Defense Principles in Murder and Manslaughter Cases - Essay Example

?Principles of defence in Murder and manslaughter cases in Hong Kong Module Module Number: Academic Year: Seminar Essay Question: Explain the law concerning the offences of murder and manslaughter and discussion of whether the law operates effectively in this area or whether any changes to the law are desirable Student Number: Principles of Defence Homicide refers to the execution of a reasonable human being1. Hong Kong’s common law defines lawful and unlawful cases of homicide; however, proving every ‘unlawful’ killing, beyond reasonable doubt sometimes presents the defence with a lifeline, leading to the acquittal of ‘guilty’ suspects2. Murder refers to killing where the situation does not warrant self-defence, avoidance of crime or capital punishment3. Conversely, not all unlawful killings amount to crime4. The criminal suspects will not be culpable if: a) the Actus reus and Mens rea of the two capital offenses cannot be proved. Unintentional killing or killing that can be partially or completely excused does not amount murder, but may amount to manslaughter5. The defence must present their case within these parameters6. Provocation and diminishing responsibility Despite the similarity between the handling of murder and manslaughter cases in Hong Kong and England, there is a lack of consensus in the former’s application of Mens rea. This was evident in House of Lords A-G’s Reference (No. 3 of 1994) ([1998] AC 245). In the case, the defence resorted to provocation and diminishing responsibility7. Provocation should be more clearly defined to shade more light on its use as defence. The HKSAR v Leung Wai Chung [1999] 2 HKC 471 CA case attempted to define provocation as an action whose trigger is beyond ‘intense passion.’ Diminishing responsibility on the other hand can be entered in cases where a defendant carried out murder due to a natural abnormality in the mind, which impaired the rationality of his or her actions. These defences should be codified in a common legislation such as the Coroners and Justice Act 2009 for easier interpretation and use by the defence. Complete defences Insanity is an important, complete defence that often leads to acquittal or lesser sentencing of criminal suspects involved in murder8. Killings resulting from self-defence normally top the list of cases that are argued under complete defence9. These have led many defendants to be acquitted of the murder charges they face10. Other exceptional cases in which a “guilty mind” is not proved may attract complete defence:11 for example, a teacher who kills a child through corporal punishment under parental authority12. In such cases, the defence is the lack of “guilty mind,” regardless of the murder impact13. In view of this, Hong Kong’s Mens rea as defence should be repealed to weed out chances of a mind that is not guilty employing a lethal response to milder situations14. Medical practitioners can also cite double effect as defence against murder charges preferred against them for deaths caused in the line of duty15. By administering a poisonous pain reliever, for instance, the resulting patient’s death cannot be completely blamed on the doctor because the patient’s suffering may provoke such a remedy16. The law should be repealed to specify that only when the pain is chronic pain should a physician administer lethal painkillers and evade murder charges if his or her actions result in death. The law is clear on whether marital coercion can be an act of provocation or diminishing responsibility. This was witnessed in HKSAR v NANCY ANN KISSEL FACC No 2 of 2009 case, in which, the court overruled the defence on such grounds, arguing that alleged violence in marriage, and impending divorce fails to meet the test for diminishing responsibility. This test should be upheld, because some victims-turned-suspected murderers may have induced their abuse by their partner in some way17. Partial defences Murder cases are normally reduced to manslaughter through partial defence. The verdict on HKSAR v Leung Wai Chung [1999] 2 HKC 471 and HKSAR v Tsui Chu Tin, John [2005] 1 HKC 518 cases have limited the entry of manslaughter to cases triggered by natural factors18. Drunkenness, jealousy, and emotions are considered as trivial. In conclusion, murder cases may be reduced to manslaughter under exceptionally natural conditions such as diminished responsibility, and the existence of a suicide pact among others. In the event of a successful partial defence, the presiding judge has the full authority on the sentence, in which case, he or she may order a conditional discharge of the defendant or a life sentence. Bibliography Alain Sham, (2006), ‘Money laundering laws and regulations: China and Hong Kong,’ Journal of Money Laundering Control, 9(4), pp.379-400. Carroll, John M., (2009), ‘A National Custom: Debating Female Servitude in Late Nineteenth- Century Hong Kong,’ Modern Asian Studies,43(6), pp.1463-1493. Chui Hong, Wing, and Lo T. Wing, (2013), Understanding Criminal Justice in Hong Kong, Routledge: New York, p.31. Conner, Alison W., (1991), ‘Final Appeal Court Proposal Stirs Controversy in Hong Kong,’ East Asian Executive Reports, 13(11), p.8. Ebbe, N.I. 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