By Virginia Chang and Taylor Wong, Progressive Lawyers Group

By now, you have probably heard about the incident where Ng Lai-ying, a protestor who claimed that a policeman touched her breast during a confrontation, was instead sentenced to jail for 3.5 months for assaulting the police officer – with her breast.

The accusation leveled against her would be comical, if not for the fact that she was actually found guilty of such an improbable act. As expected, the magistrate’s ruling attracted considerable international media coverage, with news outlets like TIME, CNN, and the BBC covering the incident.

Public outcry has also been immense: on August 2, demonstrators organised a “breast walk” demonstration outside police headquarters in protest against the decision.

News headlines on the breast assault case.

While there has – understandably – been public uproar regarding Ng’s case, there have been some misconceptions regarding what exactly constitutes as “assault”.

To clarify: under the law, the charge of assaulting a police officer falls under section 63 of the Police Force Ordinance (PFO) and section 36 of the Offences Against the Persons Ordinance (OAPO). If found guilty, the defendant is liable to a maximum fine of $5,000 and 6 months’ imprisonment under section 63 of the PFO, and a maximum of 2 months’ imprisonment under section 36 of the OAPO.

For the prosecution to successfully argue that Ng did in fact commit the offence of assaulting a police officer, it must be proved that (1) she did assault the officer and (2) she intended to assault that officer.

Ng Lai-ying was arrested during an anti-parallel trading protest in Yuen long.

One common misconception regarding “assault” is that the victim has to be injured in some way or another. This is not so. With regard to the current case, many people are aware that the police officer did not suffer any injuries from Ng allegedly bumping her breast onto his arm. However, assault does not only include instances where the victim suffers physical harm, but also circumstances when the victim believes he or she is exposed to imminent violence. Therefore, Ng may still have assaulted the police officer even if he was not physically injured.

The real issue with the magistrate’s decision lies in establishing the mens rea, or the “guilty mind” element of the offence. In order for the assault to constitute an offence, not only must the perpetrator have assaulted the police officer, but she must also have intended to commit that assault.

“Intention” could mean deliberate intention to commit a particular harm, but could also mean recklessness. Recklessness means the perpetrator is aware that certain consequences could result from his or her actions if she commits that act, but was willing to ignore or could not care less for the consequences.

Finally, it is the prosecutor’s job to prove, beyond reasonable doubt that the defendant intended to commit the act. This means that, as long as there is any reasonable doubt that a defendant did not commit an offence, he/she would be acquitted.

Protestors organise a “breast walk” against a decision to jail Ng for assaulting a police officer with her breasts. Photo: Vicky Wong.

Although the “statement of findings” has not yet been published, and the case is currently under appeal, the court’s decision seems vexing to say the least. It is obviously improbable that anyone who intends to assault another person would choose to do so with her breasts. On the contrary, in most criminal cases involving physical contact between a hand and a breast, it is the person who touches the breast that is convicted of indecent assault.

The sentence imposed on Ng — 3.5 months — certainly seems excessive. In recent cases involving violent struggle with a policeman, or pushing a police officer in an attempt to evade apprehension, the defendants were sentenced to only four months’ imprisonment. In considering Ng’s sentence, the court took four months as a starting point, and reduced her sentence to 3.5 months due to mitigating factors.

There are also other factors which should have contributed to shorten Ng’s sentence, such as the fact that she had a clear record (i.e. she had not been committed of any offence before), and that the officer involved was not hurt. The magistrate also noted that Ng had “positive, good character”.

2013 Slutwalk protests to fight against victim blaming. Photo: Tom Grundy.

The current case certainly stirs up a lot of potential questions, many of which may have long-lasting social impact. If the appellate court affirmed the magistrate’s decision, would this mean that, after indecently assaulting a victim, a perpetrator could press charges against the victim for assaulting him/her with her breasts or other private parts? Does this open up the floor for future police arrests of other protesters under the charge of assaulting the police with breasts?

In light of the fact that 90 percent of sexual assault victims are reluctant to speak up and press charges against their tormentors, the possibility that victims could face charges may further deter them from speaking up. On a political level, the possibility of being arrested for an improbable charge such as assaulting a policeman with one’s breasts may deter women from speaking up for their rights and participating in rallies.

Thus, what seems to be a farcical rendition of the 2002 kung-fu comedy Kung Pao: Enter the Fist has actually come true. In Kung Pao, after the character Wimp Lo (Lau Kar-wing) was kicked in the face, he famously said, “Aha! Face-To-Foot style, how’d ya like it?” Just as it was improbable that Wimp Lo intended to assault anyone’s foot with his face, it was equally (if not more) improbable that Ng intended to assault anyone with her breasts. Yet the magistrate ruled that this “breasts-to-hand style” assault was the correct version of facts. However, as improbable as that may be, it is always possible that Ng actually did assault the police officer with her breasts. One can only hope that justice will prevail in the end.

Virginia Chang and Taylor Wong are dedicated adherents to the Sheryl Sandberg-style “leaning in”.

Progressive Lawyers Group

The Progressive Lawyers Group is a group of Hong Kong lawyers dedicated to promoting core values of rule of law, judicial independence, democracy, human rights, freedom, and justice.