The Department of Justice has charged some of the principal organizers and participants of the 2014 Occupy Movement with the common law crime of committing public nuisance and inciting others to do so.
Since these cases have already entered into legal proceedings, it would be inappropriate for me to discuss them publicly in detail.
However, I would like to explain to readers the fundamental difference between common law and statutory law when it comes to the offense of public nuisance, because such a difference is likely to be a major bone of contention between the prosecution and the defense in the upcoming trial, and could very much influence its outcome.
Under our current judicial system, there are two types of criminal offenses: statutory law crimes and common law crimes.
Statutory law crimes refer to criminal offenses that are clearly stipulated in written laws passed by our legislature and then codified.
One example of statutory law offenses is the receipt of unlawful benefits by public servants stipulated in the “Prevention of Bribery Ordinance”, under which a person who is convicted of this offense could face a maximum penalty of one year in prison and a fine of HK$100,000.
In contrast, common law crimes largely originate from the hundreds of thousands of legal precedents made over the past several hundred years.
Rather than clearly set out in written laws, common law crimes are usually laid down by legal cases.
Simply put, under the common law system, when a judge rules on a case, his or her ruling will automatically become the law that governs all similar cases that follow.
Some better known examples of common law crimes include misconduct in public office, conspiracy to defraud and public nuisance.
Except for those that are stipulated otherwise, a person convicted of any common law crime in Hong Kong could face a maximum penalty of seven years’ imprisonment and a fine under the existing Criminal Procedure Ordinance.
The common law crime of public nuisance is in fact an ancient offense that dates back to as early as the 14th-century England, when the whole idea of statutory law was still very much in its infancy.
Since common law is made by judges in legal cases, it is often relatively ambiguous and abstract compared to statutory law, and legal precedents are often incomprehensible to the layman, leading to confusion and misinterpretation.
In order to enable the public to understand exactly what kinds of acts would constitute criminal offenses, authorities in many common law jurisdictions including Britain, Australia and Hong Kong have been taking great pains to legislate against common law crimes in the form of statutory law over the years.
For example, some criminal offenses that used to be common law crimes, such as rape, have become statutory law crimes today.
As far as public nuisance is concerned, it has also been made a statutory law crime under Article 4A of the current Summary Offenses Ordinance, under which those who are convicted could face a maximum penalty of three months’ imprisonment and a fine of HK$5,000.
However, while public nuisance has already become a statutory law crime, it hasn’t been erased from the common law system in Hong Kong.
In other words, public nuisance remains a criminal offense that co-exists in both of our common law and statutory law systems.
As such, when the Department of Justice is pressing public nuisance charges against somebody, it can either bring the charge as a statutory law crime or a common law crime.
The latter could lead to heavier sentence and is less subject to the time limit for pressing charges, though these are not the appropriate reasons for bringing the charge as a common law crime.
Yet under most circumstances, the court tends to accept charges brought in the form of statutory law crimes rather than common law crimes, because of the unambiguous nature of the statutory law.
In fact, the justice department rarely sued anybody for public nuisance as a common law crime in the past.
One example is a case back in 2008, in which an expatriate, who climbed up the Tsing Ma Bridge to protest against China’s human rights record, was found guilty of the common law crime of public nuisance.
As we can see, whether the court would accept the charges of public nuisance brought against Occupy Movement activists as a common law crime would to a significant extent determine how the whole trial will play out.
This article appeared in the Hong Kong Economic Journal on April 12
Translation by Alan Lee
[Chinese version 中文版]
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