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Criminal Law in Hong Kong - Essay Example

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Currently, the law of Hong Kong does not hold someone criminally liable for mere omission unless the common law or statutory 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…
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Criminal Law in Hong Kong
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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