Transferred Malice

- For example, transferred malice is involved where X attempts to shoot Y with the
intention to kill or cause GBH, but the bullet misses Y and the bullet subsequently hits
the victim.
- In such circumstances, the common law permits the defendant to be convicted of
the victim’s murder on the basis of ‘transferred malice’, which is a fundamentally
mens rea concept (R v. Pembliton, R v. Latimer and A-G’s Ref (No. 3 of 1994)).
- In Pembliton, the defendant got into a fight on the street and started to throw
stones. One of the thrown stones hit a window. The defendant was charged with
criminal damage (however, the mens rea standard for criminal damage is now
different). Held: the defendant was not convicted, because while the defendant
intended to throw the stone, intending for the stone to hit someone; the defendant
did not intend to cause property damage. As a matter of principle, transferred
malice only applies between offences of the same type or same nature (i.e. OAP
and OAP).
- In Latimer, the defendant was engaged in an argument at a pub. The argument
escalated and the defendant attempted to hit the other man with his belt, but
missed. While the defendant only marginally hit his intended target, the
defendant’s belt redirected to hit a woman standing next to the intended victim.
The woman was severely injured. Held: the defendant was convicted of unlawful
and malicious wounding on the basis of transferred malice (i.e. the intention to hit
the intended victim was transferred to the woman). The doctrine of transferred
malice can be used outside murder cases.

Displacing the Presumption of Mens Rea

- If a statutory offence does not specify a particular mens rea (just specifies the actus reus
external element), one should start by applying the common law presumption of mens
rea (i.e. at common law, the court should read in a mens rea requirement if it is not
otherwise explicitly or impliedly stated).
- When considering cases with statutory offences without a specific mens rea, the CFA has
required courts to address 2 interrelated questions:
1. Has the presumption of mens rea been rebutted or displaced?
2. If so, which alternative should be adopted?
- In HKSAR v. Hin Lin Yee, Ribiero PJ essentially provided the rationale behind the
framework of the 2 interrelated questions, where the first question identifies whether the
presumption of mens rea has been rebutted or displaced, and the second question
determines what replaces this presumption of mens rea (at [45]).
- In effect, the answer to the second question influences how the first question is
answered.
 - In some jurisdictions, the answer to the question is simply that mens rea is
required for that particular offence or that mens rea is not required for that
particular offence. For example, in England, if the presumption of mens rea is
rebutted, then the only alternative is that there is no mens rea requirement (simply
a yes or no answer).
- The CFA identified 5 alternative outcomes if the presumption of mens rea is successfully
rebutted in Kulemesin Yuriy & Anor v. HKSAR:
1. The presumption of mens rea persists and the prosecution must prove knowledge,
intention or recklessness as to every element of the offence (the court will apply
the presumption of mens rea).
a. In Hin Lin Yee, Ribiero PJ held that the presumption of mens rea will be
maintained and kept persistent if a “specified circumstance is required to
accompany a defendant’s act or omission as a prescribed ingredient of
the offence” and “if it is a necessary element of the offence that the
impugned conduct causes certain prohibited consequences”.
2. The prosecution does not have to prove mens rea, but if the defendant can prove
that he is acting in the honest and reasonable belief that the circumstances or
likely outcome of the circumstances of his conduct would not attract liability or
the defendant has done his due diligence to comply with the law within a sensible
and reasonable extent, then the defendant must be acquitted unless the prosecution
can prove BRD that there is the absence of exculpatory belief (i.e. the
defendant’s alleged honest and reasonable belief) or there was no reasonable
grounds for such a belief.
a. This imposes an evidential burden on the defendant to raise the fact that
he had an honest and reasonable belief (or an exculpatory belief), which
the prosecution must disprove BRD. This still might attract judicial
review to determine whether the evidential burden derogates the
presumption of innocence.
b. For clarification, what ‘due diligence’ means is that the defendant has
done all he could sensibly or reasonably have done to comply with the
law yet a result that violates an offence has still materialised.
3. The prosecution does not have to prove mens rea, but if the defendant has a good
common law defence that he can prove on the balance of probabilities, where
the defendant acted on an honest and reasonable belief that the circumstances or
likely circumstances of his conduct would not attract liability or the defendant has
done his due diligence to comply with the law within a sensible and reasonable
extent, then the defendant must be acquitted.
a. The difference between the alternatives 2 and 3 is the location of the
burden of proof: under alternative 2, the defendant bears an evidential
burden that the prosecution must disprove BRD; under alternative 3, the
 defendant has the choice to prove a defence on the balance of
probabilities.
b. ‘Due diligence’ bears the same meaning as alternative 2.
4. The prosecution does not have to prove mens rea, but the defendant can rely on
the statutory defences expressly provided for to rebut the prosecution’s case.
a. In a case where the offence concerned has both a statutory defence and the
ability to have an implied common law defence, it is possible that an
inconsistency in application could arise, where the courts could be giving
effect to an implied common law defence (i.e. relying on the 2nd or 3rd
alternatives), when there is an express statutory defence that the legislature
has clearly intended the defendant to apply and the court to consider.
5. The prosecution does not have to prove mens rea and the offence is deemed one
of absolute liability (i.e. no need to apply mens rea) so that the prosecution
succeeds if relevant actus reus elements of the prohibited act or omission are
proved, regardless of the defendant’s state of mind.
- It was raised in HKSAR v. Lai Chun Ho that the 5 alternatives together comprised the
total range of possible bases of criminal liability in Hong Kong (noting that the 1st
alternative includes all forms of mens rea). On this assertion, since the defendant was
being charged with gross-negligence manslaughter, the defendant in Lai Chun Ho argued
that none of the 5 alternatives included ‘gross negligence’ and thus gross-negligence
manslaughter is an offence that does not carry a mens rea valid in Hong Kong.
- The CA rejected this submission because the 5 alternatives were only confined to
statutory offences which are silent on mens rea. Therefore, these 5 alternatives
do not exclude the possibility of other possible bases of liability, such as
gross-negligence manslaughter and other common law offences.
- When determining whether the presumption of mens rea is displaced (i.e. answering
question 1 of the interrelated questions), the court must consider legislative intent.
- In Sweet v. Parsley, it was held that Parliament or the legislature is “open” to
create an offence through legislation where someone may be found guilty though
mens rea is lacking.
- The general test to ascertain legislative intent is provided by Lord Morris in Sweet
v. Parsley, whereby the words of the legislation must be looked at to see whether
either expressly or by necessary implication they displace the general rule or
presumption that mens rea is a necessary prerequisite before guilt can be found.
- An implication is necessary if the implication is compellingly clear (Lord
Nicholls in B (A Minor) v. DPP).
- Courts have been guided by common law in ascertaining legislative intention. In
Gammon (Hong Kong) Ltd. v. A-G of Hong Kong, Lord Scarman summarised the
general approach that courts should take when determining legislative intention as
it relates to whether the presumption of mens rea is displaced or not:
 - There is a presumption of law that mens rea must be established for a
person to be convicted of a criminal offence
- This presumption of mens rea being a prerequisite to any conviction of an
offence is particularly strong if the offence is truly criminal in character
(i.e. serious crimes should not be prosecuted without having established
mens rea).
- This presumption of mens rea being a prerequisite to any conviction of an
offence applies to statutory offences and can only be displaced if it is
clearly or by necessary implication the effect of the statute
- The only situation where the presumption of mens rea being a prerequisite
to any conviction of an offence can be displaced is where the statute is
concerned with an issue of social concern (eg. public safety)
- This is contrasted with the presumption being reinforced if the
offence is truly criminal, but if the offence concerns an issue of
social concern, then the presumption may be displaced.
- The issue in Gammon concerned the deviation of approved plans
which may cause a risk of injury to any person or damage to any
property.
- Even where the statute is concerned with the issue of displacing the
presumption of mens rea, this presumption will stand unless it can be
shown that the creation of strict or absolute liability will be effective to
promote the objects of the statute by encouraging vigilance to prevent
the commission of the prohibited act.
- The court takes into account a range of factors to determine whether there is
‘necessary implication’ to give rise to the requisite legislative intent.
- Lord Reid stated that all relevant circumstances will be taken into the
court’s consideration of the existence of legislative intent displacing the
presumption of mens rea (Sweet v. Parsley).
- Lord Pearce held that the courts would inter alia consider the nature of
the crime, the relevant punishment, ‘absence of social obloquy’ (i.e.
social stigma associated), particular mischief and field of activity,
wording of a particular section and its context, and the offence
involves facts or matters within the ‘peculiar knowledge’ of the
defendant (Sweet v. Parsley).
- Nature of the crime: Lord Nicholl’s distinction between ‘truly
criminal’ and ‘issues of social concern’ which give rise to whether
legislative intent is likely to suggest that the presumption of mens
rea should be rebutted.
- Punishment: the more severe the punishment, the less likely the
legislature intended to displace the presumption of mens rea.
 - Absence of social obloquy: if a particular offending conduct carries
a high social stigma, then the less likely the presumption of mens
rea will be displaced.
- Particular mischief and field of activity: regulatory offences (eg.
those related to the food safety system) that can be enforced
without the need of implementing a threshold for mens rea,
therefore when considering regulatory offences, it is more likely
that the presumption of mens rea will be displaced.
- Wording of particular section and its context: such as if a
surrounding provision has an express mens rea element, it could
suggest that legislative intent wants to maintain the presumption of
mens rea. However, this is not conclusive.
- The offence involves facts or matters within the peculiar
knowledge of the defendant: for cases concerning peculiar
knowledge, it is more likely that the presumption of mens rea will
be displaced, because if the presumption of mens rea stands, then
the prosecution would be shouldered with a normatively heavier
burden to prove mens rea and thus make the operation of the
offence less effective (because there is peculiar or niche knowledge
involved).
- The burden is on the prosecution to establish the appropriate interpretation of
legislative intent behind the offence-creating statutory provision (i.e. whether the
words of the legislation necessarily imply that the presumption of mens rea is
displaced).
- On some occasions, legislative intention to displace the presumption of mens rea has
been expressly stated by the legislature in the ordinance itself.
- S. 10 of the Water Pollution Control Ordinance expressly provides that an offence
of discharging waste or polluting the waters of Hong Kong does not require the
prosecution “to prove that the acts or omissions in question were accompanied by
any intention, knowledge or negligence on the part of the defendant as to any
element of the offence.”
- The evidential burden shouldered by the defendant only exists to raise a reasonable
doubt in the prosecution’s case.
- To prove the common law defence, the defendant must prove on the balance of
probabilities for the common law defence. However, this could lead to the derogation of
the presumption of innocence.
- Honest reasonable mistaken belief as to facts

‘Due Diligence’ Requirement

- It is unclear whether Hong Kong law recognises the ‘due diligence’ defence.
 - A ‘due diligence’ defence excuses the defendant for non-compliance with a statutory
provision as long as the defendant had taken all reasonable precautions to avoid
committing an offence.
- In Hin Yin Lee, s. 54(1) provides that the sale of any drug intended for use but
unfit for that purpose will be guilty of an offence. However, there are a number of
express statutory defences, such as s. 70(1), which provides that the defendant
may be acquitted if the defendant used all due diligence to ensure that the
provisions in question are complied with.
- ‘Intended’ in this provision is not a mens rea term, because the ‘intended’
only refers to the intention of the manufacturer for the use of the drug.
- Reg. 36(1) of the PPRegs. provides that possession for the purposes of
distribution is an offence unless the product or substance is registered with the
Board.
- Reg. 36C provides that there is a due diligence defence that the defendant
can rely on (i.e. the defendant did not know or the defendant could not,
even with reasonable due diligence, have discovered that the product was
not registered with the Board).
- This requires the defendant to prove that, even if the defendant had taken
reasonable steps, the defendant would not have discovered that the
product of substance was not registered with the Board.
- The legislature can expressly provide that there is a due diligence defence in statute.
However, whether the courts can do this is still unclear.
- In HKSAR v. Leighton Contractors (Asia) Ltd., the CFI held that a defence of due
diligence is not a defence open to the defendant, unless it is expressly provided
for by the legislature through an express statutory provision.
- Courts are careful to allow a due diligence defence, because this allows the
defendant not to comply with the statutory provision and still not be sentenced
(moot point).

Express Statutory Defences

- Under the 4th alternative, express statutory ‘no fault’ defences may exist, such as
‘without reasonable excuse’, express statutory defences, or ‘exception, exemption and
qualification’.
- The existence of the express statutory defence excludes the applicability of the implied
common law defences (eg. honest and reasonable mistaken belief or due diligence).
- In Hin Lin Yee, the argument in the case was whether the defendant was confined to
applying express statutory defences, or the defendant can choose not to rely on the
express statutory defences (i.e. rely on the implied common law defences). In such
cases where both express statutory defence or implied common law defence could be
applied:
 - The express statutory defence must relate to the actus reus element.
- Conduct element vs consequence element
- If the express statutory defence permits the defendant to rely on some form of
honest and reasonable mistaken belief, then there is no need to apply the 2nd or
3rd alternatives (the implied common law defence is the same as the express
statutory defence).
- Did the legislature intend to confine the defendant to the express statutory
defence and thus exclude the defendant’s ability to rely on implied common law
defences?
- The court should not grant an implied common law defence in the presence of an express
statutory defence only if inconsistent.
-
- `is criminal law used to criminalise what is truly criminal or used as a means to enforce
certain types of conduct
- `starting point is 3rd alternative.
- In HKSAR v. Ho Loy, the CFA considered whether the presence of ‘without reasonable
excuse’ as an express statutory defence excluded an implied common law defence (i.e.
an honest and reasonable mistaken belief).
- In Ho Loy, the defendant had continued to cycle despite seeing a sign that told
cyclists to dismount, which contravened Reg. 61(2) of the Road Traffic (Traffic
Control) Regulations, which provides that there is an express statutory defence of
‘without reasonable excuse’ that the defendant can rely on.
- Fok PJ considered that, upon removing the words of ‘without reasonable excuse’,
the legislature would have intended for individuals to comply with all traffic
regulations, including the sign to dismount from the bike. Therefore, the
qualification of ‘without reasonable excuse’ is an exception and is not an
ingredient of the offence.
- Fok PJ also held that, since the offence is of a regulatory nature, the presumption
of mens rea is displaced and is intended only to be subject to the express statutory
defence of ‘without reasonable excuse’.
- It was also determined that the express statutory defence of ‘without reasonable
excuse’ is potentially wider than the implied common law defence of honest and
reasonable belief , as a person may have a reasonable excuse for deliberately
failing to comply with the traffic sign, but an honest and reasonable belief implies
that the defendant would have complied with the traffic sign if he had known the
actual circumstances. It was therefore held that Reg. 61(2) fell under the 4th
alternative (i.e. applying the express statutory defence) and the onus of
establishing a reasonable excuse (i.e. the evidential burden) rests on the
defendant.
 - To figure out where the burden of proof lies, you must characterise the exception (i.e.
whether it is an exception or an ingredient of the offence).

Absolute Liability
- There are 2 situations where absolute liability would be applied (i.e. applying the 5th
alternative), where:
1. If the legislative history negates an implied defence or has expressly repealed a
defence.
a. This is where the legislative intention is to have no available defence that
the defendant may rely upon.
b. HKSAR v. So Wai Lun: s. 124(1) of the Crimes Ordinance provides that
sexual intercourse with a girl udner the age of 16 is an offence.
i. It was held that this was an absolute liability offence.
ii. The trial judge held that the defendant was entitled to rely on an
implied common law defence of honest and reasonable mistaken
belief, and it was found that the defendant had honestly and
reasonably believed that the girl was over the age of 16.
iii. The CA held that the defendant was not entitled to rely on the
implied common law defence, because the availability of implied
common law defence was negated/precluded by legislative
history.
1. The CA’s reasoning was doubted by the CFA in HKSAR v.
Choi Wai Lun, where Ribiero PJ held that a different
conclusion would have been reached if the case was
considered now.
2. If the legislative intent would be insufficiently met by implying the 2nd or the
3rd alternatives.
a. Prohibition relates to conduct that is not socially acceptable.
b. In Choi Wai Lun, the CFA rejected absolute liability regarding age and
implied the 3rd alternative defence.
- At the CA in Hin Lin Yee, the CA held that regulatory offences are presumed to be
absolute liability, however, this was rejected by the CFA in that case.
- In So Wai Lun, the defendant argued that absolute liability is unconstitutional on the
basis of arbitrariness and inequality (protected under BORO) of absolute liability
offences.
- However, the CA held that the fact that one can be imprisoned without mens rea
does not on its own render absolute liability offences unconstitutional.
- Indecent assault is generally an offence that carries a lot of social stigma. However,
indecent assault is not defined in statute, so the common law is relied upon. In Choi Wai
 Lun, the girl was under the age of 16, but the girl claimed she was 17. Per s. 122(2) CO, it
is provided that consent cannot be given by anyone under the age of 16.
- There are 2 main actus reus elements: (1) prove assault and (2) the defendant
must have intended to commit an indecent assault.
- The common law defence is consent, but the scope of such consent was closed by
s. 122(2) CO.
- The CFA held that s. 122(2) CO modifies the elements of actus reus, where the
prosecution does not have to prove that the defendant’s conduct was done
without consent and the defendant’s conduct is impressed with the knowledge of
the act being without consent.
- The traditional rule is that absolute liability is applied for the age element of sexual
offences. This was abolished by the UK in 2000. Hong Kong is following the English
position.
- The CFA, in Choi Wai Lun, applied Hin Lin Yee and Kulemesin and concluded that the
presumption of mens rea was displaced regarding the victim’s age. It was held that:
- The statutory purpose was to confer special protection on a class of vulnerable
persons who are potential objects of indecent acts (at [38]).
- To establish liability, the prosecution does not need to prove BRD that the
defendant knew or was reckless as to the victim’s agent (i.e. knowledge or
recklessness as to the circumstances).
- Per s. 122, the CFA rejected that absolute liability was applicable, because there was no
legislative history, and in any event, the legislative intent was not decisive.
- When the CFA was considering whether the 2nd or 3rd alternative should be applied for
s. 122, it was held that the 3rd alternative puts the burden of proof on the defendant to
prove on the balance of probabilities. The CFA considered that the 2nd alternative “did
not go far enough”.
- The CFA essentially applied a proportionality tes tot determine whether to apply
the 2nd or 3rd alternative. In Choi Wai Lun, at [69], the court provides a full
proportionality analysis per Hysan Development to determine whether the 2nd or
3rd alternative should be applied.
- For the argument that the defendant raises that there was an honest and reasonable
mistaken belief as to the victim’s age, there must be consent in the facts. There must be
evidence that the defendant acted with consent to rely on this argument under the 3rd
alternative.
- Ultimately, Choi Wai Lun was acquitted, because the defendant had honestly and
reasonably believed that the victim was above the age of 16. The CFI applied the
traditional rule that sexual offences regarding age are absolute liability. The CFA restored
the acquittal on the basis that the 3rd alternative and the obsolete nature of the traditional
rule.
 - The less serious or stigmatised the crime, the more likely it is under the 3rd alternative.
The more serious or stigmatised the crime, the more likely it is under the 2nd alternative.
- The proportionality or constitutionality analysis comes in when determining
whether to adopt which alternative to the presumption of mens rea.

- Implied common law defences and express statutory defences will be inconsistent if they
relate to the same subject matter, and in the case that they are inconsistent, then the
court would apply the 4th alternative to apply the express statutory defence and exclude
all other possible defences (including the implied common law defence).
- By subject matter, this means that it could be regarding the circumstances (eg. if
there was consent to sexual intercourse), the penalised conduct itself, etc.
- For the implied common law defence and express statutory defence to be
inconsistent, it must be relevant to the same subject matter and must be mutually
exclusive (i.e. there cannot be overlap). In a case where they are inconsistent, then
the courts will generally defer to the legislative intention evinced by the express
statutory defence and give effect to the express stauttory defence and exclude the
implied common law defence.
- One example of an implied common law defence and express statutory
defence being consistent is where the express statutory defence provides a
defence of ‘without reasonable excuse’. In such a case, since ‘without
reasonable excuse’ falls under the implied common law defence of ‘honest
and reasonable mistaken belief’, then the implied common law defence
and express statutory defence is consistent and thus can both be applied).

- Legislative intent can be inferred from the surrounding provisions and whether those
have attached express statutory defences.
- For example, where there are express statutory defences for other provisions, then
it could be asserted that the fact that there is no expressly provided statutory
defence means there is no legislative intent for the disputed offence to have any
sort of defence available, and as such, suggests absolute liability through the 5th
alternative.

The order of analysis should be:

- The default presumption being the 3rd alternative
- Whether the 5th alternative can be applied
- Whether the 4th alternative can be applied (i.e. precondition on the fact that there is an
express statutory
- Whether the 2nd alternative can be applied
- The evidential burden lowers the burden on the defendant and is usually only
applied in cases where the offence carries a severe sentence/penalty that the
 defendant’s case should be heard out and the threshold to raise a reasonable doubt
should be lowered (eg. in Kulemin, while people did die from the captain’s
negligence, if convicted of the offence, the captain may be imprisoned for a long
time and may never find work again; therefore, the court was more careful and
thus proceeded to apply the 2nd alternative).
- If not, then the 3rd alternative can be applied