VI. Domestic violence acts: Other offences
A. False imprisonment
False imprisonment is complete deprivation of the victim’s liberty for any length of time, however short, without lawful cause. It is an offence contrary to common law. It is also a tort actionable by the person falsely imprisoned (Please refer to VIII. Personal legal actions taken by the victim of abuse > B. Civil actions in tort for more details on tort ). Incarceration in the accepted sense of the word is not necessary. It is sufficient that the victim has been unlawfully prevented from leaving the place where they are. The abuser who threatens force and intimidates the victim into remaining where they are can commit the offense of “false imprisonment”. It is enough that the victim has been unlawfully prevented from leaving the place where they are, e.g. a house or a motor vehicle.
False imprisonment would occur, for example, where a wife is forbidden to leave the matrimonial home unless she first agrees to sexual intercourse. The same would apply to a female cohabitee. A male cohabitee might similarly be intimidated into remaining in the joint home unless they first engage in sexual activity. The demand for sexual activity is not a pre-condition for a conviction for false imprisonment. It is enough that there is a total and unlawful prevention of the victim leaving the place where they are. A spouse or cohabitee might be prevented from leaving the home because the defendant does not want them to go out on an evening with friends perhaps out of concern they might develop a friendship with someone new. In each case the questions are whether or not there has been a complete deprivation of the victim’s right to leave the place where they are and whether or not that deprivation was without lawful justification.
B. Breach of the Peace
A person may be arrested without warrant for a breach of the peace without a warrant. There is a power of arrest where a breach of the peace is committed in the presence of the person making the arrest; or the person making the arrest reasonably believes that a breach of the peace is imminent; or where a breach has been committed and it is reasonably believed that a renewal is threatened. A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or to their property while it is in their presence, or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or some other disturbance. A person arrested for a breach of the peace may be charged with an offence which has a breach of the peace as an element of the offence, or bound over to keep the peace or to be of good behaviour, or simply released.
The powers of judges and magistrates to bind over to keep the peace or to be of good behaviour derive from common law and statute. Preventive action can be taken against potential offenders before an offence is committed. The purpose is to prevent breaches of the peace before they occur, not to punish the arrested person for breaching the peace. The courts have wide discretion about whether or not to bind over. A binding over order can be made if a judge or magistrate is satisfied that there is a risk that the person before the court is likely to cause a breach of the peace in the future.
Section 109I of the Criminal Procedure Ordinance ( Cap. 221 ) gives judges and magistrates the power to require any person before the court to enter into a recognizance with or without sureties to keep the peace for a specified period of time and/or be of good behaviour. A breach of the recognisance, for example by committing another offence, will result in all or part of the recognisance being forfeited in addition to any punishment imposed on the offence putting the defendant in breach of the recognisance.
The police cannot arrest anyone for breach of the peace if there is no violence or risk of violence. Mere disturbance, for example shouting protestations of love and affection to the spouse or cohabitee who has taken refuge in other premises and asking them to return home without making any threats of consequences should they not do so does not amount to a breach of the peace. Actions not involving violence or a threat of violence do not amount to a breach of the peace even though neighbours might be disturbed or upset by the shouting.