Murder

I. Murder

Definition of Murder 

At common law, "murder" is in fact not given any formal definition in the text of any statute. In other words, the law nowhere spells out, word for word, "what murder is". The Hong Kong courts have, however, consistently adopted the common law definition dating back to the 17th century: subject to the three exceptions set out below, a person of sound mind and discretion who unlawfully kills any "person in being" with the intention to kill or to cause grievous bodily harm commits murder. As to the medical criterion for death, the prevailing professional view is "irreversible brain-stem death", but the law avoids laying down any rigid definition; even where no body is found, a conviction may still be returned if the totality of the circumstantial evidence is so cogent and compelling as to exclude any reasonable inference other than murder. 

The three exceptions referred to in the above definition (that is, the matters affecting liability for murder) are all statutory. They are: 

• where the killing is the result of provocation; 
• where the defendant was suffering from diminished responsibility at the time of the killing; and 
• where the defendant was acting in pursuance of a suicide pact. 

Further explanation of these three exceptions is set out in the sections that follow. 

As regards a person of sound mind and discretion, anyone who is not suffering from a mental illness and who has attained the age of 10 (that is, the age of criminal responsibility) is answerable in criminal law for murder. Under the law, a person who has attained the age of 10 is presumed to have sufficient mental capacity and must bear legal responsibility for his conduct. However, a child aged between 10 and under 14 is presumed in law to be "incapable of committing a crime" (doli incapax), unless the prosecution can prove beyond reasonable doubt both that the child did the act charged and that, at the time of the offence, the child knew that the act was seriously wrong—that is, that it went beyond mere naughtiness or childish mischief. 

The "year and a day rule" at common law provided that a defendant could not be convicted of murder or manslaughter if the victim died more than a year and a day after the harmful act or omission. That rule has been abolished in respect of offences involving death or suicide committed on or after 1 June 2000, including murder and manslaughter: see section 33C of the Offences against the Person Ordinance (Cap. 212). The practical effect of the abolition is that, even if the victim dies more than a year and a day after the act, the defendant may still be charged with murder or manslaughter and will not be automatically absolved of criminal liability merely because of the lapse of time.