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Defense Principles in Murder and Manslaughter Cases - Essay Example

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This essay talks about the defense principles in murder and manslaughter cases in Hong Kong. The paper also analyzes whether the law operates effectively and properly in this area of Hong Kong's law or whether any changes to the law are desirable to be applied…
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Defense Principles in Murder and Manslaughter Cases
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Download file to see previous pages The essay "Defense Principles in Murder and Manslaughter Cases" talks about the effectiveness operation of Hong Kong's criminal law in murder and manslaughter cases.
However, not all unlawful killings amount to the crime. The criminal suspects will not be culpable if 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 manslaughter. The defense must present their case within these parameters.
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 defense resorted to provocation and diminishing responsibility. Provocation should be more clearly defined to shade more light on its use as a defense. 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.
Insanity is an important, complete defense that often leads to acquittal or lesser sentencing of criminal suspects involved in a murder. Killings resulting from self-defense normally top the list of cases that are argued under complete defense. These have led many defendants to be acquitted of the murder charges they face. Other exceptional cases in which a “guilty mind” is not proved may attract complete defense....
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 ...Download file to see next pages Read More
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