1. False Imprisonment

1. False Imprisonment

False imprisonment is a common law offence, made up of the following elements: the unlawful and intentional or reckless restraint of the victim's freedom to leave a particular place—that is, an unlawful detention that prevents the victim from leaving at will. At common law, "every confinement  of the person is an imprisonment, whether it be in a common prison or in a private house, or even by forcibly detaining one in the public streets". 

Detention 

The law does not require imprisonment in the sense of confinement as ordinarily understood. It is enough, by definition, that the victim's freedom to leave a particular place is completely and unlawfully taken away. 

Merely preventing a person from proceeding along a particular route, where that person can still reach his destination by another reasonable route, does not constitute imprisonment. 

The act of false imprisonment may itself constitute an assault, but the offence may also be committed by mere detention without any violence. 

The detention must be without the victim's consent. Whether the victim consented to being detained, and whether that consent was freely given, are questions of fact to be determined on all the circumstances of the case. 

The Detention Must Be Unlawful 

The detention must be unlawful. Where the imprisonment or detention is carried out pursuant to a court order or sentence, in the exercise of a parent's lawful power of control over a child, or pursuant to a power of arrest conferred by law, it is lawful. In addition, particular legislation, such as the Mental Health Ordinance (Cap. 136), may provide a legal basis for restricting a person's liberty. 

In the case of parent and child, a parent will rarely commit this offence by imposing restraint on a child, because restraint imposed on a child usually falls within the bounds of reasonable parental discipline and is therefore not unlawful. However, the prosecution may prove that the detention was unlawful in a number of ways, for example: (a) where a court order exists and the parent detains the child in breach of that order; or (b) where the duration or circumstances of the detention exceed the bounds of reasonable parental discipline—whether that point has been reached being a question of fact for the jury, provided there is proper evidence for its consideration. 

As regards an ordinary member of the public, his power of arrest in Hong Kong derives principally from statute. Under section 101(2) of the Criminal Procedure Ordinance (Cap. 221) (commonly known as the "section 101 power"), any citizen may, without a warrant, arrest a person whom he reasonably suspects of having committed an "arrestable offence". This citizen's power of arrest is closely connected with the offence of false imprisonment: if a citizen exceeds the statutory limits in exercising the section 101(2) power—for example, where the person arrested has not in fact committed any arrestable offence, or where the basis for the reasonable suspicion is insufficient—the entire detention loses its lawful basis and may constitute false imprisonment. 

Mens Rea 

In a Hong Kong case, the Court of Appeal held that, even where the court accepts that the defendant did not intend to harm the victim, the requisite mens rea is established so long as the defendant, knowing that the victim wished to leave, nevertheless intended to compel the victim to remain. 

Sentencing Principles 

False imprisonment is a common law offence. As no ordinance prescribes a specific penalty for it, section 101I of the Criminal Procedure Ordinance (Cap. 221) applies. Under section 101I, a person convicted of an indictable offence for which no penalty is otherwise provided is liable to a maximum penalty of 7 years' imprisonment and a fine. False imprisonment covers a very wide range of conduct, so there is no guideline sentence. However, for serious cases of false imprisonment, particularly where accompanied by other offences or where the detention is prolonged and oppressive, a custodial sentence is not uncommon. Where the false imprisonment involves a number of people acting together, this may be treated as an aggravating factor.