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Criminal intimidation

Criminal intimidation is an offence contrary to Section 24 of the Crimes Ordinance (Chapter 200).

The offence of criminal intimidation involves:

  1. threats of injury to the person, property or reputation of the person; or
  2. threats of injury to a third person (e.g. a family member) their property or reputation; or
  3. threats of any illegal act.

The threats must be intended to:

  1. alarm the person threatened or any other person;
  2. to cause the person threatened or any other person to do an act he or she is not legally bound to do; or
  3. to cause the person threatened or any other person to omit to do any act they are legally entitled to do.

There must be threats to injure the person, damage the property or reputation of the person to whom the threats are directed or someone close to them. Whether or not there is a threat is a question of fact in all the circumstances of the particular incident. The threat must be made with the intention to alarm the person to whom the threats are directed or to cause that person to do something he or she is not legally required to do or not to do something he or she is legally entitled to do. Whether or not the threat is made with the necessary intent is again a question of fact in all the circumstances of the particular incident.

It is, for example, an offence to hawk without a licence. An illegal hawker may be arrested. The penalty the illegal hawker faces upon conviction includes forfeiture of the goods being hawked and the apparatus being used in the hawking. A hawker control officer attempting to seize the goods and apparatus of an illegal hawker may be threatened with injury unless he or she refrains from seizing the goods and apparatus. This is criminal intimidation: there is the threat of personal injury. The intention is to frighten the hawker control officer into failing to do his or her duty of seizing the goods and apparatus used in the illegal hawking. A variation on the theme would be if the illegal hawker threatened to set fire to the officer’s home or chop a family member unless the officer refrained from seizing the goods and the hawking apparatus. In situations such as these, a court would likely have little difficulty in finding, as a fact, the hawker had the intent required by Section 24 of the Crimes Ordinance (Chapter 200).

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Blackmail

Blackmail is an offence contrary to Section 23 of the Theft Ordinance (Chapter 210).

Blackmail is making any unwarranted demand with menaces. The demand must be made with a view to gain or with intent to cause loss to another person. Menaces simply mean threats. A demand with menaces is unwarranted unless the person making the demand believes he or she has reasonable grounds for making the demand and that the use of the menaces is a proper means of reinforcing the demand.

Blackmail is generally used where the victim is asked to pay money, for example, for the return of photographs of engaging in illicit sexual activities. The menaces are the threat to reveal the photographs, for example, to the victim’s spouse, unless money is paid for the photographs. The nature of the act or omission demanded is however immaterial. The issue is whether there has been an unwarranted demand with menaces with a view to gain or with intent to cause loss.

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Robbery

Robbery is a crime contrary to Section 10 of the Theft Ordinance (Chapter 210).

Robbery is committed where a person steals and immediately before or at the time of stealing and in order to steal use force upon any person or puts anyone in fear of the use of force. The questions for the court are i) whether force was used or ii) threatened, iii) when was the force used or threatened and iv) what was the purpose of the use or threat of force.

The maximum penalty for robbery is life imprisonment.

Robbery is therefore theft with the additional elements of using force or threatening the use of force in order to steal. The force or threat of force must take place before the theft or at the time of the theft. The force or threat of force must be with intent to steal. Force used or threatened to avoid being caught after committing theft does not turn that theft into a robbery. A person might, for example, leave a shop with an item they had not paid for. Theft is the dishonest appropriation of property belonging to another with the intent permanently to deprive. Assuming that is what the person leaving the shop intended, theft has already been completed when he or she left the shop. Force then used against a staff member who had seen the theft would not be robbery but a separate offence of assault or assault with intent to resist lawful apprehension contrary to Sections 36, 39 or 40 of the Offences Against the Person Ordinance (Chapter 212).

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Assault and battery

An assault is an intentional or reckless action which brings about the apprehension of the immediate infliction of unlawful force in the mind of the person to whom the action is directed. Words may amount to an assault if the words bring about an apprehension of the immediate application of force in the person to whom the words are addressed.

Aiming a punch at someone is an assault, even if the punch does not land upon that person. The punch brings about the apprehension of the immediate application of unlawful force. It is an act of hostility without any lawful justification. If the punch lands upon the intended victim, that is, in law, a battery.

A battery is the intentional or reckless touching of another person without that person’s consent. Unlawful force has been inflicted upon the victim. For convenience the word “assault” covers conduct which amounts to a battery. There may however be a battery without an assault. A person struck from behind is unaware of what is happening until the blow lands: there is no apprehension of the immediate application of unlawful force.

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Assault occasioning actual bodily harm (AOABH)

Assault occasioning actual bodily harm (AOABH) is an offence contrary to Section 39 of the Offences Against the Person Ordinance (Chapter 212).

AOABH is an assault which brings about actual bodily harm. The prosecution must first of all prove all the factual and legal elements of the offence of assault. There must then be evidence that the assault brought about actual bodily harm. This involves issues of fact and causation. Actual bodily harm need not be serious or permanent. A punch which, for example, results in bruising or a broken tooth has caused actual bodily harm.

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Wounding and inflicting grievous bodily harm with intent

Wounding and inflicting grievous bodily harm with intent is an offence contrary to Section 17 of the Offences Against the Person Ordinance (Chapter 212).

An offence contrary to Section 17 is committed where a person:

  1. unlawfully and maliciously, by any means whatsoever, wounds or cause grievous bodily harm to any person; or
  2. shoots at any person; or
  3. by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person,
with intent to maim, disfigure or disable any person or to do some other grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person.

A wound is where the skin is evenly divided. A burn or a bruise is not a wound as the skin is not evenly divided. An internal injury, for example a ruptured kidney, is not a wound though it may well amount to grievous bodily harm. Grievous bodily harm is harm which is really serious and can include psychiatric injury. Whether or not there is grievous bodily harm is a question of fact in each case.

Section 17 charges are brought where the incident is serious, for example, a planned attack using weapons or the attack results in serious injury, for example, serious chop wounds, or serious internal injuries.

Section 17 offences require an ulterior intent: the intent to do grievous bodily harm to any person and the intent to resist or prevent the lawful apprehension or detain of any person. The prosecution must first prove the actus reus (guilty act). That is inflicting a wound or causing grievous bodily harm. There prosecution must then prove the accused did this with intent to cause grievous bodily harm and/or with intent to resist or prevent the lawful apprehension or detainer of any person.

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Unlawful and malicious wounding or inflicting grievous bodily harm

Unlawful and malicious wounding or inflicting any grievous bodily harm is an offence contrary to Section 19 of the Offences Against the Person Ordinance (Chapter 212).

There are two offences under this section: i) inflicting serious bodily harm and ii) wounding.

There must be a wound or serious bodily harm which can include psychiatric injury. That wound or serious bodily harm must have been inflicted by the defendant. “Inflicted” means “caused”. The action which causes the wound or the serious bodily harm must have been done intentionally or recklessly. There is no requirement under Section 19 for any ulterior intent. Provided the wound or the serious bodily harm was caused by the defendant's unlawful act and that act was done intentionally or recklessly the requirements of Section 19 are satisfied.

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Fighting in public

Taking part in an unlawful fight in public is an offence, contrary to Section 25 of the Public Order Ordinance (Chapter 245).

A "public place" is any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise.

The word “fight” must be given its ordinary meaning and involves an equality of aggression.

Persons defending themselves against an attack are not in an equality of aggression situation.

It does not matter who started the fight, who won the fight or what it was about provided there is an equality of aggression. Whether there was or was not a fight depends upon all the circumstances of the particular case.

An agreement to fight in public to settle differences does not make the fight lawful. A properly licensed and supervised boxing match in a public park is however a different matter.

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Possession of offensive weapon in public place

Possession of offensive weapon in public place is an offence contrary to Section 33 of the Public Order Ordinance (Chapter 245).

Section 33 makes it an offence for any person to have an offensive weapon with them in a public place without lawful authority or reasonable excuse. The objective of this offence is to prevent offensive weapons being brought into public places.

An "offensive weapon" is any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in their possession or under their control for such use by them or by some other person.

A "public place" is any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise.

The emphasis is on the possession of an offensive weapon: there is no need for the weapon to have been used to commit any offence. Whether or not the item in question is an offensive weapon is a question of fact. What is, or is not lawful authority or reasonable excuse depends upon the circumstances of each case and why the defendant had that item in the public place at the particular time. An excuse such as carrying the weapon in case I was attacked is neither lawful authority nor reasonable excuse.

Courts have a limited sentencing discretion under Section 33. A person convicted under Section 33 shall (which means “must”):

  1. if under 14 years of age be dealt with in accordance with the provisions of the Juvenile Offenders Ordinance (Chapter 226);
  2. if not less than 14 years of age and under 17 years of age be sentenced either to imprisonment for not more than 3 years, or to a Detention Centre or to a Training Centre or to a Rehabilitation Centre;
  3. if not less than 17 years of age and under 25 years of age be sentenced either to imprisonment for not more than 3 years or to a Detention Centre or to a Rehabilitation Centre;
  4. if aged 25 years or more be sentenced to imprisonment for not more than 3 years.

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Possession of offensive weapon with intent

Possession of offensive weapon with intent is an offence contrary to Section 17 of the Summary Offences Ordinance (Chapter 228).

Under Section 17 it is an offence to have possession of any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose.

It is a question of fact whether a defendant has possession of any of the specified items. The meaning of offensive weapon is the same in Section 17 of the Summary Offences Ordinance (Chapter 228) as in Section 33 of the Public Order Ordinance (Chapter 245). Section 17 requires a specific intent to use the item for an unlawful purpose. Possession of a wooden stick intending to use it to attack someone is possession for an unlawful purpose. Whether there is intent to use the item for an unlawful purpose depends upon the circumstances of the particular case. The court will look at the nature of item, the circumstances of possession, what was said or done before, during and after the incident giving rise to the charge when considering whether or not there was intent to use the item for an unlawful purpose.

The maximum penalty under Section 17 is a fine of $5,000 or imprisonment for 2 years. The court has a far wider sentencing discretion under Section 17 than it has for possession of an offensive weapon in a public place contrary to Section 33 of the Public Order Ordinance (Chapter 245).

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False imprisonment

False imprisonment is an offence contrary to common law.

The victim’s right to leave the place where he or she is must be totally and unlawfully taken away. It is not false imprisonment to stop a person going in a particular direction if they can go in another direction.

Whether or not a person’s right to leave the particular place has been totally and unlawfully taken away is a question of fact in each case. False imprisonment often involves the use of force and confinement within a defined structure but neither of these are requirements. The issue is simply whether the person’s right to leave the place where they are has been totally and unlawfully taken away. False imprisonment is a question of fact. A person taken by a gang to a hillside and kept there because members of the gang surround him/her and prevent him/her leaving is just as much imprisoned as if he or she was locked in a room.

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Claiming to be a member of a triad society

Claiming to be a member of a triad society is an offence contrary to Section 20 (2) of the Societies Ordinance (Chapter 151).

It is an offence to claim or profess membership of a triad society. A claim of membership of a triad society is often made in blackmail and criminal intimidation situations. The question is whether as fact the defendant has by words and/or gestures asserted membership of a triad society active in Hong Kong. This will involve an examination of what was said or done and how it was said or done. Expert evidence may be needed on the context and meaning of words or gestures used. There is no need to prove that the person professing or claiming to be a member of a triad society is in fact a member. Being a member of a triad society is itself an offence under Section 20 (2) of the Ordinance.

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Aiding and abetting the commission of an offence

Aiding and abetting the commission of an offence is an offence contrary to Section 89 of the Criminal Procedure Ordinance (Chapter 221).

The person who actually commits the criminal offence is referred to as the principal. Other persons who participate in the criminality by aiding and abetting, counselling or procuring the criminality are referred to as secondary parties or accomplices. Secondary parties are guilty of the same offence as the principle who actually commits out the offence.

Aiding is giving help, support or assistance to the principal offender and generally takes place at the scene of the crime. Abet means inciting or encouraging the principal offender and also involves presence when the offence is committed.

Counselling is help given to the principal offender before the offence is committed. It can take the form of advice, information or the supply of equipment which is used in the offence.

Procuring means producing by endeavour, that is causing or bringing about the offence by the principal offender. Procuring involves taking the necessary steps to bring something about. There is no need for encouragement but there must be a causal link between the act of the secondary party and the offence which is committed. An example might be surreptitiously lacing a friend’s soft drink with alcohol knowing the friend will be driving home. If the friend drives home and on the way fails a breath test and is subsequently convicted under Section 39A (1) of the Road Traffic Ordinance (Chapter 374) for driving with an alcohol level above the prescribed limit, the person who laced the drink may face a charge of procuring that offence. Lacing the soft drink with alcohol brought about the offence the principal committed.

Mere presence at a crime scene is not enough for liability as accomplice. However if a bystander encourages the principal offender, for example by shouting out to a person who is attacking another person “Hit him again” or “Kick him”, the bystander is no longer simply a bystander but is encouraging the attacker.

The mens rea (guilty mind) for secondary parties is (i) intention to do the act knowing it was capable of assisting or encouraging the commission of the crime, and (ii) knowing the principal will commit a crime of a certain type. The prosecution must prove the intention to do the acts of assistance or encouragement, recklessness as to whether the principal will commit the crime is not sufficient mens rea for a secondary party.

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