JD Criminal Law I & II

Exercise 1

Sweet v Parsley [1970] AC 132 (HL) [CB 324]

Section 5 of the Dangerous Drugs Act, 1965:

"If a person –
(a) being the occupier of any premises, permits those premises to be used for
the purpose of smoking cannabis or cannabis resin or of dealing in cannabis or
cannabis resin (whether by sale or otherwise); or
(b) is concerned in the management of any premises used for any such purpose
as aforesaid;
he shall be guilty of an offence against this Act."

Necessary Elements of the Offence

1. What are the necessary actus reus and mens rea elements of the offence? Necessary
elements are facts that must be found by the jury if the defendant is to be found guilty;
however, in some cases, the existence of these facts may not be sufficient for finding guilt.

Determining the necessary elements of an offence is not simply a matter of form: “In
undertaking [the task of ascertaining the ingredients of an offence which the prosecution
must prove], one examines not only the form of the provision, but also the substance and
reality of its language” (per Chan PJ in Tong Yiu Wah v HKSAR (2007) 10 HKCFAR 324 at
para. 10 [CB 381])

a. Necessary actus reus elements can be identified by reading the offence and breaking it
up into its parts. Negative averments are not considered necessary actus reus elements
(see the application of s. 94A of the Criminal Procedure Ordinance (Cap. 221));

A. being concerned in the management of premises

B. premises used for the purpose of smoking or dealing in cannabis/resin

b. Necessary mens rea elements can be identified by reading the offence together with the
application of the presumption of mens rea;

Presumed mens rea as to both A and B above – ‘knowingly’

c. Where the presumption of mens rea has been rebutted, the presumed mens rea element
is not considered a necessary element. The question of strict or absolute liability comes
in here.

Presumption of mens rea not rebutted:

- no express language rebutting the presumption
- truly criminal in character (per Lord Reid, CB325)
- punishment and stigma attaching to offence (Lord Pearce, CB329)
- absence of a half-way house defence or objective standard of MR
- greatest vigilance by defendant could not prevent the harm – because no-
one had control over actions of tenants

Simon Young © 2011 1

Department of Law, University of Hong Kong
 JD Criminal Law I & II

- word ‘concern’ implies the need for ‘knowledge’ (Lord Morris, CB328)

The Necessary Elements are:

A. being concerned in the management of premises

B. premises used for the purpose of smoking or dealing in cannabis/resin
C. the defendant knows the premises are being used in this way

Burden of Proof and Defences

2. Before the trial begins, what elements must the prosecution prove beyond a reasonable
doubt? The presumption of innocence tells us that the prosecution must prove all necessary
elements of an offence beyond a reasonable doubt.

3. Are there any available defences for which the defendant has only an evidential burden to
discharge? Where the defendant has discharged this evidential burden, the prosecution
must disprove (or negative) the circumstances of the defence beyond a reasonable doubt. If
the prosecution fails to do so, then the defendant will be found not guilty.

a. Such defences may be found by either common law interpretation of the provision (e.g.
Tse Mui Chun v HKSAR (2003 CFA)) or by remedial interpretation under the Basic Law
following a finding of a unjustified derogation of the constitutional right to the
presumption of innocence (see HKSAR v Lam Kwong Wai (2006 CFA) [CB 43] and HKSAR
v Hung Chan Wa (2006 CFA) [CB 65])

==> No such defence and unnecessary

b. Such defences may take the form of true defences, in which case, they will be found in
either the common law (e.g. self-defence) or in other statutory provisions (e.g.
provocation).

==> Such defences may be available (eg. duress)

4. Are there any available defences for which the defendant has a legal burden to prove on a
balance of probabilities? If the jury finds that the defendant has discharged this burden then
the defendant will have succeeded in his defence.

a. Such defences can be found by reading the legislative provision, as they will sometimes
appear expressly. Sometimes these defences are known as negative averments – see s.
94A of the Criminal Procedure Ordinance (Cap. 221).

==> No, but don’t have the full statute to say for sure

b. Such defences, if they do not exist expressly, may be read in because of fundamental
values of the common law and constitutional human rights provisions. This is known as
the half-way house. See AG of HK v. Fong Chin Yue (1995 CA); Hin Lin Yee v HKSAR
(2010 CFA).

Simon Young © 2011 2

Department of Law, University of Hong Kong
 JD Criminal Law I & II

==> No such defence and unnecessary

c. Such defences may take the form of true defences, in which case, they will be found in
either the common law or in other statutory provisions, e.g. insanity, diminished
responsibility.

==> Such defences may be available (eg. insanity)

Simon Young © 2011 3

Department of Law, University of Hong Kong