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  • Jul 14, 2014
  • Updated: 10:06pm
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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.

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yongms
So if I was to shine a laser pointer's beam into the eye of another person, it would not constitute battery? I would say that this is a violent act that is both personal and unlawful. Likewise the blowing of a loud whistle next to someone's ear with the intent to cause or reckless to causing of extreme discomfort or pain. Otherwise, why do it?
dascaldasf
You have obviously missed the point. Where there is not an object or tool used. Your example is obviously wrong because shining a laser point beam is obviously using an object!
yongms
@dascaldasf - and a whistle is not an 'obvious' object? One emits light waves, the other sound waves. Both at frequencies that cause harm. Your reading of my post appears to be incomplete.
ngsw
So this is an expert ! ! !
lauandy
Even there is no direct or indirect physical contact of any means, such act, blow the whistle loudly and close to the ear of police officer or other person, can in fact hurt a person, why such act can't be assault. The senior law lecturer's law view on assault is non-sense.
dynamco
maybe the learned professor should read up on white sound and what it can do to people and animals Better still subject him and his pupils to a white sound generator and see how long before he hits the deck with popped eardrums totally disorientated
using an irradiating substance can kill someone even though it does not touch them
mh0908
Do to others as you would have them do to you. Luke 6:31
wwong888
so can i sue the SCMP for battery - the constant onslaught of shallow journalism and poor writing is really causing me emotional distress, and i had to step away from my computer out of disgust?
lexishk
Is it any wonder no one takes HK's police seriously and they need 4x the numbers compared to any other developed jurisdiction?
yongms
No othe jurisdiction can provide the numbers nor respond so rapidly. Be grateful that a resident's safety is higher here in Hong Kong than nearly anywhere else in the world ... despite what you may think of it's Police Force.

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