橫看成嶺側成峰，遠近高低各不同。
不識廬山真面目，只緣身在此山中。
不識廬山真面目，只緣身在此山中。
因為讀者的留言，誘發進一步的思考，對自己的裨益，難以言表。在下面張貼這匿名君的教誨，和大家分享。開始有點「談笑有鴻儒，往來無白丁」的感覺，可惜自己這白丁，無緣識荊，不知鴻儒何許人也。
5 意見:
- 匿名提到...
- Assault (or common assault) is committed if one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. 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?
- 2011年4月19日下午3:28
- 標少 提到...
- 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.
- 2011年4月19日下午4:23
- 匿名提到...
- 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. It's a great enjoyment to read your blog and your explanation on the law makes me understand the law much better. Thanks.
- 2011年4月20日上午2:09
- 標少 提到...
- 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. 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.
- 2011年4月20日上午8:57
- 標少 提到...
- Dear Anonymous Commentor 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 apprehensive 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 not 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.
- 2011年4月20日下午3:15
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