HKSAR v. Rehan Mariam Abdalla

HCMA 581/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 581 OF 2012

(ON APPEAL FROM TMCC 463 OF 2012)

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J U D G M E N T

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1.The Appellant is a woman in her mid-forties. She was convicted after trial in the Magistrates’ Court on a charge of common assault, the particulars of which were that on 2 December 2011, inside a Resource Room at Tai Lam Centre for woman, she assaulted a Correctional Services Officer by the name of Fok. The Appellant was in that Centre serving a sentence of 22 years and 6 months’ imprisonment passed on her in 2009 for drug trafficking. For the assault of which she was convicted, the Appellant was sentenced to 3 days’ imprisonment, to be served consecutively to her sentence for drug trafficking. She now appeals against her conviction for common assault.

2.According to Officer Fok, she was standing at an exit/entrance counting the inmates inside a toilet when the Appellant made a dash for her and, using her ie the Appellant’s left shoulder, bumped against her ie Officer Fok’s left shoulder and arm.  The Appellant denied any assault upon, indeed any contact with, Officer Fok.

3.The Magistrate found that the Appellant had “walked at a quick pace and bumped against” Officer Fok and said that the Appellant “either failed to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, nevertheless went on to do it.” That was said at the end of the penultimate paragraph of the Magistrate’s Statement of Findings (headed by the Magistrate as “Reasons for Verdict”).  In the final paragraph of this document, the Magistrate said that he was not satisfied that the Appellant had bumped against Officer Fok “with intention” but was satisfied that the Appellant “acted recklessly and bumped against [Officer Fok’s] left shoulder and arm at the material time.”  The Appellant was, he said, “convicted of the charge on that basis accordingly”.

4.One perfected ground of appeal against conviction has been filed.  It is that the Magistrate “erred in convicting the Appellant by failing to make a finding that the Appellant acted with the requisite mens rea”.

5.Under the heading “Recklessness in assault and battery”, it is stated in Archbold Hong Kong 2013 at p 1248, para 20-164 that:

“Recklessness in common assault … involves foresight of the possibility that the complainant would apprehend the immediate and unlawful application of violence and taking that risk; in battery, it involves foresight of the possibility that the complainant will be subjected to the application of unlawful force, however slight, and taking that risk.”

6.In the present case, the Magistrate made alternative findings.  Only one of them was a finding of foresight.  The other one was not and therefore cannot support the conclusion that the Appellant had been reckless.  That conclusion, which is the basis of the conviction, cannot therefore be supported.  So the conviction was wrong in law, and the appeal is, accordingly, allowed to quash the conviction.

Mr Phillip Ross, instructed by the Legal Aid Department, for the appellant

Mr Raymond Cheng, of the Department of Justice, for the respondent