LAI KAI MAN v. THE QUEEN

CACC000046/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 46 OF 1974

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BETWEEN:
	LAI Kai Man	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J.

Date of Judgment: 9 February 1974

 

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JUDGMENT

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1. The appellant was found guilty of an indecent assault. He has appealed against conviction. The facts are that in the afternoon of the 27th August, 1973, the appellant lifted the skirt of a girl who was said to be about 20 years of age from behind. On the first two occasions she did not take any notice but on the third occasion she turned round and looked at the appellant. The appellant then ran away. All this was witnessed by a police constable on duty. He ran after the man and caught hold of him. The girl was reluctant to go with the police constable to the police station but was eventually persuaded to do so. She told the police constable that it was the appellant who had lifted her skirt. These facts were accepted by the learned magistrate, who has recorded that the policeman was an exceptionally straightforward witness and that he believed his evidence. However, the girl did not give evidence at the trial. The reason I was told was that she could not be found having changed her job.

2. Mr. Ching for the appellant sought to draw a distinction between an 'assault' and a 'battery'. He said that the facts disclosed a battery but not an assault because there was no evidence that the girl had been put in fear or expected that a battery was about to be committed upon her. He said that there cannot be an indecent assault without an assault and that an 'assault' is an act which intentionally causes another to apprehend immediate and unlawful violence. In strictly interpreting the terms of 'assault' and 'battery' it must be conceded that this is so but in criminal law the word 'assault' has come to include a 'battery'. Nowhere in the Protection of Women and Juveniles Ordinance, under which this charge is brought, is a definition of 'assault' given. But it is clear from Archbold, 38th Edition, para. 2634 that the word 'assault' is now used to mean the actual or intended use of unlawful force to another person without that other's consent and certain dicta in Fagin v. The Metropolitan Police Commissioner⁽¹⁾ support that view.

3. In the circumstances I dismiss the appeal against conviction. However, this was a most trivial incident. The appellant is a man of excellent character and is a school teacher. I query the necessity and the appropriateness of bringing a prosecution in a case of this nature when there is no evidence from the complainant, indeed where it is uncertain whether the person assaulted has complained or not. I therefore granted leave to the appellant to appeal out of time against sentence and set aside the sentence of a fine of $250 imposed by the magistrate and discharged the appellant absolutely under section 36 of the Magistrates Ordinance, and I ordered that no conviction was to be recorded.

 

Representation:

C. Ching (D'Almada Remedios & Co.) for Appellant.

Corrigan, S.C.C. for Crown/Respondent.

 

 

(1) (1969) 1 Q.B. 439.