Describing some protesters as 'rioters' and some street disturbances as 'riots' is a sensitive matter. One of the 'Five Demands' that some protesters make is that the Government withdraw the description of 'rioting' made early on in protests.

It seems to me that, whatever may have been the case in June, unbiased observers can make a case out for a fair few riotous assemblies occurring in recent months with extensive damage to public and private property resulting to innocent third parties as a consequence.

Whose fault was it that shops and facilities were vandalised? The rioters, of course. Who should pay compensation for the damage caused? Although it would be nice to suppose convicted rioters should pay, fixing individual responsibility for damage will be very hard to do and the convicted persons will not have the means to pay. For my part, I suggest that it should be the responsibility of the Hong Kong Government to compensate for losses caused by rioters.

The case for the Government footing the bill for the damage caused by rioters is legally sound in our common law system that draws on legal principles from England and Wales, which was the principal source of our common law.

One of those principles we inherited was that we all have a part to play in maintaining public order.

That duty is performed by us all keeping the peace which is to say that we must all refrain from violent or seriously disruptive conduct when in public places. If we behave in a disorderly fashion so as to alarm other citizens, then we are liable to be arrested and brought before a magistrate who may bind us over to keep the peace.

Not merely is there a duty to keep the peace; there is a positive duty on the part of citizens to act prevent others from breaching the peace. Theoretically, a police officer could call on a member of the public to help prevent a breach of the peace and it would be an offence not to respond and help. Police officers do not use this power nowadays because civilians might do themselves harm in trying to assist and, besides, they probably would just get in the way. Still, the duty exists.

This duty to act to prevent a breach of the peace and assist others in preventing a breach of the peace can be traced to the time before professional police forces existed.

In medieval times in England the local population was responsible for law and order. It was the duty of able-bodied males over 12 in a town or village to turn out in a group-a 'posse'- and hunt down suspected offenders who would then be turned over to the Sheriff, the King's local representative responsible for the local court system. If the posse did not do its job, its members could be fined.

As the local population in a district was supposed to guarantee law and order in the neighbourhood, a failure to prevent damage to a third party's property could result in a claim against the district, known as 'a hundred' after the typical number of households in a settlement.

The liability of hundreds to compensate was limited to damage caused by rioters, as an Act of Parliament made clear in 1714.

In the next 150 years, cities and towns grew a prodigious pace. Their inhabitants grew wealthy, and they looked for better protection of private property and their selves. The first professional police force was established in London in 1829, and major cities and towns followed suit in the following two decades.

The ratepayers paid the salaries of police officers to do the job of maintaining public order that had once been their collective responsibility as members of hundreds. With the transfer of the primary legal responsibility for looking after law and order, logic demanded the removal of the civil liability of the hundreds to compensate for any physical damage to property caused by riots.

In 1886 Parliament enacted the Riot (Damages) Act. It imposed liability on Police Forces to compensate in the circumstances:

'Where a house, shop, or building in any police district has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as herein-after mentioned shall be paid out of the police rate of such district to any person who has sustained loss by such injury, stealing, or destruction..'

This Act lasted about 125 years. Claims made after serious rioting in London in 2011 showed that it did not meet current circumstances. For instance, you could not be compensated for the loss of a motor vehicle under the 1886 Act because they had not been invented then. Still, you were on solid ground if you claimed in respect of lost or damaged 'agricultural machinery'! The claims procedures were also unnecessarily complicated and were not fair on insurers who paid out on riot damage claims and wanted to recover from police funds. Parliament, therefore, repealed the1886 and replaced it with the Riot Compensation Act 2016.

The new Act simplifies the procedures for making claims for losses through riots sustained in the Twenty-First Century. Motor cars are now in the scheme, and, importantly, the Act allows an insurer seeking recovery for a claim paid out for riot damage to claim compensation from the relevant local police authority.

There seems to be no reason why similar legislation should not be enacted for Hong Kong.

The Police Force has the statutory duties to preserve the public peace, maintain public order and prevent injury to property under section 10 Police Force Ordinance. That is an amplified variant on the responsibility that we all have to keep the peace and to assist others in doing so.

If the Police Force cannot, for whatever reason, discharge these duties on our behalf, then it seems reasonable to compensate victims of riots who have suffered damage to their property.

As for fixing the responsibility on the Government, although section 4 Police Force Ordinance makes the Commissioner of Police responsible for the ‘supreme direction and administration’ of the Force that responsibility is always subject to the ‘orders and control’ of the Chief Executive. The proverbial buck stops with Mrs. Carrie Lam as far as responsibility for the Police Force is concerned.

Funds for the Police Force come from Hong Kong residents and companies who, directly or indirectly, contribute to Government coffers. You can consider some of those payments as insurance against the consequences of a failure of Hong Kong society as a whole to discharge the duty it owes to itself and everyone in it to preserve the peace and maintain public order.

The failure of the Police Force to prevent damage to private property during rioting is, applying the principles outlined in this piece, a collective failure and no innocent third party should suffer for that.

So, the answer to the question ‘Who should pay for damage to property caused by rioters?’ is “We should”.

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About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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