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HKU_WLA-1 Archbold Hong Kong Criminal Law Pleading Evidence & Practice, 2013 Ed. - Chapter 20: OFFENCES AGAINST THE PERSON Current Document 1

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Archbold Hong Kong Criminal Law Pleading Evidence & Practice, 2013 Ed. Chapter 20: OFFENCES AGAINST THE PERSON V. COMMON ASSAULT AND BATTERY A. Definitions Assault

20-162 The term ” assault” is frequently used to include both an assault and a battery (as to ” battery” see also § 20-189, below). This can lead to confusion between what are two distinct offences: R v Rolfe, 36 Cr App R 4, CCA. Strictly, ”assault” is an independent offence and should be treated as such: v Metropolitan Police Commissioner [1969] 1 QB 439, DC. : ibid. R v Venna [1976] QB 421, 429, CA; Smith v Chief Superintendent Woking Police Station, 76 Cr App R 234, DC; R v Ireland; R v Burstow [1998] AC 147, HL. A threat to use violence at some time in the future is not an assault: there is no immediate threat. Immediacy is however a matter of degree. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the victim. Where the hostile intent is not present, there will be no assault: R v Lamb [1967] 2 QB 981 51; Cr App R 417, CA, §20-103, unless it is proved that the alleged assailant was reckless as to whether the complainant would apprehend immediate and unlawful violence. Battery

20-163 When the term ” assault” is used to include a battery, it may be defined as an act by which a person : R v Kimber, 77 Cr App R 225, 228, CA. When, as is usually the case, the word ” assault” is used to mean a battery it simply means an act by which a person intentionally or recklessly applies unlawful force to the complainant: R v Williams (G), 78 Cr App R 276, 279, CA; DPP v Morgan [1976] AC 182, HL (per Lord Simon at 216, 217); Haystead v DPP 164 JP 396, DC. Provided those ingredients are proved, the offence will have been committed however slight the force: 1 Hawk c 62, s 2. In HKSAR v Leung Chun Wai Sunny (unrep., Magistracy Appeal No 152 of 2002); [2003] HKEC 159), the defendant appealed his conviction, after a trial before a magistrate of assaulting a police officer in the due execution of his duty contrary to section 36(b) of the Offences Against the Person Ordinance (Cap.212). The charges arose from a rally in which about 40 persons took part and at which slogans were shouted through a loudhailer. The magistrate held that a battery was committed by shouting loudly through a loudhailer which was placed very close to the officer’s ear and which caused the officer pain but not bodily injury. In essence the allegation was that the loudhailer was used as a medium against the police officer named in the charge. Though the appeal was allowed for other reasons, Tong J agreed with the magistrate that placing a loudhailer close to the officer ’s ear and deliberately shouting loudly causing the officer to experience temporary ear pain was a battery. The use of the loudhailer was hostile to the officer and the immediate consequence of that hostile act was the temporary pain and discomfort the officer suffered. Recklessness in assault and battery

20-164 The test of recklessness in assault and battery is that propounded in CCA: R v Spratt, 91 Cr App R 362, CA; and see

[1957] 2 QB 396; [1992] 1 AC 699, HL.

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. For an example of a reckless bite during a struggle with a police officer, see D v DPP [2005] Crim LR 963, DC. Voluntary intoxication

20-165 Assault and battery being crimes of irrelevant. The same principle applies to the voluntary taking of drugs: DPP v HL. (See §§16-72 et seq, above.)

and is [1977] AC 443,

Mistake of fact

20-166 If the defendant may have been labouring under a mistake as to the facts, he must be judged according to his : R v Kimber, above; R v Williams (G), above; R v Beckford [1988] AC 130, PC (see §§16-9 et seq, above). In R v Scarlett, 98 Cr App R 290, CA, there is a suggestion in the judgment (at 295-296) that not only is the accused entitled to be acquitted if he used no more force than would be reasonable in the circumstances as he believed them to be, but he would also be so entitled if he used no more force than he himself genuinely thought necessary in the circumstances as he believed them to be, even though excessive on an objective assessment. is that it is . Scarlett was considered in R [1996] 2 Cr App R 128, CA, but the customary view was upheld. One type of mistake will not avail a defendant, however, even if genuinely held and, it seems, even if held on reasonable grounds. [1971] 1 QB 428; 54 Cr App R 451, CA. The mistake here is not purely of fact; it is one of It is the ” They’re not allowed to do that” mistake. In R v Ball ( SL), 90 Cr App R 378, the Court of Appeal, relying on Fennell, held, strictly obiter, that an honest but mistaken belief that the police were using too much force in effecting an arrest is no defence to a charge of assault; nor, it was said, would an honest belief that the person being arrested was ”in danger” be a defence, even if he was in fact in danger, provided no more force was being used than was reasonably necessary. Here, again, the mistake may be one of mixed law and fact: the defendant may be under no mistake about how much force is in fact being used, but he may think that the police are not entitled to use such force. Such a belief clearly will not and should not avail him. There may, however, be a genuine mistake of fact as to the amount of force being used. A person may genuinely believe that an amount of force is being used which would clearly be unjustifiable, eg because it would be life-threatening. What is he to do? According to Ball, he clearly intervenes at his peril. On general principle, he should be judged on the basis of his mistaken belief. Mistake of fact induced by voluntary intoxication

20-167 A defendant is [1987] QB 995; CA. See also DPP v Lipman [1970] 1 QB 152; 53 Cr App R 600, CA above, §16-13.

[1977] AC 443, HL, and R v

As to mistake of fact generally, see §§16-9 et seq, above; as to the effect of drink and drugs generally, see § §16-72 et seq, above. Hostile intent

20-168 As to the requirement of a ”hostile intent”, see also Collins v Wilcock, 79 Cr App R 229, DC. For a helpful review of the principles when applied in the context of a civil claim for trespass, see Wilson v Pringle [1986] 2 All ER 440, CA (Civ. Div.). Examples - assault

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20-169 Striking at a person with a stick or a fist is an assault, even though the person striking misses his aim; drawing a weapon such as a knife or throwing a bottle or glass with intent to wound or strike, will constitute an assault; so will any other like act indicating an intention to use violence against the person of another: 1 Hawk c 62, section 1; Martin v Shoppee (1837) 3 C & P 373. Inciting a dog to bite a horse or striking a horse, causing the rider to fall, would be assaults: Dodwell v Burford (1669) 1 Mod 24. An act may cause grievous harm or other injury, yet not constitute an assault. Causing a deleterious drug to be taken by another is not an assault: R v Walkden (1845) 1 Cox 282. An unlawful imprisonment is an assault: see Hunter v Johnson (1884) 13 QBD 225 (detention of a child after school hours by the master, without lawful authority); see also R v Linsberg and Leies, 69 JP 107. As to the common law offence of false imprisonment, see §20-350, below. Generally there will be some gesture on the part of the defendant to cause the victim to apprehend immediate violence. The question then arises whether words alone are enough to constitute an assault without any gesture? In Meade and Belt 1 (1823) 1 Lwe CC 184, it was stated that words or singing would not be equivalent to an assault. However, in R v Wilson [1955] 1 All ER 744, it was stated that a shout of ” Get the knives” would be an assault. In Ansell v Tomas [1974] Crim L R 31, a civil case, a threat to forcibly eject a person from a meeting if they did not leave voluntarily was held to be an assault. In Hong Kong, R v Lam Leung-ping (unrep., Crim App 579 of 1977), it was held that mere words cannot amount to assault. However, in R v Ireland; R v Burstow [1998] AC 147 (HL), silent telephone calls causing psychiatric injury were held to be an assault. The suggestion that words could never suffice for an assault was considered ” unrealistic and indefensible” (per Lord Steyn). The question in each case is whether the defendant intentionally - or recklessly - caused the victim to apprehend immediate personal violence. There may be practical difficulties over identifying the caller, but here again the increased use of caller number displays may assist. Examples - battery

20-170 Where an assault involves a battery, it is immaterial whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by his actions. For an obiter expression of opinion that the force may be indirect, see Haystead v DPP, above, §20-189. The actus reus and the mens rea must be present at the same time, but it is not necessary that the mens rea should be present at the inception of the actus reus; it may be superimposed upon it. Once, however, an act has been completed without mens rea, the subsequent inception of mens rea cannot convert it into an assault: [1969] 1 QB 439 52; Cr App R 700, DC (wheel of a car driven onto, and allowed to remain on, a person’s foot; this was held to be an assault because although the act was initially unintentional, it was a ). In relation to the offence of ”battery”, the fundamental principle is that every person’s body is inviolate. The effect is that everybody is protected not only against physical injury but against any form of physical molestation: Collins v Wilcock, 79 Cr App R 229, DC. There are exceptions, for example, the correction of children, the lawful exercise of the power of arrest, the use of reasonable force when the necessity to act in self-defence arises. Further, a broader exception exists which caters for the exigencies of everyday life such as jostling in crowded places and touching a person for the purpose of engaging his attention. The approach to the facts of any particular case where there is an element of persistence in the touching should not be unreal. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct: ibid. Where the person causing the physical contact is a police officer who is not lawfully exercising a power (for example a power of arrest or a power to stop and search), the officer has no greater rights than ordinary citizens have; but a police officer who took the arm of a drunken and abusive woman to steady her as she came down some steep steps did not thereby assault her, as he had been acting within the bound of what were ”generally acceptable standards of conduct ”: McMillan v CPS, 172 JP 485, DC. See further as to this, §§20-294 et seq, below....