have deceived the shopkeepers by falsely
representing that she had the authority of the credit card companies to use
the cards; it was held that her fiancees permission to use his cards did not
negate this representation. On appeal against conviction, the court
concluded, in relation to dishonesty, that the Magistrate was entitled to
conclude that Cs conduct was dishonest by the standards of ordinary
reasonable people, and that C knew that it was dishonest by those standards
as she knew how the credit card system worked. In general, the fact that D
deceived the victim will provide strong evidence in support of a finding
that D was dishonest (HKSAR v Goh Swee Yan Angelina [2000] 2 HKC
711).
Deception
Deception is defined in section 17(4) for the purposes of section 17, as
follows:
1
Exception for cheating the revenue see section 34(1). Further, the common law offence
of conspiracy to defraud has not been abolished.
THE THEFT ORDINANCE: DECEPTION AND FRAUD OFFENCES
729
deception means any deception (whether deliberate or reckless) by

words or conduct as to fact or as to law, including a deception relating
to the past, the present or the future and a deception as to the
intentions or opinions of the person using the deception or any other
person.
This definition applies equally to all the deception offences in the TO (see
sections 18(3), 18A(3), 18B(5), 18D(2), and 22(4) of the TO).
Section 17(4) does not actually define deception. Rather, it tells us
how a deception may be made (by words or conduct), the state of mind of
the person making the deception (deliberate or reckless), and the subjectmatter of the deception (fact or law or any other person). This definition
must be contrasted with the equivalent definition in section 15(4) of the
TA 1968, which is considerably narrower as regards the potential subjectmatter of the deception (it does not include references to the past or future,
or to opinions; as a result, UK courts have often adopted rather strained
meanings of the words used in section 15(4) to enable a deception to be
established).
For there to be a deception, two further matters must be proved: the
representation made by the person carrying out the deception must be
false, and secondly, it must induce someone to believe that a thing is
true which is false (In re London Globe Finance Corporation Ltd. [1903] 1
Ch 728, at 732; cited in HKSAR v Lam Chun Sun [1998] 1 HKLRD 339, at
341). It is a question of fact whether a false representation has been made;
if the representation is in fact true (though believed to be false), the deceiver
is not liable for a deception offence, though he or she may be liable for
attempting to obtain by deception (Deller (1952) 36 Cr App R 184).
The second requirement means that a deception can be practised only
against a human victim; there must be a person who was deceived (see
Davies v Flackett [1973] RTR 8; compare Aston and Hadley [1973] 3 All ER
1045). Accordingly, a person is not guilty of a deception offence by
deceiving a machine (e.g. putting fake coins in a photocopy machine;
though this might be theft or abstracting electricity), unless a human mind
is deceived; for example, if D used a false card to operate a parking meter,
this may deceive a traffic warden into believing the charge has been paid.2
The Law Commission (Computer Misuse, Law Com. No. 186, 1989, paras 2.47) considered
whether to plug this gap in the law, but thought that it was a very narrow gap.
730
By words or conduct
Ds representation may be made by words or conduct, and may be express
or implied. Illustrations of implied representations include such everyday
transactions as: ordering a meal in a restaurant, booking into a room at a
hotel, and getting into a taxi and giving directions. In each case, D impliedly
represents that he or she will pay (for the food and drink, or the room, or
the taxi fare). This implied representation (essentially, a deception as to
the future), if false when made, will amount to a deception (provided that
D made it deliberately or recklessly). This may be contrasted with the case
law under the TA 1968; because of its narrower definition of deception,
which does not include a deception as to the future, simple cases such as
these must instead be interpreted as involving an implied representation
by D as to his or her intentions (it is my present intention to pay) or as to
Ds ability to pay for the relevant property or service (i.e. a representation
of present fact) (see DPP v Ray [1974] AC 370: ordering meal in a restaurant;
Harris (1975) 62 Cr App R 28: booking into a hotel room).
One difficulty with these cases is that it may not be easy to prove that
the person to whom the implied representation is made the waiter,
hotel clerk or taxi-driver actively addressed their mind to the customers
ability to pay. Can it still be said that they were therefore induced by the
deception to transfer or provide D with the property, services and so on,
forming the basis of a charge? This question has troubled the English courts
and is discussed further below (p. 739).
An implied representation may arise from silence, i.e. from a persons
failure to disclose the true facts known to him or her. DPP v Ray, above,
provides an illustration of this. Having ordered a meal, intending to pay for
it, R then allegedly decided not to pay. He remained at his table until the
waiter was out of sight and then left without paying. The House of Lords
confirmed that R was properly convicted of what was then obtaining
pecuniary advantage by deception (now evading liability by deception).
Several Lords were of the view that the relevant deception arose when R
remained at the table, thereby continuing to make an implied representation
that he intended to pay. Since he had changed his mind, his representation
was now false, amounting to a deception.
This approach deception by failure to disclose the truth has
wide application. In Rai ([2000] 1 Cr App R 242), it was applied by the
English Court of Appeal to uphold Rs conviction of obtaining services by
deception. R had applied to his local council and been granted funds to
install a bathroom downstairs in his house for the use of his infirm mother.
731
Before the building works went ahead, Rs mother died, but R did not
inform the council of this fact. Stating that it mattered not whether it was
an act of commission or omission, the court held that Rs positive
acquiescence in knowingly letting [the] work proceed amounted, on a
common sense and purposive construction of the word conduct, to a
deception.
Firth ((1990) 91 Cr App R 217) provides another example of deception
by failure to disclose the truth. In that case, F, a consultant obstetrician,
failed to disclose, as he was under a duty to do so, that patients referred by
him to an NHS-approved hospital for treatment were actually private
patients. As a result, they were treated as ordinary NHS patients, and charges
that would have been payable by private patients were avoided. The English
Court of Appeal rejected Fs appeal against conviction of obtaining an
exemption from liability to make payment by deception, contrary to section
2(1)(c) of the TA 1978 (section 18B(1)(c) of the TO). F was under a duty
to inform the hospital, and had deliberately and dishonestly refrained from
doing so.
Deception by silence is further illustrated by Silverman ((1987) 86 Cr
App R 213). S made an excessively high quotation for repairs to his gullible
elderly victims, who trusted S because he had worked for them previously.
Ordinarily, a person offering a service (or selling property) may fix whatever
price that he or she believes that his or her customer or the market will
accept. However, the English Court of Appeal held that in the circumstances,
S, by his silence (i.e. not warning his trusting victims that his quote was
very high), impliedly represented that it was a fair quote: his silence, it
was said, on any matter other than the sums to be charged was as eloquent
as if he had said he was going to make no more than a modest profit.
Similarly, in Jones ([1993] The Times, 15 February), the English Court of
Appeal held that J, a milkman, was guilty of obtaining property by deception
by overcharging a customer who considered J his friend. The victim, it was
said, was remarkably stupid or careless, and J had taken advantage of this
to deceive him.
In King ([1979] Crim LR 122), it was held that a car dealer who put a
notice on a car warning that its mileage may not be correct impliedly
represented that he had no reason to disbelieve the clock. Since he had
actually turned back the odometer on the car, this amounted to a deception.
Deliberate or reckless
D must either know that his or her representation is false (deliberate) or
732
be aware that it may be false (reckless) (Staines (1974) 60 Cr App R 160).

Merely negligent deceptions are clearly excluded, so also, it would seem, is
Caldwell recklessness, i.e. it should not suffice that D gave no thought to
the possibility that his or her representation might be false or might deceive
another. This conclusion seems to follow from the fact that all the deception
offences also require proof of dishonesty, a subjective state of mind.
Subject-matter of the deception
Pursuant to section 17(4), the deception may relate to fact or law, the past,
present or future, or any persons intentions or opinions. This is much
broader than the equivalent English definition of deception, which does
not expressly include references to the past, present or future or as to
opinions, although the English courts have overcome this to some extent
by construing statements of opinion as representations of fact (I presently
hold the opinion that : if D does not honestly hold this opinion, then
this misrepresentation of Ds state of mind is a deception of fact) where
necessary, and by implying statements of intention from Ds conduct.
A deception as to law would include, for example, telling V that a
document has no legal effect, whereas it contractually binds V, or telling V
that the law on a point of relevance to V is such and such when it is in
fact different.
A deception of fact may relate to past or present fact. In England, it
has been extended to include statements of opinion in appropriate cases;
this is not necessary in Hong Kong, since statements of opinion are expressly
included in the definition of deception. Thus, an extravagant claim by a
person selling goods or supplying services about the goods or services,
although prima facie a statement of opinion, may be treated as impliedly
making a representation of fact (I honestly hold the opinion that this vehicle
is in fine running order: this would be false if D knows that the vehicle in
question has substantial mechanical defects). Similarly, the English courts
have often construed a statement of intention (which is prima facie a
statement as to a persons future conduct) as impliedly making a statement
of fact, as in Ray (It is my present intention to pay). If D does not honestly
have that intention, or if D subsequently changes his or her mind, then
this may be construed as a false representation of fact (by omission
silence in the latter case).
When a person writes a cheque or uses a credit card, what
representations does he or she impliedly make? The simple answer is that
D represents that the cheque or credit card slip will be honoured, i.e. paid,
733
when presented.3 This is a representation as to the future, and it does not

necessarily involve a representation that D presently has sufficient funds in
the relevant account to cover the amount of the cheque or credit card
payment. If the cheque or credit card bill is not in fact honoured, this
representation will be false. If D either knew at the time of drawing the
cheque or using the credit card that it would not be honoured (i.e.
deliberate) or was at least reckless as to whether it would be, it will amount
to a deception within section 17(4) (HKSAR v Lam Chun Sun [1998] 1
HKLRD 339). On the other hand, if D honestly believes, at the time of
drawing the cheque or using the credit card, that payment will be made, then
there is no deception (even if D subsequently realizes that his or her belief
is wrong, this will not, per se, make D liable, since goods, services and so
on previously obtained cannot be said to be obtained by Ds subsequent
failure to disclose the true position; though it might exceptionally lead to
liability for evading liability by deception if, for example, D gave the supplier
further cheques to replace those previously drawn by D see, for example,
R v Lai Kok-che [1993] 1 HKCLR 245). In the case of cheques, this provides
a perfectly sound basis for liability. In the case of credit cards, this presents
difficulties since, as further explained below, the nature of credit card use
is such that ordinarily, the credit card bill will be honoured; accordingly,
the implied representation will normally be true; it is therefore necessary,
as outlined below, to imply a further representation to cover those cases
where a credit card has been improperly used.
Under the Theft Acts, deception does not expressly include a deception
as to the future. Furthermore, the case law dealing with cheques and also
credit cards is complicated by the use in the UK of cheque cards, i.e. cards
issued by banks to cheque account holders guaranteeing payment up to a
certain amount (e.g. 20) if used in accordance with specified conditions.
Since such cheque cards guarantee payment, even if the account on which
the cheque is drawn has insufficient funds to cover the amount of the
cheque, a representation to the effect that this cheque will be honoured
This was previously supported by section 29(6)(a) of the TO (now repealed for placing
the burden of proof on a defendant, contrary to Article 11 of Hong Kongs Bill of Rights
Ordinance; see Lau Shiu-wah [1991] 1 HKPLR 202; compare Anastasius Chiu [1995] 1
HKCLR 217), which provided that a person who obtained property, pecuniary advantage
or services, or who evaded liability to make a payment, in either case by means of a cheque
or other bill of exchange, was deemed, if the cheque or other bill of exchange was refused
payment on presentation or after becoming due, to have obtained property etc. or evaded
liability etc. with knowledge that such cheque or other bill of exchange would not be
honoured.
734
will therefore be true; just as it will ordinarily be for credit cards. Given
that cheque cards, just as much as credit cards, may clearly be abused, the
UK courts have therefore enabled conviction by implying a different set of
representations in the case of cheques, cheque cards and credit cards.
Firstly, the UK courts have held that when D draws a cheque, D thereby
impliedly represents that D has an account with the bank upon which the
cheque is drawn. This will ordinarily be true, but would be false if, for
example, the account had been closed, or if D had stolen the cheque.
However, secondly, and more crucially, the English courts have held that D
also impliedly represents, at the time of drawing a cheque in favour of V,
that the existing state of facts is such that in the ordinary course the cheque
will be met (Hazelton (1874) LR 2 CCR 134; applied by Robert Goff LJ in
Gilmartin [1983] QB 953 in relation to post-dated cheques: The drawer
impliedly represents that the state of facts existing at the date of delivery of
the cheque is such that in the ordinary course the cheque will on presentation
for payment on or after the date specified in the cheque be met; approved
in Hamilton (1991) 92 Cr App R 54; see also MCP v Charles [1977] AC 177).
This purports to be a representation of present fact, thereby falling within
the definition of deception in the TA 1968, rather than a representation as
to the future. Furthermore, because it purports to be a representation of
present fact, its truth or falsity depends upon Ds state of mind at the time
of drawing the cheque, not on whether the cheque is actually honoured or
dishonoured in the future. This representation of present fact will be true if
D at the time honestly believes that the account currently has sufficient funds
to cover the amount of the cheque (or an overdraft facility to that effect), or
intends to deposit sufficient funds to cover the cheque, or has a present belief
that sufficient funds will be deposited by some third party (e.g. Ds salary),
or, where D post-dates the cheque (i.e. dates it for presentation at a future
date), that sufficient funds will be in the account when the cheque is duly
presented to cover the amount of the cheque (Gilmartin [1983] QB 953). If
however D knows at the time of drawing the cheque that his or her account
does not then have either sufficient funds or an overdraft facility, and further
has no belief or expectation that sufficient funds will be deposited by the
date of presentation of the cheque, then Ds implied representation of fact
will be either deliberately or at least recklessly false, and as such will amount
to a deception. If property, services and so on were obtained by the giving
of the cheque, then D may be liable provided that dishonesty and any other
elements of each specific offence (e.g. for obtaining property by deception,
intention to permanently deprive) are also proved.
If D uses a cheque card, D thereby makes a contract on behalf of the
735
bank with the payee to the effect that the bank will honour the cheque.
Accordingly, the representation of fact implied by the courts in drawing
the cheque is, to Ds knowledge, true funds will be provided by the
bank to cover the amount of the cheque. So there is no misrepresentation
in relation to the cheque. Is there any additional representation made by
using the cheque card to cover cases where D improperly uses the cheque
card (for example, when Ds account has insufficient funds or has been
closed)? This was considered in MCP v Charles. C paid for gambling chips
at a casino by drawing 25 cheques each for 30 (totalling 750), using a
cheque card to support each cheque. C knew that his account had
insufficient funds to cover the cheques and that he had no overdraft facility;
thus, he had no authority to draw the cheques on the account. However,
since the conditions on the card had been observed, Cs implied
representation in drawing the cheques that the present facts were such
that they would be honoured was true. The House of Lords upheld Cs
conviction of obtaining a pecuniary advantage by deception, contrary to
section 16(1) of the TA 1968, by focussing instead on Cs use of the cheque
card, holding that C thereby impliedly represented that he had the authority
of the bank to use the card so as to contractually bind the bank to pay the
payee (the casino); this representation was untrue, as C knew.
A similar solution has been adopted in relation to credit cards. Credit
cards are accepted by suppliers of goods and services pursuant to agreements
previously entered into with credit card-issuing companies, under which
the issuing companies bind themselves to honour credit card payment slips
provided that certain conditions relating to the validity of the card are
complied with by the supplier. Accordingly, provided that these conditions
are satisfied, any representation implied from the use of a credit card that
it will be honoured, i.e. paid, will ordinarily be true, even if D may have
exceeded his or her credit limit or is for some other reason no longer
entitled to use the credit card. This is true in Hong Kong, as much as in
the UK. In Lambie ([1982] AC 449), the House of Lords accordingly held
that presentation of a credit card impliedly represents that its user has the
authority of the credit card-issuing company to use the card. If this is no
longer true at the time of card use, so that the representation is false, and
D either knows this or is reckless, then a deception will have occurred. If
goods or services are obtained as a result (as they were in Lambie, in which
L knowingly far exceeded her credit limit), then prima facie they will have
been obtained by deception (although L was actually convicted of obtaining
pecuniary advantage by deception, under section 16(2)(a) of the TA 1968,
prior to its repeal and replacement by section 2 of the TA 1978).
736
In Nabina ([2000] Crim LR 481), on the other hand, the English Court
of Appeal quashed convictions of obtaining property (goods purchased in
stores) by deception based on Ns use of dishonestly obtained credit cards.
N had supplied several issuing companies with false personal details when
he applied for their cards; had the issuing companies known his true details,
they would not have issued the cards to N. Nonetheless, at the time when
N used them, the companies had not actually revoked his authority to use
them. Accordingly, there was no evidential basis for concluding that any of
the transactions would not be honoured, nor that N was using the cards
outside the authority conferred on him by the issuing companies (assuming
that Ns actions in obtaining and using the credit cards would be considered
dishonest, N could, in the light of Gomez and Hinks, be charged with theft
of the goods the fact that they were willingly handed over being irrelevant
to appropriation).
In Hong Kong, it has been stated that the mere fact that a cheque is
dishonoured when presented by itself does not raise a prima facie case
under section 17(1) (Chan Chi-wo Cr App 311 of 1981; Wong Wing-ho
[1982] HKDCLR 69).
Obtains by Deception
D must obtain by the deception (see Doukas [1978] 1 WLR 372 and King
[1987] QB 547). This requires proof that Ds deception had an effect on
the victim; it must have induced the victim to provide property or services
and so on as a result of believing the false representation to be true, and
this belief must still be operating on the victims mind at the time when he
or she provides D with property, services and so on (Leong How-seng (1983)
Cr App No. 1011 of 1982). The prosecution should identify the
representation alleged to have caused the obtaining. However, sections 17,
18, 18A, 18B, 18D, and 22(2) all expressly provide that the deception need
not be the sole or main inducement; the equivalent English offences are
silent on this matter. Accordingly, some of the English cases concerning
the question of whether the obtaining was by deception may not need to
be slavishly followed in Hong Kong. In Man Ping-wong ([1988] HKLR 609),
the court held that these words mean that the prosecution has to prove
that Ds false representation made only a significant contribution to the
victims decision to hand over the money; there is no need to prove that
the representation was absolute in its effect. In Ng Chi-kwong ([1980] HKLR
32), for example, N and others, who were armed, represented that they
737
were police officers two were in fact police officers during a raid at
a construction site where illegal gambling was taking place. They seized
large sums of gambling money as exhibits, and also bail money from site
workers. They were convicted by a jury of obtaining these sums of money,
allegedly by implied misrepresentations as to the money being exhibits and
bail money. They appealed on the ground that their alleged
misrepresentations had not operated on the minds of the victims. Dismissing
their appeals, the court concluded that the fact that some other
representation was the essential or effective cause of the money being handed
over was not conclusive. The jury must have concluded that the alleged
misrepresentations deceived the workers and operated on their minds to
some extent when they failed to protest at the seizure of the table money
and made the additional payments.
There must be a causal effect between the deception and the obtaining.
So, if the property, services or whatever have already been provided prior
to the making of the deception, D cannot be liable for obtaining by the
deception (Collis-Smith [1971] Crim LR 716: petrol put into tank of Cs
car, who only then falsely stated that his firm would pay petrol not
obtained by deception; Coady [1996] Crim LR 518) (though Ds conduct
may amount to an attempt to obtain by deception). Similarly, if the victim
never believed Ds statement to be true, perhaps even knowing that it was
false, or if the victim was simply indifferent to its truth or falsity, a charge
of obtaining by deception will not have been made out (Man Ping-wong
[1988] 2 HKLR 609).
Likewise, if the victim never knew of the deception, then a charge of
obtaining by deception must fail. This is illustrated by Chan Chi Kwong
((1991) Cr App No. 444 of 1991). C was convicted of obtaining property
350,000 Renminbi by deception, based on the alleged use of a
dishonoured cheque. According to the evidence, the alleged victim, V, had
agreed to a transaction whereby Vs business associate would give 350,000
Renminbi to Cs employee in China and C would give HK$455,000 to V in
Hong Kong. At a meeting in Hong Kong between V, C and A, who was said
to be Cs employee, V was shown the Hong Kong dollars in a briefcase and
agreed to go with C to the bank to deposit the money into Vs bank account.
V was about to deposit the cash at the bank, when A told V that C needed
V to sign a receipt; A offered to deposit the cash for V. However, instead of
depositing the cash, A presented the bank teller with a cheque for the same
amount, signed by another party. The cheque was later dishonoured.
C appealed, arguing that since V had not been aware of the existence of the
cheque until a week later when it was dishonoured, he had not been
738
deceived by C in the manner alleged by the prosecution. The Court of

Appeal allowed the appeal, holding that ownership of the cash passed to V
at the moment when the briefcase was given to him, and no deception was
operative at that moment. The subsequent events amounted to theft, but
not obtaining by deception.
The question of whether the deception was operating on the mind of
the victim at the time of the obtaining is a question of fact for the jury
using their common sense (King [1987] 1 All ER 547 held that a jury was
entitled to find that defendants, who falsely claimed that trees were
dangerous and offered to cut them down, obtained money by deception).
The English courts have allowed a degree of flexibility in answering this
question, as illustrated by Miller ((1992) 95 Cr App R 421). In this case, M
was convicted of three counts of obtaining property by deception, being
the taxi fares paid by foreign passengers picked up by M at airports, such
fares being much higher than they ought to have been. It was alleged that
M obtained these fares by falsely representing himself to be a licensed taxidriver. However, at the time when they paid, each passenger had apparently
realized that Ms car was in fact not a taxi; they nonetheless paid under a
sense of compulsion or out of fear as to what might happen if they did not.
M appealed to the Court of Appeal, arguing that since the passengers were
no longer acting in the belief that he was a licensed taxi-driver when they
paid him, the fares were not obtained by his deception. Refusing his appeal,
Lord Lane CJ stated (at 424):
It is not legitimate to isolate the moment when the money was handed
over from the rest of the story. If on the whole story it could
legitimately be said that the various deceptions alleged in the
indictment were the cause of the money being handed over it was
irrelevant that at the final moment the victim suspected or even
believed that he had been swindled.
This analysis has been criticized on the grounds that Ms deception did not
cause the passengers to hand over the money; their reason for doing so
was to avoid trouble or out of fear. Instead of obtaining by deception, M
should therefore have been charged with attempting to obtain property by
deception or perhaps theft (given the overlap that exists between theft and
obtaining property by deception). Under Hong Kong law, this analysis is
perhaps less objectionable since the deception does not need to be the
sole or even the main inducement.
739
Inferring inducement
Where possible, the prosecution should establish by direct evidence that
the victim was induced by the deception: In the ordinary way it is the
duty of the prosecution to bring before the court the parties said to have
been deceived in order that they can say on oath that they were and in
order that they can be cross-examined by the defendants counsel (Tirado
(1974) 59 Cr App R 80). However, it has also been accepted that inducement
may be inferred if the circumstances are such that other than the deception,
no reason could be suggested as the operative inducement. Otherwise, D
ought to be acquitted, as in Laverty ([1970] 3 All ER 432), in which L
exchanged the number plates on a car before selling it to V. Ls conviction
of obtaining by deception was quashed as it was not proved that Ls deceptive
swapping of the number plates operated on Vs mind. There was no
necessary inference to that effect, given Vs evidence that he bought the car
because he thought L was the owner, and did not care whether the number
plates were the originals or not.
The courts have also taken the view that in some circumstances, policy
reasons dictate that inducement can be irresistibly inferred. This enables
convictions to be secured in cases in which the supposed victim of a
deception, for example, a supplier of goods or services, is paid by credit
card, or by cheque backed by a cheque card. Even if the individual
transaction could be remembered (which is most unlikely), provided that
the necessary conditions for acceptance of the credit card or cheque card
are complied with, the supplier knows that payment will be made.
Accordingly, it is arguable that the supplier is totally unconcerned as to
whether D is using the cards with authority, and is not therefore induced
to supply the goods or services by Ds implied representation of authority
to use the card. In Lambie, Lord Roskill outlined the courts response (at
460):
[If the shop assistant] had been asked whether, had she known
[that L] was acting dishonestly and, in truth, had no authority whatever
from the bank to use the credit card , she would have completed
the transaction, only one answer is possible no. Had an affirmative
answer been given [the shop assistant] would have become a
participant in furtherance of [L]s fraud and a conspirator with [L] to
defraud .
My Lords, credit card frauds are all too frequently perpetrated, and if
conviction of offenders for offences against s.15 or s.16 of the Theft
Act 1968 can only be obtained if the prosecution are able in each case
740
to call the person on whom the fraud was immediately perpetrated to

say that he or she positively remembered the particular transaction
and, had the truth been known, would never have entered into that
supposedly well-remembered transaction, the guilty would often escape
conviction. In some cases it may be possible to adduce such evidence
if the particular transaction is remembered. But where no one could
reasonably be expected to remember a particular transaction in detail,
and the inference of inducement may well be in all the circumstances
quite irresistible, I see no reason in principle why it should not be left
to the jury to decide, upon the evidence as a whole, whether that
inference is in truth irresistible
Along the same lines, a hypothetical honest customer has sometimes

been invoked to establish that payment for goods supplied by D was induced
by a deception practised by D, even though the actual customers may not
have been at all concerned about the truth or otherwise of the
representations made by D. An illustration is R v Cooke and Sutcliffe ([1986]
2 All ER 985), in which a British Rail steward sold his own (instead of
British Rails) sandwiches on a train, keeping the proceeds. Customers
probably never concerned themselves with the ownership of the sandwiches.
However, the proceeds may be said to have been obtained by deception on
the basis that an honest customer would not have involved himself or herself
in such a fraud had they known of it (see also Doukas [1978] 1 WLR 372:
hotel waiter offering wine to customers obtained payment by implied
representation that the wine was hotel wine (and not his own)).
These solutions are not entirely satisfactory. Although they have been
followed in England (see, for example, Hamilton (1991) 92 Cr App R 54:
irresistible inference that bank tellers would not have allowed H to withdraw
money from his account had they known that account balance included
cheques forged by H and deposited into account), they have also attracted
considerable criticism (see, for example, Lord Ackner in Kassim [1992] 1
AC 9, suggesting that statutory reform is necessary to overcome this
difficulty).
In certain respects, the difficulty dealt with in these cases can be avoided
in Hong Kong by the astute use of offence provisions under the TO that do
not have UK equivalents or have been locally amended and now differ
from their UK equivalents. For example, instead of charging a defendant in
cases such as these with obtaining property by deception, making it
necessary to infer that the party supplying the property was induced, it
would be possible to charge D with obtaining pecuniary advantage by
deception, relying for this purpose on the extended definition of pecuniary
741
advantage contained in section 18(2)(a) (being granted a credit facility or

credit arrangement by a bank), or perhaps procuring an entry in bank
records by deception, contrary to section 18D of the TO (which has no
direct UK equivalent, although an offence of dishonestly retaining a wrongful
credit now exists see section 24A of the TA 1968).
Nonetheless, Hong Kongs courts have accepted that cases such as
Charles, Lambie and Gilmartin apply in Hong Kong and that, where
necessary, reliance may be placed on an irresistible inference of inducement.
In Man Ping-wong ([1988] 2 HKLR 609), for example, Bewley J applied
Lambie, concluding (at 613), It was an irresistible inference from [the]
evidence that the [false] representation operated on [the victims] mind to
a significant extent, which was sufficient to warrant conviction.
Once it is established that the deception caused the obtaining, there is
no additional need to prove any loss by the victim (Kovacs [1974] 1 WLR
370; Cheung Wai-wan [1994] 2 HKCLR 237: irrelevant that Hong Kong
Jockey Club suffered no loss when C obtained payment by falsely presenting
a valid winning ticket as his own).
Jurisdiction: Where Must the Offence Take Place?

Traditionally, the criminal jurisdiction of Hong Kongs courts is territorial;
prima facie, therefore, an offence must take place in Hong Kong in order
for it to be tried in Hong Kong. With offences involving results, such as
offences of obtaining by deception, this traditionally means that the result
must occur within the territory, even though the conduct causing that result
may take place outside the territory; whereas if the obtaining occurred
outside Hong Kong, it would not be triable in Hong Kong, even though
conduct causing the result took place in Hong Kong (see, for example,
Thompson (1984) 79 Cr App R 191).
However, this principle has been modified by the provisions of the
Criminal Jurisdiction Ordinance (cap. 461) (CJO) in relation to the following
deception and related offences against the TO discussed in this chapter:4
obtaining property (section 17), obtaining pecuniary advantage (section
18), obtaining services (section 18A), evading liability (section 18B),
procuring entry in bank records (section 18C), false accounting (section
4
The CJO also applies to theft (section 9), blackmail (section 23), handling stolen goods
(section 24) (see Chapter 13, p. 715), and forgery and related offences in sections 7176
of the Crimes Ordinance (cap. 200).
742
19), and procuring the execution of a valuable security (section 22(2)).

These offences are collectively called Group A offences (section 2(2)(a) of
the CJO). The effect of the CJO is that a person may be convicted of a
Group A offence in Hong Kong if any of the events which are relevant
events in relation to the offence occurred in Hong Kong (section 3(3) of
the CJO). Relevant event for this purpose means any act or omission or
other event (including any result of one or more acts or omissions) proof
of which is required for conviction of the offence (section 3(1) of the
CJO). In determining whether or not a particular event is a relevant event,
it is irrelevant where the event occurred (section 3(2) of the CJO).
Accordingly, the above offences may all be prosecuted in Hong Kong,
provided that any single element of the relevant offence or any acts or
omissions constituting that element occurred in Hong Kong.
By way of further clarification, section 5 of the CJO provides that
property is obtained in Hong Kong if the property is either despatched
from or received in Hong Kong (section 5(a)), and that there is a
communication in Hong Kong of any information, instruction, request,
demand or other matter if it is sent by any means (i) from Hong Kong
to elsewhere; or (ii) from elsewhere to Hong Kong (section 5(b)). Section
4 additionally provides that a person may be guilty of a Group A offence
whatever his or her citizenship or nationality, whether or not he or she is
or was a permanent resident of Hong Kong at any material time (section
4(1)(a), subject to section 4(5)), and whether or not he or she was in
Hong Kong at any material time (section 4(1)(b)).
Jurisdiction is further extended by virtue of section 6 of the CJO, which
provides that a person may also be guilty of conspiring to commit a Group
A offence or conspiracy to defraud (section 6(1)), or attempting or inciting
to commit a Group A offence (section 6(2)) (the ordinance collectively
refers to these four offences conspiracy, attempt and incitement to commit
a Group A offence, and conspiracy to defraud as Group B offences
see section 2(3)),5 even though the Group A offence conspired at, attempted
or incited (or the fraud, in the case of conspiracy to defraud) is not intended
to take place in Hong Kong, provided that certain events take place in
Hong Kong. In the case of conspiracy to commit a Group A offence and
conspiracy to defraud, section 6(1) of the CJO requires only that a party to
the agreement (or his or her agent) have done something in Hong Kong in
relation to the agreement before its formation, or became a party in Hong
5
The CJO also contains a number of specific provisions dealing with various aspects of the
law relating to these four inchoate offences (see Chapter 9, p. 412, 431, 484).
743
Kong, or did or omitted something in Hong Kong in pursuance of it,

provided also firstly that the conspiracy would be triable in Hong Kong but
for the Group A offence or fraud which the parties had in mind not being
intended to take place in Hong Kong (section 6(1)), and secondly, that the
conduct intended would constitute an offence under the law where the
conduct was intended to take place (section 7(1)). In relation to attempting
or inciting a Group A offence, section 6(2) of the CJO requires proof that
the conduct constituting the attempt or incitement took place in Hong
Kong (section 6(2)(a)), subject also to similar provisos as those applying
to conspiracy (see section 6(2)(b) and section 7(2)).
OBTAINING PROPERTY BY DECEPTION

Section 17(1) of the TO provides that:
Any person who by any deception (whether or not such deception
was the sole or main inducement) dishonestly obtains property
belonging to another, with the intention of permanently depriving
the other of it, shall be guilty of an offence and shall be liable on
conviction upon indictment to imprisonment for 10 years.
Four elements of this offence, namely, property, belonging to another,

dishonestly and intention of permanently depriving, overlap with those
of theft.
Actus Reus
Property belonging to another
For the purposes of section 17, the general definitions of property and
belonging to another in sections 5(1) and 6(1) apply (section 8(1) of the
TO). The restrictions in section 5(2)(6) on property for the purposes of
theft do not apply. Thus, it is possible to obtain a leasehold interest in land
by deception (whereas the same could not be stolen), as is acknowledged
by the Court of Appeal in Chan Wai-lam ([1981] HKLR 139). However,
the court there held that C was not guilty of obtaining a lease by deception
because, on the facts, it could not be proved that C intended to permanently
deprive the government, as the freehold owner of all land in Hong Kong,
744
of its interest in the land, nor could C be said to have obtained a leasehold
interest by deception, since it did not exist (and thus was not obtained
from anyone) until the victim granted it as a result of the deception. The
court accepted that a defendant would be guilty if a lease was already in
existence and the defendant dishonestly obtained an assignment of it.
Similarly, a landowner who deceived his or her neighbour into moving the
boundary fence between them, thereby gaining additional land, could be
guilty of obtaining the land by deception, whereas he or she could not be
guilty of stealing it. Items such as wild mushrooms, which cannot be stolen,
may however be obtained by deception.
Illustrations of the application of section 17(1) include obtaining the
following by deception: rent (Edwards [1978] Crim LR 49), the excess of
an excessive taxi fare (Levene v Pearcey [1976] Crim LR 63), a passport
(Ashbee [1989] 1 WLR 109), and textile quotas (R v Yiu Lai-kuen [1993] 1
HKCLR 215).
Things in action may be obtained by deception. In Wong Wing-ho
[1982] HKDCLR 69, it was held that the proprietary interest created by a
sharebrokers lien over customers share certificates constituted property
and could be obtained by deception when W subsequently obtained the
share certificates by giving the sharebrokers a cheque (subsequently
dishonoured).
However, great care must be taken with things in action particularly
bank credits and cheques for they will not suffice for a charge of obtaining
by deception if they come into existence only at the moment when they
are obtained and therefore cannot be said to have previously belonged to
another. This impediment to prosecution was recognized by the House of
Lords in Preddy ([1996] AC 815) (having been the subject of previous
academic discussion). In this mortgage fraud case, P (one of several alleged
mortgage fraudsters) was charged under section 15(1) of the TA 1968
(section 17 of the TO), with obtaining and attempting to obtain property
by deception. P had applied to various building societies and other lending
institutions for loans to be secured by mortgages on properties to be
purchased by him. He accepted that various false statements had been made
by him in his applications, but claimed that he intended to resell the
properties at a profit and repay all the loans. Some of the applications were
refused, resulting in the charges of attempting to obtain. For those
applications that were accepted, the amount of each individual loan was
advanced by the lender either by telegraphic transfer or direct electronic
transfer to a designated bank account (either his solicitors bank account
or occasionally his own), or by cheque (made out to their solicitors). If the
745
lenders bank account was in credit, then the effect of a transfer or cheque
(in the case of a cheque, this occurred only on presentation of the cheque)
was to simultaneously debit the lenders credit balance and credit Ps
designated bank account; if in overdraft, the effect was to simultaneously
increase the extent of the lenders overdraft debt and credit Ps designated
bank account. The charges alleged that P had obtained property in the
form of things in action, namely, the credits to his designated bank account,
and the cheques; this was correct. However, the charges also alleged that
these particular things in action belonged to another, namely, the various
lenders. On appeal against conviction, the issue before the Lords was
whether this simultaneous matching of credits and debits to bank accounts
amounted to the obtaining of property belonging to another within the
statutory offence. Ps appeal was allowed by the House of Lords on the
basis that although P (and the other alleged mortgage fraudsters) obtained
property, namely, the various credits to the designated bank account, P
had not obtained property belonging to another. The relevant thing in
action obtained by P came into existence only at the time of each credit to
Ps designated bank account, and never belonged to the lender. The lenders
matching things in action, namely, the credit balances in their bank accounts
or the overdraft entitlement, were not transferred to P, but were extinguished
in whole or in part by the transaction.
Lord Goff, for the Lords, noted that this analysis applied equally in the
case of cheques. Overruling Duru ([1974] 1 WLR 2) and Mitchell ([1993]
Crim LR 788), Lord Goff concluded (at 836) that a person who deceived
another into writing a cheque in favour of D cannot be charged with
obtaining the cheque by deception:
The point is simply that, when the cheque was obtained by the payee
from the drawer, the chose in action represented by the cheque then
came into existence and so had never belonged to the drawer. When
it came into existence it belonged to the payee, and so there could be
no question of his having obtained by deception property belonging
to another.
Preddy presented the English authorities with a substantial problem, since

it suddenly made it substantially more difficult to prosecute frauds involving
money transfers. The case rapidly led to the enactment of the Theft
(Amendment) Act 1996, which inserted two new sections into the 1968
Act: section 15A, creating a new offence of obtaining a money transfer by
deception, and section 24A, creating a new offence of dishonestly retaining
a wrongful credit.
746
Preddy has been followed in Hong Kong, although its impact was
arguably never as serious for two reasons. Firstly, Hong Kong had already
enacted an offence of dishonestly procuring an entry in a bank record,
contrary to section 18D (discussed below, p. 761), and this provided the
prosecution with a ready alternative to theft or obtaining property by
deception in cases where D obtains a credit to his or her bank account as
a result of a prior deception. Secondly, it has now been accepted that a
charge of theft may in any event be laid, on the basis that D appropriated
the victims credit balance by causing it to be reduced or extinguished (see
HKSAR v Goh Swee Yan Angelina [2000] 2 HKC 711, discussed above,
Chapter 13, p. 650). This analysis is not available on a charge of obtaining
property by deception under section 17(1) of the TO, since the charge
must focus on what is obtained by the defendant, not on what is diminished
or extinguished in the hands of the victim.
Property for this purpose also includes other intangible property, as
stated in section 5(1). Thus, in R v Yiu Lai-kuen ([1993] 1 HKCLR 215),
the Court of Appeal, following A-G v Daniel Chan Nai-keung ([1988] 1
HKLR 70) relating to theft (see Chapter 13, p. 654), held that a textile
quota is a form of intangible property and therefore may be obtained by
deception within section 17(1).
Obtains
A person obtains property if he obtains ownership, possession or control
of it (section 17(2) of the TO). A person may therefore be guilty by
obtaining possession or control of property without ownership, and vice
versa. This means that where D obtains possession or control by a
transaction that is void (and not merely voidable) because of Ds fraud, D
may still be convicted even though D does not obtain ownership as a result
of the void transaction. The fact that D obtained the property must be
proved (see, for example, Bogdal v Hall [1987] Crim LR 500: prosecution
could not prove that D had cashed unemployment benefits allegedly
obtained by him by deception, since the relevant cheques had been destroyed
by the Department of Social Security subsequent to receipt from the clearing
banks).
Obtains includes obtaining for another or enabling another to obtain
or to retain (section 17(2) of the TO). An example of D enabling another
to obtain is provided by DPP v Stonehouse ([1978] AC 55) in which S
faked his death in an attempt to enable another his wife to claim on
a life insurance policy; had his attempt succeeded, he would have enabled
747
another to obtain property (the insurance proceeds) by deception.

Obtaining does not, however, include enabling D to retain property
previously obtained by D. So, for example, if D pays for property with a
cheque, believing it will be honoured, and then, later, realizing that there
are insufficient funds in his or her account, persuades the seller to accept
a replacement cheque, this time knowing that it will not be honoured, D
does not commit an offence against section 17(1). D enables himself or
herself to retain the property by deception, but this falls outside section
17(1); instead, it may be prosecuted as evading liability by deception, or
perhaps even theft.
Property may be obtained for the purposes of section 17(1), even though
the transaction whereby it is obtained may not be legally enforceable: an
infant may, for example, be liable under section 17(1), even though the
sale whereby he or she obtains property is legally unenforceable against
him or her as an infant. Furthermore, the offence may be established even
though D obtains property which D is actually entitled to, if obtained by a
deception (e.g. a social welfare payment Lally [1989] Crim LR 648).
Mens Rea Elements

Section 17(1) requires proof that D acted dishonestly and with the intention
of permanently depriving the owner of the property.
The meaning of dishonesty in relation to deception offences has been
discussed above. Two points may be emphasized. Firstly, it must be shown
that D was dishonest at the time when D carried out the alleged deception
(HKSAR v Lam Chun Sun [1998] 2 HKC 214). Secondly, the mere fact that
D practised a deception does not per se prove dishonesty (R v Chan Laihong (1990) Mag App 1443 of 1989), though it will obviously provide
strong evidence to that effect in the absence of any other explanation for
Ds use of a deception (HKSAR v Lam Chun Sun [1998] 2 HKC 214; HKSAR
v Goh Swee Yan Angelina [2000] 2 HKC 711). The partial definition in
section 3(1) of the TO does not (expressly) apply; however, an honest
belief that D had a legal right to the property obtained by deception, or
that the owner would have consented to the obtaining, may instead be
raised at common law to negate a finding of dishonesty. Dishonesty may
be established even though no one lost any money (Greenstein [1975] 1
WLR 1353).
If a Ghosh direction is called for, the judge should ordinarily give the
direction using the exact wording in Ghosh (Ravenshead [1990] Crim LR
748
398). However, it is not always necessary to give a Ghosh direction (see,

for example, Price (1989) 90 Cr App R 409).
Intention of permanently depriving has the extended meaning given
to it in section 7 (section 17(3) of the TO).
Obtaining property by deception and theft
Theft and obtaining property by deception have in common the elements
of dishonesty, property belonging to another, and intention to permanently
deprive. The essential difference between them lies in the fact that theft
requires an appropriation, whereas section 17 requires proof D obtained
by deception. In the light of the current definition of appropriation which
disregards the fact that D assumed rights over the property with the consent
of the owner even if induced by deception (above, Chapter 13, p. 679),
most instances of obtaining property by deception now also amount to and
may be charged as theft. This overlap was considered and accepted by the
House of Lords in Lawrence ([1972] AC 626), and has been re-affirmed by
the House of Lords in Gomez and Hinks, although commentators critical of
the interpretation given to appropriation have pointed out that the Criminal
Law Revision Committee, in its Eighth Report (Theft and Related Offences,
Cmnd 2977, 1966, at p. 28), intended there to be only a limited overlap
between theft and obtaining: A bogus beggar is regarded as a rogue but
not as a thief To create a new offence of theft to include conduct which
ordinary people would find it difficult to regard as theft would be a mistake.
In particular, it was anticipated that theft would not apply where ownership
(and not merely possession or control) was obtained by deception.
Obtaining property may generally be charged in relation to land,
whereas land cannot generally be stolen.
Charging theft presents the prosecution with the practical advantage
that it need not prove deception, inducement or obtaining (within the
meaning in section 17(2) of the TO).
OBTAINING PECUNIARY ADVANTAGE BY DECEPTION

Section 18(1) of the TO (compare section 16 of the TA 1968) provides
that:
Any person who by any deception (whether or not such deception
was the sole or main inducement) dishonestly obtains for himself or
749
another any pecuniary advantage shall be guilty of an offence and

shall be liable on conviction upon indictment to imprisonment for 10
years.
Section 18(1) creates one offence (Bale v Rosier [1977] 1 WLR 263).
However, there are several different ways in which it may be committed,
depending on the form of pecuniary advantage obtained by the defendant
(DPP v Turner [1974] AC 357). Section 18(2) identifies the particular forms
of pecuniary advantage that may be obtained for the purposes of section
18(1) (a defendant may be convicted only under the particular part that he
or she is charged with: Aston and Hadley [1970] 1 WLR 1584). The offence
covers cases where the defendant:
(a) is granted by a bank or deposit-taking company, or any subsidiary
thereof the principal business of which is the provision of credit
(i) a credit facility or credit arrangement;
(ii) an improvement to, or extension of, the terms of a credit
facility or credit arrangement; or
(iii) a credit to, or set off against, an account,
whether any such credit facility, credit arrangement or account
(A) is in his name or the name of another person; or
(B) is legally enforceable or not;
(b) is allowed to borrow by way of overdraft, or to take out any
policy of insurance or annuity contract, or obtains an improvement
on the terms on which he is allowed to do so, whether any such
overdraft, policy of insurance or annuity contract
(i) is in his name or the name of another person; or
(ii) is legally enforceable or not; or
(c) is given the opportunity to earn remuneration or greater
remuneration in an office or employment, or to win money by betting.
This definition makes the offence of obtaining pecuniary advantage by

deception considerably wider in scope than its UK equivalent (section 16
of the TA 1968), as a result of the addition to section 18(2) of paragraph
(a) covering the obtaining of credit facilities by deception6 (although aspects
As first enacted, section 18(2)(a) proved to be a judicial nightmare, and was reconsidered
by the Criminal Law Revision Committee in its Thirteenth Report, Section 16 of the Theft
Act 1968, Cmnd 6733, 1977. This led to the repeal of paragraph (a) and the enactment of
two new offences: obtaining services by deception (section 18A of the TO), and evading
liability by deception (section 18B of the TO). In England, these two offences were enacted
as sections 1 and 2 of the TA 1978.
750
of this are now partially covered in the TA 1968 in sections 15A and 24A,
which added offences of obtaining a money transfer by deception and
dishonestly retaining a wrongful credit, and by amendments to the meaning
of services in section 1 of the TA 1978 to include loans for the purposes
of obtaining services by deception (none of these amendments have presently
been adopted in Hong Kong)).
This offence is of considerable use in money frauds, particularly since
the addition of paragraph (a), although it is likely that the new offence of
fraud enacted as section 16A of the TO will be preferred for this purpose in
the future.
Section 18(1) does not require proof of actual loss by the victim of the
offence, nor that the defendant has made any actual gain, since paragraphs
(a), (b) and (c) may be satisfied by proof that D was given an opportunity
for gain, by way of being granted a credit facility or arrangement, or an
overdraft, or an opportunity to earn remuneration or win money. It applies
whether the particular pecuniary advantage was obtained for D or for
another. The person deceived need not be the person suffering loss.
Apart from pecuniary advantage, section 18(1) requires proof of
deception, inducement and dishonesty; these elements, common to the
deception offences, have been discussed above.
Pecuniary Advantage
Credit facility or arrangement
This paragraph ensures that persons who by deception obtain credit in one
form or another (e.g. a credit card) from a bank or deposit-taking company
or a subsidiary thereof may be criminally liable, even though the deception
may not have been the sole or main reason why the bank or deposit-taking
company granted the credit, provided that their actions are considered to
have been dishonest.
Bank, deposit-taking company and subsidiary are all defined for the
purposes of paragraph (2)(a) in subsection (3). Bank includes both banks
within the meaning of the Banking Ordinance (cap. 155), and also banks
incorporated by or under the law or other authority in any place outside
Hong Kong and not licensed under certain sections of the Banking
Ordinance. Deposit-taking company has the meaning given to it in the
Banking Ordinance, and subsidiary has the same meaning as in the
Companies Ordinance (cap. 32).
751
The credit facility or arrangement need not be in Ds own name, nor

does it have to be legally enforceable.
In many instances in which a credit facility or arrangement is granted,
it may also be possible to charge D alternatively with obtaining services by
deception.
Overdraft or insurance policy, or improvement in terms
Section 18(2)(b) differs from section 16(2)(b) of the TA 1968, by expressly
providing that it applies whether the overdraft, insurance policy or annuity
in question is in the name of the person obtaining it by deception or of
another, and whether or not it is legally enforceable.
Overdraft means a bank overdraft, i.e. a contractual agreement with a
bank to borrow money by way of overdraft. The offence is complete when
an overdraft facility is granted or an insurance policy is obtained, and there
is no need to prove that the facility or policy was used (Watkins ([1976] 1
All ER 578). If Ds conduct obliges a bank to honour a cheque, thereby
placing Ds account in the red, this may amount to allowing D an overdraft,
even though D was never expressly granted an overdraft by the bank. This
is the effect of several English cases in which this provision has been used
to obtain a conviction in cheque card cases. In Waites ([1982] Crim LR
369), for example, the English Court of Appeal held that when W used a
cheque card, obliging the bank to honour the cheque even though this put
Ws account into the red, W was thereby allowed to borrow by way of
overdraft (see also Bevan (1986) 84 Cr App R 143). Commentators have
suggested that these cases should be read with circumspection, and are
examples of a strained construction of legislation in order to convict a
person who is clearly guilty of dishonest conduct but also does not appear
to be adequately covered by any legislative provision (see J. Stannard, Recent
Developments in Criminal Law (SLS, 1988), p. 59; see also Professor J.C.
Smith, Commentary on Bevan [1987] Crim LR 129: The notion that [an]
appellant was allowed to borrow money on overdraft when his bank
reimbursed the paying bank is, with respect, a curious one.)
An illustration of obtaining insurance on better terms would be by
falsely stating that the applicant is a non-smoker premiums for nonsmokers are usually lower than those for smokers.
752
Opportunity to earn remuneration (or greater remuneration) in

an office or employment, or to win money by betting
This applies where, for example, a person falsely claims to have certain
qualifications or experience. An example is Ng Yin-han ([1980] HKLR 878),
in which N, a 16-year-old girl used her sisters identity card to falsely
represent that she was 17 in applying for work in a nightclub, although, on
the facts of the case, her conviction was quashed on the application of the
prosecution since it was in fact lawful at the time when N applied for a job
for a girl over 14 years to work during specific hours. The prosecution
conceded that it had not proved that the club management would not have
employed N for the particular job or would have paid her less if they had
known her true age and that she was not actually 17.
Office refers to a position with duties attached to it, often of a public
kind, including one that ordinarily carries no remuneration with it.
Employment has been broadly interpreted. In Callender ([1993] QB 303),
the English Court of Appeal held that employment included independent
contractors, even though self-employed persons are not ordinarily
considered employees, on the basis that the language of the TA should be
read as being ordinary language (perhaps relying on the use of the general
term remuneration, rather than salary or wages). Otherwise, it was
suggested, there would be yawning gap in the protection of the public
(compare McNiff [1986] Crim LR 57: obtaining opportunity by deception
to apply for an office in which remuneration would be earned not the same
as obtaining opportunity to earn remuneration).
The phrase win money by betting covers cases in which the defendant
deceived another into accepting a bet (if winnings were actually obtained, this
may amount to obtaining property by deception, contrary to section 17(1)).
Like paragraphs (a) and (b), paragraph (c) applies whether the
opportunity to earn remuneration or to win is given to D or to another.
OBTAINING SERVICES BY DECEPTION

Section 18A of the TO (section 1 of the TA 1978) provides that:
(1) A person who by any deception (whether or not such deception
was the sole or main inducement) dishonestly obtains services from
another shall be guilty of an offence and shall be liable on conviction
upon indictment to imprisonment for 10 years.
753
This offence covers the case of someone deceived into providing a service
rather than parting with property. It was added to the TO in 1980, following
the enactment of the same offence in the UK as section 1 of the TA 1978
(in the UK, the offence was further amended in 1996 by expressly providing
that obtaining services includes obtaining a loan see section 1(3) of the
TA 1978; this overturned Halai [1983] Crim LR 624, in which the English
Court of Appeal had held that a mortgage advance was not a service for the
purposes of section 1 of the TA 1978; compare Teong Sun Chuah [1991]
Crim LR 463: understanding that interest would be paid sufficient to bring
within section 1 of the TA 1978). Several elements deception (same
meaning as in section 17(4): section 18A(3)) and dishonesty (R v Price
(1990) 90 Cr App R 409: test for dishonesty is same as for theft) are
shared with other deception offences. As with other deception offences in
the TO, the deception need not be the sole or even the main inducement.
Services is broadly defined in section 18A(2):
It is an obtaining of services where the other is induced to confer a
benefit by doing some act, or causing or permitting some act to be
done, on the understanding that the benefit has been or will be paid
for.
Section 18A applies to any act which can be shown to confer a benefit and
was done, or caused or permitted to be done, on the understanding that
the benefit thereby conferred will be or has been paid for, whether by
D or by another person. This restricts section 18A to non-gratuitous services;
thus if D deceives a taxi-driver into giving D a free taxi ride, D does not
thereby obtain services within section 18A(1) (though this may instead
amount to dishonestly obtaining an exemption from liability to make a
payment, contrary to section 18B(1)(c)). In Atwal ([1989] Crim LR 293),
it was held that obtaining a credit card such as a Visa card did not fall
within section 1 of the TA 1978 (section 18A(1) of the TO) since it was
not issued on the understanding that the card would be paid for. It is
unclear whether paid for covers only payment in money.
D must receive a benefit from the act induced, caused or permitted by
Ds deception. The benefit need not be financial in nature, but it is unclear
as to whether benefit is to be assessed subjectively or objectively. There is
no need to prove that D acted for gain. For example, if D hires a room for
a church gathering, but then uses it for a disco dance, this may amount to
obtaining services (the room hire) by deception.
There is no express requirement that Ds deception relate to payment.
Thus, D may be liable if D deceives (I have a drivers licence) a service
754
provider (car rental company) into providing services (car hire) that D
would not otherwise have been able to obtain, even though D intends to
pay for the car hire.
It seems that the obligation to pay required under section 18A(2) need
not be a legally enforceable one; an understanding is sufficient for this
purpose. Thus, a prostitutes services may be obtained by deception within
section 18A(1), even though the customers promise to pay is illegal and
unenforceable. Likewise, an infant who obtains non-necessary services,
payment for which would not be enforceable under civil law, may be guilty
under section 18A(1) if he or she obtained them by deception and acted
dishonestly.
Often, a transaction whereby D obtains services will also involve
obtaining property by the deception, in which case, charges under both
section 18A and section 17 may be laid (e.g. Widdowson (1985) 82 Cr App
R 314: W obtained a van on hire purchase, this amounted to obtaining a
service, but W equally obtained possession of property the van itself).
EVADING LIABILITY BY DECEPTION

Section 18B (section 2 of the TA 1978) provides that:
(1) Subject to subsection (2), where a person by any deception
(whether or not such deception was the sole or main inducement)
(a) dishonestly secures the remission of the whole or part of any
existing liability to make a payment, whether his own liability or
anothers;
(b) with intent to make default (whether the default is permanent or
otherwise) in whole or in part on any existing liability to make
a payment, or with intent to let another do so, dishonestly induces
the creditor or any person claiming payment on behalf of the
creditor to wait for payment (whether or not the due date for
payment is deferred) or to forgo payment; or
(c) dishonestly obtains any exemption from or abatement of liability
to make a payment,
he shall be guilty of an offence and shall be liable on conviction upon
indictment to imprisonment for 10 years.
Section 18B(1) appears to create three offences broadly aimed at persons

who, by deception, dishonestly avoid or attempt to avoid wholly or in part
a liability to make a payment, i.e. a debt. It replaced what was originally a
755
single provision criminalizing all three types of deceptive conduct as a form

of pecuniary advantage (see section 18(2)(a) as enacted in 1970); that
original provision generally proved unworkable and was described by
Edmund Davies LJ in Royle ([1971] 1 WLR 1764) as a judicial nightmare.
Paragraphs (a), (b) and (c) each refer to a liability to make a payment;
this means a legally enforceable liability (section 18B(2) of the TO). Thus,
gambling debts would not be covered. Further, it does not include a
contingent liability to pay, i.e. one that has not been accepted or established
to pay compensation for a wrongful act or omission (section 18B(2) of the
TO). Section 18B(1) does not apply, therefore, to the liability of a person
alleged to have tortiously injured another, until the alleged tortfeasor either
accepts his or her liability, or until his or her liability is established by
legal proceedings (i.e. a liability enforceable by court order). If the alleged
tortfeasor were, by deception (e.g. as to his or her financial position), to
induce the injured claimant to agree to settle the claim for less than the
amount that would otherwise be payable, this will not fall within section
18B(1).
All three offences require proof of deception (deception having the
same meaning as in sections 17(4)18B(5) of the TO) (though the deception
need not be the sole or main inducement) and dishonesty.
Paragraphs (a) and (b) require Ds conduct to relate to an existing
liability to make payment. For the purposes of these two paragraphs, Ds
existing liability may have arisen only moments before Ds use of a
deception to evade it in the ways specified in paragraphs (a) and (b). For
example, D takes a taxi ride; when the ride ends, the meter reads HK$110.
D falsely tells the taxi driver that he has only HK$100 in cash, whereupon
the driver agrees to accept HK$100. D has purportedly secured the
remission of part (HK$10) of the existing liability to pay HK$110 within
paragraph (a) (if the drivers agreement to accept the lesser sum amounts to
securing the remission of the liability), or possibly has induced the driver
to forego payment within paragraph (b), or instead has obtained an
abatement of the liability within paragraph (c). Either way, Ds liability arose
only moments before D induced the driver by deception to accept the lesser
sum in payment (and could be prospective in any event for (c)). In R v
Modupe ([1991] Crim LR 539), the English Court of Appeal held that there
may also be an existing liability for the purposes of this section, even though
an order of the court may be necessary before the liability is enforceable. M
had given false information to a finance company to obtain financial
assistance enabling him to buy a Mercedes, and was convicted of inducing
his creditors by deception to wait for payment, under section 2(1)(b) of the
756
TA 1978. He argued on appeal that he had no existing liability since the

agreement was improperly executed and, pursuant to the terms of the
Consumer Credit Act 1974, unenforceable against him (though not void)
except by order of a court. His argument was rejected by the court.
The three paragraphs are not mutually exclusive; thus, the same conduct
may fall within more than one paragraph. In particular, in Jackson ([1983]
Crim LR 617), the English Court of Appeal suggested that section 18B(1)(a)
overlaps with section 18B(1)(b), though the court reached this conclusion
on the basis that a defendant may secure the remission of an existing
liability within paragraph (a), even though the effect of Ds deceptive conduct
is not to extinguish the liability. In this case, J paid for petrol and other
goods with a stolen credit card. The court concluded that since the petrol
station would receive full payment from the credit card company, J had
therefore secured full remission of the debt. As discussed below, it has
been argued that remission of an existing liability should be said to have
been secured only where the effect of Ds deception is to extinguish the
liability; if the liability remains due, then the effect of Ds deception is
merely to induce the creditor to wait for payment, and therefore should
fall within paragraph (b) rather than (a). This was the view of the English
Court of Appeal in an earlier case, Holt ([1981] Crim LR 500), in which it
held that paragraph (a) requires the creditor to legally extinguish the liability
(in whole or in part) and to communicate this decision to the debtor,
whereas paragraph (b) may be satisfied by a debtors unilateral conduct,
i.e. by making the creditor wait in fact.
Section 18B(1)(a): Securing the Remission of Existing Liability

This paragraph applies where D secures the remission in whole or in part
of an existing liability to make a payment; the liability may be Ds or
anothers. Remission means release from a payment or debt.
It is unclear whether paragraph (a) applies only where the conduct of
the creditor releasing the liability is legally effective to extinguish the
liability or that part of it alleged to have been remitted. In Holt and Jackson,
mentioned above, the English Court of Appeal appeared to reach contrary
conclusions on this, requiring a legally effective remission in Holt, but
accepting remission in fact in Jackson. The argument is that paragraph (a)
requires not merely that the liability (or part of it) be remitted as a result
of Ds deception, but that this remission must be secured; secured it is
argued requires proof that the creditors conduct was legally effective in
757
releasing the liability. One of the difficulties with the latter interpretation
is that in general, under the civil law, the mere agreement by a creditor to
accept a lesser payment in satisfaction of an existing liability to pay a greater
sum will not be legally effective to release the debtors liability for the
balance due.7 That being so, it follows that remission is not therefore
secured in a legally effective sense. This would effectively limit the scope
of paragraph (a). Although this conduct might instead fall within paragraph
(b) or (c), Jackson suggests that the courts are unlikely to be quick to
adopt narrow technical interpretations of the language of each paragraph.
Section 18B(1)(b): Inducing Creditor to Wait for or Forgo

Payment
This paragraph applies where D by deception dishonestly induces a creditor,
or someone else claiming payment on behalf of the creditor, to wait for
payment or to forgo payment of an existing liability.
D must act with intent to make default or with intent to let another
[make default]. Unlike the equivalent UK provision (section 2(1)(b) of
the TA 1978), however, this need not be permanent default; paragraph (b)
expressly states: whether the default is permanent or otherwise (see also
Secretary for Justice v Wong Sau Fong [1998] 3 HKC 544: District Court
judge wrongly acquitted defendant on the ground that intent to make
permanent default not proved). It seems therefore that in Hong Kong, the
stalling debtor who by deception induces a creditor to give him or her
additional time to make payment, even if only a day, thereby induces the
creditor to wait for payment and may be liable under paragraph (b),
provided that D intends not to pay on the due day if demanded (i.e. to
make default on that day, even though D may fully intend to pay up at a
later date), and provided also that Ds conduct is viewed as dishonest.
Thus, in R v Christine Yun-tai Giles ((1984) Cr App No. 214 of 1984), G
was convicted under section 18B(1)(b) where she induced the principals
of a textile company to which she was indebted for past deliveries, to wait
for payment by drawing four post-dated cheques in favour of the textile
company when pressed by it to pay (thereby representing, though she had
no genuine expectation of being able to honour the cheques on presentation,
that the cheques were good and valid orders for payment).
7
See, for example, Ho, Betty, Hong Kong Contract Law (second edition, 1994), pp. 5758.
Butterworths Asia.
758
In R v Attewell-Hughes ([1991] 1 WLR 955), it was held that existing

liability in paragraph (b) refers only to an existing liability of the person
carrying out the deception, and that paragraph (b) does not apply where
the liability is that of another (unlike paragraph (a)). Accordingly, A-H,
the manager of a hotel, was not liable under section 2(1)(b) of the TA
1978 for writing out cheques which he knew would be dishonoured in
relation to debts incurred by the hotel owner prior to his employment as
manager. His liability arose only in respect of debts incurred while he was
manager.
One common application of paragraph (b) is where D induces someone
to whom D (or another) is indebted (i.e. there is an existing liability) to
take a cheque in payment knowing that the cheque will bounce, i.e. be
dishonoured, or is likely to do so. Section 18B(3) expressly provides that:
For the purposes of subsection (1)(b) a person induced to take in
payment a cheque or other security for money by way of conditional
satisfaction of a pre-existing liability is to be treated not as being paid
but as being induced to wait for payment [emphasis added].8
For paragraph (b) to apply, it must be shown that the creditor in such a
case was induced by deception to accept a cheque instead of, for example,
payment in cash (R v Andrews and Hedges [1981] Crim LR 106).
A recent illustration of this particular paragraph is HKSAR v Goh Swee
Yan Angelina ([2000] 2 HKC 711), in which the Court of Appeal quashed
Gs conviction of theft and substituted a conviction under section 18B(1)(b)
based on the following facts (a second aspect of this case, involving a charge
of procuring the making of an entry in a bank record, contrary to section
18D of the TO, is discussed below): G, a director of a company, suggested
to a fellow director, C, that she would lend HK$3 million to C to enable
the company to negotiate a profitable business deal, the loan to be repaid
in three months with HK$300,000 interest. C agreed, and G thereupon
drew a personal cheque in Cs favour; C in return drew two post-dated
personal cheques, one for HK$3 million and the other for HK$300,000,
both in favour of G. Unknown to C, G in fact obtained the HK$3 million
for the loan from a businesswoman, A, who was living with G at the time,
and had agreed to lend G the HK$3 million for three months. G had given
A two post-dated cheques, one for HK$3 million and the other for
8
As regards proving that a cheque was not paid on presentation, see section 29(6) of the
TO.
759
HK$300,000. When the loan to C was about to mature, G falsely told A

that C wanted to extend the loan for a further three months. A agreed to
extend on two conditions: the interest payable was to be HK$396,000, and
C himself (rather than G) was to provide post-dated cheques to A. G
thereupon presented A with three post-dated cheques drawn on a British
Virgin Islands (BVI) company owned by G, falsely telling A that they were
issued by C. These were accepted by A, who returned Gs two original
post-dated cheques. G then presented Cs two original post-dated cheques,
which were duly honoured, paying the proceeds into Gs account. G
subsequently withdrew sums from this account and used them for her own
purposes. As mentioned above, Gs conviction of theft of the sum of HK$3.3
million, being property belonging to A, was quashed on appeal because the
charge as laid alleged that G stole a thing in action, namely the HK$3.3
million credit in Gs bank account. Applying Preddy ([1996] AC 815), in
which the House of Lords held that the thing in action represented by a
credit in a bank account comes into being only when the account is credited,
so that the account holder does not therefore obtain property belonging to
another, the Court of Appeal concluded that the charge of theft was
misconceived (it has since been explained that Preddy does not necessarily
preclude the possibility of a theft conviction; see HKSAR v Wong Cho Sum
[2001] 3 HKC 268, discussed above). Instead, the court substituted a
conviction under section 18B(1)(b) on the basis that: (1) G had practised
a deception on A (by telling A both that C wished to extend the loan and
also that the three BVI cheques were issued by C, but not by an implied
representation that the three BVI cheques were good and valid orders for
payment, as alleged by the prosecution, it not having been proved that G
knew at the time of drawing the three BVI cheques that they would be
dishonoured); (2) G had deceived A, intending thereby to persuade A not
to present for payment the two post-dated cheques originally drawn by G
in favour of A (intending therefore not to pay, i.e. make default, on the
original obligation); (3) there was an existing liability (i.e. Gs indebtedness
to A) that was legally enforceable (on the basis either that A lent the
HK$3 million to G; alternatively, if the loan was to C through the agency
of G, G was under a restitutionary obligation as As agent to account for
the HK$3.3 million represented by the two cheques given to G by C and
subsequently honoured); (4) A in fact agreed to extend the loan and returned
the two cheques to G (thus, A was induced to wait for payment); and (5)
Gs conduct, involving at least two deceptions, was clearly dishonest.
Forgo presumably does not require a creditor to legally extinguish
the existing liability (if that does occur, then paragraph (a) may apply).
760
Instead, it would seem to be enough if a creditor is induced by Ds deception

simply to stop expecting or seeking payment; and this may occur before
the due date for payment. Forgo would also cover the case where D induces
a creditor by deception to believe that the debt has already been paid and
thus no longer seeks payment.
Section 18B(1)(c): Obtaining Exemption from or Abatement

of Liability
Paragraph (c) applies where D dishonestly obtains any exemption from or
abatement of a liability to make a payment. Unlike paragraphs (a) and (b),
liability here includes both existing and future liabilities, though, like (a)
and (b), it must be a legally enforceable liability (section 18B(2)). Further,
paragraph (c) applies both where D by deception obtains an abatement or
exemption of liability to make a payment for himself or herself, and also
where D, by deception, obtains an abatement or exemption for another or
[enables] another to obtain (section 18B(4)). The Criminal Law Revision
Committee had examples such as obtaining a rate rebate or rental reduction
in mind (Thirteenth Report: Section 16 of the Theft Act 1968 (1977, Cmnd
6733), para 15), but paragraph (c) would also clearly cover obtaining a
travel discount by falsely representing that D is a full-time student, or gaining
free admission to an event (exemption) or admission at a reduced price
(abatement) by falsely representing that D is under or over a specified age.
Strictly construed, paragraph (c) would apply only where the abatement
or exemption was legally effective, which will usually not be so, given that
paragraph (c) applies only where the abatement or exemption has been
dishonestly obtained by deception, i.e. by fraud. However, Sibartie ([1983]
Crim LR 470) shows that the courts are likely to adopt a looser
interpretation. In this case, the English Court of Appeal held that flashing
at an inspector a season travel ticket not covering a journey constituted an
attempt to obtain an exemption from liability. It has been argued that the
effect of Ss actions, if successful, would not have been to induce the
inspector to exempt S from liability within paragraph (c) because the
inspector would simply have let S pass on the basis that the travel was
covered by the season ticket. Instead, it has been argued, S would have
induced the inspector to forgo payment within paragraph (b) (see, for
example, Professor J.C. Smith, The Law of Theft (eighth edition, 1997),
para 4.97).
In Fung Kam wa ((1989) Mag App No. 608 of 1988), on the other
761
hand, the court held that it was inappropriate to use paragraph (c) to charge
a defendant who had issued a worthless cheque in repayment of a loan.
A further illustration of paragraph (c) is R v Firth ((1990) 91 Cr App
R 217), outlined above. F, a consultant gynaecologist and obstetrician, was
held to have falsely represented by his silence at the time of admitting
patients to NHS hospitals that some of them were NHS, rather than private,
patients. As a result, no charge was made. F was convicted of having
dishonestly by deception obtained an exemption of liability within section
2(1)(c) of the TA 1978.
PROCURING ENTRY IN RECORDS BY DECEPTION

Section 18D(1) provides that:
Any person who dishonestly, with a view to gain for himself or another
or with intent to cause loss to another, by any deception (whether or
not such deception was the sole or main inducement) procures the
making, omission, altering, abstracting, concealing or destruction of
an entry in a record of a bank or deposit-taking company, or any
subsidiary thereof the principal business of which is the provision of
credit, shall be guilty of an offence and shall be liable on conviction
upon indictment to imprisonment for 10 years.
This offence, which has no direct UK equivalent, provides the prosecution

in Hong Kong with a relatively straightforward method of dealing with
deceptions resulting in the making of entries in bank records (provisions to
similar effect sections 15A and 24A were added to the TA 1968 by the
Theft (Amendment) Act 1996). Although the side-note to section 18D refers
to the procuring of false entries, there is no actual requirement that the
entry be false (A-G v Chow Wai-ming, R v Yau Siu-ming [1992] 1 HKCLR
214). Accordingly, it seems that it is theoretically possible to obtain a
conviction under section 18D(1) even though an entry is correctly made, if
its making was procured by deception (which does not need to be the sole
or main inducement) and is considered to have been procured dishonestly.
In A-G v Chow Wai-ming, R v Yau Siu-ming, the Court of Appeal held that
section 18D is not limited to persons having access to banking records. Thus,
the dishonest use of a credit card in excess of the relevant credit limit,
resulting in the consequential recording of the transactions in bank records,
could amount to procuring the making of an entry within section 18D(1).
762
The elements of deception (same meaning as in section 17(4): section

18D(2)) and dishonesty (as to the use of the Ghosh test of dishonesty, see
Sze Sing-ming [1991] 2 HKLR 481) are shared with other deception offences.
Several other elements with a view to gain for himself or another, with
intent to cause loss to another and procuring are the same as those
required for procuring the execution of a valuable security by deception,
contrary to section 22(2) of the TO, and false accounting, contrary to section
19 of the TO, and are discussed below. Gain and loss are defined in
section 8(2) of the TO.
This offence covers procuring a range of activities involving entries in
bank records, namely, making, omitting, altering, abstracting, concealing
or destroying an entry. Section 18D(2) provides that record for this purpose
includes:
(a) any document or record used in the ordinary business of a bank
or deposit-taking company, or any subsidiary thereof the principal
business of which is the provision of credit; and
(b) any document or record so used which is kept otherwise than in
a legible form and is capable of being reproduced in a legible
form.
Bank, deposit-taking company and subsidiary have the same meanings

as in section 18(2)(a), above.
This offence may be illustrated by HKSAR v Goh Swee Yan Angelina
([2000] 2 HKC 711), discussed above in relation to evading liability. G
telephoned the branch manager of a bank (whom she knew from having
previously worked in the banks legal department), and falsely told him
that a businesswoman friend named A, who had once lived with G and
held her business at that branch, had asked G to phone and request the
urgent transfer of HK$1.07 million from As business account to another
account for the purposes of a business deal. Believing G, the branch manager
gave instructions for the money to be transferred. When A subsequently
discovered the transfer and asked G about it, G told A that she (G) had
used the money to repay gambling debts; G asked A to treat the transfer as
a loan, to which A apparently agreed. G was convicted of procuring the
making of an entry in a bank record by deception. On appeal, G argued
that even if she had procured the making of an entry by deception, the trial
judge should have considered whether G may have thought that A would
have consented to G using As money to settle her gambling debts. Rejecting
her appeal on this point (there was a separate point regarding proof of the
making of the entry), the Court of Appeal concluded (at 719, per Keith JA)
763
that it is just possible there may be occasions when deception does not
amount to dishonesty, but on the facts, it was quite impossible to say that,
applying the dual test in Ghosh, it was not open to the judge to conclude
that [G]s procuring of the transfer by the deception was dishonest.
If she was not being dishonest, why did she resort to the lie.
PROCURING THE EXECUTION OF A VALUABLE SECURITY BY

DECEPTION
Any person who dishonestly, with a view to gain for himself or another
or with intent to cause loss to another, by any deception (whether or
not such deception was the sole or main inducement) procures the
execution of a valuable security shall be guilty of an offence and shall
be liable on conviction upon indictment to imprisonment for 10 years.9
This offence is in similar terms to its English equivalent (section 20(2) of

the TA 1968), save for the addition of the words stating that the deception
need not be the sole or main inducement.
Valuable security means (section 22(4)):
any document creating, transferring, surrendering, or releasing any
right to, in or over property, or authorizing the payment or money or
delivery of any property, or evidencing the creation, transfer, surrender
or release of any such right, or the payment of money or delivery of
any property, or the satisfaction of any obligation.
By section 22(3), the offence applies equally to:

the making, acceptance, indorsement, alteration, cancellation or
destruction in whole or in part of a valuable security, and in relation
to the signing or sealing of any paper or other material in order that
Section 22(1) of the TO (section 20(1) of the TA 1968) creates a separate offence, also
punishable by ten years imprisonment, of dishonestly destroying, defacing or concealing
any valuable security, any will or other testamentary document, and original court and
government documents, with a view to gain for himself or herself or another or with intent
to cause loss; it does not require proof of deception.
764
it may be made or converted into, or used or dealt with as a valuable

security, as if that were the execution of a valuable security [emphasis
added].
Section 22(2) shares the elements of deception (same meaning as in

section 17(4): section 22(4)) and dishonesty with other deception offences,
discussed above. Gain and loss are defined in section 8(2) of the TO.
Section 22(2) may be used, for example, where V is induced by a
deception by D into drawing a cheque in Ds favour. When V signs the
cheque, V thereby executes a valuable security (the cheque); D has procured
this result by Ds deception. If D acted with a view to gain or with intent to
cause V loss, and Ds conduct is viewed as dishonest, then it will fall within
section 22(2).
It has been said that procure has no special legal meaning. In Beck
([1985] 1 WLR 22), the English Court of Appeal approved a direction that
it includes simply causing or bringing about. In this case, B used forged
Barclays Bank travellers cheques and a stolen Diners Club credit card while
in France to obtain goods. When the cheques and credit card vouchers
were transmitted to England for payment, Barclays Bank accepted its
cheques and honoured payment because it considered that it was under an
obligation to do so if the person completing the transactions has not acted
imprudently. Similarly, Diners Club paid because it considered that it was
legally bound to do so if all the required formalities of a transaction had
been complied with. B was convicted of procuring the execution of valuable
securities and appealed on the ground he had not procured execution of
the cheques and vouchers by deception, since each institution was aware
the transactions involved stolen cheques or card and was not therefore
legally bound to honour payment. This was rejected by the court, holding
that Bs conduct in France had produced a situation in which the institutions
in England, for legal and commercial reasons, felt that they had no choice
but to honour payment; B had caused and thus procured that result.10
Similarly, in Kassim ([1988] Crim LR 372), the English Court of Appeal
held that K set off a chain of events with inevitable consequences when he
paid for goods in France with a credit card, namely the re-imbursement of
a French bank by an English bank. To say that he did not procure them,
said the court, seems to us to disregard the evidence and to defy logic.
10
Beck has been queried see, for example, Smith, John, The Law of Theft (eighth edition,
1997), paras 616. London: Butterworths.
765
A valuable security is executed when the acts take place having the
effect of converting a document into a valuable security (Chiu Yu Man v
HKSAR [2001] 4 HKC 351).
Valuable Security
The nature and meaning of valuable security was considered in King
([1992] 2 QB 20), in which the English Court of Appeal held that a
computer payment instruction form, known as a CHAPS order, is a valuable
security. The court suggested (at 30) that three questions must be considered
in deciding whether a document falls within section 22(2):
The first is to identify what the document does. The second, in the
light of the first, is to ask whether the document falls within any part
of the definition of valuable security as provided in section 20(3),
TA 1968 [section 22(4) of the TO]. If it does, then the third stage is
to ask, bearing in mind the wide terms of [section 20(2) of the TA
1968] [section 22(3) of the TO] whether, in the respect in which the
document is a valuable security, it has been executed.
The court further held that the CHAPS order was executed when bank
officials carried out their instructions by keying the transfer into the
computer and then completing the form.
An irrevocable letter of credit may amount to a valuable security within
section 22(2). In a recent decision of the Court of Final Appeal, Chiu Yu
Man v HKSAR ([2001] 4 HKC 351), Sir Gerard Brennan, delivering the
unanimous judgment of the court, overruled the Court of Appeals decision
([2000] 4 HKC 81) which had held, following Benstead and Taylor ((1982)
75 Cr App R 276), that an irrevocable letter of credit is a document creating
rights to, in or over property and falls within the first limb of section
22(4). Rather, concluded Sir Gerard (at 364), an irrevocable letter of credit
is a document authorizing the payment of money, within the second limb
of the definition of valuable security in section 22(4). An irrevocable letter
of credit is executed within the extended meaning of that term in section
22(3), when a bank officer signs it with the purpose that the letter then be
communicated to the beneficiary and thereby become a valuable security.
766
FALSE ACCOUNTING
Where a person dishonestly, with a view to gain for himself or anther
or with intent to cause loss to another
(a) destroys, defaces, conceals or falsifies any account or any record
or document made or required for any accounting purpose; or
(b) in furnishing information for any purpose produces or makes use
of any account, or any such record or document as aforesaid,
which to his knowledge is or may be misleading, false or deceptive
in a material particular, he shall be guilty of an offence and shall
be liable on conviction upon indictment to imprisonment for 10
years.
This is not as such a deception offence, deception not being an element,

but may readily involve deceptive activities where the charge is based on
falsification of accounting records or documents, or the production or use
of such falsified records or documents. Section 19(2) extends the meaning
of falsifies to cover persons who make or concur in making in an account
or other document an entry which is or may be misleading, false or deceptive
in a material particular, or who omits or concurs in omitting a material
particular from an account or other document. Such persons are to be
treated as falsifying [emphasis added] the account or document. Where D
asserts that false entries were made by someone other than himself or herself,
there is no burden of proof upon D to prove the existence of such other
person (HKSAR v Cheng Chung Ming [2001] 1 HKC 480).
Section 19(1) shares the element of dishonesty with the other deception
offences, discussed above (dishonesty is a question of fact see R v Lam
Yee Foon [1993] 2 HKCLR 247). Where necessary, the Ghosh test should
be applied (see Tse Chi-kin [1988] HKC 581, per Barnes J: The deliberate
signing of a fraudulent consignment note is so obviously dishonest that the
magistrate could not reasonably have come to any conclusion than that
the element of dishonesty had been proved; compare R v Fong Shun Yuen
[1995] 2 HKC 498: falsification of school accounts to show that an education
grant, used honestly but without authority for purposes benefitting school,
was used only for original authorized purposes was not dishonest).
767
Account, Record and Document Made or Required for an

Accounting Purpose
The section covers documents that are accounts by nature, and also records
and documents made for an accounting purpose or required for such
(Attorney-Generals Reference (No. 1 of 1980) (1981) 72 Cr App R 60; R v
Looi Kim Lee [1985] 2 HKC 410: falsification of a loan card). Record is
wide enough to include the output of a mechanical recording device, such
as a taxi meter or a meter attached to a turnstile recording the number of
people entering a facility (Edwards v Toombs [1983] Crim LR 443). In
Shama ((1990) 91 Cr App R 138), the English Court of Appeal held that,
document required for an accounting purpose may include a standard
form which D was under a duty to complete. If D omitted material
particulars in completing the form, that could amount to an offence under
section 17(1) of the TA 1968, if it is also proved D thereby acted dishonestly.
A particular may be material within section 19(1)(b) without itself being
directly required for an accounting purpose (R v Mallett [1978] 3 All ER 10).
Gain or Loss
D must act with a view to gain for himself or with intent to cause loss to
another. Gain and loss are defined in section 8(2) of the TO. In Lee
Cheung Wing, Lam Man Yau ([1991] 2 HKLR 220), the Privy Council, on
appeal from Hong Kong, held that an employee who used his position of
employment to make a personal profit was bound to account to his employer
for that profit, regardless of whether the employer suffered loss as a result.
The falsification of withdrawal slips enabling the defendants to recover
funds from the company that they were not entitled to was correspondingly
done with a view to gain. A temporary gain may suffice for the purposes
of section 19(1) (Tse Chi Kin [1988] HKC 581: D falsified documents with
a view to putting off a payment date). In Lam Yee-foon ([1993] 2 HKCLR
247), the Court of Appeal held that where the falsification of a document
required for accounting purposes results in the retention of employment
and the accompanying salary, that retention is a benefit that may be equated
with the words a view to gain; likewise where D falsifies documents in
order to conceal fraud and preserve the falsifiers employment and its
emoluments (R v Chen Dah Shing (1988) Cr App No. 286 of 1987). In
Goleccha ((1989) 90 Cr App R 241), the English Court of Appeal held that
a debtor who dishonestly falsified a document required for an accounting
768
purpose, intending thereby to induce the creditor to forbear from suing on

the debt, did not act with a view to gain within section 17(1) of the TA
1968. However, in R v Siu Yin-king ([1994] 1 HKCLR 58), the Court of
Appeal, without deciding whether Goleccha was correct on gain, held that
a person who dishonestly falsifies an account intending to trick another
person into refraining from suing on a chose in action to recover money to
which the other was entitled, may properly be said to have done so
intending to cause loss for the purposes of section 19; loss, it was held,
includes a loss by not getting what one might get.
FRAUD
Section 16A(1), enacted in 1999, provides that:
(1) If any person by any deceit (whether or not the deceit is the sole
or main inducement) and with intent to defraud induces another
person to commit an act or make an omission, which results either
(a) in benefit to any person other than the second-mentioned person;
or
(b) in prejudice or a substantial risk of prejudice to any person other
than the first-mentioned person,
the first-mentioned person commits the offence of fraud and is liable
on conviction upon indictment to imprisonment for 14 years.
Section 16A was enacted pursuant to the recommendations of the Hong

Kong Law Reform Commission (LRC) (Report on Creation of a Substantive
Offence of Fraud (Topic 24) (July 1996)) to provide the prosecution in
Hong Kong with a straightforward means of prosecuting fraudulent schemes
resulting in financial or proprietary benefit to the fraudster (or others) or
putting the victims financial or proprietary interests at risk (i.e. prejudice).
Originally, it was intended to replace the offence of conspiracy to defraud
at common law, but, as enacted, it is somewhat narrower in scope than
conspiracy to defraud; as a result, conspiracy to defraud has been expressly
retained (section 16A(4): This section shall not affect or modify the offence
at common law of conspiracy to defraud).11
11
In addition to fraud (contrary to section 16A(1)) and conspiracy to defraud at common law,
there is also the possibility of charging statutory conspiracy (contrary to section 159A of the
Crimes Ordinance) to commit statutory fraud (contrary to section 16A(1) of the TO).
769
A simple illustration based on a long firm fraud will illustrate the type
of case intended to fall within section 16A(1). Suppose A and B set up a
trading company; this company operates for a period and establishes
relationships with several suppliers. Having established business trust, A
and B then make several large orders, all on credit (i.e. they will pay only
later). The suppliers deliver the goods. A and B on-sell them, take the
money, close down the company and disappear. A and B have clearly carried
out a fraudulent scheme. However, prior to the enactment of section 16A,
a prosecutors options were either to charge A and B with conspiracy to
defraud at common law, which requires proof of at least two co-conspirators
and misleadingly focuses on an alleged agreement to defraud even though
the fraudulent scheme has actually been perpetrated and the victims
defrauded, or a combination of offences against the TO. Neither option
was ideal; both options remain available, but section 16A(1) now offers a
much simpler way of prosecuting the fraudulent scheme.
Although added to the TO, section 16A differs in two significant respects
from theft and the deception offences discussed above: firstly, it uses the
term deceit instead of deception, and secondly, it does not expressly require
proof of dishonesty.
Deceit is defined in section 16A(3):
deceit means any deceit (whether deliberate or reckless) by words or
conduct (whether by any act or omission) as to fact or as to law,
including a deceit relating to the past, the present or the future and
a deceit as to the intentions of the person practising the deceit or of
any other person.
This differs from deception as defined in section 17(4) in the following

respects: (1) deceit is used in the definition instead of deception; (2) the
words whether by any act or omission have been added in brackets; (3)
the reference to opinions has been omitted; and (4) the expression
practising the deceit is used instead of using the deception. As with
deception, the term deceit is not itself defined, but, like deception, it
must mean a false representation, as was accepted by Buckley J in Re London
and Global Finance Corporation: to deceive is by falsehood to induce a state
of mind; to defraud is by deceit to induce a course of action.
According to the LRC (Report, para 5.25), deceit was adopted in
formulating an offence of fraud because it is the element of deceit which is
the key feature which distinguishes fraud from theft. In requiring deceit,
the LRC expressly marked its departure from the House of Lords finding
in the Scott case, that deceit was not an essential element of fraud (see
770
Chapter 9, p. 444); in Scott, the Lords concluded that fraud depended on

proof of dishonesty, not deceit. The LRC therefore preferred to formulate
an offence of fraud in terms reflect[ing] more closely the earlier accepted
formulation (expounded by Buckley J in Re London and Globe Finance
Corporation) that to defraud is to deprive by deceit: it is by deceit to
induce a man to act to his injury.
The decision not to require proof of dishonesty is open to a number
of objections. The LRCs rationale for not requiring dishonesty is set out
in paragraph 5.32 of their Report. After noting various arguments for and
against the inclusion of an express requirement of dishonesty, they
concluded that the inclusion of intent to defraud is sufficient to characterize
a defendants deceitful conduct as criminal and thus distinguish it from the
tort of deceit. However, as the recent case law relating to theft shows, the
courts have increasingly chosen to rest the weight of criminality, at least
for theft, on the question of whether D acted dishonestly or not. Allowing
a conviction of fraud without any express determination that D acted
dishonestly is arguably entirely inconsistent with that stance. Secondly,
some of the authorities discussed above suggest that dishonesty does not
necessarily follow in all cases merely from the fact of deception. Given the
broad definition of fraud for the purposes of section 16A, this creates the
possibility of conviction where D, with good intentions, has practised a
deceit (as defined) on the alleged victim, thereby putting the victims
financial interests at risk (though not causing any actual loss). Suppose,
for example, D, with the best interests of V at heart, tells V a white lie to
induce V, who is unduly conservative in his or her investment outlook, to
enter into an investment that D considers to be to Vs financial benefit
(though it does entail risk). All the elements of the offence in section 16A(1)
can be arguably established deceit, inducement, financial risk, and intent
on Ds part to defraud V (this requires nothing more than proof that D
intended to induce V to act in the manner putting Vs financial interests at
risk). If D honestly believes that his or her conduct would not be considered
dishonest by ordinary honest people, D would not be dishonest by the
Ghosh test presently applied to offences under the TO (and also to conspiracy
to defraud); yet, this will not prevent Ds conviction of fraud under section
16A(1). Similarly, if D acted in the honest belief that he or she had a claim
of right to deprive the victim of property belonging to the victim, relying
on a deceit (or deception) to do so, this would provide D with a defence to
a charge of obtaining property by deception, contrary to section 17(1), but
seemingly not to a charge under section 16A(1). Can this be justified?
Thirdly, how is a trial judge to direct a jury if a defendant is charged with
771
fraud under section 16A and additionally or alternatively with another

offence against the TO? Presumably by telling the jury that D may be
convicted of fraud without any express finding that D acted dishonestly,
but that the jury must be satisfied that D acted dishonestly to convict D of
any other offence against the TO an odd result, it might be thought, and
one that may well present trial judges with considerable difficulty in
formulating directions for the jury. Fourthly, if several defendants are
charged with conspiracy to commit fraud, dishonesty will be required if
this is proceeded with as a common law offence, but not if proceeded with
as a statutory conspiracy to commit fraud again, arguably an odd result
and one posing similar difficulties for a trial judge directing a jury.
Actus Reus
Section 16A(1) requires proof that D by any deceit induced another person
to commit an act or make an omission (or a series of acts or omissions
section 16A(3)) which must result in either (1) benefit to someone other
than the person induced by the deceit to act or fail to act, or (2) financial
or proprietary prejudice or a substantial risk of prejudice to someone
other than the person practising the deceit (thus not necessarily the person
induced to perform the acts or to fail to act). Benefit means any financial
or proprietary gain, whether temporary or permanent (section 16A(3)),
and prejudice means any financial or proprietary loss, whether temporary
or permanent (section 16A(3)). Gain and loss respectively include a gain
by keeping what one has, as well as a gain by getting what one has not and
a loss by not getting what one might get, as well as a loss by parting with
what one has (section 16A(3); these non-exhaustive definitions (includes)
broadly mirror the general definitions of gain and loss in section 8(2) of
the TO, though the latter provision expressly excludes section 16A from
its application). The deceit need not be the sole or even the main
inducement, but, as with deception offences, there must be a causative
relationship between the deceit and the conduct of the victim.
Mens Rea
D must deliberately or recklessly make the false representation amounting
to the deceit. Presumably, reckless here means subjective recklessness,
although this view is perhaps less clear than in relation to deception
772
offences, since the latter all require proof of dishonesty. Bolstering the
argument, however, is the fact that intent to defraud must be proved.
Secondly, it must be proved that D acted with intent to defraud. The
meaning of this is elaborated in section 16A(2):
For the purposes of subsection (1), a person shall be treated as having
an intent to defraud if, at the time when he practises the deceit, he
intends that he will by the deceit (whether or not the deceit is the
sole or main inducement) induce another person to commit an act or
make an omission, which will result in either or both of the
consequences referred to in paragraphs (a) and (b) of that subsection.
Intent to defraud thus requires proof that D intended his or her deceit
(i.e. false representation) to induce (i.e. cause) the victim to act (or fail to
act) in the manner resulting in financial or proprietary benefit or prejudice.
Presumably, this requires proof not only that D intended to induce the
victim to act or fail to act in a manner in fact having one of these results,
but also intended that result, i.e. that Ds deceit would, as a result of the
victims conduct, have one of these two results. Intention here presumably
requires proof either that it was Ds purpose to cause one or other of these
results (direct intention) or that D realized that his or her deceit would
(i.e. was virtually certain to) cause the victim to act or fail to act in a
manner having one or other of these results (see R v Wai Yu-tsang [1992]
1 AC 269, where the meaning of intent to defraud was considered).
14
Index
Abetting, see Secondary participation

Accessories,
see
Secondary
participation
Accomplices,
see
Secondary
participation
Actual bodily harm 579582
Actus reus 63108
actual bodily harm, occasioning
580581
assault 555562
assaulting police officer in
execution of duty 583588
attempt 472477
battery 562564
causation, see Causation
circumstances 85
coincidence of mens rea and
100108
continuing acts 85, 102103
defining 6367
handling, see Handling
homicide 490497
incitement 406
indecent assault 625631
inflicting grievous bodily harm
591595
obtaining services by deception,

see Deception offences
obtaining services by omissions,
see Omissions
rape, see Rape
robbery 712714
series of acts 105108
state of affairs 8081
technical assault, see assault
theft, see Theft
voluntariness 6871
strict liability, and 182183
wounding 591595
wounding with intent 597
Agents provocateurs, see Entrapment
Aggravated assaults, see Assault and
battery
Aiding, see Secondary participation
Alcohol 255256
spiked drinks 268
see also Intoxication
Appropriation 674701
assumption of rights of owner
674675
bona fide purchaser 698699
company property 697698
774
consent, authority and 679691

innocent agent, by 675676
jurisdiction 699701
keeping or dealing, later
assumption by 693694
label-switching, by 681682
Gomez decision 684688
Hinks decision 688691
HK cases 691693
later assumption 693694
Lawrence decision 680
Morris decision 680683
things in action and 694697
usurpation 681
Arrestable offences 4950
assisting after commission 385
386
concealing commission 386387
lawful arrest 281283
Arson, see Criminal damage
Assault and battery 553579
aggravated assaults 579
assault 555562
actus reus 555561
by silence 558559
by words 557558
mens rea 561562
assaulting police officer in
execution of duty 582589
actus reus 583588
mens rea 588589
battery 562564
actus reus 562564
mens rea 564
consent as defence 568577
duress and 569570
fraud and 569570
invalidity of 568569
public interest 570574
public interest, exceptions
574577
dangerous
exhibitions
577
games and sports 574575
physical adornment 576
INDEX
rough play 575576

surgery 576
see also unlawfulness
lawful correction 578
necessity 577578
occasioning actual bodily harm
579582
actus reus 580581
mens rea 581582
recklessness 561
sado-masochists 570573
silence, assault by 558559
unlawfulness of force inflicted
559561, 563, 564579, 582
burden of proof 579
consent, see consent as defence
lawful correction 578
necessity 577578
ordinary daily contact 566
568
self-defence
and
crime
prevention 578
words, assault by 557558
see also Indecent assault
Assisting and concealing offenders
329330, 383387
at common law 383384
compounding an offence 387
statutory 384387
assisting after arrestable offence
385386
concealing arrestable offence
386387
Attempt 403, 458485
actus reus 472477
act 472473
more than merely preparatory
473477
impossibility and 477482
jurisdiction 484485
mens rea 463472
conditional intention 472
intention 463470
participation in 483
INDEX
proximity test 473477

statutory offence 461
withdrawal 482483
Automatism 217, 237248
burden of proof 239242
caused by
diabetes 243
disease of mind 242
epilepsy 229, 231232
psychological trauma 204
205
sleepwalking 243244
definition of 237239
insane 242245
non-insane 242245
self-induced 245248
Basic intent 134136
Bateman test 537
Battery, see Assault and battery
Belief 137138
Bill of Rights 12, 3334
Article 11(1) 39, 4247, 614, 733
strict liability, and 197199
Bodily harm
actual bodily harm 579582
grievous bodily harm 590598
Borrowing, theft and 709711
Brain death 493
Breach of peace 285286
Burden of proof, see Proof
Caldwell recklessness, see Recklessness
Capacity 21175
infancy, see Infancy
insanity, see Insanity
Care, duty of, see Duty of care
Causation 87100
accuseds act not sole cause 89
third party actions 92
victims actions 94
factual causation 8788
homicide and 495
intervening events and acts 89
100
775
medical treatment 95100

naturally occurring events 91
neglect by victim 94
novus actus interveniens
8990
reasonably foreseeable events
9193
legal causation 89100
novus actus interveniens, see
intervening acts and events
substantial cause 89
thin skull 9394
Causing death by dangerous driving,
see Dangerous driving
Causing death by reckless driving, see
Reckless driving
Cheques and cheque cards
deception involving 732736
theft and 652654
Children
capacity of, see Infancy
Coercion, marital 323324
Coincidence, see Actus reus
Common design, see Secondary
participation
Company property, appropriation of
697698
Compounding, see Assisting and
concealing offences
Conduct crimes 66
breach of duty to act 7172
Confidential information 654
Consent
assault and battery 568577
fraud and 569570
public interest 570574
public interest, exceptions 574
577
Consent to intercourse, see Rape,
actus reus
Consequences, foresight of 122123
Conspiracy 403, 414458
acquittal of co-conspirators 455
456
776
agreement 417418
common law
to defraud, see to defraud
immunity of co-conspirator 455
merger 456
parties 454
statutory 416442
actus reus 417435
agreement 417418
conditional agreement
419420
continuing offence 418
419
course of conduct 425
426
necessity for two persons
420424
exceptions 421423
object of agreement 424
434
offence intended 427434
committed by party to
agreement 434435
inchoate offence 454
impossibility 452454
jurisdiction 427434
mens rea 435442
Anderson 435439
intention 435
consequences 441442
knowledge of circumstances
439441
to defraud 442452
defraud 444450
dishonesty 450451
intention to practise a fraud
444450
overlap with statutory offence
perpetrator of fraud 450
public official 445, 447
Continuing acts 85, 102103
Corporate liability 330, 395402
identification principle 396400
legal person 395
liability of officers 401402
INDEX
limitations 400
offences requiring human
conduct 400
offences of violence 400
physical punishment 400
see also Vicarious liability
Counselling,
see
Secondary
participation
Courts of criminal jurisdiction 50
56
Coroners court 56
Court of Appeal 5455
Court of Final Appeal 55
Court of First Instance 54
District Court 5354
Juvenile Court 53
Magistrates 5153
Credit balance and theft 649652
Crime prevention, see Prevention of
crime
Crimes
conduct, see Conduct crimes
defining crime 712
elements of, see Actus reus and
Mens rea
result, see Result crimes
Criminal acts
social morality and 1316
Criminal damage 142, 143144
arson, by fire 142
Criminal law
functions of 47
morality and 1315
social control, see Punishment
Criminal libel 388
Cunningham recklessness 141
see also Recklessness
Damage, see Criminal damage
Dangerous driving
causing death by 489, 548551
see also Reckless driving
Death
brain death 493
meaning 493495
INDEX
within year and a day 496

see also Homicide; Manslaughter;
Murder
Deception offences 728772
by deception 736
cheques, cheque cards and credit
cards 732736
deceived 729
deception
by silence 730731
by words or conduct 730731
meaning of 728736
subject matter of 732736
deliberate or reckless 731732
dishonesty 728741
evasion of liability by deception
754761
exemption from or abatement
of 760761
inducing creditor to wait or
forgo payment 757760
liability to make payment
755756
securing remission of existing
liability 756757
false accounting 766768
false representation 729
fraud, see Fraud
see also Conspiracy to defraud
jurisdiction 741743
obtaining pecuniary advantage
748752
credit facility or arrangement
750751
employment or remuneration
752
insurance policy 754
overdraft 751
obtaining property 743748
actus reus 743747
mens rea 747748
theft, and 748
obtaining services 752754
benefit 753
payment 753754
777
services 753
procuring entry in bank record
761763
procuring execution of valuable
security 763765
valuable security 765
words or conduct 730731
Defences
automatism, see Automatism
consent, see Consent, public
publicinterest
interest
crime prevention, see Prevention
of crime
diminished responsibility, see
due-diligence defence 206
duress, see Duress
evidential burden 4142
excuse 278
intoxication, see Intoxication
justification 277278
marital coercion 323324
necessity, see Necessity
prevention of crime, see
Prevention of crime
provocation, see Provocation
self-defence, see Self-defence
strict liability and 199207
Delegation principle 392394, 396
Deterrence 1921
Diabetes 229231
automatism 243
hyperglycaemia 229230
hypoglycaemia 229230
Diminished responsibility 217, 248
255, 501502
abnormality of mind 250252
aetiology, see medical causes
burden of proof 248
inherent causes 253254
intoxication and 253254
irresistible impulses 250251
medical causes 252254
medical evidence, need for 252
253
778
nature of 249250
operation of defence 248249
sentence 255
substantial impairment of mental
responsibility 255
see also Manslaughter, voluntary
Dishonesty 450451, 701712
belief in owners consent 702
belief in right to deprive 702
belief that owner cannot be
found 703
common law test 704706
conspiracy to defraud 450451
deception offences 728
fraud 770771
Ghosh test 704
handling 722
robbery 715
willingness to pay 704
Doli incapax 29, 213215
Driving offences causing death, see
Dangerous driving; Reckless
driving
Drugs, see Intoxication
Duress 300323
by threats 300317
attempted murder 312
burden of proof 313
characteristics of accused
304305
escape, opportunity to 305
307
excluded offences 307
imminence of threat 305307
mistake and 303
murder and 308311
nature of threat 301302
police protection 305306
reform 323
test for 302303
subjective and objective 303
305
superior orders 324325
INDEX
treason 313
voluntary association with
criminals and terrorists
307
of circumstances 316, 317322
see also Necessity
Dutch courage 108, 275
Duty of care
contractual 7576
dangerous situation 7880
special relationship 76
undertaking care 7677
Electricity, abstracting 657
Encouragement, see Secondary
participation
Enforcement of Morals, Hart/Devlin
1415
Entrapment 381383
Epilepsy 229, 231232
Factual causation 8788
False accounting 766768
accounting purpose 767
gain or loss 767768
Felonies, see Offences
Fitness to plead 218224
disposal 222224
Force
in self-defence
assessment of 287
excessive force 296
instinctive response 292
294
mistake and 287292
reasonableness 287296
robbery, in 713
Foresight
causation and 9193
of consequences 116117, 122
123
Fraud
consent and 607609
defraud 444450
779
INDEX
statutory offence 768772

actus reus 771
deceit 769771
dishonesty, not required 770
771
mens rea 771772
Ghosh test 704, 728
Goods 716718
see also Handling
Grievous bodily harm 590598
inflicting 590596
actus reus 591595
mens rea 595596
inflicting with intent 597598
actus reus 597
mens rea 597598
meaning 591
mens rea for murder 497498
Gross negligence manslaughter
537543
see also Manslaughter, involuntary,
reckless manslaughter
Handling 715726
actus reus 716721
forms of 719721
arranging 721
receiving 720
undertaking or assisting
retention,
removal,
disposal or realization
720721
goods 716718
otherwise than in course of
stealing 718719
proceeds 717
stolen goods 716718
alternative verdict of theft 724
726
mens rea 722724
dishonesty 722
knowledge or belief 722723
proving 723
recent possession
suspicion 723
723724
Harm
actual bodily harm 579582
meaning 13
Homicide
actus reus 490497
causing death by dangerous
driving 489, 490491
death
meaning 493495
within year and a day 496
infanticide 489, 490491, 547
548
unlawful 497
see also Manslaughter; Murder
Hospital order 222224, 238, 255
Hyperglycaemia, see Diabetes
Hypoglycaemia, see Diabetes
Identification principle 396400
Ignorance of law 113, 174
Impossibility
attempt 472482
conspiracy 452454
incitement 409411
Incapacitation 2122
Incapacity see Capacity
Incest 614615
Inchoate offences 403
basis of liability 404405
nature of liability 404
see also Attempt; Conspiracy;
Incitement
Incitement 403, 405414
actus reus 406
impossibility 409411
jurisdiction 413
mens rea 407408
offence incited 408409
inciting attempt or conspiracy
411412
inciting participation 411
reform 413414
780
Indecent assault 622635

actus reus 625631
kissing 629630
mens rea 631635
Indecent exposure 635636
Indictable, see Offences
Infancy 211216
child, independent existence 491
child, meaning of 212
doli incapax 29, 213215
innocent agents, as 331332
mischievous discretion 214215
sexual incapacity, presumption
of 215216, 332, 602
young person 212
Infanticide 489, 490491, 547
548
Innocent agent 331333
appropriation by 675676
limits 322333
Insanity 217, 225236
committal to mental hospital 225
defect of reason 227
diabetes 229, 230
hyperglycaemia 229, 230231
hypoglycaemia 229, 230
disease of the mind 227232
epilepsy 229, 231232
hospital order, see Hospital order
insane delusions 234235
irresistible impulses 233, 250
251
knowledge of nature and quality
of act 232233
knowledge that act wrong 233
234
MNaughten Rules 225235
not guilty by reason of 225
presumption of sanity 226227
special verdict 225, 235
appeal against 236
stress 230231
unfit to plead, see Fitness to plead
INDEX
see also Automatism; Diminished

responsibility
Intangible property 654
Intention 118136
accessory and, see Secondary
partipation, mens rea
basic intent 134136
conditional intent
attempt and 472
permanently to deprive 711
712
foresight of consequences 122
123
House of Lords on 123132
meaning of 120134
motive 113
oblique intention 120
permanently to deprive 706712
borrowing or lending 709711
conditional intent 711712
parting with under condition
711
property got by mistake 711
purpose 121122
secondary participation and 347
356
specific intent 134136
ulterior intent 136
Intervening events, see Causation
Intoxication 255275
automatism and 256
basic intent 134136
Caldwell recklessness 260, 264
265
diminished responsibility and
253254
insanity or abnormality of mind
and 256
duress and 304
Dutch courage 108, 275
involuntary 268271
laced drinks 268
mens rea and 257
mistake and 271275
nature of 255256
INDEX
offences involving 255

recklessness and 257258, 260,
264266
self-defence, mistaken belief and
271275
specific and basic intent offences
134136, 257, 260264
voluntary 257268
Irresistible impulses 233, 250251
Joint enterprise, see Secondary
participation
Jurisdiction
courts, see Courts
territorial 5660
common law 5659, 427432
Criminal Jurisdiction Ordinance
5960
attempt 484485
conspiracy 432434
deception 741743
incitement 413
theft 699701
Kissing, as indecent assault 629630
Knowledge 136138
actual 137
belief 137138
constructive 137
wilful blindness 137
Label-switching, theft by 681682
Land, theft of 655656
Later appropriation, see Theft,
appropriation
Lawrence decision and theft 680
Lawrence
recklessness,
see
Recklessness
Legal causation, see Causation, legal
causation
Lending and borrowing, theft and
709711
Liability
Corporate, see Corporate liability
entrapment and 381383
781
evasion by deception 754761

strict, see Strict liability
vicarious, see Vicarious liability
Libel, strict liability and 181
Life support systems 8184
Making off without payment 663
Malice
constructive malice 498
murder and malice aforethought
497500
transferred malice 161163
Maliciously 141, 595596, 598
Manslaughter 489, 490497, 501
547
involuntary 526547
causing death by dangerous
driving 489, 548551
constructive manslaughter
527536
by act 528
by omission 528
directed at 535536
dangerous act 533535
unlawful act 528
gross negligence manslaughter
537543
Adomako 540543
Bateman test 537
motor manslaughter 544
reckless manslaughter 544547
Lawrence test, rejection of 546
reform 547548
voluntary 501526
diminished responsibility
501502
see
also
Diminished
responsibility
provocation 502525
suicide pacts 526
Marital coercion 323324
Marital rape 332333, 602605
Medical treatment
causation and 95100
necessity 315, 316, 577578
782
surgery 576
withdrawal of life support 8184
Mens rea 33, 109175
accessories, see Secondary
participation
assault 561562
assault occasioning actual bodily
harm 581582
attempt 463472
battery 564
coincidence of actus reus and
100108
handling 722724
incitement 407408
inflicting grievous bodily harm
595596
intention, see Intention
knowledge, see Knowledge
maliciously 141, 595596, 598
mistake, see Mistake
murder 497500
negligence, see Negligence
objective 112
obtaining property by deception
747748
presumption of 115116, 186
rape 609612
recklessness, see Recklessness
robbery 715
secondary participation 347356
strict liability, see Strict liability
subjective 112
theft, see Theft
wounding 595596
wounding with intent 597598
Mental abnormality
automatism, see Automatism
diminished responsibility, see
unfitness to plead, see Fitness to
plead
INDEX
involuntariness, see Automatism;

Involuntariness
Mill, John Stuart 13
Mischievous discretion 214215
Misdemeanours, see Offences
Mistake 164175
defence, as to 169170
definitional element of offence, as
to 170172
fact, of 166174
ignorance of law 174
law, of 174175
negating mens rea 166169
non-definitional element of
offence 172173
property got by 671673
self-defence and 283, 287292
strict liability and 201207, 612,
613, 614, 621
Tolson 173174
MNaughten Rules 225235
Money, theft and 648649
Morality, see Social morality
Motive 113
see also Intention; Mens rea
Motor manslaughter 544
Murder 489, 490500
actus reus 490497
constructive malice 498
duress and 308311
malice aforethought 497498
mens rea 497500
necessity and 313314, 318319
reform 547
transferred malice and 499500
Natural consequences
Necessity 300301, 313323
assault and battery and 577578
burden of proof 322
duress of circumstances 313323
limits of 318319
INDEX
medical treatment 315, 316,

577578
moral involuntariness and 317
nature of circumstances 317318
nexus 322
reform 323
test for 320, 321
see also Duress; Marital coercion
Negative averment, see Proof
Negligence 177180
criminal liability for 178179
defence of reasonableness 179
180
meaning of 177178
Non-arrestable offences 4950
Non prosecution 218
Novus actus interveniens, see
Causation
Offences
arrestable and non-arrestable 49
50
felonies and misdemeanours 47,
334, 335
inchoate, see Inchoate offences
quasi-criminal 188
state of affairs offences 8081
strict liability, see Strict liability
summary and indictable 4849
Omissions 7180
breach of duty to act 75
causing harm by omission 7274
duty cases 7577
contractual duty of care 75
76
dangerous situation 7880
special relationship of care 76
undertaking care 7677
offences of 7172
withdrawal of life support 8184
Owner 660
Parents, duty of care 76
Parties to crime, see Principals;
Secondary participation
783
see also Vicarious liability;

Corporate liability
Pecuniary advantage, see Deception
offences, obtaining pecuniary
advantage
Presence and aiding and abetting
343346
Presumption
of innocence, see Proof
of mens rea, see Mens rea
of sanity, see Insanity
of sexual incapacity, see Infancy
Prevention of crime 280298
lawful arrest 281283
lawful excuse, as 297298
meaning of 280283
necessity of force 294295
reasonableness of force 287296
assessment of 287
excessive force 296
mistake 283284
unknown circumstances of
see also Self-defence
Principal
acquittal of principal 336
definition 329, 330
joint principals 331
no principal offender
exempt from prosecution 331
not liable to conviction 331
uncertainty as to 337, 360
361
see also Secondary participation
Procuring,
see
Secondary
participation
Procuring
entry
in
bank
record 761763
Procuring execution of valuable
security 763765
valuable security 765
Proof
burden of 3542
784
defences and 278

duress and 313
exceptions 3741
common law 3740
statutory 3741
insanity and 37, 226
negative averment 3738
presumption of innocence 3536
standard of 37
Property
abandoned 660
belonging to another 657673
appropriation 674701
confidential information 654
control 658660
defence of 299
intangible 654
intention of permanently depriving
706712
land 655656
mistake, got by 671673
money 648649
obtaining by deception 743748
possession 658660
received from or on account of
664670
things in action 649659
trust property 663664
wild animals 656657
wild plants and mushrooms 656
see also Goods; Proprietary right
or interest; Theft
Proprietary right or interest 660663
674675
equitable interest 660663
owner 660
see also Property; Theft
Provocation 502525
characteristics of accused 515
523
cumulative provocation 510512
nature of provocative conduct
509512
INDEX
by words 502, 504, 509

objective question 509
proportionality 523524
reasonable person 515523
role of judge and jury 506509
self-induced 524525
subjective question 509
sudden and temporary loss of
control 502, 505506, 512
515
test for
common law 502504
under statute 504509
voluntary manslaughter 501
words alone as provocation
Proximity test, attempt and 473
477
Psychological
trauma,
see
Automatism
Public nuisance 388, 396
Punishment 1011, 1723
deterrence 1921
incapacitation 2122
rehabilitation 2223
retribution 1819
Quasi-criminal offences 188
Queens Peace 495
Rape 600612
actus reus 601609
consent
absence of 605608
invalid 606607
sexual intercourse 601607
presumption
of
sexual
incapacity 602
unlawful 602605
marital rape 332333, 602605
mens rea 609612
mistake 610612
recklessness 609610
see also Sexual intercourse; Sexual
offences
785
INDEX
Reasonable foresight
causation and 9193
Receiving, see Handling
Recent possession doctrine 723724
Reckless driving 140, 148, 151
causing death by 160
see also Dangerous driving
Reckless
manslaughter,
see
Manslaughter, involuntary
Recklessness 138161
Caldwell recklessness 142150
incapacity to appreciate risk
149
Lawrence recklessness 139,
143, 144145, 146147,
150152, 156161, 544546
obviousness of risk 150151
offences to which applies
156161
test of 143144
see also Negligence
criminal damage 142, 143144
Cunningham recklessness 141
deception and 731732
intoxication 257258, 260, 264
266
lacuna 152155
concluding no risk 153
taking steps to prevent risk
153155
maliciously 141, 595596, 598
meaning of 138139
offences against the person 561,
581, 595596
rape 609610
subjective 141
Rehabilitation 2223
Result crimes 6667
Retribution 1819
Risk, see Recklessness
Robbery 712715
actus reus 712714
force or threat of force 713
immediately before or at time
of stealing 713714
in order to steal 713714

on a person 714
theft 712713
mens rea 715
theft elements 715
Sado-masochism 570573
Sanity, presumption of 226227
see also Insanity
Secondary participation
accomplices, meaning of 329
agent
provocateurs,
see
entrapment
aiding and abetting
abetting 334, 338, 339341
meeting of minds 339,
340341
aiding 334, 338, 339
inactivity and 346347
passive assistance, by 346
347
presence and 343346
supplying weapon or tool, by
349350
assisting after commission of
arrestable offence, see Assisting
and concealing
charging 338
common design, see joint
enterprise
concealing commission of
arrestable offence, see Assisting
and concealing
counselling 334, 338, 339341
meeting of minds 339, 340
341
derivative liability 335336
encouraging, see abetting,
counselling
entrapment 381383
inactivity and, see aiding and
abetting
joint enterprise 336337, 360
377
786
acts beyond common design,

see intentional deviation
contemplation of risk 363
369
intentional deviation 369377
murder and manslaughter
370377
nature of 360361
proof of 362363
weapons
contemplation of use 363
366, 370377
dangerousness of 377
fundamental difference in
kind 374377
liability for different offence 378
mens rea 347356
aiding, abetting, counselling
and procuring
intention to assist, encourage,
procure 349350
knowledge of circumstances
or essential matters
353354
knowledge of type of
offence 354356
recklessness 350352
joint enterprise
contemplation 363369
nature of 333338
ordinary meanings 338339
passive assistance, by, see aiding
and abetting
presence and, see aiding and
abetting
principal, see Principal
exempt from prosecution 331
not liable to conviction 331
uncertainty
as
to
principal 337, 360361
procuring 334, 338, 342343
causal link 339
meaning 342
procuring actus reus of
INDEX
offence 356359
unforeseen consequences, liability
for 356
victim as secondary party 379
weapons
contemplation of use 363
366, 370377
dangerousness of 377
fundamental difference in kind
374377
supplying 349350
withdrawal 379381
see also Principals; Vicarious
liability; Corporate liability
Self-defence 279299
breach of peace 285286
crime prevention, see Prevention
of crime
duty to retreat 294295
lawful excuse, as 297298
nature of 283284
necessity of force 294295
prevention of crime, see
Prevention of crime
property, of 299
proportionality 295296
reasonableness of force 287296
assessment of 287
excessive force 296
mistake and 287292
self-induced 298
unknown circumstances of
see also Prevention of crime
Self-induced
automatism 245248
intoxication, see Intoxication,
voluntary
Services, obtaining by deception
752754
see also Deception offences
Sexual intercourse
consent and, see Rape
INDEX
presumption of sexual incapacity

215216, 332, 602
with a girl under 13 612613
with a mentally incapacitated
person 613614
procuring a girl under 21 620
procuring a mentally incapacitated
person 620
unlawful sexual act and 600,
620621
see also Rape
Sexual offences 599642
abduction offences 621622
buggery 615, 616617
corroboration 641642
incest 614615
indecency
between males 616, 617618
gross 618619
actus reus 625631
by a kiss 629630
consent 626628
Court decision 623625
mens rea 631635
indecent exposure 635636
prostitution 636
soliciting 636637
unlawful sexual acts 600
enabling or applying or
administering drugs 620
621
procuring by false pretence or
representation 620
procuring by threat or
intimidation 619620
vice offences 637640
see also Rape: Sexual intercourse
Sleepwalking 243244
Social control, see Punishment
Social immorality 1316
Sources of HK criminal law 2634
Specific intent 134136
787
Sporting injuries, consent to 574

575
Standard of proof 37
State of affairs offences 8081
Strict liability 181207
common law offences 181
defences to
common law 201207
due-diligence 206
mistake and 201207
statutory 199201
development of 184185
presumption of mens rea 186
justifications for 196197
mens rea and 181
mistake and 201207
nature of 181184
vicarious liability and 392
voluntariness and 182183
Suicide, aiding, abetting, counselling
and procuring 336
Suicide pacts 526
Summary offences, see Offences
Superior orders 324325
Surgery, consent to 576
Theft 647712
actus reus 647701
appropriation, see appropriation
belonging to another, see
belonging to another
property 648657
abandoned 660
confidential information
654
cheques 652654
credit balance 649651
electricity 657
human body 657
intangible property 654
land 655656
money 648649
things in action 649659
wild animals 656657
788
wild plants and mushrooms

656
appropriation 674701
674675
bona fide purchaser 698699
company property 697698
consent, authority and 679
691
jurisdiction 699701
keeping or dealing, later
assumption by 693694
label-switching, by 681682
Hinks decision 688691
HK cases 691693
later assumption 693694
Lawrence decision 680
things in action and 694697
usurpation 681
belonging to another 657673
abandoned 660
at time of appropriation 663
control 658660
constructive trust 661663
equitable interest 660663
mistake, got by 671673
owner 660
possession 658660
proprietary right or interest
660663
received from or on account of
664670
corporation sole 673
electricity, abstracting 657
handling, see Handling
alternative verdict 724726
intention permanently to deprive,
see mens rea
label-switching 681682
making off without payment 663
meaning 647
INDEX
mens rea 701712

dishonesty 701706
belief in owners consent
702
belief in right to deprive
702
belief that owner cannot be
found 703
common law test 704706
Ghosh test 704
meaning of 701
willingness to pay 704
intention of permanently
depriving 706712
borrowing or lending 709
711
conditional intent 711
712
parting
with
under
condition 711
property got by mistake
711
obligation 665, 672
robbery, see Robbery
temporary deprivation 709
711
things in action 649659, 694
697
Third parties, causation and 92
Threats
duress by 300323
robbery and 713
Tolson 173174,
Transferred malice 161163
Treason, duress and 313
Trust property 663664
Ulterior intent 136
Unfitness to plead, see Fitness to
Plead
Usurpation, theft and 681
Venereal disease, inflicting 593594
Vicarious liability 330, 388394
789
INDEX
attributed act principle 392

common law 388
criminal libel 388
public nuisance 388, 396
delegation principle 392391
express statutory provision 388
391
implied liability 391394
limitations on 394
aiding and abetting 394
attempt and394
statutory offences and
388
394
Victim
accessory as, see Secondary
participation
causation and
actions of victim 94
neglect by victim 94
thin skull 9394
Voluntariness
actus reus and 6871
strict liability and 182183
Wild animals 656657
Wild plants and mushrooms 656
Wilful blindness 137
Wounding 590596
actus reus 591595
mens rea 595596
Wounding with intent 597598
actus reus 597
mens rea 597598
Young person
capacity of, see Infancy

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CRIMINAL

Hong Kong University Press

Hong Kong University Press 2003

All rights reserved. No portion of this publication may be

British Library Cataloguing-in-Publication Data

Cover designed by Lea & Ink Design

Crime and Criminalization

Introduction 3 The Concept of Crime 7 Why

The Criminal Law of Hong Kong

THE GENERAL STRUCTURE OF CRIMINAL LIABILITY 61

The Elements of Offences: Actus Reus

Introduction 63 Actus Reus 67 Causation 87

Introduction 109 Determining the Mens Rea of an

Negligence and Strict Liability

PART III DEFENCES

Capacity and Incapacitating Conditions

Justifications and Excuses

Introduction 277 Self-defence and Crime Prevention 279

PART IV PARTICIPATION AND INCHOATE LIABILITY

Inchoate Offences: Incitement, Conspiracy and Attempt

Introduction 403 Incitement 405 Conspiracy 414:

OFFENCES AGAINST THE PERSON

Introduction 489 Murder 497 Manslaughter 501:

Introduction 553 Common Assault 553: Assault 555;

PART VI OFFENCES AGAINST PROPERTY

13 The Theft Ordinance: Theft, Robbery and Handling

Introduction 645 Theft 647: Property 648; Belonging to

Introduction 727 Deception Offences 728 Obtaining

a discussion of their application to a range of offences against the person

Chan Chi-wah [1992] 1 HKCLR 133

Cheung Wing Shun [1984] HKC 403 703

HKSAR v Coady [2000] 2 HKC 12 369, 498

Ho Chun Yuen [1961] HKLR 433 503

Lam Chiu Va [1996] 1 HKC 302 717

Li Kwai (1986) D Ct No. 264 of 1985 655, 663

Sheik Abdul Rahman Bux [1989] HKLR 1 418

Wong Kui-wai v WBG Banks (1993) MP No. 3476 of 1992 545

Anderson [1986] 1 AC 27 424, 435437, 438, 439, 454

Barrett v Barrett (1980) 72 Cr App R 212 175

Breaks & Huggan [1998] Crim LR 349 666

Charlson [1955] 1 WLR 317 228

Corbett v Corbett [1971] P 83 576

Dolan (1975) 62 Cr App R 36 718

Duffy [1967] 1 QB 63 280, 284, 513

Fenton [1830] 1 Lew CC 179 527

Gould [1968] 2 QB 65 173

Hayes (1977) 64 Cr App R 82 665

Hussey (1924) 18 Cr App R 160 299

Kelbie [1996] Crim LR 802 296, 586

Martin (1881) 8 QBD 54 593

Miller [1972] Times May 16 253

OBrien (1974) 59 Cr App R 222 417

Pilgram v Rice-Smith [1977] 2 All ER 658 675

Richards [1974] QB 776 308, 310, 378

Scott [1987] Crim LR 235 711

Smith [1959] 2 QB 35 89, 94, 95, 96, 97

Thomas (1985) 81 Cr App R 331 628629

Watkins [1976] 1 All ER 578 751

Woolven (1983) 77 Cr App R 231 728

220, 236, 249

Homicide Ordinance (cap 339)

Road Traffic Ordinance (cap 374)

648, 649, 652, 654, 657, 743, 746

749, 750, 752