July 1 whistler's assault conviction is 'wrong', says legal expert

Assault conviction of man who whistled at police during annual protest 'distorted' the law and should be corrected, says top legal academic

PUBLISHED : Thursday, 28 November, 2013, 9:04am
UPDATED : Friday, 29 November, 2013, 5:16am

The assault conviction of a man for whistling loudly at police officers during the July 1 protest was wrong and should be corrected in the top court, a senior law lecturer argues in an upcoming article.

The conviction of construction worker Ki Chun-kei deviated from the common-sense understanding of a centuries-old piece of law, Eric Cheung Tat-ming says in the article, to be published in Hong Kong Lawyer, the official monthly journal of the Law Society of Hong Kong.

"It is true that Ki's conduct … is appalling and unacceptable," said Cheung, a principal law lecturer at the University of Hong Kong. "But it does not warrant that the courts should distort the long-established common law principles on battery in order to punish him or to deter others."

Ki was sentenced to six weeks in jail by Eastern Court magistrate Ho Wai-yang after the court heard that his whistling caused ringing in the ears of two auxiliary police officers, while a third was forced to take an immediate step back to avoid the noise.

The decision was upheld on appeal by Mr Justice Barnabas Fung Wah in the High Court.

Cheung, also a member of the Independent Police Complaints Council, says that Ki used no "tangible substance" to effect physical contact - essential elements for the law on battery to apply.

"As far as [our] research can ascertain, all decided cases in common law jurisdictions on indirect physical contact involved actual bodily contact with something which is tangible with physical presence, such as liquid, tools and other instruments," Cheung says in the article, co-written with pupil barrister Jacqueline Law and student Sackville Leung.

"The law of battery is ... directed to protect the autonomy of one's body, but not one's feelings, perception or senses," he writes, warning of unintended legal consequences.

"As soon as conduct such as whistling, shouting and screaming without assistance of any medium or tool are considered capable of constituting a battery, the law on battery becomes uncertain and the genie is out of the bottle."

Ki could have been found guilty of obstructing the police officers in the due execution of their duties, Cheung says.

Any appeal to the Court of Final Appeal would require Ki to take the initiative, the article says.