Does section 3(2) of the Homicide Ordinance unjustifiably derogate from the Appellant’s right of presumption of innocence under Article 87(2) of the Basic Law?

On 12 June 2024, the Court of Final Appeal decided on the cardinal issue of whether the Homicide Ordinance (Cap. 339) derogates from the right of presumption of innocence where a defendant seeks to rely on the partial defence of diminished responsibility.

The Court decided that s.3(2) of the Ordinance did not engage or derogate from the presumption of innocence. It was noted that the defendant is not someone presumed innocent at the point of invoking diminished responsibility.

Applying these principles, the Court concluded that s.3(2) of the Ordinance does not engage or derogate from the presumption of innocence. The question of diminished responsibility only arises after the prosecution has successfully proved that the defendant killed unlawfully with the requisite intent. The partial defence does not affect the constituent elements of murder, but instead is an extenuating mitigating circumstance that operates to reduce the mandatory sentence for murder. Therefore, the defendant is not someone presumed innocent at the point of invoking diminished responsibility. He or she will already have had the benefit of the presumption of innocence requiring the prosecution to prove the elements of murder before seeking to establish the defence.

The Court further ruled that the section was proportionate and justified.

Parkside’s Simon NM Young, instructed by GT Lawyers and assigned by the Director of Legal Aid, acted for the Appellant.

For a link to a summary of the judgment, click here.

For a link to the full judgment, click here.