Evidence of motorcycle rider violating law shall aid interceptor's defense in Kowloon Bay accident: Barrister

Last Friday (Jan. 3), a fatal incident occurred in Kowloon Bay where a motorcyclist died during a pursuit by traffic police, leading to the arrest of an off-duty customs officer on suspicion of obstructing a vehicle. Some believe the off-duty officer was acting in the public interest by exercising the "citizen's arrest" right, while others hold the view that his actions resulted in the motorcycle rider's accident. According to journalists, the police are investigating the incident, examining the full picture, including the rider's driving attitude at the time of the incident, whether they committed reckless driving or other offenses, before seeking advice from the Department of Justice to follow up on the case.

Legal professionals pointed out that they believe the police will also investigate the rider's behavior at or before the time of the incident. If the motorcyclist is suspected of committing road safety or other offenses, even though they have passed away and cannot be prosecuted, the investigation results could help the off-duty customs officer's defense regarding the interception action.

Temporarily detaining the customs officer reflects impartial police investigation

The incident has sparked intense discussions online, with opinions divided. Some netizens sympathize with the off-duty customs officer, believing he acted bravely but was arrested instead, entangled in legal troubles, while no one seems to care about the responsibilities of the involved motorcyclist.

It is understood that the police arrested the customs officer on suspicion of obstructing a vehicle as part of the lawful investigative procedures, reflecting an impartial and rigorous police investigation, as evidence collection procedures involve scientific forensic processes that require the arrest of the suspect to proceed.

On the other hand, the police investigation covers the entire sequence of events, including whether the rider disregarded road safety during the process, the speed and driving behavior, and whether there were any dangerous actions towards themselves or other road users. This will also affect the defense that the off-duty officer may present. The police investigation is unbiased and unrelated to the identities of the involved parties, following established procedures for a fair investigation.

Barrister Albert Luk Wai-hung believes this incident has significant implications for the public. While the public may focus on the deceased rider, attention should also be given to the pressure faced by the off-duty customs officer who is alive. Currently, the public observes the event from a single perspective through dashboard cameras, but he believes that the police investigation will be fair and comprehensive, not solely focusing on the interception action but also examining whether the rider committed road or other offenses during the process.

He mentioned that although the rider has passed away and the police cannot prosecute him, if there is evidence showing the rider was speeding, driving dangerously, or committing other serious offenses, it could be relevant to the appropriateness of the off-duty customs officer's interception action and aid in his defense.

Exercising citizen's arrest rights must involve reasonable force

The incident also raises questions about exercising the "citizen's arrest" right. According to Section 101 of the Criminal Procedure Ordinance, citizens can make an arrest without a court order using reasonable force if they reasonably suspect someone has committed an arrestable offense.

Luk emphasized that the mentioned "arrestable offense" refers to a serious offense punishable by imprisonment for over a year, which the person making the citizen's arrest must reasonably know. However, the individual needs to use reasonable force according to the circumstances at that time. If the conditions are met and unfortunately lead to the suspect's death, it does not necessarily entail criminal responsibility. However, it may be challenging for ordinary citizens to determine whether there are legal risks in the given circumstances.

Luk admitted that he does not discourage citizens from acting bravely but advises them to think carefully. If unsure, it is better to opt for reporting to the authorities.

Regarding the police's arrest of the off-duty customs officer on suspicion of obstructing a vehicle, Luk expressed that it is debatable from his perspective. He believes that the legislation on obstructing a vehicle is preventive in nature and aimed at preventing offenses from occurring, primarily targeting vehicles rather than individuals. However, it must be proven that the suspect had a purpose and acted proactively. If a motorcycle rushed towards them and the off-duty customs officer was in a reactive position, the offense of obstructing a vehicle would not stand.

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