When a client is being charged with common assault and there is a binding over option offered, is it simply too good to miss? It is also trite law that any other non-fatal, non-sexual offences against the person upper in the hierarchy—such as assault occasioning actual bodily harm; wounding or inflicting grievous bodily harm—save for some established exceptions—are impossible to rely on consent as a defence (an imprecise way to put it for convenient sake). But, is it? In this short note, this author is going to argue otherwise, relying on the jurisprudential as well as socio-cultural developments in the past two decades.
Common assault (which includes two separate common law offences of assault and battery: Fagan v. Commissioner of Police of the Metropolis  1 Q.B. 439;  3 All ER 422), assault occasioning actual bodily harm (‘AOABH’), and wounding or inflicting grievous bodily harm (’GBH’) are punishable under ss. 40, 39, 19 of the Offences Against the Person Ordinance (’OAPO’), Cap. 212 respectively, deriving from ss. 47 and 20 of the Offences Against the Person Act 1861 (’OAPA’), UK. It is an essential element for the prosecution to prove the absence of consent in a charge of common assault but not for cases of AOABH and wounding or GBH: R v. Brown  1 A.C. 212 (‘Brown’) adopted by the Hong Kong Court of Appeal in R v. Yuen Chong & Another  HKEC 204, the Court of First Instance in 香港特別行政區 訴 鄧永義  CHKEC 607, save for the exceptions listed in Attorney General’s Reference (No. 6 of 1980) QB 715; 73 Cr App R 63, ie ”properly conducted lawful games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc (at 719, 66)”. The list was further expanded to include: horseplay by R v. Jones  83 Cr. App. R. 375;  Crim. L.R. 123; body adornment (knife tattooing) by R v. Wilson  2 Cr App R 241 (‘Wilson’); and hairdressing, as argued by D.C. Ormerod in ‘Assault occasioning actual bodily harm: whether cutting off hair amounting to actual bodily harm’, Criminal Law Review (2006) 6, 528-530, based on DPP v. Smith  EWHC 94 (Admin);  1 W.L.R. 1571 (DC).
Shouldn’t the position be changed?
Now, 24 years from the judgment of Brown, public mores have changed so as the corresponding legislations in other common law jurisdictions; shouldn’t it be the right time for Hong Kong Courts and/or the Law Reform Commission to revisit the issues?
In a case this author handled, one of the charges that the defendant faced was AOABH. The Defendant had pinched his semi-cohabited girlfriend during a row leaving bruises on her limbs. In his written closing, among other things, writer submitted that consent should be afforded to the defendant adopting the New Zealand (R v. Lee  22 CRNZ 568 (CA (NZ)) (‘Lee’) and Australia approach—firstly as the defendant could have been charged with common assault on the same set of facts - the prosecution’s choice of offence had literally deprived one’s available defence which is absurd in a way; secondly, the New Zealand and Australia approach has earned supports from eminent scholars, such as Julia Tolmie (see her ‘Consent to harmful assaults: the case for moving away from category based decision making’, Criminal Law Review (2012) 9, 656-671)—alternatively, domestic violence without an aggravated nature should be counted as one of those Attorney General’s Reference (No.6 of 1980) exceptions.
In Professor Tolmie’s article, she argues that the level of harm which affords a defence of consent was set too low in Brown whereas in Australia and New Zealand, such was set to the level of GBH. She criticises Brown’s category based approach for being ‘problematic’ as it not only downplayed the role of freewill and victim vulnerability as the relevant considerations but also considered harms in abstract. It is arbitrary to categorise one’s activity as lawful or unlawful, ”loosely based on assessments about what is ‘normal’ behaviour and what is not”. As a result, ”criminality will depend on the somewhat arbitrary assignment of the particular instance of activity to one category or the other.” But the reality is—it is always hard to tell. For example, if both Mr.Wilson and his wife were sexually aroused during the body adornment, how would it be counted? “Sado-masochistic sex” or “body adornment”? The case result of Wilson might be entirely different! Hence, Professor Tolmie is of the view that the three-tiers of scrutiny approach in Lee by the New Zealand Court of Appeal is to be preferred:
First ”where the accused intends or is reckless as to actual bodily harm, the consent of the victim is a defence” save for the exception of fighting;
Second, “where grievous bodily harm is intended or risked, public policy factors might require the judge to withdraw the defence of consent from the jury” after a weighting exercise of different competing values—such as social utility of an activity vs the level of harm potentially caused; personal autonomy vs vulnerability of the victim—yet the presumption is in favour of consent to be available.
Third, ”where death is intended or subjectively risked then no defence of consent is available and there are no exceptions to this rule.”
Back to the case mentioned, the learned Magistrate found that for the law as it is in Hong Kong, Brown is to be followed. Yet, he did not rule out the possibility of including domestic violence without an aggravated nature as one of the “etc” provided in Attorney General’s Reference (No.6 of 1980); only the facts of the case—that the relationship between the defendant and the victim had only lasted for around six months—render the analysis of such possibility unnecessary.
This is somewhat predictable! Perhaps, like the suggestion made by a circuit judge in south-eastern circuit, Brown has ”bound the hands of trial judges even in cases of relatively light injury”; “[t]rial judges must be submissive to decisions of the House of Lords. They cannot depart from decisions of the highest appellate court because time has moved on, or because new views have found acceptance, even in the Court of Appeal” (Peter Murphy, ‘Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown‘, Criminal Law Review (2011), 10, 758-765). But, once again, is it?
Mr. Murphy, the founding editor-in-chief of Blackstone’s Criminal Practice, Oxford: OUP, thinks that ”there might be a way around it” (ibid) as the sado-masochism activity concerned in Brown is more an issue of sex than that of violence. Further, “[t]ime and public mores have moved on since 1994. Indeed, even at the time of Brown, a different view was canvassed” (ibid); Lord Slynn in his dissenting judgment in Brown, at 280:
”I do not accept that it is right to take common assault as the sole category of assaults to which consent can be a defence and to deny in respect of all other injuries. In the first place the range of injuries which fall within actual bodily harm is wide…Further the same is true of wounding where the test is whether the skin is broken. I can see no significant reasons for refusing consent as a defence for the lesser of the cases of actual bodily harm and wounding.
Grievous bodily harm I accept to be different by analogy with and as an extension of the old cases on maiming. Accordingly, I accept that other than for cases of grievous bodily harm or death, consent can be a defence.” [Note: The above dissenting view of Lord Slynn is now widely accepted; many ideas of which have been incorporated into the present law reform of England (see: Consultation Paper No.134, Consent and Offences Against the Person, and Report No. 218, Offences Against the Person and General Principles). Also, a scoping exercise of the OAPA (antecedent of our OAPO)—aiming to achieve a hierarchy of offences correspondence with the harm required to be intended or foreseen matches the harm done—has been recommended by the Law Commission in 2015, in which s. 20 and s. 47 offences, common law assault and battery would be renamed and re-categorised together with a new offence of ‘aggravated assault’ (see: Law Commission, Reform of Offences against the Person, Law Com. No. 361).]
And in Wilson, a case concerning a husband branded his initials on his wife’s buttocks with a hot knife albeit consented and instigated by the latter, Russell L.J. said at 127 & 128:
”There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery…
For our part, we cannot detect any logical difference between what the appellant did and what might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else…
Does public policy or the public interest demand that the appellant’s activity should be visited by the sanctions of the criminal law? The majority view in Brown clearly took the view that such considerations were relevant. If that is so, then we are firmly of the opinion that it is not in the public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution….”If the view of Murphy J is right—that “the Court of Appeal has hinted strongly that Brown should no longer be followed slavishly” (Peter Murphy, ibid), consent would have a new role to play in non-fatal, non-sexual offences against the person save for GBH charges. And Hong Kong Courts, on issues of consent in non-sexually related assaults, should follow Wilson (decided prior to 1 July 1997) instead of Brown.
Alternatively, it is submitted that domestic violence without an aggravated nature should be counted as one of those Attorney General’s Reference (No.6 of 1980) exceptions. First, “[c]onsensual activity between husband and wife, in the privacy of the matrimonial home, is not…normally a proper matter for criminal investigation, let alone criminal prosecution….”; second, it is not uncommon, especially in matrimonial proceedings, for a party to use the allegation of being assaulted to achieve his/her ulterior purposes—for example, circumvent the normal procedure of divorce petition by relying on either s. 3(1)(a) or (b) of the Separation and Maintenance Orders Ordinance, Cap. 16 or to use the other party’s admitted brief facts when bound over (too good to miss even if totally innocent taking in the risk of litigation uncertainties) in his/her divorce proceedings’ affirmation. Affording consent as a defence of AOABH in domestic violence cases could help alleviate the kind of injustice depicted above.
”After 1 July 1997, in the new constitutional order, it is of the greatest importance that the courts in Hong Kong should continue to derive assistance from overseas jurisprudence.”: Solicitor (24/07) v Law Society of Hong Kong  11 HKCFAR 117. Now, 24 years after the decision of Brown, legislations and/or case law in Australia and New Zealand have all assigned an expanded application of consent in the context of non-fatal, non-sexual assaults. It should be the right time for Hong Kong Courts to revisit the issues. Surely, “[a]t the end of the day, the courts in Hong Kong must decide for themselves what is appropriate for our own jurisdiction” (ibid). In the meantime, for we practitioners, it should also be the right time to rethink the questions: what are really too good to miss? And what offences are really impossible to consent?