VII. Criminal offences
In Hong Kong, trespass to land is ordinarily a civil wrong rather than a criminal offence. The usual response is therefore a civil claim by the person in possession of the land, who may seek remedies such as damages, an injunction, mesne profits, or recovery of possession. There is no general offence of “criminal trespass” to land. Criminal liability arises only where legislation specifically criminalises particular forms of trespass-like conduct.
Public Order Ordinance (Cap. 245)
A clear example appears in the Public Order Ordinance (Cap. 245). Under section 17(4), a police officer may close access to a public place in the circumstances specified by the Ordinance. Section 17A then makes it an offence if a person, without permission, knowingly enters or remains in a public place after access has been so closed. The essential ingredients are therefore a lawful closure, knowledge on the part of the defendant, and entry or continued presence without permission. The offence is not ordinary trespass to land as such, but a statutory offence designed to enforce lawful restrictions on access to public places. The maximum penalty is 12 months’ imprisonment.
Section 23 deals with violent entry onto premises. Its purpose is to prevent people from using force to resolve disputes over possession or access. In substance, it criminalises entry onto premises in a violent manner, even where the person claims that he is otherwise entitled to enter. The emphasis is therefore on the violent method of entry rather than on the underlying merits of any asserted right to possession. The maximum penalty is a fine of $5,000 and imprisonment for 2 years.
Section 24 provides that any person who, being in unlawful possession of premises, holds possession of them in a manner likely to cause a breach of the peace, or to cause any person reasonably to fear that a breach of the peace is likely to take place, commits an offence. The provision is directed at situations where unlawful occupation of premises is maintained in a way that gives rise to public disorder or a reasonable apprehension of violence. It therefore goes beyond ordinary civil trespass and criminalises possession coupled with a public-order risk. The maximum penalty is a fine of $5,000 and imprisonment for 2 years.
Landlord and Tenant (Consolidation) Ordinance (Cap. 7)
A landlord who enters a tenant’s premises without authority may also commit trespass. Under section 119V of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7), unlawfully depriving a domestic tenant of occupation, or doing any act calculated to interfere with the tenant's peace or comfort with intent to cause the tenant to give up occupation, is both a civil wrong and a criminal offence carrying a fine of $500,000 and imprisonment for 12 months on a first conviction, and a fine of $1,000,000 and imprisonment for 3 years on a second or subsequent conviction.
Land (Miscellaneous Provisions) Ordinance (Cap. 28)
Section 6 of the Land (Miscellaneous Provisions) Ordinance (Cap. 28) creates a separate offence of unlawful occupation of unleased land. This provision is principally concerned with unauthorised occupation of Government land that is not held under a lease or other lawful authority. It may be engaged where a person squats on such land, erects structures, stores materials there, fences it off, or otherwise assumes physical control over it without lawful authority or excuse.
Summary Offences Ordinance (Cap. 228)
A further offence is created by section 4(30) of the Summary Offences Ordinance (Cap. 228). That provision states that any person who, without lawful authority or excuse, trespasses, or allows any beast to trespass, upon any messuage, tenement, cemetery, or land vested in, or under the control or management of, any public officer or government department, commits an offence. The significance of the section is that it criminalises trespass only in relation to specified categories of public land. It does not create a general criminal offence of trespass upon private land. The maximum penalty is a fine of $2,000 and imprisonment for 3 months.
