OVERVIEW
Two related offences distinguished principally by the harm caused.
Common assault and assault occasioning actual bodily harm are separate offences under Hong Kong law. Sections 40 and 39 of the Offences against the Person Ordinance (Cap. 212) prescribe their modes of trial and maximum penalties, while the constituent elements continue to be defined by common-law principles applied in Hong Kong.
The expression “common assault” embraces both assault in the strict sense—causing another person to apprehend immediate unlawful violence—and battery, which is the actual application of unlawful force. The section 39 offence requires that an assault or battery also causes actual bodily harm.
STATUTORY PROVISIONS
Sections 39 and 40 of the Offences against the Person Ordinance.
Assault occasioning actual bodily harm
“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.”
Common assault
“Any person who is convicted of a common assault shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 1 year.”
Elements of Common Assault
An assault or battery
An assault is an act by which the accused intentionally or recklessly causes another person to apprehend immediate and unlawful violence. A battery is the intentional or reckless application of unlawful force to another person.
The conduct was unlawful
The threatened or applied force must be unlawful. A lawful justification—such as reasonable force used in lawful self-defence—may prevent this element from being proved.
Intention or recklessness
For assault, the accused must intend, or be reckless as to, causing the other person to apprehend immediate unlawful violence. For battery, the accused must intend, or be reckless as to, the application of unlawful force.
Injury is not required
Common assault does not require proof of bodily injury. The offence may be complete through the threatened violence of an assault or the unlawful force of a battery, even where no legally significant injury follows.
Elements of AOABH
An assault or battery
The prosecution must first prove an assault or battery. Section 39 does not dispense with the ordinary legal requirements of that underlying offence.
Actual bodily harm
The complainant must suffer bodily harm that is more than merely transient or trifling. The harm need not be permanent, but it must interfere with the complainant's health or comfort to the legally required degree. Medical evidence is usually relied upon by the prosecution in a case of AOABH.
Causation
The assault must occasion—that is, cause—the actual bodily harm. The prosecution must prove the required causal connection between the accused's conduct and the injury relied upon.
Mental element
The prosecution must prove the intention or recklessness required for the underlying assault or battery. It does not also have to prove that the accused intended or foresaw the resulting actual bodily harm.
THE DIFFERENCE BETWEEN THE OFFENCES
Actual bodily harm is the principal dividing line.
The same conduct may begin as an assault or battery. A section 39 charge requires the additional proof that the conduct caused actual bodily harm.
| Issue | Common assault | AOABH |
|---|---|---|
| Statutory provision | Section 40 of Cap. 212 | Section 39 of Cap. 212 |
| Conduct required | An assault or battery | An assault or battery that causes actual bodily harm |
| Injury required | No bodily injury is required | Actual bodily harm must be proved |
| State of mind | Intention or recklessness as to the assault or battery | The same underlying intention or recklessness; no separate intention or recklessness as to the actual bodily harm is required |
| Mode of trial in the statutory wording | Triable summarily or upon indictment | Triable upon indictment |
| Maximum statutory imprisonment | One year | Three years |
HOW MCS CAN ASSIST
Advice and representation in assault cases.
MCS can assess the prosecution evidence, the alleged use of force, medical evidence, causation and the state of mind said to support the charge. We can advise on available defences and represent clients from the investigation and interview stage through trial, plea and sentence.