Whistling loudly close to a person is form of assault, court hears

High energy sound can impact another person, prosecution tells the court, which will decide if protester who whistled at police broke the law

PUBLISHED : Saturday, 29 December, 2012, 12:00am
UPDATED : Saturday, 29 December, 2012, 4:48am

Whistling loudly at police officers is a form of assault because it involves the impact of sound energy, the Eastern Court was told yesterday.

Prosecutor Jonathan Man Tak-ho said whistling constituted assault even if there was no physical contact because people should be protected from any form of physical molestation.

Man was speaking during the trial of construction worker Ki Chun-kei, 50, who has pleaded not guilty to five charges of assaulting five auxiliary police officers by whistling at them through his fingers during the annual July 1 protest march this year.

Man referred to a 2003 precedent in which protester Sunny Leung Chun-wai was found guilty of assault and jailed for two months for shouting through a loudhailer into a police officer's ears.

Sound can become an unlawful use of force if it is used intentionally or recklessly without the implied consent of victims, Man said. "No matter [whether] it is a loudhailer, a whistle or a human vocal cord, it can emit sound energy, and under some circumstances constitutes assault."

Such whistling is different from normal, everyday whistling, he said.

"[Ki] used great force and high frequency. He leaned forward and whistled at close range."

This was an exception to the concept of implied consent, whereby people commit no crime if they accidently touch others in a busy place, he said.

The alleged victims gave evidence on Thursday, saying the whistling was sharp and loud, and that Ki had targeted them.

Ki said he had not planned to join the protest march. He simply followed the crowd when the road in front of Sogo department store, which he wanted to cross, was closed. He denied being drunk at the time.

Yesterday, Man asked the court not to give any weight to Ki's claim that he was not aware the police officers were around. Man said evidence showed that the officers were wearing uniforms, Ki had eye contact with the officers and had whistled close to them.

He pointed out that one officer said the whistling caused a ringing in his ear, leaving him unable to hear clearly for two to three seconds. Another officer called the sound deafening.

Lawyer Pauline Leung Po-lam, for Ki, said whistling itself was not a crime. "It was not a hostile attack … He might have been affected by the heightened mood of other marchers," she said.

While the court heard Ki had whistled about 45cm to 60cm from the officers, Leung said the distance was not "too close".

Magistrate Ho Wai-yang adjourned the verdict to January 22, and Ki was released on bail.