5. Affray

5. Affray

An affray is a common law offence involving a violent disturbance of the peace, by way of unlawful fighting, violence or display of force, perpetrated by one or more persons, in circumstances that one would reasonably expect a bystander of reasonable firmness and courage to be terrified. Such bystanders are often present and may include an innocent or intended victim of the affray, but this need not be the case.

Affray is best exemplified by fights between two individuals or, as is often the case, groups, which have the effect of terrifying one or more bystanders.

A person convicted of affray is liable to imprisonment of 7 years on indictment and a fine pursuant to section 101I(1) of the Criminal Procedure Ordinance (Cap. 221). The sentence is dependent on the facts of each case.

“Breach of the Peace”

An affray will disturb or breach the peace where it has the effect of instilling in a person or persons nearby or involved in it, a reasonable fear of being harmed. There must be a real risk, and not merely a possibility, of harm. (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837).

Accordingly, it follows that a disturbance of the peace may be achieved without any violence or threats of violence. As affrays commonly involve gangs, it is sufficient that a defendant’s conduct implies, as a natural consequence, violence by a third party such as a member of the defendant’s group (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, [79])

It is also sufficient for the conduct in question to merely involve a display of force without actual violence, such as brandishing an offensive weapon.

“The element of terror”

It is an essential element of this offence for the affray to be calculated to terrify an ordinarily and reasonably firm person. That a person might feel frightened or intimidated does not meet the required threshold.