Ho Yin, a small and weak boy, was often bullied by his classmate, Chi Chung and his peers. Ho Yin became sick of being bullied and tried to defend himself, but the method he used was wrong.

1. Does it constitute assault if there are no fists and kicks?

   Intentionally kicking the football at Ho Yin is an act of hostility towards him. When the football hits him this is a battery which is one form of assault. Chi Chung and his friends have intentionally caused the football to hit Ho Yin. When the football hits Ho Yin this is the application of unlawful force. Assuming Ho Yin does not suffer any injury Chi Chung and his friends have committed the offence of “common assault” contrary to Section 40 of the Offences Against the Person Ordinance (Chapter 212). If Ho Yin suffers any injury Chi Chung and his friends have committed the offence of “assault occasioning actual bodily harm“ contrary to Section 39 of the same Ordinance. Actual bodily harm need not be serious or permanent. If the football, for example, hits Ho Yin’s face and leaves a visible bruise or makes his nose bleed, that would be actual bodily harm.

   Consent can be a defence to an assault. The consent must however be freely given. Chi Chung and his peers have ordered Ho Yin to come to them so they could hit his head. Ho Yin has submitted to their orders because he is frightened of them. Submission is not consent. When Chi Chung hit Ho Yin’s head he has committed the offence of “common assault”. If his blows cause Ho Yin injury he has committed “assault occasioning actual bodily harm”.

   When Chi Chung and his friends take off Ho Yin’s clothes this is again an assault. It is the application of unlawful force. It might be that they commit indecent assault. An indecent assault is an assault in circumstances of indecency. If Ho Yin’s clothes are totally removed leaving him naked or with his private parts exposed this could amount to indecent assault.

   Indecent assault is an offence contrary to Section 122 of the Crimes Ordinance (Chapter 200).

   There must first of all be an assault or battery. The next step is to consider whether that assault or battery is aggravated by indecency. An indecent assault therefore is an assault accompanied by circumstances of indecency. Indecency is something overtly sexual, offensive to normal standards of modesty and privacy. The test of indecency is objective; the court applies the standards of right thinking members of society.

   The maximum penalty for indecent assault is 10 years’ imprisonment.

   By putting Ho Yin into the locker and locking him inside, Chi Chung and his peers commit the offence of false imprisonment. They have no lawful justification to put Ho Yin in the locker and he has not consented to being put in the locker. Ho Yin cannot leave the locker unless and until someone releases him. He is totally confined. Though Chi Chung and his peers may see this as some kind of joke, the reality is that Ho Yin has been falsely imprisoned. He cannot leave the place where he is.

   False imprisonment is an offence at common law. The maximum penalty is 7 years’ imprisonment.

2. If the case was tried in the court, and Chi Chung defended himself by saying that Ho Yin voluntarily came over for Chi Chung to hit him. Would the court accept such a defence?

   No. Ho Yin only came to Chi Chung because of the history of bullying. Whilst consent can be a defence to assault, the consent must be a true and informed consent. Ho Ying does not consent, rather he submits. Submission and consent are very different situations.

3. What crime has Ho Yin committed?

   Ho Yin is in possession of an article within the definition of an offensive weapon. It is suitable for causing injury to the person.

   The possible offences are “possession of an offensive weapon in a public place” contrary to Section 33 of the Public Order Ordinance (Chapter 245) or “possession of an offensive weapon with intent to use it for an unlawful purpose” contrary to Section 17 of the Summary Offences Ordinance (Chapter 228).

4. Ho Yin explained that the fruit knife he brought was for self-defence only. He wanted to use the knife to scare those who might assault him, with no intention to use it to harm anyone. Is that a valid defence?

   Section 33 of the Public Order Ordinance (Chapter 245) makes possession of an offensive weapon an offence unless there is lawful authority or reasonable excuse for its possession. Section 17 of the Summary Offences Ordinance (Chapter 228) refers to intent to use the offensive weapon for an unlawful purpose.

   Ho Yin’s explanation would probably not be accepted as justification for possession of the knife. He is not under immediate threat and is carrying the knife in case he feels it is necessary to use it, as he says, to scare anyone who might assault him. This is speculation and would not amount to lawful authority or reasonable excuse for carrying the knife.

   Instead of bringing a knife for protecting himself, Ho Yin should tell his parents, school teachers, or social workers that he was being bullied by Chi Chung and his peers.

5. If Ho Yin hurt someone with the fruit knife, what crime has he committed?

   Depending upon the nature of harm inflicted and Ho Yin’s intention when he used the knife, the possible offences are “assault occasioning actual bodily harm” contrary to Section 39 of the Offences Against the Person Ordinance (Chapter 212), “wounding or inflicting grievous bodily harm” or “wounding or causing grievous bodily harm with intent” contrary to Sections 19 and 17 of the same Ordinance.