The Mental Element (Mens Rea)

The Mental Element (Mens Rea)

Both murder and manslaughter are forms of killing, but to establish murder it must be proved that the person who did the act of killing had the requisite criminal intent at the time of the act. That intent need not be a direct intention to kill; it is sufficient that there was an intention to cause grievous bodily harm. 

"Grievous bodily harm" is to be understood as "really serious" harm, rather than minor or ordinary injury. Further details may be found in the discussion of the offence of "wounding".

As to the meaning of "intention": put simply, if a person's purpose is to bring about a particular result, then that result is intended; but even if the result is not his direct purpose, where a consequence is virtually certain to occur and the person knows this to be so, the jury may still find that he intended it. Accordingly, if a person, knowing that his conduct is virtually certain to cause the death of, or grievous bodily harm to, another, nevertheless proceeds with it, the law may treat him as having the intention to kill or to cause grievous bodily harm. 

In short, the law does not require the prosecution to prove that the defendant "intended to kill"; it is enough to prove that he intended to cause really serious bodily harm in order to establish murder. In deciding intention, the jury will consider two central questions: first, how probable it was that the defendant's conduct would result in death or grievous bodily harm; and second, whether the defendant appreciated that this consequence was virtually certain to occur. 

Under the principle of "transferred intent" (also known as "transferred malice"), where a defendant originally intended to kill or cause grievous bodily harm to one person but, in carrying out the act, in fact killed or seriously injured another, the law transfers the criminal intent directed at the intended target to the actual victim. The defendant is treated as having the requisite criminal intent in respect of the actual victim and may be convicted accordingly. This principle applies only where the intent and the criminal act relate to offences of the same nature; intent cannot be transferred between offences that are fundamentally different in nature (for example, the intent to damage property cannot supply the intent required for murder). 

Sentencing Principles 

Under section 2 of the Offences against the Person Ordinance (Cap. 212), a person convicted of murder must be sentenced to a mandatory term of life imprisonment. Where the defendant was under 18 years of age at the time of the offence, the court has a discretion to impose either life imprisonment or a term of imprisonment of a shorter duration.