Criminal Law in Hong Kong - Essay Example

Currently, the law of Hong Kong does not hold someone criminally liable for mere omission unless the common law or sta y impose a duty of care between the rescuer and the person in distress. How can we determine whether there is a duty of care between the two We can first look at the principle set out in the case of Miller1. In that case, House of Lords held that if the defendant had created a dangerous situation; it will impose a duty to act. Therefore, the actus reus was satisfied by D's failure to deal with the fire and this coincided with the relevant mens rea thus he was liable. Secondly, duty to act arises from certain relationships, for example, parent/child, husband/wife and doctor/patient.2 Thirdly, duty to act when s/he is bound by contract to do so, they will be criminally liable if harm or injury arises from their omission even though the person harmed was not a party to the contract. We can support this with the case of Pittwood3; where D was contracted to open and close level-crossing gates to ensure people do not get run over by trains. His failure to do so caused the victim killed by a train. The legal principle of that case was said to be if a person under contract will be liable for the harmful consequences of his failure to perform his contractual obligations. The duty extends to those reasonably affected by the omission, not just the other party to the contract. What about situations which do not fall into the three categories I have mentioned above. The person at the scene has neither created the dangerous situation, nor there is a special relationship between the two, and there is no contract bound on her/him to act. This can be illustrated in Stephen's Digest of the Criminal Law (fourth edition, 1887): A sees B drowning and is able to save him by holding out his hand. A abstains from doing so in order that B may be drowned, and B is drowned.4 The Criminal law's current position in Hong Kong is very unlikely to hold A liable for any criminal offence since the basic requirement of 'voluntary conduct' is not satisfied. But the main area that we are most interested in is whether the common law is too lenient on such people Good Samaritan Law has not yet existed in the Hong Kong's jurisdiction; someone who comes across another who is in distress might precluded from offering assistance for fear of having to endure a court proceeding. However, if that person does choose voluntarily to intervene to render assistance he will assume a duty of care towards the individual concerned.5 If gross negligence is found, s/he could be prosecuted criminally.6 Theoretically, the person who puts the victim in distress could also raise a defence of novus actus interveniens meaning the rescuer's negligent treatment has broken the chain of causation. But, practically, this plea is rarely successful against medical treatment as a matter of policy.7 I would assume someone who tries their best to save others in distress would be in the same position. In the United States and Canada (except Quebec), citizens are not obligated to rescue someone who is in distress, but if they choose to do so, the Good Samaritan Law protects rescuers from being blame.8 The Good Samaritan Law's existence is intended to reduce bystanders' hesitation to assist.9 However, Good Samaritan Laws in Quebec, as well as many other European countries such as Italy, Japan, France, Belgium, Andorra, and Spain require its citizen, at minimum to call the local emergency number, unless doing so would be harmful.10 In Germany, a citizen is obliged to provide first aid when necessary and is immune from prosecution if assistance given in good faith turns out to be harmful. Knowledge of first aid is a "must" before a citizen is given a driver's license. In conclusion, I feel that the common law is not too lenient on such people. Even if the law of Hong Kong compel its citizens to rescue whenever they see someone in distress, would this practically be effective as such Take the Stephen's example as I have mentioned above, how it would be possible to prosecute, for example if there were 50 bystanders at the scene. Is each and every one of them equally liable for an offence It would be very hard to prove the actus reus without establishing some sort of duty of care between them. Though, introducing a Good Samaritan Law into Hong Kong could be a positive approach11 since it could encourage more people to assist or rescue. But before such law is introduced, I feel that individuals should be afforded the right to make a choice and would argue that such compulsion should not be attempted since it would be unfair to force upon a citizen to act as a Good Samaritan since they could be prosecuted either way; whether they choose to help or otherwise. Common law within Hong Kong is very clear with regards to criminal joint enterprise. In the case where individuals get together for the purpose of committing a crime, the law holds these individuals equally liable except in the event where one individual expresses the intent to withdraw from the criminal arrangement. In which event the individual who chooses to withdraw s/he bears less liability than his/her co-conspirators and thus they will still be liable for the crimes which s/he has already committed such as "incitement, or conspiracy, or, if the withdrawal took place after P had done a more than merely preparatory act, attempt, to commit the crime"12. In order to examine this fully, it is prudent that we examine the notion of joint criminal offence. In cases where several individuals operate in concert and commit an offence, each of the individuals, under the Law of Hong Kong may be criminally liable based on their own conduct along with their state of mind at the time the crime is committed. In these cases, the Law of Hong Kong makes a distinction between the principal offenders and secondary parties. Principal is 'the perpetrator', "the one whose act is the most immediate cause of the actus reus of the offence'13, or "the one who, with any necessary fault elements, does the acts constituting the external elements of the offence"14. "'Secondary Parties' are persons who assist, encourage or procure the principal(s), before or at the time, to commit the offence"15. For the purposes of illustrating the inherent weakness of the laws within Hong Kong with regards to joint enterprise, I will utilise the crime of murder wherein two or more individuals act in concert to cause the death of a victim. In cases where all the parties actively engaged in planning the act of murder and follow through on their plan the law dictates that all parties are equally liable irrespective of whom actually inflicted the fatal injury; this can be defined with the term of Joint principals16. If two or more individuals get together to commit a robbery (contrary to section 10 of the Theft Ordinance) and all of the participants knew a companion had a gun in his/her possession and contemplated the use of that gun to facilitate their robbery (intended to cause GBH if necessary), they may all be equally liable because they knew that it was possible for GBH or death to occur as a result of their actions17. This notion was put to task in R v Lovesey and Peterson18 wherein a gang of individuals planned a robbery whereby they would overpower a jeweler and steal his higher priced items. In their planning to overpower the jeweler, it was evident that they would have to utilise violence and as a result of this plan, all of the individuals involved were viewed as being equally culpable and charged with the crime of murder.19 When an individual, who has been an active part of the planning, withdraws prior to the commission of the crime, s/he may be absolved of criminal liability (except offence which s/he has already committed as I have mention above20). In the case of R v Becerra21, the judge maintained that nay communication of withdrawal by a party other than the individual who actually committed the act must be considered as "unequivocal notice" to the other individuals that if the plan proceeds, it will proceed without the assistance of the withdrawing parties. Such an act absolves the withdrawing individual of any criminal liability. The absolution criteria are such that: If an individual's involvement in the crime is such that s/he merely advised or encouraged the other individuals to commit the crime, his/her sole obligation is to inform the other individuals of his/her withdrawal. If, on the other hand, the individual has taken an active role in supplying the offenders with the necessary means for the commission of the crime, he/she owes a duty to take reasonable steps to nullify his/her involvement. In serious cases such as murder, the only effective means of withdrawing may involve physically intervening in order to prevent the crime or the act of calling the police in order to stop the commission of the crime.22 Finally, the law is very ambiguous with regards to individuals who withdraw from criminal joint enterprise. It is my opinion that such individuals should be prosecuted to the full extent of the law. These individuals set out with the clear intent to commit a crime and take an active role in the planning. If they experience a change in heart after the plan is motion, then their action comes too late to have actually made a difference. In light of this, they should be prosecuted to the full extent of the law. The fact that they are viewed as less culpable than their co-conspirators is ethically wrong. The fact that they are viewed as less culpable than their co-conspirators is ethically wrong and should not be a consideration under the law. In order to fully explore the notion of duty with regards to reporting an arrestable offense it is prudent that we operationally define the term 'arrestable offence'. An arrestable offence is an offence 'for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence'.23 In general, there are very few laws in Hong Kong which compel its citizen to report arrestable offences. Drug Trafficking (Recovery of Proceeds) Ordinance (DTRoP) and Organized and Serious Crimes Ordinance (OSCO)24 are two of the ordinances which inherently contain mandatory reporting clauses. Under these ordinances individuals are obligated to report any and all suspicions with regards to an individual who is in possession of property obtained as a direct result of having committed an offence. These statutes are meant to offer protection for individual citizens and entire communities against the unscrupulous behavior of accountants, bankers, lawyers, stockbrokers, merchants and other business people.25 In addition to these two statutes companies that are a part of the regional transmission organizations (RTO) are subjected to mandatory reporting requirement.26 First and foremost, the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405) (DTROP) (enacted in 1989) and the Organized and Serious Crimes Ordinance (Cap 455) (OSCO) (enacted in 1994) provide guidelines for the confiscation, tracing and freezing of any proceeds which originate as a direct result of drug trafficking and any other indictable offense relating to money laundering. The money laundering offences are found in section 25 of each of the aforementioned Ordinance and delineates that any individual who deals with property knowing that the property is derived from drug trafficking has committed a criminal offense which can result in a maximum sentence of 14 years in jail and a fine of up to HK$5 million. Each of these ordinances is applicable to property irrespective of its location. Under the basic tenets of these ordinances regulated financial institutions, casinos, currency exchange businesses, as lawyers accountants and other individuals acting in the role of a financial intermediary are subjected to the obligatory reporting of any financial transaction that they feel are related to money laundering. In addition to this, these institutions and individuals are obligated to report information on financial transactions which may seem odd. These transactions include transactions of very large cash amounts wherein the cash is presented in small denominations and is being exchanged for larger denominations. Under these laws, the maximum penalty for failure to report such transactions include but is not limited to fines up to $2 million and five years in prison.27 Additionally, under Article 434-1 of the Crime Act 2002, certain professionals are excluded from the mandatory reporting of crimes. Under professionals such as solicitors, medical practitioners, therapists and accountants hold a special duty to report arrestable offences. On the part of solicitors, they are mandated to report illegal and unethical acts committed by their fellow solicitors. In the case of medical practitioners, they are mandated to report cases of child and elder abuse as a means of protecting a protected population of individuals. Therapist, are also mandated to report cases of child abuse when a child remains in a position of eminent danger. Finally, accountants are mandated to report cases of financial irregularities such as money laundering. The fact that these professionals are mandated to report is illustrative of the practice of protecting the interest of the public by preventing the commission of serious crimes. Finally, one has to really consider the ramifications of mandatory crime reporting. By its very nature, this act can seriously compromise the health and wellbeing of the reporter. If an individual finds out that he/she has been convicted of a crime based on the report of another individual that individual's life may be placed at risk. This is especially true when examining the case of murder. Within Hong Kong murder is an offense which is punishable by life in prison. In many cases individuals who are found guilty of one murder can be sentenced to life in prison. This proves to be an encouragement for the commission of other murders as the individuals with the potential of being convicted of one murder can in deed commit another without facing a harsher sanction. In such a case, the life of the reporter is lost. Additionally, the penal authorities within Hong Kong do very little to protect the lives of individuals who report crime as in many cases, those individuals were active participants in the crime and report it as a means of receiving less stringent sentences.28 Based on these notions, mandatory reporting of crime will definitely prove to be contraindicated. Read More