HKSAR v. MOK TSAN PING AND OTHERS

HKSAR v. MOK TSAN PING AND OTHERS

The judge held that the established mens rea for murder remains an intention to kill or to cause really serious injury and that this definition is not incompatible with the Hong Kong Bill of Rights or the Basic Law; Canadian rulings invalidating constructive murder do not compel a change because constructive murder is not part of Hong Kong law and law reform is for the legislature.

Citation
HKSAR v. MOK TSAN PING AND OTHERS
Parties
Prosecution: HKSAR; 1st Accused: MOK TSAN-PING; 2nd Accused: SEE CHEUNG-SHUN; 3rd Accused: CHENG PO
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 1999
Case Number
HCCC427/1998
Procedural Posture
Criminal Murder / Ruling (court of First Instance)
Outcome
Defence challenge rejected; existing definition of mens rea for murder upheld
Legal Topics
Mens Rea for Murder, Joint Enterprise, Presumption of Innocence, Liberty and Security of the Person, Statutory and Common Law Reform
Source Language
EN
Criminal Law Constitutional Law Human Rights Law Mens Rea for Murder Joint Enterprise Presumption of Innocence Liberty and Security of the Person Statutory and Common Law Reform

Case Brief

Summary, issues, holding and outcome

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Parties

HKSAR

Prosecution

MOK TSAN-PING

1st Accused

SEE CHEUNG-SHUN

2nd Accused

CHENG PO

3rd Accused

Procedural Posture

Criminal Murder / Ruling (court of First Instance)

Legal Issues

  1. 1 Whether the Bill of Rights and/or the Basic Law require changing the mens rea of murder from intention to kill or cause really serious injury to intention to kill or to endanger life
  2. 2 Whether an intention to cause really serious injury as sufficient mens rea for murder is incompatible with the presumption of innocence or liberty and security guarantees
  3. 3 Whether Canadian decisions Vaillancourt and Martineau mandate a different rule in Hong Kong

Ratio Decidendi

The judge held that the established mens rea for murder remains an intention to kill or to cause really serious injury and that this definition is not incompatible with the Hong Kong Bill of Rights or the Basic Law; Canadian rulings invalidating constructive murder do not compel a change because constructive murder is not part of Hong Kong law and law reform is for the legislature.

Court Disposition

Defence challenge rejected; existing definition of mens rea for murder upheld

Orders

  • Defence application dismissed
  • Judge to direct jury that mens rea of murder is intention to kill or to cause really serious injury