• 「暴動」源流考|戴啟思
  • 2019-07-17    

 

or other unlawful act accompanied with such violence so as to greatly alarm ordinary people.

The common law about riots and unlawful assembles was tidied up after the Gordon Riots. It was put on a statutory footing and the relevant laws were modified over the years and last reviewed in 1983. Then the UK Law Reform Commission reported on Public Order Offences generally and recommended changes which were introduced in 1986.

The current law on riot in England & Wales is in section 1 of the Public Order Act 1986. The language of the offence creating provision is very simple and is set out below.

Riot.

(1)Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.

(2)It is immaterial whether or not the 12 or more use or threaten unlawful violence simultaneously.

(3)The common purpose may be inferred from conduct.

(4)No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)Riot may be committed in private as well as in public places.

(6)A person guilty of riot is liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both.

You can see that a riot under the 1986 Act now requires 12 persons to be present, not 3, who act together and use unlawful violence such as to make a normal person fear for their safety.

In Hong Kong the law of public order tended to follow the English law. However, after the 1967 leftist disturbances which caused turmoil in Hong Kong and left about 50 people dead, the offence of ‘riot’ was redefined in a way that made it tougher than its common law predecessor.

The new law which was made in 1970 defined riot as a type of unlawful assembly where the trigger point was not actual violence but a breach of the peace, something which may or may not involve a violent act causing a person to fear for their safety.

The relevant provisions are sections 18 and 19 of the Public Order Ordinance.

Unlawful assembly

When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.

It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid

……



Riot

(1) When any person taking part in an assembly which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.

(2) Any person who takes part in a riot shall be guilty of the offence of riot and shall be liable—

(a) on conviction on indictment, to imprisonment for 10 years; and

(b) on summary conviction, to a fine at level 2 and to imprisonment for 5 years.

A breach of the peace occurs when harm is done to a person or their property-which may be a criminal offence-or where a person apprehends that they, or their property, may be harmed. It also occurs when the conduct provokes others to breach the peace such as goading a rival group to violent behaviour by insults.

A UK Supreme Court judge recently tried to encapsulate the essence of a breach of the peace by saying in the context of describing the power of arrest to prevent a breach of the peace from happening: “The essence of a breach of the peace is violence. The power to arrest to prevent a breach of the peace which has not yet occurred is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future.”

Doing acts which may lead others to apprehend possible harm or possible violence is not, however, necessarily a criminal offence. A person may be arrested and detained and brought before a magistrate on a complaint of a breaching of the peace-e.g. by goading others to attack or making alarming threats-but the magistrate can only bind the person over and require him or her behave and keep the peace in future upon having to pay a sum of money if they fail to do so. There is no record of conviction.

So, the difference between the statutory offence of riot in the Public Order Ordinance and the common law offence and the offence under the Public Order Act 1986 is that actual violence is required under the common law and the English Act but in Hong Kong conduct which would not necessarily amount to a criminal offence may provide a basis for a conviction for the offence of riot because committed in the company of 3 or more persons where a breach of the peace is threatened.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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