IV. Domestic violence acts: Possible non-fatal criminal offences
A. Attempted murder
Where violence is inflicted with the intent to kill but the victim survives there may be a conviction for attempted murder. Attempted murder is punishable with any sentence up to and including imprisonment for life.
B. Common assault
An assault is committed when the abuser intentionally or recklessly puts a person in fear of the immediate application of unlawful force. There must be an apprehension of immediate physical contact. The abuser who raises his fist towards the victim or threatens the victim with a weapon commits common assault provided there is such proximity between them that the victim apprehends (fears) the immediate infliction of violence.
An act of battery is committed when there is an actual infliction of a non-consensual unlawful physical contact. As long as there is contact with or an application of force to the body of another person, it is not necessary to prove that the abuser intended to injure or that the contact has caused or threatened any physical injury. Mere touching without consent or lawful excuse is therefore enough to be considered battery.
The spouse or cohabitee who strikes at the victim, threatens her/him with an item, or punches her/him therefore commits a common assault whether or not there is any injury or harm.
C. Assault occasioning actual bodily harm
Section 39 of the OAPO provides a higher penalty for an assault or battery where actual bodily harm occurs. There must first of all be conduct which amounts to an assault or battery. Once that is proved, it remains only to prove that it occasioned actual bodily harm. There is no requirement for intent to cause actual bodily harm, even though such intent will often be present in fact in domestic abuse situations where the motive for the force is to teach the victim a lesson and assert the abuser’s authority over the spouse or cohabitee. Actual bodily harm is any hurt or injury which interferes with the health or comfort of the victim. It need not be permanent but must be more than trifling. It includes recognisable psychiatric illness (see English cases: R v Ireland; R v Burstow ) as well as physical injury but does not include fear, distress or panic.
D. Wounding with intent to do grievous bodily harm
Any person who unlawfully and maliciously wounds or causes any grievous bodily harm to any person with intent to maim, disfigure, or disable any person, or to do some other grievous bodily harm, is guilty of an offence contrary to section 17 of the OAPO which is triable upon indictment. Offences under section 17 are punishable by imprisonment for life. A wound is defined as an injurywhere the continuity of the skin is completely divided. Grievous bodily harm is a really serious injury. This will be a question of fact in each case. The harm need not be permanent. It alsoincludes psychiatric injury. Examples of grievous bodily harm would be the loss of vision in an eye, a ruptured kidney or other internal injuries which interfere with the victim’s comfort or enjoyment of life.
The word “malicious’’ requires an intention to do the kind of harm that was in fact done, or recklessness whether or not such harm should occur. The prosecution must prove beyond reasonable doubt that the abuser intended to wound or cause the victim serious injury, or was reckless whether or not such harm should occur. Recklessness in this context means having the foresight that the particular harm might be done, and yet going on to take the risk of that harm resulting: see Sin Kam Wah v HKSAR and English cases R v G; R v Cunningham. This depends on all the circumstances of the particular incident, in particular what was said and what was done. A section 17 offence can be committed without any direct contact between the abuser and the victim, for example, by instructing a dog to attack another person. See: HKSAR v Cheung Yuk Kin, Joseph .
E. Wounding or inflicting grievous bodily harm
Any person who unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument, commits an offence contrary to section 19 of the OAPO . A section 19 offence is punishable by imprisonment for three years.
The words “wound”, “grievous bodily harm” and “unlawfully and maliciously” have the same meaning as in section 17 of the OAPO . As in section 17 , the wounding or grievous bodily harm must be unlawful.