Criminal Law and Criminal Procedure
Course Assignment 23 November 2012 Guidance Note
Chan Faat has an argument with his father during dinner. They are both drinking beer. Chan Faat drinks about six bottles of beer during dinner. They start arguing about a recent football match which they had been watching. Chan Faat becomes very angry and hits his father on the head with his beer glass. The glass breaks and cuts the father above the left eye causing slight bleeding. Chan’s father goes to the kitchen to get a towel and to dry up the blood. Chan Faat continues to drink beer and starts to watch football on the television. About two hours later whilst they are both watching television Chan Faat goes over to the father and says, “Here’s another one for you.” He then punches the father in the face causing a red mark. The police are called and Chan Faat is arrested.
Using the 8-part test discuss in full the possible criminal liability of Chan Faat.
Nobody has died, so do not discuss ‘fatal offences against the person’. Discuss only the ‘non-fatal offences against the person’. Chan Faat may be guilty of both Wounding with intent contrary to s. 17 Offences Against the Person Ordinance, Cap. 212 in respect of the first attack on father and also Assault Occasioning Actual Bodily Harm contrary to Common Law and punishable under s. 39 of that Ordinance., in respect of the second attack. Discuss the 8-part test in respect of each offence:
1) actus reus;
2) mens rea;
3) Co-existence of 1) and 2)
4) Voluntary acts
5) Factual Causation
6) Legal Causation
7) Any novus causus interveniens
8) Absence of a lawful defence
The Two Offences
s. 17 Cap. 212
Any person who-
(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person; or
(b) shoots at any person; or
(c) by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person, with intent in any of such cases to maim, disfigure, or disable any person, or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for life.
1. Actus Reus
The continuity of the skin must be broken: R v Wood (1830). The outer covering of the body must be divided, although a division of the internal skin, e.g. in the cheek can be a ‘wound’: R v Smith (L) (1837). Chan’s father is bleeding so there has been a ‘wound’. 2. Mens Rea
This offence has a Basic Intent. The wounding must have been done ‘unlawfully’ – without legal justification. It was. ‘Unlawfully’
The use of this word means that self-defence, defence of others or property, prevention of crime would be defences to a charge.
It must also have been done ‘maliciously’. This means either ‘intentionally’ or ‘recklessly’: see: R v Mowatt
The offence also has a Specific Intent element, which is – “with intent to do some … grievous bodily harm to any person”. ‘Intent’
This means Chan’s object, aim or purpose.
‘Grievous Bodily Harm’
This means really serious bodily injury: DPP v Smith .
It need not be permanent or dangerous: R v Ashman , but can include psychiatric injury: R v Ireland .
3. Co-existence of actus reus and mens rea?
Did the actus reus and mens rea coexist in time? Yes.
4. Voluntary Actions by Chan?
Were Chan’s actions voluntary? Probably. No evidence of automatism on the facts.
5. Factual Causation?
‘But for’ the actions of Chan Faat would the father have sustained the injuries? No! Therefore factual causation is established.
6. Legal Causation?
Were the actions of Chan Faat more than de minimis? More than a trifling cause? Were they the ‘substantial and operative’ cause of the injury to the father....
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