2. Assault Occasioning Actual Bodily Harm

2. Assault Occasioning Actual Bodily Harm

Any person who by an assault occasions actual bodily harm to another commits an offence under section 39 of the Offences against the Person Ordinance. 

Assault 

It must first be proved that there was an "assault". See "common assault". 

Occasioning 

Having proved the assault, the prosecution must then prove that the assault (including a battery) "occasioned" or caused the bodily harm. This is a question of causation. 

Where the harm is not the direct result of the defendant's act—for example, where the defendant's conduct causes the victim to jump from a vehicle to escape—the test applied is whether the victim's conduct was the natural result of the defendant's act or words, that is, whether it was a reasonably foreseeable consequence. Causation will be treated as broken only where the victim's reaction was one that no reasonable person could have foreseen. 

Bodily Harm 

"Bodily harm" is to be given its ordinary meaning and includes any hurt that interferes with the health or comfort of the victim; the harm need not be permanent, but it must be more than transient or trifling. 

Psychiatric injury may also amount to actual bodily harm, provided that the harm reaches the level of a clinically recognisable psychiatric illness. It does not include mere emotions such as fear, distress or panic. 

Mens Rea 

The mens rea for assault occasioning actual bodily harm is essentially the same as that for common assault. The prosecution need not prove that the defendant intended to cause actual bodily harm; it need only prove that the defendant intentionally or recklessly caused the victim to apprehend immediate and unlawful violence. 

Defences 

The defences available to a charge of "assault occasioning actual bodily harm" are the same as those available to common assault. In general, the victim's consent to the relevant conduct is a defence to assault. However, where the victim suffers serious harm, consent is not a defence unless the conduct falls within a recognised exception, including sport or medical procedures. 

In addition, it is a defence that the defendant acted in self-defence, or in defence of another person or of property, provided that the force used was proportionate and necessary. 

Sentencing Principles 

The maximum penalty for assault occasioning actual bodily harm is 3 years' imprisonment (section 39 of the Offences against the Person Ordinance). The court may impose any other penalty within its jurisdiction. 

Because section 39 covers a very wide range of cases, there are no specific sentencing guidelines. However, for more serious cases, or cases involving an assault on a public officer, imprisonment or another custodial sentence is common.