OVERVIEW
Murder has always been the most serious offence in Hong Kong. It was formerly a capital offence leading to the death penalty. Although the last execution in Hong Kong was in 1966, murder remained a capital offence in Hong Kong until 1993. Today a conviction for murder results in a mandatory sentence of life imprisonment. Thankfully there are not many murders in Hong Kong but if a person is charged with murder it is essential that he or she receives the best possible advice on the evidence, the prospects of defending and the possibility of negotiating a plea to a lesser count. Our lawyers have successfully defended murder charges, acting with Counsel in the High Court. A murder trial will always take place before a jury. Advice on jury trials by experienced lawyers is essential for any defendant faced with a murder charge.
Manslaughter is also among Hong Kong's most serious offences. It covers unlawful killings which are not murder, including cases reduced from murder by a partial defence and deaths caused by an unlawful and dangerous act or gross negligence. Manslaughter carries a maximum sentence of life imprisonment, but unlike murder the sentence is not fixed: the judge determines the appropriate sentence according to the category of manslaughter, the offender's responsibility and all the circumstances.
Common-law offences with statutory penalties.
Murder
Murder is a common-law offence. Section 2 of the Offences against the Person Ordinance (Cap. 212) requires an adult convicted of murder to be sentenced to imprisonment for life. A different statutory regime applies where the offender was under 18 at the time of the offence.
Manslaughter
Manslaughter is a common-law offence punishable under section 7 of Cap. 212. The maximum sentence is life imprisonment, but the court retains discretion to impose the sentence appropriate to the particular offence and offender.
Elements of Murder
An unlawful killing
The prosecution must prove that a person died and that the killing was unlawful. A killing may be lawful in a narrowly defined circumstance, such as the use of reasonable and necessary force in lawful self-defence.
Causation
The prosecution must prove that the accused's act or legally relevant omission caused the death. Medical, forensic and factual evidence may be required to determine both factual and legal causation.
Intent to kill or cause grievous bodily harm
Murder requires an intention to kill or to cause really serious bodily harm. The prosecution may rely on the nature of the act, the weapon, the injuries, words spoken and the surrounding circumstances to invite the jury to infer intent.
No complete or partial defence
A complete defence may result in an acquittal. A successful partial defence—such as diminished responsibility, provocation or participation in a suicide pact—reduces what would otherwise be murder to manslaughter.
Principal Categories of Manslaughter
Voluntary Manslaughter
Voluntary manslaughter occurs where all the elements of murder are present, but the offence is reduced to manslaughter because the defendant establishes a recognised partial defence: provocation, diminished responsibility or participation in a suicide pact.
Involuntary Manslaughter
Involuntary manslaughter is an unlawful killing without an intention to kill or cause grievous bodily harm. It includes unlawful-and-dangerous-act manslaughter and gross-negligence manslaughter.
Gross Negligence Manslaughter
In HKSAR v Lai Chun Ho [2019] 1 HKLRD 4, the Court of Appeal held that the risk which a reasonable person would have foreseen must be a serious and obvious risk of death, not merely a risk of bodily injury or serious bodily injury.
THE DIFFERENCE BETWEEN THE OFFENCES
Intent and the basis of liability determine the offence.
Murder requires an intention to kill or cause grievous bodily harm and carries a mandatory sentence. Manslaughter encompasses several different forms of unlawful killing and permits the judge to determine the sentence.
| Issue | Murder | Manslaughter |
|---|---|---|
| Nature of offence | Common-law murder | Common-law manslaughter |
| Death and causation | Both must be proved | Both must be proved |
| State of mind or basis of liability | Intent to kill or cause grievous bodily harm | Depends on the category: a partial defence, an unlawful and dangerous act, or gross negligence |
| Trial | Court of First Instance before a judge and jury | Court of First Instance before a judge and jury |
| Maximum sentence | Mandatory life imprisonment for an adult | Life imprisonment, but sentence is discretionary |
TRIAL AND SENTENCE
Homicide trials are determined by a judge and jury.
Murder and manslaughter are tried upon indictment in the Court of First Instance. The judge directs the jury on the law, while the jury determines whether the prosecution has proved the charge beyond reasonable doubt and considers any defence left for its determination.
An adult convicted of murder receives the mandatory sentence of life imprisonment. Manslaughter also carries a maximum of life imprisonment, but its many different factual and legal forms mean that sentence is determined individually.
HOW MCS CAN ASSIST
Experienced representation in homicide proceedings.
MCS can analyse the prosecution case, forensic and medical evidence, causation, intent, identification and any available complete or partial defence. We can advise on the prospects of contesting the charge and, where supported by the evidence and instructions, representations or negotiations concerning an appropriate lesser count.
Our lawyers have successfully defended murder charges with Counsel in the High Court. We prepare clients carefully for every stage of the case and provide experienced advice on the conduct of a jury trial.