¹ (1967) (I) 21 P.D. 246.

² Sec. 5 is in the following terms: Covering-up of offence—

5. (a) A person who knows that a particular person is planning to commit, or has committed, an offence under this Law punishable by imprisonment for a term of fifteen years or a heavier penalty, and who does not take reasonable action to prevent its commission, completion or consequences, as the case may be, is liable to imprisonment for a term of seven years.

(b) The provisions of this section shall add to, and not derogate from the provisions of section 33 of the Criminal Code Ordinance, 1936.

(c) The provisions of this section shall not apply to a spouse, parent, descendant, brother or sister of a person who has planned to commit, or has committed, an offence as aforesaid.”

³ Correlative offences are of a group of offences, the existence of which is conditioned by another, the original offence; for example, the offence of possessing stolen goods is only constituted if the goods were previously obtained in some felonious or other unlawful manner. In other words, the criminality of the conduct comprising a cor relative offence is the result of a certain link between it and another offence.

⁴ As regards this last aspect of covering-up, it should be observed that according to the terms of the Law covering-up may be punishable even when the object therof has not yet become a criminal act, intention alone not being punishable. However, this is a matter which raises the further question of statutory interpretation so as to avoid absurdity.

⁵ The Abu Khadrah case at 249.

⁶ Ibid. Sec. 21 of the State Security Law deals with “delivery of information to enemy”, and sec. 22 with “espionage”.

⁷ It is not certain that, but for this convenient alternative, the Supreme Court would not have felt itself obliged to analyse the problem in the light of another possible solution.

⁸ See A. v. Attorney-General (1960) 14 P.D. 310; Sita v. Attorney-General (1961) P.D. 1373; A. v. Attorney-General (1962) 16 P.D. 2397; Luk v. Attorney-General (1966) 20 II P.D. 590.

⁹ From the viewpoint of the “voluntary” element, knowledge of the consequence approaching a high degree of probability is indeed less serious than the actual intention, since in contrast to what the person doing the act intends, he does not endeavour to achieve the consequences of which he has knowledge. On the other hand, from the viewpoint of the “rational” element, the actual intention is less serious, since the intention is only postulated on the knowledge of the possibility of the consequential effect to which the effort is directed, without any condition that this knowledge should be almost certain. The knowledge that the harmful outcome will be caused can also be highly meagre; the effort to achieve it defines the seriousness of the matter. One can argue that evidence of knowledge approaching a high degree of probability vis-à-vis intention is based on a sort of set-off of the less serious from the “voluntary” viewpoint against the more serious from the “rational” standpoint.

¹⁰ The Abu Khadrah case at 252.

¹¹ In the terms of sec. 21 of the State Security Law.

¹² The Abu Khadrah case at 248.

¹³ Attempt at suicide was only recently abolished as an offence.

¹⁴ On the assumption that he got to know of it after it was carried out.

¹⁵ e.g. incitement—not solicitation—to evade military service (sec. 19 of the State Security Law). It is known that incitement is characterized by non-compliance on the part of the person incited and hence the absence of any consequences.

¹⁶ An offence under sec. 18 of the State Security Law.

¹⁷ The term “offence” covers both the completed form thereof and its derivative forms, including attempt.

¹⁸ See sec. 232 of the Greek Criminal Code, 1950; secs. 361–64 of the Italian Criminal Code, 1930; sec. 438 of the Ethiopian Criminal Code, 1957; see also Allen, C.K., “Misprision” (1962) 78 L.Q.R. 40–61Google Scholar, and Sykes v. D.P.P. [1961] 3 W.L.R. 371.

¹⁹ The Abu Khadrah case at 248.

²⁰ The offence and its various elements are defined in sec. 26 (1) of the Criminal Code Ordinance in the following terms:

“Accessories after the fact—

26(1) Every person other than the father, mother, son, daughter, or husband, or wife of the offender who, knowing an offence to have been committed by another person, receives or assists such other person in order to enable him to escape punishment is said to become an accessory after the fact to the offence:

Provided that a wife shall not become an accessory after the fact by receiving or assisting in her husband's presence and by his authority another person who is guilty of an offence in the commission of which her husband has taken part in order to enable that other person to escape punishment.”

²¹ Sec. 33 of the Criminal Code Ordinance, sec. 5 of the State Security Law and sec. 134 of the Military Justice Law, 1955.

²² Obviously, except a contravention to which the rules relating to accomplices do not apply at all: sec. 22 of the Criminal Code Ordinance.

²³ See on this Williams, G., The Criminal Law (2nd ed.) para. 141Google Scholar; Smith & Hogan, Criminal Law (1965) 539–43Google Scholar; C. K. Allen, op. cit.; Perkins, K. M., Criminal Law (1957) 440–45.Google Scholar What emerges is to regard misprision of felony as “practically obsolete” (Stephen, , History of the Criminal Law vol. II, 238).Google Scholar Actually Williams states that “whatever the law may be, it is not the general custom to prosecute for misprision of felony”. (At 427.) See more particularly Criminal Law Revision Committee, Seventh Report, II. If we see in sec. 5(1) of the Criminal Law Act, 1967, the definition of the offence which is statutorily to replace the common law misprision, then the new crime of “concealing offences” is no longer simply an act of omission. The new law postulates its existence on an important active element, including therein the fact that the accused “accepts or agrees to accept…any consideration”. That is to say that mere passive conduct—as in the definition of the offence of covering-up in our local legislation—is insufficient to form the offence in England under the 1967 Act.

²⁴ It may be noted that under sec. 4 of the Criminal Law Act, 1967, the offence ceases to be formally one of accomplices and has become—certainly by virtue of its very nature—a specific offence of its own, “assisting offenders”.

²⁵ This appears to be so in all languages.

²⁶ See n. 20 above.

²⁷ See n. 2 above.

²⁸ The broadened exemption of the woman, according to the view which would com pare the two sections, is in favour of the husband. In giving assistance to his accomplices, the husband himself is also assisted.

²⁹ Like the incompetence of spouses to give evidence against each other, under sec. 5 of the Evidence Ordinance.

³⁰ Williams, op. cit., 763.

³¹ It is to be noted that in English law this presumption was abolished in 1925 and the woman was granted the special defence of coercion, the burden of proof being upon her—except in treason and murder—that the offence was committed in the husband's presence and by his coercion.

³² The question whether the presumption is correct is a separate one which it is very easy to answer.

³³ The proviso to sec. 26(1) of the Criminal Code Ordinance ought be attached as an additional sub-section to sec. 20 of the Criminal Code Ordinance, as an exception to the rule fixed in the latter section.

³⁴ Sec. 33 of the Criminal Code Ordinance reads as follows:

“Neglect to prevent certain offences.—

Every person who, knowing that a person designs to commit a felony, fails to use all reasonable means to prevent the commission or completion thereof, is guilty of a misdemeanour and is liable to imprisonment for two years”.

³⁵ According to sec. 2 of the State Security Law, attempt is dealt with in like manner as is the commission of the offence.

³⁶ Except in the concealment of a military offence by a soldier, because it may be gathered from sec. 134 in association with sec. 17 of the Military Justice Law, 1955, that sec. 33 of the Criminal Code Ordinance has no application to military offences. As a result, the exemption in sec. 134 is undoubtedly absolute.

³⁷ The Abu Khadrah case at 248.

³⁸ Ibid. at 249–50.

³⁹ See at end of para. 3, p. 232 above, and particularly the reservations regarding imposing a duty to prevent consequences generally.

⁴⁰ “Offence” comprehends attempt to commit, as provided in sec. 5 of the Criminal Code Ordinance, 1936, and sec. 1 of the Interpretation Ordinance.