HKSAR v. Fong E Fong Candy

HCMA 108/2020

[2021] HKCFI 2662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 108 OF 2020

(ON APPEAL FROM ESCC 754 OF 2019)

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BETWEEN

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Before:  Hon Toh J in Court

Date of Hearing:  26 August 2021

Date of Judgment:  26 August 2021

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J U D G M E N T

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1.This is an appeal before me on one charge of common assault. The Appellant had been convicted of common assault and fined $HK3,000.

2.The facts I do not have to repeat, it is already very clearly set out in my judgment.  It arose from an altercation in a hospital, where the Appellant was alleged by the prosecution to have grabbed hold of the victim in the case, when he was in the wheelchair.  And all these were captured by CCTV.  Witnesses were called, and eventually the learned Magistrate convicted the Appellant of the charge.    

3.On appeal, many grounds were put forward, and I have dealt with them in my judgment.  This application for a certificate to the Court of Final Appeal for me to certify a point of law, and whether in order to convict of the offence of common assault, whether it is necessary for the prosecution to prove beyond a reasonable doubt a hostile mens rea.

4.The law in Hong Kong is well-settled that the learned Magistrate would have to consider as one of the factors in his findings of fact whether the mens rea included hostility. 

5.It is as Deputy High Court Judge C P Pang (as he then was)  pointed out, in a case submitted by Ms Khubchandani, HKSAR v Shek Kwok Ngai[1]:

“56. Reading the authorities cited by the parties, I do not think that the cases suggest that there is a general proposition that an intentional application of force to an unwilling victim or an intentional threat to cause the unwilling victim to apprehend fear of violence cannot constitute unlawful assault at common law unless it is accompanied by hostility or hostile intent on the part of the assailant towards the victim.”

Deputy High Court Judge C P Pang had referred to various appeal cases in R v Ireland[2], R v Brown[3] and Boughey v The Queen[4] before coming to that conclusion.  

6.So Ms Fong pointed about that it being a common law and offence, and therefore, the Court should refer to various cases in the common law jurisdiction.  Deputy High Court Judge C P Pang did so and he distilled the reasoning behind those cases, and also he referred to the Smith and Hogan’s Criminal Law (14^th ed)  that hostility is not an essential ingredient in the criminal offences of assault and battery.  

7.The whole of the criminal law on common assault is by now mature and well-settled.  So I had indicated to Ms Fong that I am not with her that this is a point of great and general importance that I should certify to the Court of Final Appeal.    

8.I have also suggested to Ms Fong that if she feels that the conviction against her was unfair, in the circumstances, as she alleged that it is a social occasion and that it involves as in all social occasions when meeting friends, it involves touching etc.  That is a matter of the learned Magistrate’s findings of fact and if Ms Fong feels aggrieved by the assault conviction, I told her to directly appeal to the Court of Final Appeal.  It certainly is not a question of law to be certified.

9.So the application is refused.   

Ms Ranee Khubchandani, SPP of the Department of Justice, for the Respondent

The Applicant appeared in person