Halfway house in criminal strict liability offences


Many Ordinances in Hong Kong contain offences to regulate issues of social concern such as public safety in the provision of goods and services. These offences are commonly drafted without the prosecution having to prove any intention or ‘mens rea’ of the Defendant to commit the crime. There are usually two parts to any criminal act namely the doing of it (known as the ‘actus reus’) and the intention to do it (known as the ‘mens rea’). When an Ordinance is silent on mens rea i.e. it does not contain words of intention such as ‘knowingly’ ‘maliciously’ ‘deliberately’ then the offence may be one of strict or absolute liability.

In the case of Hin Lin Yee v HKSAR the Court of Final Appeal considered the offence under section 54 of the Public Health and Municipal Services Ordinance Cap 132 which read:

  • any person who: sells….any drug intended for use by man but unfit for that purpose shall be guilty of an offence.

It is clear from the wording that the prosecution does not have to prove that the defendant intended to sell a drug knowing that it was unfit. Indeed on a strict interpretation the prosecution simply has to prove the defendant sold the drug and that the drug was unfit for its intended purpose.

Before Hin’s case Hong Kong followed England and Wales; where an offence was silent on mens rea, a presumption of mens rea applied and the Court had to look at all the circumstances of the offence and decide whether the presumption was displaced. The test applied is whether clearly (or by necessary implication) the effect of the statute was to displace the presumption of mens rea. In cases involving potential danger to public health, safety or morals the lawmakers intend to impose by penal sanctions the highest standard of care on the Defendant.

If the Court found that the presumption of mens rea was displaced then unless there was some ‘statutory’ defence provided in the statute the offence was absolute. This was the situation in England and Wales and in Hong Kong before Hin’s case. However in other common law jurisdictions, the Courts had applied a common law defence of mistaken or honest and reasonable belief.

In Hin’s case the CFA considered developments in Australia and Canada and concluded it was unfair on every occasion ‘mens rea’ was displaced and there was no statutory defence available that the Defendant must always be guilty. The CFA adopted a step by step approach to deciding whether an offence without a specific ‘mens rea’ in its wording could be presumed to have a ‘mens rea’ element. The CFA then laid down 5 categories into which the offence could be placed. The first category was where the presumption of mens rea was not displaced. The fifth was where the Court decided the offence was intended by statute to be of ‘absolute’ liability.

There were 3 categories identified in between. In both of the first 2, namely categories 2 and 3, the common law defence would apply and the differences between the two was which party, the prosecution or the defence, had to prove or disprove the defence, and on the standard of proof to be applied. The second category applies mostly to serious cases where serious penalties apply and the test is that though the prosecution does not have to prove mens rea if there is evidence capable of showing an exculpatory common law defence , the onus remained on the prosecution to prove beyond a reasonable belief the absence of such an exculpatory belief. The third category or ‘halfway house’ is where the onus of proof is on the Defendant and he has to prove the common law defence on a balance of probabilities.

The ‘halfway house’ or ‘intermediate’ defence was described in Hin as acting or omitting to act in the honest and reasonable belief that the circumstances of his conduct if true would render him not guilty. In addition there is an implied common law defence based on due diligence or taking all reasonable steps to avoid a breach. This ‘due diligence’ defence was not expressly included as a ‘halfway house’ common law defence in Hin. However it was included in a passage from a Canadian case relied on in Hin namely R v City of Sault Ste Marie [1978] 2 SCR 1299 as the taking ‘of all reasonable steps’ and Ribeiro PJ in Hin comments that whereas the due diligence and mistaken but honest and reasonable belief defences have been distinguished in other cases  their application involves sufficient overlap to indicate that the exclusionary legislative intent as set out in category 3 applies to both.

Philip Swainston

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you would like to discuss any of the matters discussed in this brief article, please contact:

Philip Swainston
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.