tim's experiment

I do not often feel the need to write about excessive leniency in the Hong Kong judicial system, where the quality of mercy is often strained to the point of disappearance. But what on earth was going on in the indecent assault case reported in this (Wednesday) morning’s newspapers?

This was, as the magistrate herself observed, “quite a serious case”. The defendant had admitted “bumping a woman from behind with his pelvis” while waiting at the entrance of the Hong Kong Stadium. I take it that “bumping her with his pelvis” doesn’t quite capture the full flavour of the physical contact but we won’t go into that. Readers who are alert to dates (the incident happened on March 23) and places will infer a bit of Sevens fall-out. And yes, the defendant was, as they say in legal circles, “under the influence of alcohol” or as we Cockneys used to say “Brahms and Liszt”. Rhyming slang, dears. Pissed.

OK so here we have a defendant admitting a quite serious offence and not much in the way of mitigation. Many of us have done things while drunk on which we look back in embarrassment if not shame,  but booze is not really an excuse. So what happens? The charge was withdrawn and he was “bound over” in the sum of $1,000 for a year. This is not so much a slap on the wrist as a pat on the head. If he manages to avoid drunken depravity at next year’s Sevens he gets his money back. One is tempted at this point to write something rather scathing about the magistrate, but this surprising outcome may not be her fault.

Being bound over is a curious and antiquated procedure. The magistrate in effect imposes a conditional fine to be paid only if you repeat the offence. It is not necessary for you to be convicted first, but you do have to consent to the arrangement. The usual reason for consenting is that the prosecution offers to withdraw the charge if you agree to be bound over instead. This used to be a popular little number for dealing with people who had been unruly in a minor way at demonstrations, or had gone a bit over the top in a personal dispute in which neither side was entirely in the right. You will note that the prosecution has to cooperate. And one does wonder why they chose to do so in this case.

After all local prosecutors have been engaging in all sorts of legal contortionism to throw the book at people guilty of the basically victimless crime of taking surreptitious photos of ladies’ underwear. Here we have a defendant who made real physical contact of a thoroughly upsetting kind with the victim, and he gets the kid glove treatment. I would like to believe that this unexpected outcome had nothing to do with the fact that he is an expat teacher in an ESF primary school. Would the system have been so forgiving of, say, a striking crane driver?

The problem with this sort of case is that it is thoroughly discouraging for potential complainants. It is, of course, not the purpose of the law to gratify aggrieved victims, but victims will not come forward at all if they believe that their complaint will not lead to any worthwhile consequences. It is widely believed that a lot of indecent assaults go unreported. This sort of case does not help.

Among the consequences of this way of dealing the matter is that it allows, indeed it may even require, the offender’s employer to ignore the whole thing. The ESF said that “as the case had been withdrawn” it was now a personal matter and nothing to do with them. This is a legally elegant solution but may leave some parents feeling nostalgic about the old days when teachers were supposed to be role models as well as instructors in the finer points of reading and writing. And if this gentleman’s employers feel they have to let the indecent assault go perhaps they could have a word about his drinking. One expects people to get drunk at the Sevens. But only serious addicts will be out of control while waiting to get in.