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Hong Kong Law Reform Commission |
3.1 In this chapter, we examine various criminal offences that may be
applicable to debt collection activities.
3.2 The offence of intimidation is provided for in section 24 of the
Crimes Ordinance (Cap 200):
“Any person who threatens any other person -
(a) with any injury to the person, reputation or property of such other person; or
(b) with any injury to the person, reputation or property of any third person, or to the reputation or estate of any deceased person; or
(c) with any illegal act,
with intent in any such case -
(i) to alarm the person so threatened or any other person; or
(ii) to cause the person so threatened or any other person to do any act which he is not legally bound to do; or
(iii) to cause the person so threatened or any other person to omit to do any act which he is legally entitled to do,
shall be guilty of an offence.”
3.3 In R v
Lo Tong Kai[37] a defendant was
convicted of criminal intimidation and sentenced to three months’
imprisonment. The conviction was set aside on appeal because of doubts
concerning the extent to which the surrounding circumstances were taken into
consideration. McMullin J made some observations on the requirements of section
24:
“To my mind therefore it was of the greatest importance that the court should have considered whether the words used were ‘wild and whirling words’ uttered in exasperation by a man driven beyond the point of endurance by opposition offered to him in his legitimate rights as owner of premises, and signifying nothing more than an instinctive outburst of spleen, or whether they were uttered with a genuine intention of causing fear or were, in the circumstances of their utterance, likely to produce that effect”.[38]
3.4 The
case of R v Chan Kai Hing[39]
shows how section 24 applies to debt collection activities. The appellant was a
debt collector who, together with another colleague, went to the home of a
debtor who owed a bank a sum of money. An argument ensued at the door, and the
debtor alleged that the debt collector had uttered a threat that if the debtor
did not repay, then the debt collector would set fire to the flat. The debt
collector maintained that there was some dispute but no utterance as alleged,
and that the visit was a lawful debt collection exercise. The debt collector
was convicted by the magistrate of one count of criminal intimidation. The
magistrate, however, made some inconsistent remarks concerning the mens
rea of the debt collector. At one point, the magistrate said that the debt
collectors’ comments were said “in the heat of the moment (and) that
there was no premeditation”. Later, on sentencing, the magistrate said
that at the time the debt collector made the threats, he made them with the
intent of alarming the debtor. Given the inconsistent remarks, the High Court,
on appeal, held that there was some doubt as to whether the magistrate had
considered the issues raised in the case of R v Lo Tong
Kai,[40] and the court decided
to set aside the conviction due to a lurking doubt as to whether the conviction
was safe or satisfactory.
3.5 While section 24 of the Crimes Ordinance
(Cap 200) deals with threats, Section 25 deals with assaults and reads:
“Assaults with intent to cause certain acts to be done or omitted
Any person who beats or uses any violence or force to any person with intent in any such case to cause such person or any other person to do any act which he is not legally bound to do, or to omit to do any act which he is legally entitled to do, shall be guilty of an offence.”
3.6 Any
person who is guilty of section 24 or 25 is liable on summary conviction to a
fine of $2,000 and to two years’ imprisonment and is liable on conviction
upon indictment to five years’
imprisonment.[41]
3.7 If a debt collector damages or destroys property belonging to
another, or threatens to do so, such acts are covered by sections 60 and 61 of
the Crimes Ordinance (Cap 200):
“60. Destroying or damaging property
(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another -
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered,
shall be guilty of an offence.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
61. Threats to destroy or damage property
A person who without lawful excuse makes to another a threat, intending that other would fear it would be carried out, -
(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person,
shall be guilty of an offence.”
3.8 Contravention
of these sections carries heavy penalties. A person guilty of arson under
section 60 or of an offence under section 60 (2) (whether arson or not) is
liable on conviction upon indictment to imprisonment for life, whereas a person
guilty under other sections in the same Part is liable on conviction upon
indictment to imprisonment for ten
years.[42]
3.9 In R v Shum
Hon Kai & Another,[43] arson
charges were brought for debt collection activities. The facts concerned a Miss
Lau who was the girlfriend of the second appellant. During the course of their
relationship, the second appellant lent $7,000 to Miss Lau’s cousin, who
did not repay the loan. After the second appellant’s relationship with
Miss Lau had ended, he held her responsible for the loan. The second appellant
discussed the matter with his friend, the first appellant, and they agreed to
set fire to the entrance of Miss Lau’s flat in a multi-storey building.
They did so at about 1 am. The first appellant lit the fire while the second
appellant acted as lookout. The first appellant burned himself accidentally and
suffered serious burns. Both pleaded guilty to the charge of arson but appealed
against the sentence of eight years’ imprisonment. The Court of Appeal
expressed the view that as the degree of seriousness in arson cases might vary
considerably, it would be unwise to lay down any sentencing guidelines. The
court did not doubt the seriousness of the offence committed, but said that
mitigating circumstances should have been taken into consideration. These
included the age of the first appellant, that he surrendered himself and that he
pleaded guilty. The first appellant’s sentence was reduced to six years.
As for the second appellant, he was already 23 years of age and did not have a
clear record. Although he merely acted as the lookout, no distinction was made
between him and the first appellant, and he also received a reduced term of six
years.
3.10 Section 15 of the Offences Against the Person Ordinance
(Cap 212) stipulates that any person who maliciously sends any letter or
writing threatening to kill or murder another shall be guilty of an offence
triable upon indictment and shall be liable to imprisonment for ten
years.
3.11 The offence of blackmail is said to be usually associated with
triad activity,[44] but it is also
applicable to debt collection cases. Since goods obtained by blackmail are to
be regarded as stolen goods,[45]
debt collectors who recover debts by blackmail may also be convicted of
theft.[46]
3.12 The offence
of blackmail is provided for in section 23 of the Theft Ordinance (Cap
210):
“(1) A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief -
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.”
3.13 The
elements of the offence are that there must, first, be a demand, which can be
expressed or implied.[47] The
demand need not be communicated to the victim, and it is not a requirement that
the victim is threatened or
intimidated.[48] In R v Tsang
Yip Fong,[49] for instance, the
demand and menaces were communicated to an undercover police officer instead of
the intended victim. Apart from a demand, there must be menaces or threats
which are such that an ordinary person would be influenced or made apprehensive
and therefore willing to accede to the
demand.[50] In R v Lee
Keng-kwong,[51] for instance,
claiming to be a member of a triad society was held to be an implied menace for
the purposes of blackmail.
3.14 The case of R v Lam Chiu
Va[52] illustrates the
application of the offence of blackmail to debt collection activities. The
defendant invested $200,000 in a company in 1992. By 1993, the defendant wanted
to withdraw from the company and sought the return of his investment in full.
Other members of the company claimed that because of trading losses, he could
only have $60,000 back. However, company accounts were not produced and no
money was returned to the defendant. In April 1994, the defendant went to the
company’s premises together with five men to demand repayment. The
defendant remained for most of the time at the door of the office whilst the men
entered and made demands for the return of $200,000, using threats and minor
assaults. As a result, two of the partners of the company drew several cheques
in favour of the defendant. One cheque was for $10,000, representing the
aggregate balance in the company account. Four other cheques, each for $50,000,
were drawn. The men directed the two partners to obtain loans from friends and
relatives, which the partners did to the extent of $100,000. The defendant
cashed three cheques from the bank. Before leaving the company premises, the
men obtained IOUs from the two partners for the remainder of the demand, and
warned that the sum must be repaid within a month or they would be physically
assaulted. The defendant was convicted of blackmail pursuant to section 23 of
the Theft Ordinance (Cap 210). The defendant was also convicted of theft
pursuant to section 26(4) of the Theft Ordinance which provides that goods
obtained by blackmail shall be regarded as stolen. The defendant was sentenced
for eight months. The defendant relied on R v
Skivington[53] and appealed on
the ground that he honestly believed that he had a just claim to the money, and
could not be convicted of theft simply because the means of obtaining the money
were improper. The appeal was dismissed because, first, R v Skivington
has been superseded by section 26(4) of the Theft Ordinance (Cap 210); and
second, a defence of claim of right, which allows a defendant to seize or
reclaim property over which he honestly believes he has rights, did not avail
the defendant.
3.15 Various offences relating to assaults are provided for in the
Offences Against the Person Ordinance (Cap 212). Assault is an act by which the
defendant intentionally or recklessly causes a person to apprehend immediate and
unlawful physical violence; and if physical violence does occur, it amounts also
to the offence of battery.[54] Even
words may constitute an assault.[55]
Relevant sections of the Offences Against the Person Ordinance (Cap 212) are set
out:
“17. ... wounding ... with intent to do grievous bodily harm.
Any person who –
(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person; ...
(b) ...
(c) ...
with intent in any of such cases 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 detain of any person, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for life.
19. Wounding or inflicting grievous bodily harm
Any person who unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for 3 years.
39. Assault occasioning actual bodily harm
Any person who is convicted of an assault occasioning actual bodily harm shall be guilty of an offence triable upon indictment and shall be liable to imprisonment for 3 years.
40. Common Assault
Any person who is convicted of a common assault shall be guilty of an offence triable either summarily or upon inducement, and shall be liable to imprisonment for 1 year.”
3.16 As for the required intention to cause grievous bodily harm under
section 17, regard must be had to the weapon, if any, used and the manner in
which it was used. Striking with the fists per se is not sufficient
evidence of an intent to cause grievous bodily harm, even though this may in
fact result.[56] An intention to
frighten is insufficient, and so is recklessness as to whether grievous bodily
harm will result.[57] Where several
defendants participate in a gang attack, as in The Attorney General v Sin Wai
Lun,[58] no distinction
would normally be drawn between those who actually use violence and those who
are in the vicinity ready to perform other tasks. All would be equally guilty
because without each playing his full part, the crime would be less likely to be
perpetrated.
3.17 With regard to the mens rea required under
sections 19 and 39 of the Offences Against the Person Ordinance (Cap 212), it
was held in the House of Lords in R v Savage and R v
Parmenter[59] that for unlawful
and malicious wounding or inflicting grievous bodily
harm,[60] the prosecution must prove
that the defendant either intended or actually foresaw that his act would cause
harm. It is not sufficient to show merely that he ought to have foreseen that
his act would cause harm. It is unnecessary for the prosecution to show that
the accused intended or foresaw that his unlawful act might cause physical harm
of the gravity described in the section, that is, either wounding or grievous
bodily harm. As for assault occasioning actual bodily
harm,[61] the prosecution has to
prove that the defendant committed an assault and that actual bodily harm was
occasioned by the assault. There is no need to prove that the defendant
intended to cause some bodily harm or was reckless as to whether such harm would
be caused. The House of Lords also held that a verdict of assault occasioning
actual bodily harm under section 47 is a permissible alternative verdict on a
count alleging unlawful wounding under section 20 of the Offences Against the
Person Act 1861.
3.18 Assaults in connection with debt collection
activities have received judicial consideration. In R v Chan Yau Hang and
Another,[62] in which the victim
was beaten and burnt with cigarettes, the Court of Appeal pointed out
that:
“We agreed with the view of the trial judge that there is a public interest in deterring those who might seek to collect debts by these appalling methods.”[63]
3.19 Another
example is R v Choi Wai
Kwong.[64] The defendant was
the victim’s sub-contractor who was owed $310,000 under the sub-contract.
Amongst other attempts at recovering the debt, the defendant and three other men
went to the victim’s office to make demands for repayment. When the
victim refused to pay, the men began to assault him. It was alleged by the
victim that he was hit with a hammer. Medical reports showed only relatively
minor injuries. The defendant was convicted by the magistrate of assault
occasioning actual bodily harm. On appeal by the defendant, the appeal was
allowed in part, and a conviction of common assault was entered in substitution
for assault occasioning actual bodily harm. Whether the bodily harm inflicted
amounted to ‘actual bodily harm’ was a question of degree, and
actual bodily harm meant a harm that was more than trifling. Transitory pain
was not enough. A cut, or an area of burning, was actual bodily harm unless it
was very minor.
3.20 Apart from being a tort, false imprisonment is also a common law
offence that is sometimes relevant to debt collection activities. False
imprisonment is committed where a defendant unlawfully and intentionally or
recklessly restrains another’s freedom of movement from a particular
place.[65] There is little
authority on the nature of the mens rea required, but it is believed that
Cunningham recklessness[66]
is required.[67]
3.21 To
establish false imprisonment, the case of R v Cheung Wan Ing decided
that:
“Where there has been no physical restraint placed upon a person’s movements, a court must, at the very least, need cogent evidence of some real danger threatened by the culprit and feared by the victim in exercising freedom of movement before finding the offence of false imprisonment has been established.”[68]
3.22 This
requirement was overruled in R v Chan Wing Kuen and
Another[69] by the Court of
Appeal. The case concerned a victim who incurred a gambling debt in Macau and
was accompanied back to Hong Kong by the first defendant in order to collect the
debt. At the Hong Kong Macau Terminal, they were met by the second defendant
and two other men. The victim was told to board a taxi and was taken to Chai
Wan where, after he had made some unsuccessful calls to raise money, he was
taken to a karaoke bar and kept there until 4 am the following morning, while
more unsuccessful calls were made. The four men then rented two rooms at a
hotel in Chai Wan which they and the victim occupied for several hours. The
first defendant was arrested when he was accompanying the victim to meet a
friend of the victim to collect some money. The second defendant was arrested
some time later. The defendants were convicted of false imprisonment and
appealed on the ground that, if the victim had remained with the defendants
because he felt he had a moral obligation to repay the debt, it was impossible
to say that he had been falsely imprisoned. The appeal was dismissed. The
Court of Appeal held:
“For the offence to be committed it is not necessary that there be evidence that the defendant or defendants uttered a threat to the victim that he was in ‘some real danger’ or indeed that any threat was uttered.”[70]
Accordingly,
R v Cheung Wan Ing was overruled as being contrary to the ruling on false
imprisonment in R v
Rahman,[71] which was
cited with approval in R v
Hutchins.[72]
3.23 The common law offence of false imprisonment has some overlap
with section 42 of the Offences Against The Person Ordinance (Cap 212) on
forcible detention, which reads:
“Any person who, by force or fraud, takes away or detains against his or her will any man, boy, woman or female child, with intent to sell him or her, or to procure a ransom or benefit for his or her liberation, shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for life.”
3.24 Section
42 of the Offences Against the Person Ordinance (Cap 212) is similar to
section 56 of the United Kingdom Offences Against the Person Act 1861 which has
been repealed. There is one reported
decision[73] in the United Kingdom
of a case relating to the latter section, which involved a father taking
away his child.
3.25 The Hong Kong Court of Appeal decision in R v
Chan Yau Hang and Another[74]
illustrates the overlap between the common law offence of false imprisonment and
section 42 of the Offences Against the Person Ordinance (Cap 212). Debt
collectors forced a debtor to repay a gambling debt by detaining the debtor in a
room and assaulting him. The debt collectors were convicted of false
imprisonment in the District Court, but the false imprisonment charge was
drafted in such a way that elements of both false imprisonment and section 42
forcible detention were included in the charge. The defendants appealed against
conviction on the grounds that, first, the particulars of the charge did not
satisfy either the common law or statutory offence; and, second, the District
Court did not have jurisdiction to try the offence under section 42. The appeal
against the false imprisonment conviction was allowed. The charge as drafted
was:
“False imprisonment, contrary to common law and section 42 of the Offences Against The Person Ordinance (Cap 212).
Particulars of offence:
Chan Yau-hang, Ho Lai-man and Hoi Su-kun, on or between 18 October 1982 and 20 October 1982, in this colony, together with other persons unknown, by force, detained Tong King-yiu against his will.”
The
charge was mis-described as false imprisonment because the defendants were
actually charged with two offences. Also, although it is usual in charging the
common law offence of false imprisonment to assert that the victim was
unlawfully and injuriously imprisoned and detained against his will, on closer
examination it is apparent that such particulars were inappropriate to either
offence. Furthermore, the Court of Appeal found that the District Court did not
have jurisdiction to try any offence which was punishable with life
imprisonment, with the exception of a number of specific offences which did not
include section 42.[75]
3.26 Some debt-collectors claim that they are triad members during the
debt collection process. As a result, they may also be guilty of offences under
the Societies Ordinance (Cap 151). Under section 20(2) of the Societies
Ordinance (Cap 151):
“Any person who is or acts as a member of a triad society or professes or claims to be a member of a triad society ... shall be guilty of an offence and shall be liable on conviction on indictment -
(a) in the case of a first conviction for that offence to a fine of $100,000 and to imprisonment for 3 years; and
(b) in the case of a second or subsequent conviction for that offence to a fine of $250,000 and to imprisonment for 7 years.”
3.27 Apart
from section 20, the more serious offence under section 19 would be applicable
to office-bearers of triad societies. Section 19(2) of the Societies Ordinance
(Cap 151) reads:
“Any office-bearer or any person professing or claiming to be an office-bearer and any person managing or assisting in the management of any triad society shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $1,000,000 and to imprisonment for 15 years.”
3.28 The
term ‘office-bearer’ is defined, in relation to triad societies, as
any person holding any rank or office other than that of any ordinary
member.[76] In triad societies, a
hierarchy of authority and control exists whereby senior office-bearers direct
the activities of lesser members, and the heavier penalties under section 19
reflects the increased culpability of those who are in
control.
3.29 Whether a defendant has joined a triad society is a
question of fact, and a “bald
admission”[77] may in some
unusual circumstances be regarded as sufficient evidence that an offence under
section 20(2) has been committed, though in most cases “proof of other
facts to indicate membership, whether by way of admission by the defendant or
otherwise”,[78] would be
required.
3.30 Criminal offences which may be applicable to some abusive debt
collection activities can also be found in the Summary Offences Ordinance
(Cap 228).
3.31 Section 4(22) of the Summary Offences Ordinance
provides that:
“Nuisances and miscellaneous offences
4. Any person who without lawful authority or excuse –
...
(22) disturbs any inhabitant by pulling or ringing any door bell, or by knocking or striking at any door without lawful excuse; ...
shall be liable to a fine of $500 or to imprisonment for 3 months”;
3.32 Section
8 of the Summary Offences Ordinance provides that:
“Other offences against good order
Any person who –
(a) ...
(b) without the consent of the owner or occupier writes upon, soils, defaces or marks any building, wall, fence or paling with chalk or paint or in any other way whatsoever; or wilfully breaks, destroys or damages any part of any building, wall, fence or paling, or any fixture or appendage thereof;
(c) ...
shall be liable to a fine of $500 or to imprisonment for 3 months.”
3.33 Also,
section 20 of the Summary Offences Ordinance stipulates that:
“Any person who -
(a) sends any message by telegraph, telephone, wireless telegraphy or wireless telephony which is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends by any such means any message, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid,
shall be liable to a fine of $1,000 and to imprisonment for 2 months.”
3.34 It
should be noted that the above offences are not specifically designed to tackle
abusive debt collection, and will not be able to cover the whole range of the
relatively ‘minor’ improper collection tactics which are presently
employed or are likely to be developed.
3.35 By virtue of section 32(1)(f) of the Ordinance, a person who
sends by post “any obscene, immoral, indecent, offensive or libellous
writing, picture or other thing” is guilty of an offence punishable by a
fine of $20,000 and imprisonment for 6 months.
3.36 Abusive debt collection activities are often carried out by more
than one person. Where there are several participants in a crime, the principal
is the one whose act is the most immediate cause of the actus
reus.[79] It is possible to
have two or more principals in the first degree to the same crime. Hence, if
two debt collectors both agree to attack and do attack a victim to pressure the
victim into repaying a loan, then both are guilty of assault as joint
principals.
3.37 In other cases, where there is participatory conduct by one
person, another may have to bear or share criminal responsibility under section
89 of the Criminal Procedure Ordinance (Cap 221). This states that any person
who “aids, abets, counsels or procures the commission by another person of
any offence shall be guilty of the like offence”. The mental state
required for aiding and abetting involves actual knowledge of, or wilful
blindness towards, the circumstances which constitute the offence, which is not
the same as the mens rea required of the principal
party.[80] Knowledge of the offence
is sufficient if the offence committed is of the type contemplated by the
secondary party, and knowledge does not have to be complete in
detail.[81] There is a large body
of case law on this area of law and application of the principles is not free
from difficulty. Applied to debt collection cases, a creditor or other party
may be liable in various situations.
3.38 Intention to aid – As
long as it is proved that a person intended to do the acts which he knew to be
capable of assisting or encouraging the commission of the crime, it is not
necessary to prove his intention that the crime be
committed.[82] Therefore, a
creditor or other person who knew that the debt collectors would employ illegal
means to collect debts, and either drove the debt collectors to commit the crime
or provide weapons and tools to the debt collectors, that person may be liable
as a secondary party.
3.39 Common purpose – A secondary party will
be liable for the acts of the principal party if the principal party has in the
course of endeavouring to carry out the common purpose committed another
crime.[83] Hence, if the creditor
and the debt collector have the common purpose to cause grievous bodily harm to
the debtor, and the debt collector, endeavouring to do so, kills the debtor,
both the creditor and debt collector are guilty of
murder.
3.40 Transferred malice – If a secondary party has a common
purpose with the principal party to injure A, and the principal party,
endeavouring to injure A, wounds B accidentally, then both the secondary party
and the principal party are liable for wounding under the doctrine of
transferred
malice.[84]
3.41 Participation
by inactivity – Where one person has the right to control the actions of
another and he deliberately refrains from exercising it, his inactivity may be a
positive encouragement to the other to perform an illegal act, and, therefore,
an aiding and abetting.[85] Hence,
if a creditor hires some debt collectors to collect debt, and the creditor just
stands by and watches while the debtor is being beaten up, the creditor may be
liable for assault as a secondary party.
3.42 In some limited circumstances, the law holds a defendant
criminally responsible even where there is no direct actus reus committed
or mens rea possessed by
him.[86] Vicarious criminal
liability is imposed in two ways. First, a person under certain statutory
duties may be held liable for the acts of
another[87] if he has delegated to
that other person the performance of the statutory duty. Second, an employer
may be held vicariously liable because acts done physically by his employee may,
in law, be treated as the employer’s act. Unlike the law of tort, an
employer is not generally liable for the acts of the employee performed in the
course of employment under the criminal law. An employer may, however, be held
vicariously liable for the criminal acts of an employee under the
“delegation” principle. In Allen v
Whitehead,[88] the act of the
employee and his mens rea were both imputed to his employer, not simply
because he was an employee, but because the management of the business had been
delegated to him.[89] The rationale
seems to be that the employer is responsible for appointing the employee and
ensuring that no criminal offences are committed by the employee within the
course of employment. If this were not the case, employers could easily avoid
prosecution by deliberately avoiding personal knowledge of illegal
activities.[90]
3.43 There is
thus a real possibility that a debt-collector’s employer may be held
vicariously liable for the illegal acts of the debt-collector if the
debt-collector is given full conduct of the debt collection work and decisions
are delegated to the employee.
3.44 Corporate liability stems from the legal principle that a
corporation is a legal person. A corporation acts through its controlling
officers whose acts and states of mind are imputed to the corporation whenever
they are acting in their capacity as controlling
officers.[91] Therefore,
corporations may be liable for an offence which requires mens rea. There
are certain limitations on corporate liability, the major one being that a
corporation can only be convicted of offences which are punishable with a fine.
It has been held that a corporation may not be indicted for manslaughter or an
offence involving personal
violence.[92] This was doubted in
ICR Haulage Ltd,[93] where
Stable J thought that “if the matter came before the court today, the
result might well be different”. The point has now been clarified in P
& O European Ferries
Ltd,[94] which held that
an indictment for manslaughter would lie against a company.
[37] 1977 HKLR
193.
[38] As above, at page
196.
[39] [1997] 3 HKC
575.
[40] [1977] HKLR
193.
[41] Section
27.
[42] Section
63.
[43] [1988] HKC
279.
[44] M Findlay, C Howarth
and I Dobinson, Criminal Law in Hong Kong, Cases and Commentary (2nd
edition) at page 483. (“M
Findlay”)
[45] Section 26
(4) of the Theft Ordinance (Cap
210).
[46] R v Lam Chiu
Va [1996] 1 HKC 302.
[47] M
Findlay, cited above, at page
483.
[48] As
above.
[49] [1993] 1 HKC
308.
[50] M Findlay, cited
above, at page 483.
[51]
Criminal Appeal No. 182 of
1992.
[52] [1996] 1 HKC
302.
[53] (1967) 51 Cr App R
167.
[54] M Findlay, cited
above, at page 378.
[55] See the
House of Lords decision in R v Ireland & Burstow [1998] AC 147, per
Lord Steyn at 162.
[56]
Halsbury’s Statutes Vol 12 at page
98.
[57] As
above.
[58] [1988] HKC
431.
[59] [1991] 4 All ER
698.
[60] Section 20 of the
Offences Against the Person Act 1861. Its wording is similar to section 19 of
the Offences Against the Person Ordinance (Cap
212).
[61] Section 47 of the
Offences Against the Person Act 1861. Its wording is similar to section 39 of
the Offences Against the Person Ordinance (Cap 212).
[62] [1983] 1 HKC 107. The victim incurred a heavy gambling debt in Macau which, together with interest, amounted to $165,000. When the victim failed to effect repayment as scheduled, he was seized by a number of men in Kowloon and beaten, as a result of which he sustained a black-eye. The victim was then taken to a room where he was burnt with a cigarette, leaving five burn marks on his body, one of which penetrated all layers of the skin, although the others only penetrated the first layer of the epidermis. The defendants were convicted in the District Court on two charges of assault occasioning actual bodily harm, and one charge of false imprisonment/forcible detention under section 42 of the Offences Against the Person Ordinance (Cap 212). The defendants were acquitted of the latter charge on appeal because the District Court did not have jurisdiction to try any offence punishable with life imprisonment, subject to a few specific exceptions. In relation to the first assault charge in respect of which they received a term of imprisonment of 18 months, the Court of Appeal dismissed the appeal and said : “Had the first assault been an isolated matter, without any background, such as there was to this case, a term of imprisonment of 18 months would have been a very severe one for two men who, for practical purposes, were without previous convictions. However, it is necessary, when determining the correct sentence, to take into account the fact that this was part of a course of conduct which was designed to terrify a debtor and to force him under threat of assault, and under actual assault and ill-treatment, to repay the loan which had been made to him.
[63] Per Roberts CJ, at page
110.
[64] [1989] 2 HKLR
31.
[65] R v Rahman
(1985) 81 Cr App Rep 349, at
353.
[66] Smith & Hogan,
Criminal Law (8th edition) at page 454.
[67] “Broadly, the
distinction is that Cunningham recklessness requires proof that the defendant
was aware of the existence of the unreasonable risk whereas Caldwell/Lawrence
recklessness is satisfied if either (i) he was aware of its existence, or (ii)
in the case of an obvious risk he failed to give any thought to the possibility
of its existence. Some offences require proof of Cunningham recklessness.
Others are satisfied by proof of Caldwell/Lawrence recklessness.”
Smith & Hogan, cited above, at page
64.
[68] R v Cheung Wan Ing
[1990] 1 HKLR 655.
[69]
[1995] 1 HKC 470.
[70]
As above, at page 477.
[71]
(1985) 81 Cr App Rep 349.
[72]
[1988] Crim LR 379.
[73] R v
Austin [1981] 1 All ER
374.
[74] [1983] 1 HKC
107.
[75] This latter point was
further explained in R v Wong Kwok Lun [1984] HKC 50. The Court of
Appeal mentioned that because of a lacuna in the law, there was no jurisdiction
in the District Court to try this offence. This came about when, in 1982, the
previous maximum term of 14 years’ imprisonment was altered by the
legislature to one of life imprisonment. Pursuant to section 88 of the
Magistrates Ordinance (Cap 227), and Pt III of the Second Schedule, the
Secretary for Justice may apply to transfer to the District Court for trial of
offences listed therein which carry a sentence of life imprisonment. The
schedule has not been amended to permit section 42 offence to be so transferred
and tried.
[76] Societies
Ordinance (Cap 151) section
2.
[77] “By a
‘bald admission’ we take to be meant a statement such as ‘I am
a member of such and such a society’ and no more, which we assume that the
magistrate would reject as being a matter of mere hearsay or belief.” Per
Cons V-P in AG v Chik Wai-lun [1987] HKLR
41.
[78] AG v Chik Wai-lun
[1987] HKLR 41 per Cons
VP.
[79] M Findlay, cited above,
at page 39.
[80] As above, at
page 40. See also Smith & Hogan, 8th edition, at pages 140 and
141.
[81] R v Bainbridge
[1960] 1 QB 129. See also Smith & Hogan, 8th edition at page
142.
[82] Smith & Hogan, 8th
edition, at page 137. See Lynch v DPP for Northern Ireland [1975]
AC 653, where D2 drove D1 to the place where he knew that D1 intended to
murder a policeman. D2 was convicted of aiding and
abetting.
[83] Smith &
Hogan, cited above, at page
142.
[84] As above. See,
however, the old and famous case of Saunders v Archer (1573) 2 Plowd 473,
where there was a deliberate, and not an accidental, departure from the agreed
plan.
[85] Smith & Hogan,
cited above, at page 136.
[86] M
Findlay, cited above, at page
76.
[87] The other person may or
may not be the employee. In Linnett v Metroplitan Police Commissioner
[1946] KB 290, one of two co-licensees was held liable for the acts of the
other in knowingly permitting disorderly conduct in licensed
premises.
[88] [1930] 1 KB
211.
[89] Smith & Hogan,
cited above, at page
177.
[90] M Findlay, cited
above, at page 77.
[91] As
above, at page 88. See also Meridian Global Funds Management Asia Ltd. v
Securities Commission, [1995] 2 AC 500
PC.
[92] Cory Bros Ltd
[1927] 1 KB 810.
[93] [1944] KB
551.
[94] (1990) 93 Cr App Rep
72. Also [1991] Crim LR 695.