Ever since the formation of societies, it has become a fundamental principle that an offender guilty of crime should be sentenced by the court to such penalty as his crime merits. The law, after centuries of evolution, the court now takes account of all the circumstances including the nature of the crime, the circumstances of the offender, the effect of the crime on the victim and the victim’s family, the need to prevent the offender from re-offending and deter others from offending in the same way and the need to protect the public when deciding upon the penalty. The general concept of most offences requires an action of some kind. However, when a person who is reasonably able to save someone in distress chooses not to do so, people who are involved in a criminal joint enterprise and wish to withdraw from the enterprise, or when someone is aware that an arrestable offence has taken place but do not tell the authorities of the offence, where should the law stand?
In common law there is no general duty of care owed to fellow citizens. The traditional view is that in the example of watching a person drown in water and making no effort to rescue, that the failure to act does not attract criminal liability. The position is well put by the line of an english poet, Arthur Clough, “Thou shalt not kill but needst not strive, officiously, to keep another alive.”1 The reason behind such notion is from the libertarian argument that the coercive powers of law must only be invoked in response to positive actions, or else law would become overly burdensome and intrusive on individual freedom.2 Furthermore, liability for omissions entails the possibility of numerous liability wherever there is no particular reason for attributing responsibility to one rather than another person. On the other hand, such omissions might be regarded as morally wrong and so both legislatures and the courts have imposed liabilty when the failure to act is serious to the extent that criminalisation is needed. As a result, some statues specifically state that the actus reus consists of any relevent “act” or “omission” (e.g. Infanticide under the OAPO3, failure to report a motor vehicle accident under RTO4). Therefore the word “cause” may be both positive (the accused proactively injuring the victim) and negative (the accused intentionally failed to act, knowing that this failure would cause harm).
Hong Kong’s position is that for an omission to be criminalize, there is a need of duty of care. This was established in cases like Stone and Dobinson5, Miller6 and Khan7. Miller held that the person who creates a dangerous situation is generally under a duty to take reasonable steps to avert that danger. Lord Diplock said, “…I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.”8 Although this may apply to general offences, constructive manslaughter is different. In the case of Lowe it was held that there should be a difference between commission and omission. Mere neglect without some foresight of the possibility of harm resulting is not a ground of constructive manslaughter, even if that omission is deliberate.9 The case of Khan further confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act.10 In other words, to establish a duty of care between stranges, there has to be a causual relationship and foreseeability of risk.
In some other jurisdictions, such as Canada and the United States, there are Good Samaritan Laws that protect those who choose to aid others who are in distress from blame. They are intended to reduce bystanders’ hesitation to assist, for fear of being prosecuted for unintentional injury or wrongful death. The canadian Good Samaritan Act provides that “(1) Despite the rules of common law, a person described in subsection (2) who voluntarily and without reasonable expectation of compensation or reward provides the services described in that subsection is not liable for damages that result from the person’s negligence in acting or failing to act while providing the services, unless it is established that the damages were caused by the gross negligence of the person.”11 The common law norm is that, when someone has decided to rescue someone in distress, he must act with reasonable care. Or he can be held liable for injuries caused by a reckless rescue attempt. Therefore, with the Good Samaritan Laws, it encourages people to help others who are in distress. In some other countries such as Italy, Spain, Belgium, France, Japan and Andorra, the Good Samaritan Laws includes a legal requirement for citizens to assist people in distress, unless doing so would put themselves in danger. Citizens are often required to, at least, call for emergency help. This is except for, again, doing so would be harmful, in which case, the authorities should be contacted when the harmful situation has been removed. For example, the paparazzis who were at the scene of Princess Diana’s fatal car accident were investigated for violation of the French Good Samaritan Law. In Germany, a citizen is obliged to provide first aid when necessary and to call the police and/or ambulance. That person is immune from prosecution if assistance given in good faith turns out to be harmful. However, the person can be prosecuted for failing to render assistance (Unterlassene Hilfeleistung).12
To be brief, the question is how do we strike a balance between “social responsibility” and “personal freewill”? I am in favour of the current law in Hong Kong that a person should not be criminally liable unless there is a duty of care involved. The word crime is expressed with the implications of action, it is a breach of the principle of legality to convict people of them when they have not acted; and it is unfair to convict non-doers of acts under the names of doers.13 If we follow Germany’s approach, people would help out of the fear of being prosecuted. The law then takes on the role of forcing people to act instead of prohibiting undesirable acts, and this would be intrusive to one of mankind’s greatest value, freewill. Although the Good Samaritan Laws in Canada and the United States encourage people to assist the ones who are in distress by diminishing liability, it endures people to be more careless while helping as they are protected from such liability. For the reasons mentioned, I do believe that as far as Hong Kong’s current criminal law on omission is concern, it is adequate. To extend the courts’ campaign by attempting to punish all those who contribute to the evil result by failing to cooperate is to build a better society through repression which always collapses as we have learnt from history lessons. As for the moral question on social responsibility, it should be more of a matter of education. What the law should do is to uphold the society’s moral values and conducts rather than imposing the values onto the society. Otherwise it would be like putting the cart before the horse.
It is known that a person may escape liability where he/she has been an active member of the common purpose by withdrawal before the others go on to commit the crime. However, mere repentance without any action would still leave the person liable. The withdrawal must involve “actively seek to prevent what has been done from being relied upon by the others” to be effective. 14 In the case of Becerra it was held that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve “unequivocal notice” upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party.15 Therefore, the general principles of withdrawals are; 1) If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties, 2) where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralise, or at least take all reasonable steps to neutralise, the aid he has given. And in more serious cases, it may be that the only effective withdrawal is either physical intervention or calling the police.16 In Rook the court held that, in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance. Lloyd LJ held “So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.”17
The courts seem to be quite strict when it comes to criminal liability regarding joint enterprise. The case of Powell and English held that it is sufficient to impose criminal liability for murder on the secondary party in the event that the jury find that the primary party used the weapon with intent to kill or cause grevious bodily harm.18 This doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen. Again, foreseeability is an essential element here. Lord Steyn stated that “he must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime.”19 The notion is that it is only fair that if a party has agreed or in anyway encouraged or assist others in a joint enterprise, he/she is responsible for the part that he/she has done and to prevent the foreseeable damage from taking place. In my opinion, the common law’s requirement of a withdrawal from a joint enterprise is reasonable. It is a fair approach that forces people to take on the responsibility for their own conduct. Requiring more of that would be unjust and discouraging to the party who wishes to withdraw.
Obligation to report a crime
Generally, there is no duty to report offenses under Hong Kong’s criminal law. Mandatory reporting has been limited to specific offenses and situations. For example, national matters such as misprision of treason are punishable by law. The auditors may also have statutory duties to report fraud such as obligations under the Companies Ordinance, the Banking Ordinance and the Stock Exchange. Again, these are based on the principles of duty of care. However, as for a stranger who just happens to witness a crime, he/she does not have a statutory duty to report the crime.
On the other hand, some other countries such as the United States and Australia require those who work with children to report to the relevant child welfare authorities if there is any evidence of potential child abuse that comes to their attention in the course of their duties. In addition, doctors must report on sexual misconduct regarding children.20 In UK, the Proceeds of Crime Act 2002 has increased the scope of mandatory reporting. It has introduced duties to communicate information about criminal offences in the way that professionals have to report the criminal activities of their clients or third parties or he/she will commit an offence.21 Unlike Hong Kong’s existing duties to report, the obligations in the Proceeds of Crime Act apply to all criminal offences. Section 338 of the act further requires that a disclosure has to be made to the appropriate person, in other words, to a constable or an officer. Additionally, the disclosure has to be made in the correct form in accordance with section 339.22 The disclosure is also generally required to be made before the prohibited act, or there has to be a good reason for the delay.23 This is to prevent offences from taking place. The fact that it allows the reporting to be made after the criminal offence suggests that this legislation is to name and punish those responsible as well.
In France, the French Penal Code imposes a duty to report all serious offence since 1941. More offences are then included from time to time. Offences that are required to be reported are generally those that carry sentences of at least ten years and those that concerns child abuse and neglect, significant violent and sexual crimes.24 In the case of child abuse, they are not always being reported because potential reporters were not clear whether it was sufficiently serious to be defined as a crime. The law for specific duty to report removed this uncertainty and increased the reporting of child abuse and neglect.25
When compared to England and France’s legislation, Hong Kong’s current position on duty to report arrestable offence may be too lenient. The law should encourage reporting because reporting a future offence might prevent it happening and alternatively that reporting might make it easier to prosecute and punish those responsible for the offence. On the other hand, it is accepted that a citizen has a civic duty to report crime, but to criminalize a failure to do so shows a degree of mistrust and hostility damaging to social harmony. Another potential problem is that lawyers may not be able to guard their client’s confidentiality and that their ability to work for their clients would be severely disadvantaged. Nevertheless in Bowman v Fels the court gave a narrow definition to the provision and determined that making arrangements did not include litigation or preparing for litigation.26 The arguments for preventing offences do, however, seem more compelling. If the offence is prevented, its intended victim will not suffer the harm it would have caused. Hence in this situation a duty to report will not only benefit the community as a whole but also a particular individual. Furthermore, a duty to name an alleged offender is more problematic than a duty to report the existence, or planned existence of an offence. The former raises issues of betrayal as well as malicious reporting27. In conclusion, the idea of imposing duty to report an offence may be a good idea. However, there are many aspects that need to be looked into. It should be well planned as Hong Kong is very sensitive about autonomy and the people are usually against things that are invasive to personal liberty.
1 Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005)
2 Lacey, Nicola and Wells, Celia. Reconstructing Criminal Law (Second Edition), Butterworths (1998)
3 OFFENCES AGAINST THE PERSON ORDINANCE, Section 47C
4 ROAD TRAFFIC ORDINANCE, Section 56(3)(6)
5 R v Stone and Dobinson  1 QB 354
6 R v Miller  2 AC 161
7 R v Khan  Crim LR 830
8 supra n. 6
9 R v Lowe (1973) QB 702
10 supra n. 7
11 (Canadian)Good Samaritan Act, 2001, c. 2, s. 2 (1).
12 Smits, Jan M. The Good Samaritan in European Private Law; On the Perils of Principles Without a Programme and a Programme for the Future. Inagural Lecture, Maastricht University. (2000)
13 Ormerod, David. Smith & Hogan Criminal Law Cases and Materials 9th Edition. Oxford University Press (2006)
14 supra n.1
15 R v Becerra (1975) 62 Crim. App. R. 212
16 supra n.13
17 R v Rook (1997) Cr. App. R. 327
18 R v Powell, R v English  4 All ER 545
20 Smith, Susan K. Mandatory Reporting of Child Abuse and Neglect. <http://www.smith-lawfirm.com/mandatory_reporting.htm> 2006
21 Dr. Stretch, Rachael. Duties to Report and the Proceeds Of Crime Act 2002: A Comparison With Mandatory Reporting In France. Web Journal of Current Legal Issues.[ 2005] 4 WEB JCLI
22 Proceeds of Crime Act 2002
23 Proceeds of Crime Act 2002 s. 338(3)(b)
24 French Code Penal
25 Supra n.21
26 Bowman v Fels  EWCA CIV 225
27 Supra n.21