b. Entrapment

b. Entrapment

Entrapment refers to situations where law enforcement intentionally creates circumstances to induce an individual to commit a crime. Despite the person committing the offence due to the instigation of law enforcement, they are still charged for the crime.

In Hong Kong, there is generally no recognized defence of entrapment. Even if an accused person committed an offence due to incitement or traps set up by law enforcement agencies, they can still be found guilty. According to the rationale, the accused should be held responsible for the offence because both the physical element (actus reus) and the mental element (mens rea) are present. Entrapment can only be invoked as a factor in mitigation during sentencing, rather than as a complete defence. This differs from the position in the United States, where a defence of entrapment is recognized in certain circumstances.

Instead of automatically excluding evidence based on entrapment, the courts often assess whether the law enforcement operations in question constitute an abuse of process. If the operations are deemed an abuse of process, a potential remedy may be to stay the proceedings.

Abuse of process can occur in two situations: 

1. When it is impossible to provide the accused with a fair trial, typically due to significant delays that have occurred.
2. When trying the accused in the specific circumstances of the case would offend the court’s sense of justice and propriety.

Regarding whether entrapment is allowed, the crucial factor is whether undercover agents acted in a manner that was unexceptional or similar to that of an ordinary member of the public. If a police officer behaved in a manner consistent with how an average person would behave and merely provided an opportunity for the defendant to commit the offence, it cannot be argued that the officer caused the offence. In such cases, a stay of proceedings would not be granted since the police did not act in a different or exceptional manner compared to an ordinary member of the public.