R v Chan-Fook
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE |
| Judgment Date | 22 October 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J1022-12 |
| Docket Number | No: 92/1703/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 October 1993 |
[1993] EWCA Crim J1022-12
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hobhouse Mr Justice Judge and Mr Justice Bell
No: 92/1703/Y2
MR C.SALTER appeared on behalf of the Appellant
MR B.BARKER and MR R.OVERBURY appeared on behalf of the Crown
Friday, 22nd October 1993
On 24th February 1992 after a trial at the Crown Court at Southwark before His Honour Judge Bernard Charles QC and a Jury this Appellant, Mike Chan Fook, was convicted on a single count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. He was ordered to pay £250 compensation and £1,000 costs. The particulars of the offence were that on 30th May 1991 he "assaulted Sidney Martins thereby occasioning him actual bodily harm". (No point was taken on the drafting of these particulars.) The question raised by this Appeal is whether the Jury were correctly directed upon the meaning of the words "actual bodily harm".
The facts of the case were unusual. Sidney Martins was a French student who in May 1991 was attending a course in English in London. He was lodging at the house in Lewisham of a Mrs Fox. Also living in the house were Mrs Fox's daughter Jackie and her son Peter. Jackie was engaged to marry the Appellant. On 29th May, Jackie Fox apparently discovered that her engagement ring was missing from her room. She suspected that Mr Martins had stolen it although there was no evidence, other than opportunity, to implicate Mr Martins in any way whatever. However the household, including the Appellant, decided that they should investigate the matter further. The following evening they contrived by a subterfuge that Mr Martins should come down to Mrs Fox's living room so as to give the Appellant and Peter Fox an opportunity to search his room. This they did but they neither found the ring nor any evidence to connect Mr Martins with its loss. Undeterred, they then carried out an interrogation of Mr Martins in the living room. The person primarily involved was the Appellant. On any view this interrogation was very aggressively conducted and extremely disturbing and frightening for Mr Martins who was a stranger in this country and only had a limited familiarity with the English language. Mr Martins was unable to offer them any explanation for the loss of the ring and had no information to give the Appellant and the others who were interrogating him. The interrogation ended with the Appellant dragging Mr Martins upstairs to his room on the second floor and locking him in. The Appellant had already removed from Mr Martins his keys and his personal papers.
However the evidence of Mr Martins was that things went further. He said that the Appellant struck him about the head many times with his hands, using on some occasions the base of his palm causing bruises to Mr Martins' face and head. He felt abused and humiliated. Mr Martins also said that, during the course of the assaults on him he had been kneed by the Appellant and at one point his head had hit the wall. He said that he had asked that the police be called but the Appellant had refused. He further said that, when locking him into his room, the Appellant had threatened him with further violence if he did not tell them where the ring was.
Having been locked in his room he was frightened that the Appellant would return and assault him further. "I thought he was going to get a weapon because he was very violent." It was in those circumstances that Mr Martins bolted the door on the inside, made a rope out of his bed sheets knotted together, attached the sheets to the curtain rail and then sought to escape through the window to the ground below. Unfortunately the curtain rail broke under his weight and he fell into the garden below. He suffered injuries from his fall. At the trial a statement was read from a doctor at the hospital who had examined him at eight-fifteen that night. Mr Martins had a fractured right wrist and a dislocation of his pelvis. He further had tenderness in his right groin and bruising on his face.
The defence case at the trial was that the interrogation and other aspects of the incident had not involved any hitting of Mr Martins. It was admitted that the Appellant had taken him upstairs forcibly by the collar of his jacket and that the Appellant had locked him in his room. It was said that at no time had Mr Martins been struck nor had any injuries been caused to him. The injuries observed by the doctor were attributable solely to his fall from the window and were not caused by any assault by the Appellant.
Although the evidence of Mr Martins, and indeed the defence case, would have justified the Appellant being charged with other counts besides the count of assault occasioning actual bodily harm, the Appellant was tried solely on the single count under section 47. The case was not complicated by any allegation that the injuries suffered by Mr Martins when he fell to the ground from his window were caused by the assaults which had taken place to his being locked in his room. (cf. R.v. Roberts 56 Cr.App.R.95.) However, unfortunately, the prosecution chose to introduce into the case an allegation that even if Mr Martins had suffered no physical injury at all as a result of the assault upon him by the Appellant, he had nevertheless been reduced to a mental state which in itself, without more, amounted to actual bodily harm. The only evidence to which the prosecution could point in support of this allegation was the evidence of Mr Martins that he felt abused and humiliated, that he had been threatened with further violence, and that he was very frightened. There was no medical or psychiatric evidence to support the allegation. There was no evidence that he was in a state of shock at any time prior to receiving the injuries which he suffered as a result of falling from the window. Nevertheless the trial Judge directed the Jury in terms of the sentence in Archbold paragraph 19-197: "An assault which causes a hysterical and nervous condition is an assault occasioning actual bodily harm." He left that question to the Jury in addition to the other questions in the case. The Appellant's submission before us is that there was a misdirection and that in any event there was no evidence of any psychological injury which was capable of supporting the allegation of actual bodily harm and the allegation of such further harm should not have been left to the Jury.
The trial Judge said:
If you are satisfied that he committed an assault, then you have to consider whether it was an assault, as the indictment says, occasioning him actual bodily harm, in other words, causing Mr Martins actual bodily harm. What is meant by 'actual bodily harm'? It does not have to be permanent. It does not have to be serious. It is some actual harm which interferes with the comfort of the individual for the time being, described as any hurt or injury calculated to interfere with the health or comfort of Mr Martins, in this case. An assault that causes a hysterical or nervous condition is capable of being an assault causing actual bodily harm.
They [the Crown] have to prove that the harm —some actual bodily harm —was sustained and was the result of the assault. What the Crown says the result of the assault was, firstly, his bruising to his head or face; and a bruise —that is temporary, interferes with one's comfort, does it not; on a temporary basis. It was sore, it was tender, you do not have it beforehand. One would be able to say 'I have been harmed as a result', 'on my body I have a bruise which I did not have before'. Not the most serious thing naturally. Equally the Crown says that his mental state which caused him to lock the door and take that extreme action of climbing out of the window, tying the sheets together indicates that he was in a nervous, maybe hysterical condition. It is a matter for you to Judge what his condition was. That in itself is capable of amounting to actual bodily harm. Why did he go out of the window at all?
You have to be satisfied, before you can convict, that some actual bodily harm was sustained by Mr Martins which was caused by the assault. So it has to be a direct consequence, and what the Crown puts in front of you and invites you to consider is the bruising to the face, and the mental state of Mr Martins when he —let us break the sequence, put his foot onto the windowsill in order to descend down the sheet, not when he hit the ground, having tried to descend down the sheet. So members of the Jury, that, in a nutshell, is what this case is about.
He [the defendant] was asked if he could think of any reason why Mr Martins should leave his room via the window, lock himself in his room and leave all his property behind him, and he couldn't. The Crown says that the reason for acting in that way was, he was hysterical, he was frightened. He was in such a state that he took extreme emergency action. It is for you to decide which is right. "
There were a number of other points during the summing-up at which the Judge...
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