Criminal Law in Hong Kong

CRIMINAL LAW IN HONG KONG

Michael Jackson

Jackson_00_fm.indd iii 14/08/2014 3:39 PM Hong Kong University Press The University of Hong Kong Pokfulam Road Hong Kong www.hkupress.org

ISBN 978-962-209-558-8

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10 9 8 7 6 Cover designed by Lea & Ink Design Printed and bound by Goodrich Int’l Printing Co., Ltd. in Hong Kong, China

Jackson_00_fm.indd iv 18/08/2014 8:30 AM Contents

Preface ix

Table of Cases xi

Table of Legislation xlv

PART I INTRODUCTION 1

1 Crime and Criminalization 3 Introduction 3 – The Concept of Crime 7 – Why Criminalize? 12 – Crime and Punishment 17

2 The Criminal Law of Hong Kong 25 Introduction 25 – Sources of Hong Kong’s Criminal Law 26 – Foundations of Hong Kong’s Criminal Justice System 34 – Classifying Offences 47 – Hong Kong’s Courts of Criminal Jurisdiction 50 – Criminal Jurisdiction 56 vi CONTENTS

PART II THE GENERAL STRUCTURE OF CRIMINAL LIABILITY 61

3 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 177 Introduction 177 – Negligence 177 – Strict Liability 181

PART III DEFENCES 209

6 Capacity and Incapacitating Conditions 211 Introduction 211 – Infancy 211 – Mental Abnormality 216: Insanity 225; Automatism 237; Diminished Responsibility 248 – Intoxication 255

7 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

8 Participation 329 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 CONTENTS vii

9 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 487

10 Homicide 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 599 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 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 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, 697–698, 703, 746 A-G of HK v Yip Kai-foon [1988] AC 642 719, 725–726 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 195 188–189, 193 A-G v Lee Kwong-kut [1993] 2 HKCLR 186 39, 43, 44–47, 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 281 449–450 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, 707–708 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 139 743–744 Chan Wing Hang [1996] 3 HKC 225 346–347, 390–391 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, 493–494, 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 370 575–576

Fok Kau [1994] 1 HKCLR 122 342–343, 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 661 185–186, 187, 191, 192, 194–196, 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 605 651–652 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, 668–669, 706, 728, 746, 747, 758–759, 762–763 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 385 591–592 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, 691–692, 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, 366–369, 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, 513–515

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, 545–546 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 159 345–346, 349 Kwan Ping-bong [1979] HKLR 1 10, 35–36 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 453 389–390, 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 [1946–49] 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 469 370–371 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, 343–344 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 184 351–352 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 149 710–711 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 1 240–242 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, 507–508, 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, 43–44 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 56–57, 58–59, 428–429, 430–431, 432 Sze Sing-ming [1991] 2 HKLR 481 706, 762 Szeto Kwok-hei [1991] 2 HKLR 178 372–373, 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, 446–449, 772 Wan Kiu Sang [1994] 3 HKC 589 640 Wang Shih-hung, Fong Chin-yue [1995] 1 HKCLR 193 198, 200, 204–206, 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 99–100 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 111 324–325, 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, 541–543, 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-G’s Ref (No. 1 of 1974) [1976] QB 744 718 A-G’s Ref (No. 1 of 1975) [1975] QB 773 338–340, 341, 342, 350 A-G’s Ref (Nos. 1& 2 of 1979) [1980] 1 QB 180 472 A-G’s Ref (No. 4 of 1979) [1981] 1 All ER 1193 716 A-G’s Ref (No. 1 of 1980) (1981) 72 Cr App R 60 767 A-G’s Ref (No. 4 of 1980) [1981] 1 WLR 705 108 A-G’s Ref (No. 6 of 1980) [1981] QB 715, [1981] 1 WLR 705 566, 570, 572, 573, 574, 575 A-G’s Ref (No. 1 of 1982) [1983] QB 751 427, 428, 446 A-G’s Ref (No. 2 of 1982) [1984] QB 624 698 A-G’s Ref (No. 1 of 1983) [1985] QB 182 672 A-G’s Ref (No. 2 of 1983) [1984] 1 QB 456 297 A-G’s Ref (No. 1 of 1985) [1986] QB 491 662, 663, 669 A-G’s Ref (No. 1 of 1988) [1989] AC 971 31 A-G’s Ref (No. 1 of 1992) [1992] 1 WLR 274, [1993] 2 All ER 190 476–477, 602 A-G’s Ref (No. 2 of 1992) [1993] 2 WLR 982 238–239 A-G’s Ref (No. 3 of 1992) [1994] 1 WLR 409 466, 467–468, 469, 471 A-G’s Ref (No. 3 of 1994) [1998] AC 245 161, 162–163, 490, 492, 497, 498, 499–500, 527, 528, 531, 533, 536 [1996] QB 581 CA 500 A-G’s Ref (No. 2 of 1999) [2000] Crim LR 475 400 A-G’s Ref for Northern Ireland (No. 1 of 1975) [1977] AC 105 293, 294 Ahluwalia [1992] 4 All ER 889 251, 253, 505, 510–511, 520, 521 Airedale NHS Trust v Bland [1993] AC 789 81–84, 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, 435–437, 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 576 528–529, 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 Arthur’s 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, 206–207, 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, 246–247, 266 Bainbridge [1960] 1 QB 129 354–355 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 842 148–149 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 6 371–372 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 405 350–351, 352, 354 Bland [1988] Crim LR 4 347 Blaue [1975] 1 WLR 1411 93–94 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, 228–229, 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 592 693–694, 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, 570–572, 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, 237–238, 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 396 250–251, 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 268 475–476 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, 98–99, 100, 493 Chief Constable of Avon & Somerset Constabulary v Shimmen (l986) 84 Cr App R 7 153–154 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, 356–357, 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 623–625, 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 944 407–408

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 347 672–673 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, 320–321 DPP v Camplin [1978] AC 705 504, 506, 509, 515–517, 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, 684–685, 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, 357–358, 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, 258–259, 261–262, 264, 265, 266, 270 DPP v Morgan [1976] AC 182 135, 159, 166, 167–168, 169, 172, 174, 202, 262–263, 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, 746–747 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 [1881–85] All ER 61 300, 313–314 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)[1843–60] 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 52 628–629 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 24 767–768 Gomez (1964) 48 Cr App R 310 251 Gomez (1993), see DPP v Gomez Goodfellow (1986) 83 Cr App R 23 528, 536 Gore’s 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, 127–128, 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, 688–691, 692, 693, 694, 703, 736, 748 HL Boulton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 397–398 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 434–435, 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, 308–311, 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 202 305–306 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 527 273–274 Jakeman (1982) 76 Cr App R 223 101 James & Ashford (1985) 82 Cr App R 226 406, 412 JBH and JH (minors) v O’Connell [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, 466–467, 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, 269–271, 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 981 529–530, 531, 556 Lambie [1982] AC 449 735, 739–740, 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, [1886–90] All ER Rep 386 161, 162, Laverty [1970] 3 All ER 432 739 Lavin v Albert [1982] AC 546 285–286, 288, 295 TABLE OF CASES xxxiii

Lawrence [1982] AC 510 139, 143, 144–145, 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 412 306–307 Lewis v Cox [1985] QB 509 584, 589 Lewis v Lethbridge [1987] Crim LR 59 669–670 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 96–97, 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 802 154–155 Merriman [1973] AC 584 338 Metropolitan Police Commissioner v Caldwell [1982] AC 341 112, 135, 139, 143–144, 145, 146, 147, 148, 150, 151, 152, 156, 157, 158, 159, 178, 257, 260, 262, 264–265, 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, 78–79, 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 M’Naghten’s case (1843) 10 Cl & Fin 200, [1843–60] All ER Rep 229 217, 225–226, 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, 125–126, 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 90 517–518, 521, 522 Moriarty v Brooks (1834) 6 C & P 684 591 Morris [1984] AC 320 671, 674, 675, 679, 680–682, 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, 671–672 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, 129–130, 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

O’Brien (1974) 59 Cr App R 222 417 O’Connell [1997] Crim LR 683 253 O’Connor [1991] Crim LR 135 273, 292 O’Donnell [1996] Crim LR 121 220, 236 O’Grady [1987] QB 995, [1987] 3 WLR 321 272, 273, 274, 292 O’Toole [1987] Crim LR 759 464 Oatridge (1992) 92 Cr App R 367 289 Ofori (No. 2) (1994) 99 Cr App R 223 717 Oldcastle’s 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, 92–93 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 Pearson’s 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, [1874–80] 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, 368–369, 370, 374– 375, 377 Pratt [1984] Crim LR 41 634–635 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, [1874–80] 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 242 730–731 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 91–92, 580–581 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 Taylor’s 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 340 362–363 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 130 431–432 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 819 444–445, 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 493 157–158, 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 27–28 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, 231–232, 243, 244 Surujpaul v R [1958] 1WLR 1050 336 Sweet v Parsley [1970] AC 132 187, 189, 190–191, 194, 201–202, 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 331 628–629 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 441 658–659 Tyrrell [1894] 1 QB 710 406

Uddin [1999] QB 431 375–376 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 256 189–190, 193– 194 Waterfield [1964] 1 QB 164 584–585, 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, 408–409, 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, 131–132, 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, 70–71 Salisbury [1976] VR 452 593–594 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) 161 202–203 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 560 398–400 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 160 192–193 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) 194–196 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 587 s16 587 s21 49 s22 49, 199 s23B(1)(2)(3) 58 s24 559 s27 559 s31 306 s34 137 ss38, 56 334 s47 614, 615 s47(1) 615 s47(2) 615 s47(3) 405, 409, 615 s48 614, 615 s49(1) 614, 615 s49(2) 615 s51 614 s60 112, 135, 142, 279, 299 s60(1) 30, 75, 114, 135, 142, 157, 164, 172, 186, 264, 273, 407, 464, 468, 481, 532 s60(2) 154, 157, 262, 264, 267, 441, 464, 467 s60(3) 75, 86, 142, 157, 264, 464 s63(1) 468 s63(2) 30, 282, 468 s64 279, 299 s64(2)(3) 172, 274, 325 ss71–76 59, 741 s93 334 s117 334 s117(1) 169, 611, 613, 614, 636, 641 s117(1A) 600, 604, 620, 638 s117(2) 601 s117(3) 639 s118 139, 274, 332, 599, 600 et seq s118(1) 66, 600–601 s118(2) 607, 608 s118(3) 66, 158, 359, 601, 602, 609, 610 s118(4) 168–169, 274, 275, 611 ss118A-118G 599 s118A 616 TABLE OF LEGISLATION xlvii

s118B 590, 617 s118C 616, 617 s118D 617 s118E(1)(2)(3) 617 s118F(1)(2)(3) 617, 618 s118G 617 s118H 618 s118I(1)(2) 618 s118J(1)(2)(3) 618 s118K 618 s118L 358, 617 s118M 358, 616 s118N 616 s119 462, 600, 604, 641, 642 s119(1) 609, 619, 620 s120 600, 607, 641, 642 s120(1) 609, 620 s120(2) 620 s121 600, 620–621, 641, 642 s122(1) 180, 599, 622 et seq s122(2)(3) 627, 630 s122(4) 628 s123 469, 599, 612–613 s124 165, 200, 315, 377, 422, 482, 599, 605, 613 s125 599, 605, 613–614, 622 s126 183, 599, 621, 622 s127 621, 622 s128 599, 600, 621, 622 ss129–145 599 s129(1)(2) 637 s130 600, 637, 642 s131 637, 642 s132 620, 638, 642 s133 620, 638, 642 s134 600, 638 s135 638 ss136, 137 639 ss139–145 640 s146(1) 405, 599, 618–619 s146(2)(3) 619 s147 599, 636–637 xlviii TABLE OF LEGISLATION

s147A-147F 599, 637 s148 599, 635–636 s149 640 s150 612, 614, 620, 636 ss153A-153O 599, 640 ss154–157 641 s159A 331, 416, 428, 768 s159A(1) 410, 416, 417, 419, 422, 424, 425, 426, 428, 432, 434, 435, 439, 451, 453, 454 s159A(2) 437, 439, 440, 441 s159A(3) 57, 427, 428 s159B 421, 428 s159B(1) 422, 423 s159B(2)(a)(b) 421–422 s159B(2)(c) 421–422, 423 s159B(3) 421 s159C(1) 456, 457 s159C(3)(4)(6)(7) 457 s159C(5) 427, 456, 457 s159D 456 s159E(1) 416, 434, 456 s159E(2) 416, 424 s159E(3) 451, 452, 457 s159E(4)(5) 455 s159E(6) 416, 421, 428, 439, 453, 454 s159G 385, 417, 454, 479 s159G(1) 412, 460, 461, 462, 463, 464, 466, 469, 470, 472, 473, 602 s159G(2) 410, 461, 472, 477, 480–482 s159G(3) 461, 483 s159G(4) 477, 480–482 s159G(5) 434, 461, 462, 483, 484 s159H(1)(2) 484 s159I(1)(2)(3) 460, 483, 484 s159I(4)(5) 483 s159J(2) 473 s159J(3) 483 s159J(4) 484 s159K 461 s159K(1) 460, 461 s159K(2) 483 TABLE OF LEGISLATION xlix

s159L 457 Crimes (Amendment) Ordinance (No. 90 of 1991) s(2) 600 s26 616 Crimes (Amendment) Ordinance (No. 24 of 1993) 11, 489 Crimes (Amendment) Ordinance (No. 49 of 1996) 404, 410 s2 416, 457 s4 460 Criminal Jurisdiction Ordinance (cap 461) 59–60, 413, 428, 432, 484, 696, 741 s2(2) 699, 742 s2(3) 700, 742 s3(1) 59, 413, 432, 484, 699, 742 s3(2) 59, 742 s3(3) 59, 413, 699, 742, s4(1) 59, 413, 432, 434, 485, 700, 742 s4(2) 432 s4(3) 59, 484 s4(4) 59, 413 s4(5) 700, 742 s5 700, 742 s6(1)(a)(b)(c) 433, 700, 701, 742, 743 s6(2) 413, 485, 700, 701, 742, 743 s7(1) 433, 701, 743 s7(2) 413, 485, 701, 743 Criminal Procedure Ordinance (cap 221) 9 s14A(1) 48 s41(1)(2) 54 s51(2) 594, 595 s65A 116, 117, 122, 261, 262, 264 s65E 601, 616 s65F 53 s66A 455 s74 21, 219, 222, 225, 235, 242 s74(1) 217, 236 s75 219, 222 s75(1) 218 s75(2)(3)(5)(7) 219 s75(4) 219, 220 s75(6) 219, 235 s75A 219, 222 l TABLE OF LEGISLATION

s75A(1) 220, 236, 249 s75A(2)(5) 220 s76 222, 225, 236 s76(1) 21 s76(2) 220, 221, 225, 236 s76(3) 220, 221 s76(5) 225 s76A 217, 222, 225 s77 222 s79A 212 s81(1) 55 s81A(1) 55 s81D 55 s82 55 s83J 236 s83K(4) 236 s83L(1)(2) 236 s83M 222 s89 333 et seq, 462 s90 330 s90(1) 50, 384, 385–386 s90(4) 386 s91 330 s91(1) 50, 384, 386–387 s91(2) 384 s91(3) 387 s91(4)(5) 384 s94A 38–39, 179 s94A(1) 38 s94A(2) 38 s94A(4) 39 s100 278, 323–324 s101(2) 50, 281, 282–283, 292, 294, 554, 579 s101A 30, 172, 280–282, 283, 284 s101A(1) 280, 281, 283, 284, 285, 292, 294, 567 s101A(2) 283, 285 s101B(1) 459, 472, 479, 484 s101B(3) 459 s101C(1)(2) 412, 413, 484 s101E 401 s101I(2) 408, 412 TABLE OF LEGISLATION 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 ss83–84 54, 55 Drug Trafficking (Recovery of Proceeds) Ordinance (cap 405) s25(1)(4) 45–46 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) 188–189 Evidence Ordinance (cap 8) s3(a) 212 s4 212 s4B 642 Firearms and Ammunition Ordinance (cap 238) s13 38, 40 s24 40–421 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 TABLE OF LEGISLATION

Homicide Ordinance (cap 339) 501 et seq s2 498 s3 30, 217, 225, 248, 501 s3(1) 248, 249–250, 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, 46–47, 197, 199, 369, 498 s3 42, 43–44 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, 42–47, 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) 200–201 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 s 3 4, 27, 47, 49, 74, 212, 282, 385, 395, 554 s19 30 TABLE OF LEGISLATION 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 48–49, 52, 579, 590, 591 et seq s93 52 s94 52 s94A 49 s97(3)(a) 52 s104(1) 53 s104(10) 53 ss105–113 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 TABLE OF LEGISLATION

ss42–42B 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 388–390, 394 Miscellaneous Licences Regulations Regs 30(b), 32(b) 389–390 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, 597–598 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 TABLE OF LEGISLATION lv

s27 72, 528 s33A 336, 489, 526 s33B 334, 335, 410, 462, 489, 526 s33C 496 s36(a) 590 s36(b) 84, 261, 553, 554, 567, 582, 583, 588 s36(c) 590 s39 91, 158, 230, 245, 261, 282, 288, 553, 554, 556, 560, 565, 568, 571, 573, 577, 579 et seq, 582, 594 s40 115, 282, 553–554, 555 s42 52 s43 52 s45 173, 201 s46 489, 492 ss47, 47A, 47B 489, 492 s47C 489, 495, 501, 547–548 s49 358, 615 ss50–53 616 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 TABLE OF LEGISLATION

Road Traffic Ordinance (cap 374) s36 48, 144, 148, 157, 160, 238, 489, 501, 543, 548–551 s36(2)(a)(b) 551 s36(4) 549 s36(5) 549 s36(7) 550 s36(8) 550 s37 138, 157, 160, 543 s38 118, 178–179 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) 702–704, 749 s3(1)(a) 702, 715 s3(1)(b) 687, 702–703 s3(1)(c) 660, 703–704 s3(2) 704 s4 647, 674, 679 s4(1) 674–676, 681, 689, 690, 695 s4(2) 674, 698–699 s5 647, 648–657, 716 TABLE OF LEGISLATION lvii

s5(1) 648, 649, 652, 654, 657, 743, 746 s5(2) 648, 655–656, 743 s5(3) 648, 655, 743 s5(4) 648, 655, 656, 657, 743 s5(5) 648, 655, 656, 743 s5(6) 648, 656–657, 743 s6 647, 657–673 s6(1) 646, 647, 652, 657, 658–663, 664, 669, 670, 671, 673 s6(2) 657, 661, 663–664, 669, 670 s6(3) 650, 653, 657, 662, 664–670, 743 s6(4) 646, 657, 662, 671–673, 711 s7 647, 706–711, 748 s7(1) 707–711 s7(2) 711 s8(1) 647, 648, 658, 743 s8(2) 716, 762, 764, 767, 771 s 9 11, 59, 113, 213, 256, 282, 443, 647, 741 s10 49, 244, 331, 337, 345, 677, 712–715 s10(2) 136, 590 s11 136 s11(1)(a) 356 s12 49 s15 657 s16 657 s16A 59, 443, 647, 727, 750, 768–772 s16A(1) 768, 769, 770, 771 s16A(2) 772 s16A(3) 768, 771 s16A(4) 444, 768 s17 59, 159, 443, 654, 655, 671, 704, 710, 727, 728, 736, 741, 743–748, 754 s17(1) 479, 650, 651, 654, 661, 679, 699, 717, 736, 743, 744, 746, 747, 752 s17(2) 746, 748 s17(3) 748 s17(4) 159–160, 728–736, 753, 755, 761, 764, 769 s18 59, 159, 652, 727, 728, 736, 741, 748–752 s18(1) 748, 749, 750 s18(2) 749 s18(2)(a) 741, 749, 750, 762 s18(2)(b) 749, 750, 751 lviii TABLE OF LEGISLATION

s18(2)(c) 749, 750, 752 s18(3) 729, 750 s18A 59, 159, 727, 736, 741, 749, 752–754 s18A(1) 752, 753, 754 s18A(2) 750, 753, 754 s18A(3) 729, 753 s18B 59, 159, 727, 736, 741, 749, 754–761 s18B(1) 754, 755 s18B(1)(a) 754, 755, 756–757, 758, 759 s18B(1)(b) 667, 754, 755, 756, 757–760 s18B(1)(c) 731, 753, 754, 755, 760–761 s18B(2) 755, 760 s18B(3) 758 s18B(4) 760 s18B(5) 729, 755 s18C 659, 663, 727, 741 s18D 59, 159, 647, 651, 652, 706, 727, 736, 741, 746, 758, 761–763 s18D(1) 761 s18D(2) 729, 762 s19 443, 727, 741, 762, 766–768 s19(1)(2) 766, 767 s20 401 s21 59 s22(2) 59, 654, 727, 736, 742, 762, 763–765 s22(3) 763, 765 s22(4) 729, 763, 764, 765 s23 59, 387, 741 s24 59, 137–138, 213, 715–726, 741 s24(1)(2) 715 s26 678, 717 s26(1) 717 s26(2) 716, 717 s26(3) 717–718 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 TABLE OF LEGISLATION lix

Trade Descriptions Ordinance (cap 362) s17(1)(a) 583 s20 402 Trade Unions Ordinance (cap 332) ss46, 48 587 Training Centres Ordinance (cap 280) 23 Water Pollution Control Ordinance (cap 358) s10 181

Accessories and Abettors Act 1861 s8 334 Children and Young Persons Act 1933 s1(1) 528 Crime and Disorder Act 1998 s34 29, 214 Criminal Attempts Act 1981 404, 475 s1(1) 461, 466, 467 s1(2)(3) 480, 481 s1(4) 418, 461, 462 s5(1) 416 Criminal Damage Act 1971 142, 143, 144 s1 112 s1(1) 75, 142, 273 s1(2) 154, 267, 467 s1(3) 75, 142 s5(2)(3) 274 Criminal Justice Act 1925 s47 323 Criminal Justice Act 1967 s5 387 s8 117, 261, 262 Criminal Justice Act 1987 404 s12(2) 452 Criminal Justice Act 1991 19 Criminal Justice Act 1993 (not yet in effect) 696 Criminal Justice and Public Order Act 1994 601, 604 Criminal Law Act 1967 s1 334 lx TABLE OF LEGISLATION

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 TABLE OF LEGISLATION lxi

Police Act 1964 s51 84 Police and Criminal Evidence Act 1984 s24 282 s51 285 s78 383 Road Traffic Act 1930 s11 538 Road Traffic Act 1972 s1 238 s2 148 Road Traffic Act 1988 Road Traffic Act 1991 Sexual Offences Act 1956 s1(1) 601 s2(1) 604 s3(1) 607 s6(3) 613 s10(1) 409 s11(1) 409 s14(1) 624 s15(1) 625 Sexual Offences Act 1967 616 Sexual Offences (Amendment) Act 1976 601 s1 158, 274 Sexual Offences Act 1993 s1 216, 332, 602 Theft Act 1968 s1 645, 649, 684, 701 s2 647, 702 s3 647, 674, 681, 689, 690 s4 647 s5 647, 659, 664 s5(3) 664, 666, 667, 669, 670 s5(4) 671 s6 647, 707, 708, 710 s8 244, 714 s13 405 s15(1) 650, 704, 710, 727, 739, 744 s15(4) 729 s15A 651, 745, 749, 761 lxii TABLE OF LEGISLATION

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 2 The Criminal Law of Hong Kong

INTRODUCTION

The general structure and much of the content of Hong Kong’s present body of criminal law was imported into Hong Kong from England in 1843 in the Special Administrative Region’s (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 Kong’s 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 KONG’S 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 People’s Congress (i.e. legislature) of the People’s Republic of China (PRC) (see generally Yash Ghai, Hong Kong’s 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 Kong’s 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

2 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 England’3 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 SAR’s 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 Kong’s 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 Kong’s 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 Kong’s 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 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’. 4 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 Kong’s 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 Kong’s 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 THE CRIMINAL LAW OF HONG KONG 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. 605–6). 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 Kong’s, 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 Kong’s criminal law is statutory sources, including ordinances, regulations and other forms of subordinate legislation.

5 This presumption was subsequently abolished in England by statute; see section 34 of the Crime and Disorder Act 1998. 6 See further, Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (third edition, 1998), Chapter 9. 30 INTRODUCTION

Most offences under Hong Kong’s 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 Kong’s 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). THE CRIMINAL LAW 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-G’s 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 word’s 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 provision’s 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 443–4):

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. THE CRIMINAL LAW OF HONG KONG 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 Kong’s 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

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. (3) 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. (4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. (5) 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. (6) 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 KONG’S CRIMINAL JUSTICE SYSTEM

Criminal law is only one part of Hong Kong’s criminal justice system (see THE CRIMINAL LAW OF HONG KONG 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 Kong’s criminal justice system and as such underpin the body of criminal law doctrine that has evolved as the basis of Hong Kong’s criminal justice system.

The Presumption of Innocence and the Burden of Proof

At the heart of Hong Kong’s criminal justice system is the presumption of innocence. This presumption dictates that in every criminal case, it is for the prosecution to prove an accused’s 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 481–2):

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 prisoner’s 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):

8 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 Kong’s 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 accused’s 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 THE CRIMINAL LAW OF HONG KONG 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

9 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 dealer’s 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 didn’t 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 THE CRIMINAL LAW OF HONG KONG 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 Sankey’s 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. 501–2). 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 D’s 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. THE CRIMINAL LAW OF HONG KONG 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 D’s 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 defendant’s 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 defendant’s 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 416–7):

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 People’s Congress dated 23 February 1997, THE CRIMINAL LAW OF HONG KONG 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 Canada’s 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 Court’s adoption of the two-step approach employed by Canadian courts in determining whether equivalent provisions in Canada’s 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 THE CRIMINAL LAW OF HONG KONG 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 person’s 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 person’s 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-General’s 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 individual’s 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 THE CRIMINAL LAW OF HONG KONG 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 legislature’s 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 Kong’s 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). 48 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). THE CRIMINAL LAW OF HONG KONG 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 magistrate’s 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 Kong’s 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 Kong’s legislation covering a wide range of matters.

HONG KONG’S 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 THE CRIMINAL LAW OF HONG KONG 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 Ordinance (cap. 227)).

Magistrates

Most criminal cases in Hong Kong commence in one of Hong Kong’s 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 year’s 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). THE CRIMINAL LAW OF HONG KONG 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 Kong’s 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 THE CRIMINAL LAW OF HONG KONG 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 five- person 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 Kong’s 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 Kong’s 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 THE CRIMINAL LAW OF HONG KONG 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 Kong’s 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): THE CRIMINAL LAW OF HONG KONG 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 Kong’s 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. 14 Index

Abetting, see Secondary participation obtaining services by deception, Accessories, see Secondary see Deception offences participation obtaining services by omissions, Accomplices, see Secondary see Omissions participation rape, see Rape Actual bodily harm 579–582 robbery 712–714 Actus reus 63–108 series of acts 105–108 actual bodily harm, occasioning state of affairs 80–81 580–581 technical assault, see assault assault 555–562 theft, see Theft assaulting police officer in voluntariness 68–71 execution of duty 583–588 strict liability, and 182–183 attempt 472–477 wounding 591–595 battery 562–564 wounding with intent 597 causation, see Causation Agents provocateurs, see Entrapment circumstances 85 Aggravated assaults, see Assault and coincidence of mens rea and battery 100–108 Aiding, see Secondary participation continuing acts 85, 102–103 Alcohol 255–256 defining 63–67 spiked drinks 268 handling, see Handling see also Intoxication homicide 490–497 Appropriation 674–701 incitement 406 assumption of rights of owner indecent assault 625–631 674–675 inflicting grievous bodily harm bona fide purchaser 698–699 591–595 company property 697–698 774 INDEX

consent, authority and 679–691 rough play 575–576 innocent agent, by 675–676 surgery 576 jurisdiction 699–701 see also unlawfulness keeping or dealing, later lawful correction 578 assumption by 693–694 necessity 577–578 label-switching, by 681–682 occasioning actual bodily harm Gomez decision 684–688 579–582 Hinks decision 688–691 actus reus 580–581 HK cases 691–693 mens rea 581–582 later assumption 693–694 recklessness 561 Lawrence decision 680 sado-masochists 570–573 Morris decision 680–683 silence, assault by 558–559 things in action and 694–697 technical assault, see assault usurpation 681 unlawfulness of force inflicted Arrestable offences 49–50 559–561, 563, 564–579, 582 assisting after commission 385– burden of proof 579 386 consent, see consent as defence concealing commission 386–387 lawful correction 578 lawful arrest 281–283 necessity 577–578 Arson, see Criminal damage ordinary daily contact 566– Assault and battery 553–579 568 aggravated assaults 579 self-defence and crime assault 555–562 prevention 578 actus reus 555–561 words, assault by 557–558 by silence 558–559 see also Indecent assault by words 557–558 Assisting and concealing offenders mens rea 561–562 329–330, 383–387 assaulting police officer in at common law 383–384 execution of duty 582–589 compounding an offence 387 actus reus 583–588 statutory 384–387 mens rea 588–589 assisting after arrestable offence battery 562–564 385–386 actus reus 562–564 concealing arrestable offence mens rea 564 386–387 consent as defence 568–577 Attempt 403, 458–485 duress and 569–570 actus reus 472–477 fraud and 569–570 act 472–473 invalidity of 568–569 more than merely preparatory public interest 570–574 473–477 public interest, exceptions impossibility and 477–482 574–577 jurisdiction 484–485 dangerous exhibitions mens rea 463–472 577 conditional intention 472 games and sports 574–575 intention 463–470 physical adornment 576 participation in 483 INDEX 775

proximity test 473–477 medical treatment 95–100 statutory offence 461 naturally occurring events 91 withdrawal 482–483 neglect by victim 94 Automatism 217, 237–248 novus actus interveniens burden of proof 239–242 89–90 caused by reasonably foreseeable events diabetes 243 91–93 disease of mind 242 legal causation 89–100 epilepsy 229, 231–232 novus actus interveniens, see psychological trauma 204– intervening acts and events 205 substantial cause 89 sleepwalking 243–244 thin skull 93–94 definition of 237–239 Causing death by dangerous driving, insane 242–245 see Dangerous driving non-insane 242–245 Causing death by reckless driving, see self-induced 245–248 Reckless driving Cheques and cheque cards Basic intent 134–136 deception involving 732–736 Bateman test 537 theft and 652–654 Battery, see Assault and battery Children Belief 137–138 capacity of, see Infancy Bill of Rights 12, 33–34 Coercion, marital 323–324 Article 11(1) 39, 42–47, 614, 733 Coincidence, see Actus reus strict liability, and 197–199 Common design, see Secondary Bodily harm participation actual bodily harm 579–582 Company property, appropriation of grievous bodily harm 590–598 697–698 Borrowing, theft and 709–711 Compounding, see Assisting and Brain death 493 concealing offences Breach of peace 285–286 Conduct crimes 66 Burden of proof, see Proof breach of duty to act 71–72 Confidential information 654 Caldwell recklessness, see Recklessness Consent Capacity 211–75 assault and battery 568–577 infancy, see Infancy fraud and 569–570 insanity, see Insanity indecent assault 626–628 Care, duty of, see Duty of care public interest 570–574 Causation 87–100 public interest, exceptions 574– accused’s act not sole cause 89 577 third party actions 92 Consent to intercourse, see Rape, victim’s actions 94 actus reus factual causation 87–88 Consequences, foresight of 122–123 homicide and 495 Conspiracy 403, 414–458 intervening events and acts 89– acquittal of co-conspirators 455– 100 456 776 INDEX

agreement 417–418 limitations 400 common law offences requiring human to defraud, see to defraud conduct 400 immunity of co-conspirator 455 offences of violence 400 merger 456 physical punishment 400 parties 454 see also Vicarious liability statutory 416–442 Counselling, see Secondary actus reus 417–435 participation agreement 417–418 Courts of criminal jurisdiction 50– conditional agreement 56 419–420 Coroners court 56 continuing offence 418– Court of Appeal 54–55 419 Court of Final Appeal 55 course of conduct 425– Court of First Instance 54 426 District Court 53–54 necessity for two persons Juvenile Court 53 420–424 Magistrates 51–53 exceptions 421–423 Credit balance and theft 649–652 object of agreement 424– Crime prevention, see Prevention of 434 crime offence intended 427–434 Crimes committed by party to conduct, see Conduct crimes agreement 434–435 defining crime 7–12 inchoate offence 454 elements of, see Actus reus and impossibility 452–454 Mens rea jurisdiction 427–434 result, see Result crimes mens rea 435–442 Criminal acts Anderson 435–439 social morality and 13–16 intention 435 Criminal damage 142, 143–144 consequences 441–442 arson, by fire 142 knowledge of circumstances Criminal law 439–441 functions of 4–7 to defraud 442–452 morality and 13–15 ‘defraud’ 444–450 social control, see Punishment dishonesty 450–451 Criminal libel 388 intention to practise a fraud Cunningham recklessness 141 444–450 see also Recklessness overlap with statutory offence perpetrator of fraud 450 Damage, see Criminal damage public official 445, 447 Dangerous driving Continuing acts 85, 102–103 causing death by 489, 548–551 Corporate liability 330, 395–402 see also Reckless driving identification principle 396–400 Death legal person 395 brain death 493 liability of officers 401–402 meaning 493–495 INDEX 777

within year and a day 496 services 753 see also Homicide; Manslaughter; procuring entry in bank record Murder 761–763 Deception offences 728–772 procuring execution of valuable ‘by’ deception 736 security 763–765 cheques, cheque cards and credit valuable security 765 cards 732–736 words or conduct 730–731 deceived 729 Defences deception automatism, see Automatism by silence 730–731 consent, see Consent, publicpublic interest interest by words or conduct 730–731 crime prevention, see Prevention meaning of 728–736 of crime subject matter of 732–736 diminished responsibility, see deliberate or reckless 731–732 Diminished responsibility dishonesty 728–741 due-diligence defence 206 evasion of liability by deception duress, see Duress 754–761 evidential burden 41–42 exemption from or abatement excuse 278 of 760–761 insanity, see Insanity inducing creditor to wait or intoxication, see Intoxication forgo payment 757–760 justification 277–278 liability to make payment marital coercion 323–324 755–756 necessity, see Necessity securing remission of existing prevention of crime, see liability 756–757 Prevention of crime false accounting 766–768 provocation, see Provocation false representation 729 self-defence, see Self-defence fraud, see Fraud strict liability and 199–207 see also Conspiracy to defraud Delegation principle 392–394, 396 jurisdiction 741–743 Deterrence 19–21 obtaining pecuniary advantage Diabetes 229–231 748–752 automatism 243 credit facility or arrangement hyperglycaemia 229–230 750–751 hypoglycaemia 229–230 employment or remuneration Diminished responsibility 217, 248– 752 255, 501–502 insurance policy 754 abnormality of mind 250–252 overdraft 751 aetiology, see medical causes obtaining property 743–748 burden of proof 248 actus reus 743–747 inherent causes 253–254 mens rea 747–748 intoxication and 253–254 theft, and 748 irresistible impulses 250–251 obtaining services 752–754 medical causes 252–254 benefit 753 medical evidence, need for 252– payment 753–754 253 778 INDEX

nature of 249–250 treason 313 operation of defence 248–249 voluntary association with sentence 255 criminals and terrorists substantial impairment of mental 307 responsibility 255 of circumstances 316, 317–322 see also Manslaughter, voluntary see also Necessity Dishonesty 450–451, 701–712 Dutch courage 108, 275 belief in owner’s consent 702 Duty of care belief in right to deprive 702 contractual 75–76 belief that owner cannot be dangerous situation 78–80 found 703 special relationship 76 common law test 704–706 undertaking care 76–77 conspiracy to defraud 450–451 deception offences 728 Electricity, abstracting 657 fraud 770–771 Encouragement, see Secondary Ghosh test 704 participation handling 722 Enforcement of Morals, Hart/Devlin robbery 715 14–15 willingness to pay 704 Entrapment 381–383 Doli incapax 29, 213–215 Epilepsy 229, 231–232 Driving offences causing death, see Dangerous driving; Reckless Factual causation 87–88 driving False accounting 766–768 Drugs, see Intoxication accounting purpose 767 Duress 300–323 gain or loss 767–768 by threats 300–317 Felonies, see Offences attempted murder 312 Fitness to plead 218–224 burden of proof 313 disposal 222–224 characteristics of accused Force 304–305 in self-defence escape, opportunity to 305– assessment of 287 307 excessive force 296 excluded offences 307 instinctive response 292– imminence of threat 305–307 294 intoxication and 304 mistake and 287–292 marital coercion 323–324 reasonableness 287–296 mistake and 303 robbery, in 713 murder and 308–311 Foresight nature of threat 301–302 causation and 91–93 police protection 305–306 of consequences 116–117, 122– reform 323 123 test for 302–303 Fraud subjective and objective 303– consent and 607–609 305 conspiracy to defraud 442–452 superior orders 324–325 ‘defraud’ 444–450 INDEX 779

statutory offence 768–772 recent possession 723–724 actus reus 771 suspicion 723 ‘deceit’ 769–771 Harm dishonesty, not required 770– actual bodily harm 579–582 771 grievous bodily harm 591 mens rea 771–772 meaning 13 Homicide Ghosh test 704, 728 actus reus 490–497 Gomez decision 684–688 causing death by dangerous Goods 716–718 driving 489, 490–491 see also Handling death Grievous bodily harm 590–598 meaning 493–495 inflicting 590–596 within year and a day 496 actus reus 591–595 infanticide 489, 490–491, 547– mens rea 595–596 548 inflicting with intent 597–598 unlawful 497 actus reus 597 see also Manslaughter; Murder mens rea 597–598 Hospital order 222–224, 238, 255 meaning 591 Hyperglycaemia, see Diabetes mens rea for murder 497–498 Hypoglycaemia, see Diabetes Gross negligence manslaughter 537–543 Identification principle 396–400 see also Manslaughter, involuntary, Ignorance of law 113, 174 reckless manslaughter Impossibility attempt 472–482 Handling 715–726 conspiracy 452–454 actus reus 716–721 incitement 409–411 forms of 719–721 Incapacitation 21–22 arranging 721 Incapacity see Capacity receiving 720 Incest 614–615 undertaking or assisting Inchoate offences 403 retention, removal, basis of liability 404–405 disposal or realization nature of liability 404 720–721 see also Attempt; Conspiracy; goods 716–718 Incitement otherwise than in course of Incitement 403, 405–414 stealing 718–719 actus reus 406 proceeds 717 impossibility 409–411 ‘stolen’ goods 716–718 jurisdiction 413 alternative verdict of theft 724– mens rea 407–408 726 offence incited 408–409 mens rea 722–724 inciting attempt or conspiracy dishonesty 722 411–412 knowledge or belief 722–723 inciting participation 411 proving 723 reform 413–414 780 INDEX

Indecent assault 622–635 see also Automatism; Diminished actus reus 625–631 responsibility kissing 629–630 Intangible property 654 mens rea 631–635 Intention 118–136 Indecent exposure 635–636 accessory and, see Secondary Indictable, see Offences partipation, mens rea Infancy 211–216 basic intent 134–136 child, independent existence 491 conditional intent child, meaning of 212 attempt and 472 doli incapax 29, 213–215 permanently to deprive 711– innocent agents, as 331–332 712 mischievous discretion 214–215 foresight of consequences 122– sexual incapacity, presumption 123 of 215–216, 332, 602 House of Lords on 123–132 young person 212 meaning of 120–134 Infanticide 489, 490–491, 547– motive 113 548 oblique intention 120 Innocent agent 331–333 permanently to deprive 706–712 appropriation by 675–676 borrowing or lending 709–711 limits 322–333 conditional intent 711–712 Insanity 217, 225–236 parting with under condition burden of proof 226–227 711 committal to mental hospital 225 property got by mistake 711 defect of reason 227 purpose 121–122 diabetes 229, 230 secondary participation and 347– hyperglycaemia 229, 230–231 356 hypoglycaemia 229, 230 specific intent 134–136 disease of the mind 227–232 ulterior intent 136 epilepsy 229, 231–232 Intervening events, see Causation hospital order, see Hospital order Intoxication 255–275 insane delusions 234–235 automatism and 256 intoxication and 256 basic intent 134–136 irresistible impulses 233, 250– Caldwell recklessness 260, 264– 251 265 knowledge of nature and quality diminished responsibility and of act 232–233 253–254 knowledge that act wrong 233– insanity or abnormality of mind 234 and 256 M’Naughten Rules 225–235 duress and 304 not guilty by reason of 225 Dutch courage 108, 275 presumption of sanity 226–227 involuntary 268–271 special verdict 225, 235 laced drinks 268 appeal against 236 mens rea and 257 stress 230–231 mistake and 271–275 unfit to plead, see Fitness to plead nature of 255–256 INDEX 781

offences involving 255 evasion by deception 754–761 recklessness and 257–258, 260, strict, see Strict liability 264–266 vicarious, see Vicarious liability self-defence, mistaken belief and Libel, strict liability and 181 271–275 Life support systems 81–84 specific and basic intent offences 134–136, 257, 260–264 Making off without payment 663 voluntary 257–268 Malice Irresistible impulses 233, 250–251 constructive malice 498 murder and malice aforethought Joint enterprise, see Secondary 497–500 participation transferred malice 161–163 Jurisdiction Maliciously 141, 595–596, 598 courts, see Courts Manslaughter 489, 490–497, 501– territorial 56–60 547 common law 56–59, 427–432 involuntary 526–547 Criminal Jurisdiction Ordinance causing death by dangerous 59–60 driving 489, 548–551 attempt 484–485 constructive manslaughter conspiracy 432–434 527–536 deception 741–743 by act 528 incitement 413 by omission 528 theft 699–701 directed at 535–536 dangerous act 533–535 Kissing, as indecent assault 629–630 unlawful act 528 Knowledge 136–138 gross negligence manslaughter actual 137 537–543 belief 137–138 Adomako 540–543 constructive 137 Bateman test 537 wilful blindness 137 motor manslaughter 544 reckless manslaughter 544–547 Label-switching, theft by 681–682 Lawrence test, rejection of 546 Land, theft of 655–656 reform 547–548 Later appropriation, see Theft, voluntary 501–526 appropriation diminished responsibility Lawrence decision and theft 680 501–502 Lawrence recklessness, see see also Diminished Recklessness responsibility Legal causation, see Causation, legal provocation 502–525 causation suicide pacts 526 Lending and borrowing, theft and Marital coercion 323–324 709–711 Marital rape 332–333, 602–605 Liability Medical treatment Corporate, see Corporate liability causation and 95–100 entrapment and 381–383 necessity 315, 316, 577–578 782 INDEX

surgery 576 involuntariness, see Automatism; withdrawal of life support 81–84 Involuntariness Mens rea 33, 109–175 Mill, John Stuart 13 accessories, see Secondary Mischievous discretion 214–215 participation Misdemeanours, see Offences assault 561–562 Mistake 164–175 assault occasioning actual bodily defence, as to 169–170 harm 581–582 definitional element of offence, as attempt 463–472 to 170–172 battery 564 fact, of 166–174 coincidence of actus reus and ignorance of law 174 100–108 intoxication and 271–275 conspiracy to defraud 444–450 law, of 174–175 handling 722–724 negating mens rea 166–169 incitement 407–408 non-definitional element of indecent assault 631–635 offence 172–173 inflicting grievous bodily harm property ‘got’ by 671–673 595–596 self-defence and 283, 287–292 intention, see Intention strict liability and 201–207, 612, knowledge, see Knowledge 613, 614, 621 maliciously 141, 595–596, 598 Tolson 173–174 mistake, see Mistake M’Naughten Rules 225–235 murder 497–500 Money, theft and 648–649 negligence, see Negligence Morality, see Social morality objective 112 Morris decision 680–683 obtaining property by deception Motive 113 747–748 see also Intention; Mens rea presumption of 115–116, 186 Motor manslaughter 544 rape 609–612 Murder 489, 490–500 recklessness, see Recklessness actus reus 490–497 robbery 715 constructive malice 498 secondary participation 347–356 duress and 308–311 strict liability, see Strict liability grievous bodily harm 497–498 subjective 112 malice aforethought 497–498 technical assault, see assault mens rea 497–500 theft, see Theft necessity and 313–314, 318–319 wounding 595–596 reform 547 wounding with intent 597–598 transferred malice and 499–500 Mental abnormality automatism, see Automatism Natural consequences diminished responsibility, see Necessity 300–301, 313–323 Diminished responsibility assault and battery and 577–578 insanity, see Insanity burden of proof 322 unfitness to plead, see Fitness to duress of circumstances 313–323 plead limits of 318–319 INDEX 783

medical treatment 315, 316, see also Vicarious liability; 577–578 Corporate liability moral involuntariness and 317 Pecuniary advantage, see Deception nature of circumstances 317–318 offences, obtaining pecuniary nexus 322 advantage reform 323 Presence and aiding and abetting test for 320, 321 343–346 see also Duress; Marital coercion Presumption Negative averment, see Proof of innocence, see Proof Negligence 177–180 of mens rea, see Mens rea criminal liability for 178–179 of sanity, see Insanity defence of reasonableness 179– of sexual incapacity, see Infancy 180 Prevention of crime 280–298 meaning of 177–178 lawful arrest 281–283 Non-arrestable offences 49–50 lawful excuse, as 297–298 Non prosecution 218 meaning of 280–283 Novus actus interveniens, see necessity of force 294–295 Causation reasonableness of force 287–296 assessment of 287 Offences excessive force 296 arrestable and non-arrestable 49– instinctive response 292–294 50 mistake 283–284 felonies and misdemeanours 47, unknown circumstances of 334, 335 justification 286–287 inchoate, see Inchoate offences see also Self-defence quasi-criminal 188 Principal state of affairs offences 80–81 acquittal of principal 336 strict liability, see Strict liability definition 329, 330 summary and indictable 48–49 innocent agent, by 331–333 Omissions 71–80 joint principals 331 breach of duty to act 75 no principal offender causing harm by omission 72–74 exempt from prosecution 331 duty cases 75–77 not liable to conviction 331 contractual duty of care 75– uncertainty as to 337, 360– 76 361 dangerous situation 78–80 see also Secondary participation special relationship of care 76 Procuring, see Secondary undertaking care 76–77 participation offences of 71–72 Procuring entry in bank withdrawal of life support 81–84 record 761–763 Owner 660 Procuring execution of valuable security 763–765 Parents, duty of care 76 valuable security 765 Parties to crime, see Principals; Proof Secondary participation burden of 35–42 784 INDEX

defences and 278 by words 502, 504, 509 duress and 313 objective question 509 exceptions 37–41 proportionality 523–524 common law 37–40 reasonable person 515–523 statutory 37–41 role of judge and jury 506–509 insanity and 37, 226 self-induced 524–525 negative averment 37–38 subjective question 509 presumption of innocence 35–36 sudden and temporary loss of standard of 37 control 502, 505–506, 512– Property 515 abandoned 660 test for belonging to another 657–673 common law 502–504 appropriation 674–701 under statute 504–509 confidential information 654 voluntary manslaughter 501 control 658–660 words alone as provocation defence of 299 Proximity test, attempt and 473– intangible 654 477 intention of permanently depriving Psychological trauma, see 706–712 Automatism land 655–656 Public nuisance 388, 396 mistake, got by 671–673 Punishment 10–11, 17–23 money 648–649 deterrence 19–21 obtaining by deception 743–748 incapacitation 21–22 possession 658–660 rehabilitation 22–23 received from or on account of retribution 18–19 664–670 things in action 649–659 Quasi-criminal offences 188 trust property 663–664 Queen’s Peace 495 wild animals 656–657 wild plants and mushrooms 656 Rape 600–612 see also Goods; Proprietary right actus reus 601–609 or interest; Theft consent Proprietary right or interest 660–663 absence of 605–608 assumption of rights of owner invalid 606–607 674–675 sexual intercourse 601–607 equitable interest 660–663 presumption of sexual owner 660 incapacity 602 trust property 663–664 unlawful 602–605 see also Property; Theft intoxication and 612 Provocation 502–525 marital rape 332–333, 602–605 characteristics of accused 515– mens rea 609–612 523 mistake 610–612 cumulative provocation 510–512 recklessness 609–610 nature of provocative conduct see also Sexual intercourse; Sexual 509–512 offences INDEX 785

Reasonable foresight in order to steal 713–714 causation and 91–93 on a person 714 Receiving, see Handling theft 712–713 Recent possession doctrine 723–724 mens rea 715 Reckless driving 140, 148, 151 theft elements 715 causing death by 160 see also Dangerous driving Sado-masochism 570–573 Reckless manslaughter, see Sanity, presumption of 226–227 Manslaughter, involuntary see also Insanity Recklessness 138–161 Secondary participation Caldwell recklessness 142–150 accomplices, meaning of 329 incapacity to appreciate risk acquittal of principal 336 149 agent provocateurs, see Lawrence recklessness 139, entrapment 143, 144–145, 146–147, aiding and abetting 150–152, 156–161, 544–546 abetting 334, 338, 339–341 obviousness of risk 150–151 meeting of minds 339, offences to which applies 340–341 156–161 aiding 334, 338, 339 test of 143–144 inactivity and 346–347 see also Negligence passive assistance, by 346– criminal damage 142, 143–144 347 Cunningham recklessness 141 presence and 343–346 deception and 731–732 supplying weapon or tool, by intoxication 257–258, 260, 264– 349–350 266 assisting after commission of lacuna 152–155 arrestable offence, see Assisting concluding no risk 153 and concealing taking steps to prevent risk charging 338 153–155 common design, see joint maliciously 141, 595–596, 598 enterprise meaning of 138–139 concealing commission of offences against the person 561, arrestable offence, see Assisting 581, 595–596 and concealing rape 609–610 counselling 334, 338, 339–341 subjective 141 meeting of minds 339, 340– Rehabilitation 22–23 341 Result crimes 66–67 derivative liability 335–336 Retribution 18–19 encouraging, see abetting, Risk, see Recklessness counselling Robbery 712–715 entrapment 381–383 actus reus 712–714 inactivity and, see aiding and force or threat of force 713 abetting immediately before or at time joint enterprise 336–337, 360– of stealing 713–714 377 786 INDEX

acts beyond common design, offence 356–359 see intentional deviation unforeseen consequences, liability contemplation of risk 363– for 356 369 victim as secondary party 379 intentional deviation 369–377 weapons murder and manslaughter contemplation of use 363– 370–377 366, 370–377 nature of 360–361 dangerousness of 377 proof of 362–363 fundamental difference in kind weapons 374–377 contemplation of use 363– supplying 349–350 366, 370–377 withdrawal 379–381 dangerousness of 377 see also Principals; Vicarious fundamental difference in liability; Corporate liability kind 374–377 Self-defence 279–299 liability for different offence 378 breach of peace 285–286 mens rea 347–356 burden of proof 298–299 aiding, abetting, counselling crime prevention, see Prevention and procuring of crime intention to assist, encourage, duty to retreat 294–295 procure 349–350 lawful excuse, as 297–298 knowledge of circumstances nature of 283–284 or essential matters necessity of force 294–295 353–354 prevention of crime, see knowledge of type of Prevention of crime offence 354–356 property, of 299 recklessness 350–352 proportionality 295–296 joint enterprise reasonableness of force 287–296 contemplation 363–369 assessment of 287 nature of 333–338 excessive force 296 ordinary meanings 338–339 instinctive response 292–294 passive assistance, by, see aiding mistake and 287–292 and abetting self-induced 298 presence and, see aiding and unknown circumstances of abetting justification 286–287 principal, see Principal see also Prevention of crime acquittal of principal 336 Self-induced exempt from prosecution 331 automatism 245–248 not liable to conviction 331 intoxication, see Intoxication, uncertainty as to voluntary principal 337, 360–361 Services, obtaining by deception procuring 334, 338, 342–343 752–754 causal link 339 see also Deception offences meaning 342 Sexual intercourse procuring actus reus of consent and, see Rape INDEX 787

presumption of sexual incapacity Sporting injuries, consent to 574– 215–216, 332, 602 575 with a girl under 13 612–613 Standard of proof 37 with a girl under 16 613 State of affairs offences 80–81 with a mentally incapacitated Strict liability 181–207 person 613–614 common law offences 181 procuring a girl under 21 620 defences to procuring a mentally incapacitated common law 201–207 person 620 due-diligence 206 unlawful sexual act and 600, mistake and 201–207 620–621 statutory 199–201 see also Rape development of 184–185 Sexual offences 599–642 presumption of mens rea 186 abduction offences 621–622 justifications for 196–197 buggery 615, 616–617 mens rea and 181 corroboration 641–642 mistake and 201–207 incest 614–615 nature of 181–184 indecency vicarious liability and 392 between males 616, 617–618 voluntariness and 182–183 gross 618–619 Suicide, aiding, abetting, counselling with a girl under 16 618–619 and procuring 336 indecent assault 622–635 Suicide pacts 526 actus reus 625–631 Summary offences, see Offences by a kiss 629–630 Superior orders 324–325 consent 626–628 Surgery, consent to 576 Court decision 623–625 mens rea 631–635 Theft 647–712 indecent exposure 635–636 actus reus 647–701 prostitution 636 appropriation, see appropriation soliciting 636–637 belonging to another, see unlawful sexual acts 600 belonging to another enabling or applying or property 648–657 administering drugs 620– abandoned 660 621 confidential information procuring by false pretence or 654 representation 620 cheques 652–654 procuring by threat or credit balance 649–651 intimidation 619–620 electricity 657 vice offences 637–640 human body 657 see also Rape: Sexual intercourse intangible property 654 Sleepwalking 243–244 land 655–656 Social control, see Punishment money 648–649 Social immorality 13–16 things in action 649–659 Sources of HK criminal law 26–34 trust property 663–664 Specific intent 134–136 wild animals 656–657 788 INDEX

wild plants and mushrooms mens rea 701–712 656 dishonesty 701–706 appropriation 674–701 belief in owner’s consent assumption of rights of owner 702 674–675 belief in right to deprive bona fide purchaser 698–699 702 company property 697–698 belief that owner cannot be consent, authority and 679– found 703 691 common law test 704–706 innocent agent, by 675–676 Ghosh test 704 jurisdiction 699–701 meaning of 701 keeping or dealing, later willingness to pay 704 assumption by 693–694 intention of permanently label-switching, by 681–682 depriving 706–712 Gomez decision 684–688 borrowing or lending 709– Hinks decision 688–691 711 HK cases 691–693 conditional intent 711– later assumption 693–694 712 Lawrence decision 680 parting with under Morris decision 680–683 condition 711 things in action and 694–697 property got by mistake usurpation 681 711 belonging to another 657–673 obligation 665, 672 abandoned 660 robbery, see Robbery at time of appropriation 663 temporary deprivation 709– control 658–660 711 constructive trust 661–663 things in action 649–659, 694– equitable interest 660–663 697 mistake, got by 671–673 Third parties, causation and 92 owner 660 Threats possession 658–660 duress by 300–323 proprietary right or interest marital coercion 323–324 660–663 robbery and 713 received from or on account of Tolson 173–174, 664–670 Transferred malice 161–163 trust property 663–664 Treason, duress and 313 corporation sole 673 Trust property 663–664 electricity, abstracting 657 handling, see Handling Ulterior intent 136 alternative verdict 724–726 Unfitness to plead, see Fitness to intention permanently to deprive, Plead see mens rea Usurpation, theft and 681 label-switching 681–682 making off without payment 663 Venereal disease, inflicting 593–594 meaning 647 Vicarious liability 330, 388–394 INDEX 789

attributed act principle 392 neglect by victim 94 common law 388 thin skull 93–94 criminal libel 388 Voluntariness public nuisance 388, 396 actus reus and 68–71 delegation principle 392–391 strict liability and 182–183 express statutory provision 388– 391 Wild animals 656–657 implied liability 391–394 Wild plants and mushrooms 656 limitations on 394 Wilful blindness 137 aiding and abetting 394 Wounding 590–596 attempt and394 actus reus 591–595 statutory offences and 388– mens rea 595–596 394 Wounding with intent 597–598 Victim actus reus 597 accessory as, see Secondary mens rea 597–598 participation causation and Young person actions of victim 94 capacity of, see Infancy