Lecture 2 –

Criminal
Offences
Common in HK

Gigi Ho

Barrister-at-law
Actus Reus and Mens Rea

– must look at the definition of the offence in the Ordinance creating the offence
or at the common law definition
– person cannot be convicted of a crime unless the prosecution have proved both
the required actus reus and the required mens rea.
– actus reus: conduct, act – factual element
– mens rea: the state of mind indicating culpability
– contemporaneity rule –
– two must coincide
Actus reus

– What forms AR:

– Conduct
– Circumstances
– Consequence
– Causation
Actus reus: Conduct

– Act/ omission
– Omission – when there is a duty to act
– E.g. Failure to file tax return under the Inland Revenue Ordinance

R v Gibbons and Proctor (1918) 13 Cr App R 134

Facts: a man and his girlfriend, with whom he was co-habiting, were charged with
murder of the man’s child on the ground that they withheld food from the child
who then died of starvation.
Held: guilty; by living with the man and receiving money from him for food, the
woman had assumed a duty toward the child. Withdrawing food from the child
with the intent to cause the child grievous bodily harm led to the child’s death.
Actus reus: Conduct

– Whether a statutory offence is capable of being committed by omission is

basically a matter of statutory construction.
– If the actus reus described in the statute implies active conduct, then the
offence cannot be one of omission
– Wounding  cannot be said that the same offence imposes criminal liability on
a person who fails to prevent another from being wounded by a third party.
Actus reus: Circumstances

– factual matters existing at the time of the alleged conduct

– offence will have been committed even if the defendant performed the same
act
– Examples of circumstances include:
– married: the status of being married in the offence of bigamy.
– a certain age: having intercourse with a person “under 16 years”.
– at a certain place: “in a public place”.
Actus reus: Consequences

– Liability for some crimes is based on the consequences and not the conduct of
the accused. These are known as result crimes, as opposed to conduct crimes.
– E.g. murder : unlawful killing of a human being by another human being
– It does not matter what kind of D’s conduct was invoked that caused the
death. It could be by shooting, stabbing, beating, poisoning, or omission
Actus reus: Causation

– were the consequences caused by D’s conduct?

– Factual causation and legal causation
– Factual causation: But for test
– R v Pagett (1983) 76 Cr App R 279
– Facts: Pagett used a hostage as a human shield, firing at police officers when
they approached. The police fired back at Pagett, but their shots killed the
hostage.
– Held: convicted of manslaughter. The act of firing by the police was held to be
“instinctive” and “involuntary” and therefore did not break the chain of
causation established by Pagett’s dangerous act of using the hostage as a
human shield.
Actus reus: Causation

– Legal causation: whether D’s conduct was an operating and substantial cause
of the consequence; not de minimis
– R v Carey [2006] Crim LR 842
– Facts: a 17-year-old girl died following an affray during which she was punched
by one of the appellants. After the appellants were gone, the girl ran 109 yards
uphill to a hospital seeking medical treatment. Neither she nor her doctor was
aware that she had a heart condition. She collapsed and died from a heart
attack after arriving at the hospital. Ds were convicted of manslaughter.
– CA: appeal allowed; “unwarranted extension”
Actus reus: Causation

– Intervening events or acts:

– can be natural phenomenon/ human conduct
– Thin skull rule
– R v Blaue (1975) 1 WLR 1411.
– Facts: Blaue stabbed the victim four times, inflicting serious injury. The victim
was a Jehovah’s Witness and refused to have a blood transfusion for religious
reasons. She died as a result. It was accepted that had she received a blood
transfusion and undergone surgery, she would not have died. Blaue was
charged with murder and convicted of manslaughter.
Actus reus: Causation

– R v Blaue (1975) 1 WLR 1411.

– He appealed on the grounds that the victim’s refusal of a blood transfusion
broke the chain of causation.
– Held: The conviction was upheld. The injuries inflicted upon the victim
remained an operating or substantial cause and Blaue was to take his victim as
he found her.
– “It does not lie in the mouth of the assailant to say that his victim’s religious
beliefs which inhibited him from accepting certain kinds of treatment were
unreasonable. The question for decision is what caused the death. The answer
is a stab wound.”
Mens rea

– Guilty mind
– not concerned with fault, morality or motive
– D’s intention, knowledge, foresight and recklessness
Mens rea: Intention

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

– Recklessness
1) Where D knew of the risk and went on to take it (R v Cunningham [1957] 2 QB
396 – subjective recklessness) 
2) Where D may not have considered whether there was a risk or not (MPC v
Caldwell [1982] AC 341 - objective recklessness)
3) Where D may have considered whether there was a risk and decided that there
was none. (not now reckless).
Mens Rea

– Recklessness

Sin Kam Wah & Another v HKSAR [2005] HKCFA 27, FACC No. 14 of 2004.
– “--- a person acted recklessly in respect of a circumstance if he was aware of a
risk which did or would exist, or in respect of a result if he was aware of a risk
that it would occur, and it was, in the circumstances known to him,
unreasonable to take the risk. Conversely a defendant could not be regarded as
culpable so as to be convicted ---- if due to his age or personal characteristics, he
genuinely did not appreciate or foresee the risks involved in his actions.”
Mens Rea

– Negligence
– failure of the accused to foresee a consequence which a reasonable man would have
foreseen and avoided
– R v Adomako [1995] 1 AC 171:
– HL appears to have established (or re-established) the offence of grossly negligent
manslaughter.
– The actus reus is an omission based on a breach of duty of care which causes death in
circumstances where the accused has been grossly negligent (or criminally negligent) this
being, for practical purposes, the mens rea.
Actus Reus and Mens Rea –
Application
– Whether an offence can be committed recklessly depends upon the definition
of the offence.
– Where an offence requires a specific intent e.g. an intent to kill in murder there
is no room for recklessness.
– Where an offence can be committed recklessly we are talking about
Cunningham (subjective) recklessness.
Assault & Wounding

– Common assault
– Assault Occasioning Actual Bodily Harm
– Wounding, causing GBH
– Offences against the Police and other Assaults
Common Assault

– OAPO (Cap 212) s40 : 1 year’s imprisonment

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

– Assault + battery: treated as one (R v Lynsey (1995) )

– Assault: intentionally, or recklessly, causes another to the immediate infliction
of unlawful force (R v Burstow [1998])
– MR:
– intention to cause V to apprehend immediate unlawful force/
– reckless as to whether V might suffer such apprehension (subjective reckless –
Cunningham [1957])
– E.g. silent phone calls causing psychiatric injury; threatening words or gestures
Common Assault

– Battery: an intentional/reckless application of unlawful force on another

without consent (DPP v Morgan [1976] )
– E.g. shouting ”fire” in crowded threatre (R v Martin [1881]); touching V’s clothes
(R v Thomas [1985])
– Defences:
– Consent (e.g. lawful sports and game)
– Self- defence
– Lawful correction
– Necessity e.g. medical treatment
– Lawful authority e.g. police
Assault Occasioning Actual
Bodily Harm
– OAPO s. 39
– Assault occasioning actual bodily harm
– Any person who is convicted of an assault occasioning actual bodily harm shall
be guilty of an offence triable upon indictment, and shall be liable to
imprisonment for 3 years.
Assault Occasioning Actual
Bodily Harm
– AR: a common assault occasioning ABH
– MR: same as common assault (intention/ reckless)
– Actual bodily harm =
1) any hurt or injury “calculated to interfere with the health or comfort of the
victim.”
– 2) need not be permanent, but must be more than merely transient or trifling
– E.g. cut and bruises; psychiatric injury
Specific intent
Wounding causing GBH
– OAPO s.17.
– Shooting or attempting to shoot, or wounding or striking with intent to do grievous bodily
harm
– Any person who—
– (a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily
harm to any person; or
– (b) shoots at any person; or
– (c) by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at
any person,
– with intent in any of such cases to maim, disfigure, or disable any person, or to do some other
grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or
detainer of any person, shall be guilty of an offence triable upon indictment, and shall be liable to
imprisonment for life.
Basic intent
Malicious Wounding

– OAPO s 19
– Wounding or inflicting grievous bodily harm
– Any person who unlawfully and maliciously wounds or inflicts any grievous
bodily harm upon any other person, either with or without any weapon or
instrument, shall be guilty of an offence triable upon indictment, and shall be
liable to imprisonment for 3 years.
s.19 Wounding & s.17 Wounding

– GBH: really serious

– Cause or inflict: no requirement of physical content
– Unlawfully and maliciously: can be ignored in s.17; for s.19, D foresaw ”some
physical harm occurring albert of a minor nature”
– Wounds: break in the continuity of whole skin including division of the internal
skin
– Consent is not a defence to this offence (Donovan [1934])
Theft

– s.9 Theft
– Any person who commits theft shall be guilty of an offence and shall be liable
on conviction upon indictment to imprisonment for 10 years.
– Basic definition: set out in s.2 (1) of Theft Ordinance (Cap. 210)
Theft

– 2. Basic definition of theft

– (1) A person commits theft if he dishonestly appropriates property belonging to
another with the intention of permanently depriving the other of it; and thief (
竊賊) and steal (偷竊 ) shall be construed accordingly.
– (2) It is immaterial whether the appropriation is made with a view to gain, or is
made for the thief’s own benefit.
– (3) Sections 3 to 7 shall have effect as regards the interpretation and operation
of this section (and except as otherwise provided by this Ordinance shall apply
only for purposes of this section).
 Theft
– AR:
1. Appropriation
Irrelevant whether the appropriation is made with a view to gain or is made for
the thief’s own benefit. - s2(2)
– 4(1): Any assumption by a person of the rights of an owner amounts to an
appropriation, and this includes, where he has come by the property (innocently
Bona Fide Purchaser for or not) without stealing it, any later assumption of a right to it by keeping or
Value dealing with it as owner.
– 4(2): Where property or a right or interest is or purports to be transferred for
value to a person acting in good faith, no later assumption by him [i.e. the
purchaser in good faith] of rights which he believed himself to be acquiring shall,
by reason of any defect in the transferor’s title, amount to theft of the property.
Theft

– 2. Property
– S.5(1) of TO: “Property includes money and all other property, real and
personal, including things in action and other intangible property.”
– Things in action : chose in action (e.g. banknote
– Does not include land, wild plants (TO s.5(4)), electricity, confidential
information
– Human body parts generally not, except:
– Corpse reduced to anor’s possession or control e.g. medical school
– Bodily products under anor’s control e.g. unrine sample obtained by police
– Sb exercised skills on the corpse or part of the body
Theft

– 3. Belonging to another
– S.6(1) of TO: “Property shall be regarded as belonging to any person having
possession or control of it, or having in it any proprietary right or interest (not
being an equitable interest arising only from an agreement to transfer or grant
an interest).”
– Pty may belong to > 1 person
– R v Turner (No. 2) [1971]: D (car owner) took the car from the garage after
repairment without payment
– Abandoned property is incapable of being stolen
– Where property is given to D for particular purpose but D used it in a different
way for some other purpose  theft
 Theft
– Property received by mistake:
– s6(4) of the TO, if a person obtains property by another’s mistake, and she is under an obligation
to restore the property (or its proceeds) to its rightful owner
– Failure to return the property once the mistake has been realized = theft
– Failure must be deliberate so that D must be aware that he has received property by mistake
– AG’s Ref (No 1 of 1983) [1985]: cp error led to overpayment of wages to D’s account which she
noticed but failed to return  guilty; obligation to restore the property
– R v Hall [1973]: travel agent received $ from customers; NG as money was paid to general trading
account; mingling of fund= no ascertainable property that had remained in the ownership of the
customer; money could fall within s6(3) if it was kept separately as this denoted that it was
received for a particular purpose
Theft

– MR
– 1. Dishonesty - TO s.3(1)
– (1) A person's appropriation of property belonging to another is not to be
regarded as dishonest -
– (a) if he appropriates the property in the belief that he has in law the right to
deprive the other of it, on behalf of himself or of a third party; or
– (b) if he appropriates the property in the belief that he would have the other's
consent if the other knew of the appropriation and the circumstances of it; or
– (c) (except where the property came to him as trustee or personal
representative) if he appropriates the property in the belief that the person to
whom the property belongs cannot be discovered by taking reasonable steps.
Theft

– R v Ghosh [1982] QB 1053

– 1st stage (objective): what ‘reasonable & honest’ people would think about D’s
conduct.
– 2nd stage (subjective): what D thinks about ordinary stds of honesty. Is he
aware that ‘reasonable and honest’ ppl would consider his conduct to be
dishonest even though he thinks that it is acceptable? (jury)
– Both Question “yes”  D is dishonest
– Either Question “no”  D X dishonest
 Theft

– 2. Intention Permanently to deprive

– “(1) A person appropriating property belonging to another without meaning the other
permanently to lose the thing itself is nevertheless to be regarded as having the intention of
permanently depriving the other of it if his intention is to treat the thing as his own to
dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so
treating if, but only if, the borrowing or lending of it is for a period and in circumstances
making it equivalent to an outright taking or disposal.
– (2) Without prejudice to the generality of subsection (1), where a person, having possession
or control (lawfully or not) of property belonging to another, parts with the property under a
condition as to its return which he may not be able to perform, this (if done for purposes of
his own and without the other’s authority) amounts to treating the property as his own to
dispose of regardless of the other’s rights.”
Theft

2. Intention Permanently to deprive

– Includes situation where the property is taken on temporary basis (borrowing)
so goes beyond what might ordinarily be thought of as permanent deprivation
– unauthorised pawning of property (imposing a harsh condition for property’s
return) = ✓intention to permanently deprive”
– a request for a reward for property=“✓intention to permanently deprive”
– Alternative verdict: Attempted theft (TO s.23)
Robbery

– Theft + (threatened to use) force

– s10(1) of the TO : “A person commits robbery if he steals, and immediately
before or at the time of doing so, and in order to do so, he uses force on any
person or puts or seeks to put any person in fear of being then and there
subjected to force.”
– AR:
– 1. Appropriate property belonging to another
– 2. Use or threatened use of force
– 3. Immediately “before or at the time of” and “in order to”
– MR:
– 1. MR of theft
Burglary

– TO s10: “A person commits robbery if he steals, and immediately before or at

the time of doing so, and in order to do so, he uses force on any person or puts
or seeks to put any person in fear of being then and there subjected to force.”
– TO S11(1) creates 2 types of burglary
– S11(1a): ulterior intent: trespass + intent to commit crime at the time of entry
– S11(1b): specific offence: trespass + commit specific offence inside (e.g. enter
& later decide to steal)
– Max penalty: 4 years’ imprisonment
Burglary

– (1) A person commits burglary if-

– (a) he enters any building or part of a building as a trespasser and with intent to
commit any such offence as is mentioned in subsection (2); or
(b) having entered any building or part of a building as a trespasser he steals or
attempts to steal anything in the building or that part of it or inflicts or attempts
to inflict on any person therein any grievous bodily harm.
– (2) The offences referred to in subsection (1)(a) are-
– (a) stealing anything in the building or part of a building in question;
(b) inflicting on any person therein any grievous bodily harm or raping any
woman therein; and
(c) doing unlawful damage to the building or anything therein.
Burglary

– AR:
– 1. Entry
– Can be partial entry
– Must be deliberate or reckless

– R v Brown [1985]: D put his and through open window to remove a purse from
inside the building
– R v Ryan(1996): D’s head and arm had intruded into the building; sufficient
"entry”.
Burglary

– 2. (Part of) Building

– TO S11(3): Includes Inhabited vehicles/vessels
– Regarded as ‘building’ if the caravan or houseboat is used as a residence.
– R v Manning (1871): a building does not have to be complete so that a house
which was almost completed could still be a ‘building’.
– R v Leathley [1979]: Farmyard can be regarded as building
Burglary

– 3. As a trespasser
– if D believed he had permission to enter prior to any part of his body crossing
the threshold  X trespasser
– R v Collins [1973]: girl though man climbing ladder to her room was bf; sexual
intercourse; invitation from the young woman would have been sufficient for
D’s entry to be “lawful” rather than a trespass.
– Highlights dual aspects of trespass in burglary
– 1. Entry into a (part of) building w/o permission: AR
– 2. Knowledge that X permission/ awareness that there is a risk that there is no
permission to enter: MR
Burglary

– 4. Actual Offence (for s11(1b))

– e.g. (attempted) theft/ (attempted) GBH
– All elements of theft/OAPO s19 or requirement for their attempts
Burglary

– MR:
– 1. intention/recklessness as to trespass (Common element)
– 2. ulterior intent (s11(1a))
– Intent to commit theft/GBH/ criminal damage at the time D entered the
building
– If the intent X present upon entry, subsequent formation of ulterior intent ≠
burglary
– **Focus is on D’s mind at the point of entry into the building.
Burglary

– Conditional intent suffice for s11(1a)

– R v Walkington; A-G's References (Nos. 1 and 2 of 1979) []1980]: D entered an
area marked off as the counter of a store and opened an empty draw with the
intention of stealing: Guilty
Making off without Payment

– S.18C of TO:
– “(1) Subject to subsection (3), a person who, knowing that payment on the spot
for any goods supplied or service done is required or expected from him,
dishonestly makes off without having paid as required or expected and with
intent to avoid payment of the amount due shall be guilty of an offence and
shall be liable on conviction upon indictment to imprisonment for 3 years.
– (2) For the purposes of this section “payment on the spot” (即場付款) includes
payment at the time of collecting goods on which work has been done or in
respect of which service has been provided.
– (3) Subsection (1) shall not apply where the supply of the goods or the doing of
the service is contrary to law, or where the service done is such that payment is
not legally enforceable.”
Making off without Payment

– Making off: D departed from the spot where payment is required

R v Brooks and Brooks (1982):
Facts: D finished eating, stood up and walked out of a restaurant without paying.
The defendants
Held: guilty of making off without payment.
Making off without Payment

– R v Aziz [1993]
– Facts: D called a taxi to take him to a club. On arrival, D refused to pay the
driver. The driver then began to drive D to a nearby police station. Before they
arrived at the police station, D tried to escape the taxi but was caught. D argued
that he did not make off from the spot where payment was required (i.e. the
club).
– Held:
– ..the location where D made off was not relevant. All that is required for the
offence is that payment was due on the spot.