Chung Yiu 20081257 CCLW 4005

1a) Considering there are two victims suffering different levels of bodily harm, there are two
possible charges against Richard.

To determine which charge is the most appropriate charge, the issue lies in whether the
bodily harm or wounding fall into the scope of ‘actual’ or ‘grievous’; and whether Richard
intentionally to inflict such bodily harm or wounding. If he intended to do so, is it a serious
act justifying a charge of wounding s171, or s192 sufficiently reflect the criminality. Under
definition of the law, ‘wound’ refers to the break of the continuity of whole skin, ‘grievous
bodily harm’ (GBH) means serious bodily harm which the common example could be bone
fracture or involving stitches.

The actus reus look into conduct, circumstances, consequence and causation. Regarding
Richard’s action imposed on Toby, the incident started when Toby jumped the queue and
Richard shouted loudly at her causing her frightening and later sustained psychiatric injury.
Richard also pushed Toby during the fight between himself and David, Toby’s boyfriend,
causing her lip’s bleeding and sustained leg bruises. The conduct implied by law was the
active type where the offence cannot be omitted and, in this case, Richard’s conduct was
active and bad. Under either wounding s19 or s393, there is no specific circumstances
required and both of the crimes are result-based where the wounding caused on Toby can be
seen crystal clearly. Toby would not have been injured but for Richard’s pushing. Despite the
implement that causing Toby’s lip bleeding, by merely look into the fact that Richard did
push Toby and cause her leg bruises and lip bleeding, it entitled to the scope of ‘actual bodily
harm’ no matter the harm is referring to physical or mental under the law. Therefore, actus

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Offence against the person ordinances s17.
Any person who—
(a)unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any
person; or
(b)shoots at any person; or
(c)by drawing a trigger or in any other manner, attempts to discharge any kind of loaded arms at any person,
with intent in any of such cases to maim, disfigure, or disable any person, or to do some other grievous bodily
harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall
be guilty of an offence triable upon indictment, and shall be liable to imprisonment for life.
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Offence against the person ordinances s19.
Any person who unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other
person, either with or without any weapon or instrument, shall be guilty of an offence triable upon indictment,
and shall be liable to imprisonment for 3 years.
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Offence against the person ordinances s39.
Any person who is convicted of an assault occasioning actual bodily harm shall be guilty of an offence triable
upon indictment, and shall be liable to imprisonment for 3 years.
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reus regarding action against Toby established through the above evaluation. On the other
hand, regarding Richard’s action imposed on David, the incident happened when David tried
to protect his girlfriend and go against Richard, the fact that David aimed a missed blow to
Richard first will not break the chain of causation which Richard did use a chair to hit
David’s head and causing his right eye permanently blind. No matter why the glasses would
get into David’s eye, the wounds was made when Richard hit David with a chair, and it
shows the causation clearly. The wounds on David is a grievous one that permanently blind
could affect David’s daily life and the influence is in long-term that could never be cured.
Therefore, the wounds of David fall into the scope of GBH where the actus reus established
regarding David’s injury.

Moving onto the mens rea analysis, the incident took place when Toby jumped queue in front
of Richard and Richard shouted loudly at her in order to make her queue. The intention here
seems to be a harmless one where Richard’s act was due to his hot temper when he was angry
about being jumped queue. As for later pushing Toby, Richard was trying to deal with
David’s missed attack and wished Toby not to interfere them so he pushed her away and not
exactly intended to causing harm on her. The action of pushing her was not with intention to
harming her but recklessly pushed her to somewhere the implement nearby cause her lip’s
bleeding. With reference to HKSAR v. TEE ZHI-YI, BRANDON [2011]4, the defendant
violently assaulted his girlfriend and the court held that he is convicted of Assault
occasioning actual bodily harm (AOABH) since the injuries are recovered and such injuries
were not incurable that not fall into the scope of ‘grievous’. On the grounds that Richard was
assaulting Toby occasioning actual bodily harm, wounding s39 is applicable to such situation
that the criminality would be sufficiently reflected. Meanwhile, the incident between Richard
and David involve much complexity and the context shall be look through. Once again, the
difference between wounding s17 and s19 lies in whether there is malicious intent. If the
accused person has the intention to inflict GBH or to wound, is it a so serious act justifying
the charge of s17 or s19 sufficiently reflect the criminality. The fact that David was the first
one using physical action and go against Richard that he violently aimed a blow at Richard’s
head but it was missed. The action Richard do next was grabbing a chair nearby and hit
David back which seemingly he was self-defending. However, whether did Richard foresee
the physical harm imposed on David after he grab the chair and was hitting him back, is

4
HKSAR v. TEE ZHI-YI, BRANDON [2011] HKDC 1600; DCCC 838/2011
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somehow a key factor for the first question mentioned above. From a third-person sight, that
might be Toby, using a chair to hit a person’s head could cause serious harm such as
concussion and at least bleeding. Richard should have considered this consequence. In order
to prove that Richard actually realizes the risk himself, the subjective test laid down in R v
Cunningham should be applied. ‘Malice at common law meant: (i) an actual intention to do
the particular kind of harm; or (ii) recklessness as to whether such harm would occur or not’5.
The court would find a person Cunningham reckless if his mind was blocked by extreme
anger or closed his mind to the risk. As Richard was angry about being jumped queue and
someone aim a blow at him, he was blocked by extreme anger and should be found as
Cunningham reckless. Meanwhile, with reference to Caldwell case, as Richard was hitting
David with a chair where the broken glasses got into David’s eye causing permanently blind,
Richard would be liable for damaging David’s glasses with basis upon Caldwell recklessness,
but would not be guilty of malicious wounding for blinding David’s eye with the same act
because a person could not be reckless if he foresee the risk ready to impose on victim.
Therefore, despite the damage caused on other object, Richard’s act was not fall into the
scope of ‘Malicious’ and s19 would be sufficiently applicable to justify his criminality. Even
though it is known that Richard was not maliciously inflict GBH on David, it is worth to
discuss whether if Richard is malicious, is it a so serious act justifying a charge of wounding
s17. In light of the context of law, Richard seems not hitting David ‘with intent…to…
disable…’ him but to respond his missed blow at Richard’s head. Even the intention in
grabbing a chair to hit David’s head is malicious, intention of such action was not originally
disabling David. Therefore, on the grounds of Richard not maliciously inflict GBH on David
and it was not a so serious act, wounding s19 is applicable and sufficiently reflect Richard’s
criminality.

Considering the appropriate jurisdiction, both the context of s39 and s19 stated that this
offence is ‘…triable upon indictment…’ where the convicted person ‘…shall be liable to
imprisonment for 3 years’. An indictable offence is a serious offence that should be try before
a judge and jury. Most of the indictable offences can be tries in magistrate court exercising
their summary jurisdiction. Since s39 and wounding s19 is not included in the offence listed
in Part 1 of Second Schedule to Magistrate Ordinance, this offence shall be tried in
permanent Magistrate Court or District Court.

5
Ma, Fred S.N. (2014). Course Manual. HKU SPACE College of Humanities and Law.
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If this offence is being indictable tried in District Court, upon conviction the highest sentence
of the accused is imprisonment for 3 years. If it tired in Magistrate Court summarily, upon
conviction the highest sentence of the accused is imprisonment for 2 years. To determine
which court to try, the issue is the seriousness of the offence committed. Considering the
GBH inflicted and wound caused on Toby and David, the act could be considered as serious
as David suffered from permanently blind and Toby suffered from psychiatric injury that
both ‘harms’ are difficult to be cured or even incurable. Therefore, this case should be tries in
District Court with maximum sentence imprisonment for 3 years.
To be concluded, s39 AOABH regarding Toby’s injuries and wounding s19 regarding
David’s injuries are the appropriate charges against Richard’s act on Toby and David and
both charges should be tried in District Court.

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1b) This is a bail application regarding charges s39 and s19 of Cap212 against Richard. This
application will be divided into three parts to provide grounds for approving bail in Court.

To commence with the defendant’s background, Richard is 50-year-old low-educated man

working in a garment factory since he graduated from secondary school. His family is poor to
support his tuition fee for college and rely on him to earn livings. He is divorced with his
loved wife who brought his two daughters who are studying in Mainland. Richard earn
HK$9000 per month where one third of it will be paying to his ex-wife and two daughters as
alimony and HK$2000 as rent of public housing in Kwai Chung Tsuen. The defendant is now
living and taking care of his 70-year-old mother who has no other family member but only
Richard. His mother relies on him heavily as she is physically disabled.

Richard is very regret to his act causing two youngster injured and he is willing to surrender
his travel documents, report to a police station on time or obey to a curfew if the court see it
is necessary. The defendant is a good man who never has never be convicted in his 50-year-
life that the possibility of him abscond is zero not to mention that he will commit other crime
during the bail period.

Considering the case itself, the seriousness of both victim’s injuries is in between which both
of them are still able to present in court. It is understandable that the evidence prosecutor has
is probably strong. However, the defendant understand he has commit a quite serious crime
that he would never act like this again.

After the arrest, PC12658 asked the defendant to make a statement so that he could be
released but he refused and remained silent. PC12658 decided not to grant police bail all
because the defendant was exercising his right to remain silent, but not on grounds of such
offence is serious and he reasonably believes Richard should be detained.

Therefore, it is hoped that the bail will be granted so the during the long period of prosecution
process, Richard could still able to take care of his physically-disabled mother and earn
livings for his divorced wife and two daughters.

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Reference

HKSAR v. TEE ZHI-YI, BRANDON [2011] HKDC 1600; DCCC 838/2011

Ma, Fred S.N. (2014). Course Manual. HKU SPACE College of Humanities and Law.

Offence against the person ordinances (cap 212). s17.

Offence against the person ordinances (cap 212). s19.

Offence against the person ordinances (cap 212). s39.

Total word count (including footnote): 1954

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