這標題實在使人倒胃，事緣是大女兒看了蘋果日報昨日的一則新聞，看儍了眼，忍不住和我分享。新聞這樣講：
衞生署控煙辦職員首次遭煙民擲糞洩忿。控煙辦昨日到紅磡一間桌球會執勤，一名違例吸煙男子懷疑失禁，當場手執糞便向控煙辦職員施襲，至少一人「中招」，滿身屎臭，警方已拘捕涉案男子。
這是一樁匪夷所思的事，被捕男子擲糞擊中職員，控罪會是普通襲擊罪(common assault)，如果沒有擊中，告他甚麼控罪呢？理論上可以是意圖普通襲擊罪(attempted common assautl)，實際上一定不會這樣檢控。讓我决定，我會控以香港法例第228章簡易程序治罪條例第4條在公眾地方犯的妨擾罪。法例條文如下
任何人無合法權限或解釋而─
(1) 將任何腐肉、污垢、泥土、稻草、糞便，或其他髒物、廢料、發出惡臭或令人厭惡的物品拋擲或放置在任何公眾地方、政府財產(獲公職人員同意者除外)或私人財產(獲該私人財產的擁有人及佔用人(如有)的同意者除外)上...
抽煙違例的一樁小事，犯不着又演變成刑事控罪。
我以前寫過《潑尿的聯想》，這次是《擲糞》，都是違法的事。至於放屁，大家可以放心，一定不會犯法。錢鍾書喜歡用屎尿屁跟女兒錢媛開玩笑，這一點我跟他很相似。可惜，這是唯一相似之處。
Assault (or common assault) is committed if one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence.
回覆刪除The offence was committed when the officer apprehended immediate and unlawful personal violence after seeing what D did? It seems to me that whether he had been hit or not is not relevant?
Theoretically I agree with what the anonymous commentor said. In pracitice, I am afraid I have not seen any deft charged for a mere apprehension scenario. It can be a matter of de minimis non curat lex. I am grateful for the enlightenment. I do not have a law book with me not to mention an Archbold. What I wrote came from my very limited knowledge and memory of the law. If my memory fails me then I fail the law too.
回覆刪除Enlightenment is too strong a word to be used. :) In HKSAR v Oh Eugene Jae-Hoon (unrep, High Court Magistracy Appeal No 369 of 2002), D threw 2 stones in the direction of a worker. D had sworn at the worker immediately before throwing the stones. D was convicted of assault, after a trial before a magistrate, on the basis that the worker, although not struck by the stones, was put in fear of immediate violence. The appellate court upheld the magistrate's decision because the evidence showed that D had shown a hostile intent towards the worker by swearing at her, that D appreciated that the worker might be in danger if he threw stones as he realized the stones might hit her and nonetheless went on to throw them.
回覆刪除It's a great enjoyment to read your blog and your explanation on the law makes me understand the law much better. Thanks.
Thank you very much Anonymous Fellow. I did not really attempt to explain the law in my blog. The intended readers are Sydneysiders migrated from HK who were CU graduates. There are some friends I have made here too. I just want to keep them abreast of what happens in HK and share my nostalgic feelings of the motherland.
回覆刪除Thank you for reading the blog. You have just overstated my ability and made me blush. There is little left from my memory of the law and forgive my naivety.
Dear Anonymous Commentor
回覆刪除I have read HKSAR v Oh Eugene Jae-Hoon, a case I was not aware of before. I should say it is distinguishable from the present event. Throwing two cricket size stones is not comparable to throwing of faeces. The former coupled with verbal abuse is obviously viciously apprehensive. The latter is not apprehesive though despicably disgusting. Striking or otherwise does make a difference here. I believe the doctrine of de minimis non curat lex applies here. In the appeal you referred to, PW3 poked her finger on the face of the appellant, a hostile battery occurred. She was not charged because of its trifling nature. Likewise, if a burglar breaks into a house with intent to fiddle things therein, the turning on a light inside the house will not result in a charge of abstracting electricity though in theory such an offence is committed.
In another scenario if in a heated argument, a man attempts to strike a blow on another man but the act does make out because rationality prevails, even though the other man is apprehended, do you think the blow striker will be charged with Common Assault? That is why I would distinguish the instant case from the appeal case.
I must admit I was obviously wrong to say Attempted Common Assault.
In any event, I learn a lot from what you throw out into the arena. I am most grateful.
咸豐年前在庭上見過一條 Charge - “Throwing Dung in a Public Place”，但我沒有留意章節。
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