| (1) |
the extent to which assisting a public
enemy at war requires active conduct; and |
| (2) |
the meaning of "with intent to". |
I. Assisting a public
enemy |
| 2. |
The offence of assisting a public enemy
at war with the PRC could only be committed
"by doing any act" with intent to prejudice
the position of the PRC in the war.
|
| 3. |
Where an offence includes a verb that
implies active conduct, the courts generally
do not stretch the meaning of that verb to
include omissions. Since the word "assist"
implies active conduct, it is likely to be
construed as not including omissions. |
| 4. |
Such a construction is reinforced by
the requirement of "doing any act". A reference
to the doing of an act will not normally
be taken to include an omission to do the
act. For example -
| (1) |
the former offence of doing any
act with intent to impede the apprehension
or prosecution of someone who has committed
an arrestable offence did not include
an omission; |
| (2) |
it has been held that the words
"does acts", in modern legislation,
are to be strictly construed and are
not satisfied by proof of an omission. |
|
II. The meaning of "with intent
to" |
| Ulterior intent |
| 5. |
Offences are frequently so defined that
the mental element includes an intention
to produce some further consequence beyond
the prohibited act itself. For examples,
burglary consists of entering a building
as a trespasser with the intention of committing
one of a number of specified offences. The
actual commission of one of those offences
is no part of the prohibited act of burglary,
which is complete as soon as the entry to
the building takes place. |
| 6. |
In such cases, the additional intent
required is commonly known as an "ulterior
intent". Where an ulterior intent is required,
recklessness as to such a result is not enough.
It must be proved that the person intended
it. |
| 7. |
A person intends a certain result
if -
| (1) |
it is his purpose to achieve
that result; or |
| (2) |
he knows that the result is a
virtually certain consequence of his
acts. |
|
| 8. |
The question whether a person has such
an intention as a predominant or a secondary
consideration when carrying out his actions
is immaterial. For example, a person may
enter a building as a trespassor primarily
to shelter from the rain, and may intend
to steal things only as a secondary consideration.
The person nevertheless commits the offence
of burglary. |
| Motive |
| 9. |
Ulterior intent is different from motive.
Where an offence includes an ulterior intent,
it must be proved that the accused had such
an intent. Motive generally refers to some
consideration that forms no part of the offence.
A person's motive is what induces him to
act in a certain way e.g. revenge, greed,
ambition. |
| 10. |
Motive is not relevant to guilt or
innocence. However, it may be relevant as
evidence, since if the prosecution can prove
the defendant had a motive for committing
the crime that may make it more likely that
he did in fact commit it. Motive is also
important in respect of sentencing e.g. a
person who acted with a good motive may receive
a lighter sentence than one who did not. |
| Application to treason |
| 11. |
The above principles would apply
to the proposed offence of assisting a public
enemy at war as follows.
| (1) |
It would not be sufficient merely
to prove that a person intentionally
assisted an enemy. |
| (2) |
The prosecution would also need
to prove that -
| (a) |
the person's purpose in
giving such assistance was to
prejudice the position of the
PRC in the war; or |
| (b) |
the person knew that such
prejudice was a virtually certain
consequence of his acts. |
|
| (3) |
The person's motive for his actions
(e.g. hatred of his country or desire
for world peace) would be irrelevant
to his guilt or innocence, but might
be relevant as evidence of what he
had done or in sentencing. |
|
