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By Foster Yim, Barrister-at-law Liberty Chambers 54 www.hk-lawyer.org •  February 2018 Too Good to Miss? Impossible to Consent? Rethinking the Law Related to Assaults W hen 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. Background Common assault (which includes two separate common law offences of assault and battery: Fagan v. Commissioner of Police of the Metropolis [1969] 1 Q.B. 439; [1968] 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 [1994] 1 A.C. 212 ('Brown') adopted by the Hong Kong Court of Appeal in R v. Yuen Chong & Another [1996] HKEC 204, the Court of First Instance in香港特別行政區 訴 鄧永 義 [2015] CHKEC 607, save for the exceptions listed in Attorney General's Reference (No. 6 of 1980) [1981] 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 [1986] 83 Cr. App. R. 375;

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