Justification of Self-defense in Crimes: Hong Kong

Justification of Self-defense in Crimes: Hong Kong
Name:
Institution:
Course Title:
Instructor:
Date:
Justification of Self-defense in Crimes: Hong Kong
Self defense is commonly asserted in homicide, assault and battery cases in Hong Kong. Self defense in Hong Kong is considered as one of the Hong Kong law defenses. This applied in cases where a burglary takes place in a residential place or even a business premise and there is no enough time to respond by calling the police (Gaylord et al., 2009). But instead, a person responds by killing the culprits using a weapon they posses. The burden in such cases lies on the prosecution to justify to the jury that the act was carried out under self-defense (Wai-Kin, 2011). In Hong Kong law, individuals are allowed to use necessary force to defend themselves, others and their property. A test of the cases on self defense in Hong Kong was tested in the R v. Lau Cheung-Lam (1997) HKLY 273 where the court ruled out that self defense was allowed. In another case of Palmer v. R (1971) AC 814, the accused appealed to the jury that the judge had given a wrong verdict by summing up the act of self defense. However, the appeal was later dismissed as the jury decision was not influenced by the summing up. In another case of The Queen v. Leung Ka-fai (1992) 1 HKCLR 255, the accused was convicted of murder and later on launched an appeal. The appeal was based on the fact that the trial judge had wrongfully directed the case on self defense. The conviction was abandoned the court maintaining that the accused had a right to self defense and as per the Beckford v. R (1988) 3 All ER 425 in London (Wai-Kin, 2011).
First, in Hong Kong the jury is mandated to determine the level of honesty that the force used by the accused was reasonable. It is also determined whether the person under attack had a chance to withdraw before applying the force. The accused can therefore only be convicted of murder if the jury fails to believe that it was an act of self defense and also if the accused used unreasonable force in defending themselves (Jackson, 2003; Ngok, 2010; Chan, 2011). The jury in Hong Kong law is mandated to analyze and weigh out the credibility of the accused claims on self defense at the trial. In the HKSAR v. Lau Wa-Kuen (2001) HKLRD (Yrbk) 308, the accused was convicted due to owning an offensive firearm in a public place (Wai-Kin, 2011; Young & Ghai, 2014). The evidence showed that the accused had every reason to carry a weapon in case he or she was under immediate fear of attack (Walzer, 2006; Lo, 2011). In this case, the accused was carrying the weapon which was a water pipe with the intention to repair a pipe and the fact that he went to look for the assailant, the intent changed from self defense to revenge (Wai-Kin, 2011; Dershowitz, 2006).
In Hong Kong, carrying a weapon for self defense does not justify the right to use it. Even if there is fear amounting from previous experience of violence or an attack. In Wong Christopher Milton v. HKSAR (2006) 9 HKCFAR 295, the accused was convicted of possessing a knife in public place in fear of being attacked as he had been a victim before. The Court of Final appeal refused to acknowledge the application of self defense and stated that self protection could only amount to carrying a weapon if one was under imminent threat (Gaylord et al., 2009). If a convict is charged with murder and the jury justifies excessive use of unreasonable force, he or she will have no defense despite arguing or believing that the force used was reasonable (Wai-Kin, 2011). The force used in self defense in Hong Kong to determine whether the act of self defense was necessary is effective and has helped the Court to distinguish between the wrongful use of force and whether it is necessary from when it is not necessary and the accused intent are therefore ruled out to be wrong (Ngok, 2010). In Hong Kong, the common law provides defense to an accused for using force to protect themselves and their property. Under statutory provisions, section 64(2) and 3, in relation to Crimes Ordinance, Cap 200, individuals charged with criminal damage can be considered lawful if the act was to protect themselves or property. This however must pass the litmus test that the act was carried out due to imminent need of protection which required the equivalent of the force used reasonably (Wai-Kin, 2011; Keerhi, 2015).
In Australia, self defense is allowed as a way to take any defensive or evasive steps that victims of an assault believe will be necessary to avert imminent danger. In Australia, self defense law relies on the fact of the matter left to the court and jury to decide (Glennon, 2001). A common law in the case of self defense in Australia is the Zecevic v. DPP (1987) 162 CLR 645 where an accused was charged with murder of killing the neighbor after an argument (Wai-Kin, 2011; Lanham et al., 2006). The accused believed that the neighbor had a knife and a shot gun which compelled him to go to his house and retrieve his weapon 9a gun) which he used to shoot the deceased. The issue of self defense was withdrawn by the judge and the conviction was made but later on a successful appeal to the High Court was made a retrial granted in which the requirements of self defense were outlined (Wai-Kin, 2011; Crawford, 2005). The question to be asked was whether the accused had reasonable ground to shoot his opponent (Cheng, 2009). The jury would only acquit the accused off the charges only if they justify beyond reasonable doubt that the accused is entitled an acquittal. As per the 10. (2) of the Criminal code 1994 (Cth) a person can carry out an act of self defense if he or she considers the conduct to be necessary (Wai-Kin, 2011; Kay, 2008). This is also similar to the Hong Kong law that only leaves the justification of the act of self defense to the accused believe in which the court or the jury should only justify without doubt that the act was justifiable and the force used was necessary (Ngok, 2005; Ngok, 2006).
There is however a very thin line between justification and excuse in the laws of self defense. In the Australian law, necessity is not a defense to murder by deliberate killing. It is however being that a defense is specific circumstances in the Hong Kong law (Pearce & Guiheux, 2009). In Australia, the defendant has no right to determine if he or she used reasonable force in self defense. This is left to the judge and jury to decide the amount of force that could have been reasonable to that particular scenario (Lanham et al., 2006). The nature of pressure that the defendant was under from imminent attack and lack of time to make rational decision makes it the court and jury decision to balance the objective with the standard of reasonable (Alexandrov, 2009). This classic test which is accorded from the Palmer v. The Queen on appeal to the Privy Council in 1971, the defense...