In Defence Of The Good Citizen

"This incident may discourage the public from assisting the police in the future, as they fear legal consequences." 

During my time in the police service, I remember at least three occasions when members of the public assisted me in apprehending suspects. Two of these instances occurred while I was on duty. On one occasion, a taxi driver helped block an unlicensed vehicle, evading my pursuit by positioning his taxi alongside the driver's door. 

This action thwarted the young driver’s escape. He did not have time to rush to the passenger side, and the traffic congestion impeded his movement. The driver possessed neither a licence nor insurance. As a repeat offender, he headed to jail.

On another occasion, a brave lady kicked a drunk in the leg while I struggled to restrain him at Kai Tak Airport. Her intervention made a considerable difference; he was taken aback and couldn't stand. In both these instances, the good citizens left the scene before I could get their details. 

While off duty in 1996 and doing my Christmas shopping, I spotted a shoplifter and attempted to apprehend him. The chap fled through a shopping complex until a young lady helpfully intervened by swinging her bag at him. He stumbled, allowing me to catch him. The lady later received a Good Citizen award. The actions of these brave citizens were genuinely commendable. 

Following an incident on Friday, 3rd January, one cannot help but wonder if, in the future, citizens will be as willing to assist the police. The case involving the motorcyclist and the customs officer has undoubtedly raised some serious concerns. In short, a 27-year-old motorcyclist fled a police stop. Observing this, an off-duty customs officer seemingly intervened, resulting in the motorcyclist crashing. He was pronounced dead at the scene.

Police later announced that the motorcyclist's licence and insurance had expired, which explained his attempt to flee. The entire event was captured on video and shared widely. 

The customs officer was arrested days later for "tampering with a motor vehicle" and placed on bail. At first glance, that seems odd. However, I am not privy to all aspects of the incident and cannot take a definitive position. From the media reports I have seen, whether the arrest occurred following legal advice remains unclear. 

For clarity, the Road Traffic Ordinance (Cap 374) states in section 49 that tampering with motor vehicles occurs, "If a person otherwise than with lawful authority or reasonable excuse gets on to a vehicle or tampers with any part of the vehicle, he commits an offence."

Many citizens have rightly expressed sympathy for the customs officer, asserting that his arrest was absurd. They see it as surreal because he sought to help the police stop a fleeing person. These sentiments are understandable.

Examining the law in this area is crucial to understanding the legal framework that empowers citizens to act. Section 101 of the Criminal Procedure Ordinance is a key reference point in this context: "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence."

According to Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1 of the Laws of Hong Kong), an "arrestable offence" means an offence for which the sentence is fixed by law or for which a person may under any law be sentenced to imprisonment for a term exceeding 12 months, and including any attempt to commit any such offence.

Further, section 101A of the CPO stipulates that "(a) person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

So, what’s happening here? Citizen arrests can be contentious for several reasons. Shop security guards who exercise these powers to detain individuals suspected of theft have faced criticism. At times, they have mistakenly detained innocent individuals and allegedly used excessive force. Furthermore, concerns about vigilantism remain prevalent. For this reason, the police generally do not endorse public actions. Instead, they urge individuals to call "999" so that the police can respond. 

In this case, driving without a licence carries a maximum penalty of three months imprisonment for a first offence and six months for subsequent convictions. Driving without insurance results in a maximum prison sentence of twelve months. These are the potential legal repercussions the motorcyclist may have faced, which could have influenced his decision to flee. 

Arguably, in this case, with the police in pursuit, an intervention was unnecessary. In addition, would the customs officer be empowered even if he knew all the circumstances? I'm not sure. 

Nonetheless, this incident may discourage the public from assisting the police in the future, as they fear legal consequences. 

While this case attracted considerable attention, it is not an isolated incident. In November 2018, a 42-year-old masked man named Ho broke into a garage on Shing Hing Street in Tai Wai, accompanied by two accomplices. They vandalised a car. Three garage workers intervened, pursuing and restraining Ho, who was later pronounced dead in hospital.

The three were arrested for manslaughter. However, an autopsy revealed that Ho had consumed dangerous drugs, leaving the exact cause of death unclear. All charges were subsequently dropped. 

The fact that the motorcyclist fled from the police in what seems to be a reckless and high-speed manner is likely a contributing factor to his subsequent death. Indeed, he could have gone on to injure others with his actions. 

The Commissioner of Customs and Excise has indicated that his staff are experiencing "complicated emotions." I would wager this likely encompasses a mix of sympathy for the deceased motorcyclist, support for their colleague, and frustration with the legal situation. After all, the customs officer already bears the burden of the motorcyclist's death on his conscience.

In numerous other jurisdictions, Good Samaritan laws protect citizens from liability when they act in emergencies, provided their actions are reasonable and in good faith. In any case, the " tampering " charge used for the arrest is unlikely to result in anything more than a fine. That’s not to diminish the fact that a man has died, although the actions of the deceased man contributed to his death. After all, he could have stopped and cooperated. 

I would like to know whether Hong Kong is prepared to confront the negative repercussions of pursuing this citizen, who, by all accounts, acted in good faith on the spur of the moment to fulfil his civic duty.