非法禁錮 (false imprisonment)

法律定義: An unlawful arrest is a false imprisonment. (Martnok Thanradee v Commissioner of Police and Secretary of Justice [HCA 789/2011] 第30段)

                   If a person is subjected to an unlawful arrest by a police officer, the continued detention of that person pursuant to the arrest perpetuates the unlawfulness and constitutes a false imprisonment. ( Yeung May Wan 7 & others v HKSAR [FACC 19/2004] 第 53 段)

                  非法禁錮是指一個人被另外一個或一群人不合法地阻止自由行動或移動。這個是普通法的罪行,最高可被判7年監禁。

被捕人士在非法禁錮情況下,可用合理武力釋放自己。香港終審法院 5 位法官一致在 Yeung May Wan 7 & others v HKSAR [FACC 19/2004] 案定出這個法律原則,原文被引述如下:。

53.      If a person is subjected to an unlawful arrest by a police officer, the continued detention of that person pursuant to the arrest perpetuates the unlawfulness and constitutes a false imprisonment.  It matters not that the continued detention is placed in the hands of officers other than the original arresting officers and it is irrelevant that the latter officers may know nothing of the circumstances of the arrest.  The act of maintaining custody which is unlawful forms no part of the duty of any police officer and if he is obstructed or assaulted while doing so, he is not obstructed or assaulted while acting in the due execution of his duty.  On the contrary, persons unlawfully in custody are entitled to use reasonable force to free themselves.

 

下列是一些法理的參考資料:

  1. 維基百科的簡單介紹 https://en.wikipedia.org/wiki/False_imprisonment
  2. 非法禁錮的定義: False imprisonment is committed where D unlawfully and intentionally or recklessly restrains P's freedom of movement from a practicular place. 'Imprisonment' is probably a wider term than, and includes, 'arrest'. (extacted from page 446 of Criminal Law, Tenth Edition, written by Sir John Smith, CBE, QC, LLD, FBA;
  3. 前城市大學法律學者、DK Srivastava & AD Tennekone、在他們的 The Law of Tort in Hong Kong 書 second edition 第 59 頁講出 'False Imprisonment' is any direct and intentional act of the defendant causing a total restraint on the freedom of movement of the plaintiff, within limits set by the defendant, without the plaintiff's consent or any lawful justification;
  4. Oxford Dictionary of Law, Sixth Edition, Edited by Elizabeth A. Martin and Jonathan Law 解釋 - False imprisonment means unlawful restriction of a person's freedom of movement, not necessarily in a prison. Any complete deprivatioin of freedom of movement is sufficient, so false imprisonment includes unlawful arrest and unlawfully preventing a person leaving a room or a shop. The retriction must be total : it is not imprisonment to prevent a person proceeding in one direction if he is free to leave in others. False imprisonment is a form of trepass to the person, so it is not necessary to prove that it has caused actual damage. It is both a crime and a tort of strict liability;

 

遲些會列出一些案例供各位參考