R. v. YUEN CHONG and Another

IN THE COURT OF APPEAL

1995, No. 626
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicants seek leave to appeal against their convictions for assault occasioning actual bodily harm.

2. They were originally charged together with two other men with two counts of blackmail. All the defendants were acquitted of the blackmail charges.

3. This is a rather extraordinary case. A1 claims to have been the master of a sect described as the Sin Tao Tan (STT) which is in some manner associated with Taoism. Supernatural martial arts were practised and taught by members of the sect. A1 also practised Chinese herbal medicine. This involved both diagnosing illness and prescribing Chinese medicines to alleviate the complaints.

4. The background to these offences went back a long way and was dealt with in considerable detail by His Honour Judge Caird in his reasons for verdict.

5. The victim of the alleged assault Mr Lo Chi Kong was a member of the sect. 10 years previous to the incident he had been treated by A1 in respect of a serious lung ailment. He had been treated by A1 with Chinese medications. As he was not satisfied with the progress he was making he had consulted western qualified practitioners. As a result of this he had been admitted to St. Theresa's Hospital where he was treated for tuberculosis. He remained in hospital for a year and during this period various Chinese medications which had been prescribed by A1 were smuggled into the hospital for Mr Lo. After his discharge from hospital it would appear that there was some altercation between Mr Lo and A1 which resulted in a discontinuance of the previous harmonious relationship between the two of them.

6. In December 1993 Mr Lo was approached by a friend who suggested that he might resume his association with A1. He met A1 again while attending a birthday celebration and then later at the meeting when the assault took place at the premises used by the sect.

7. A4 who it was claimed was a senior member of the sect was also present as were approximately 30 other members.

8. A1 accused Mr Lo of being ungrateful in that he had not acknowledged that he had cured him of his tuberculosis. He alleged that this had had a detrimental effect upon the operations of the sect. He required Mr Lo to kneel for a lengthy time before the so-called altar. He then took a rattan stick from the altar and instructed A4 to beat Mr Lo five times for his misconduct. A4 did this. From photographs which were subsequently taken by Mr Lo's wife it appeared that he had suffered sufficient injuries to constitute actual bodily harm. Mr Lo claimed in his evidence that he had not consented to this assault being made upon his person.

9. In his conclusions upon the evidence Caird DJ was satisfied that Mr Lo had been assaulted and that the caning had occasioned actual bodily harm. He did not consider that the prosecution had negatived consent on the part of Mr Lo. However on the authority of R. v. Brown (H.L.(E)) [1994]1 A.C. 212 he was satisfied that consent could not be a defence to an assault where actual bodily harm had been inflicted. He was also satisfied that a religious rite such as the occurrence in the present case would not constitute a defence to an assault of this nature.

10. In coming to this conclusion he stated at p35 of his Reasons:-

"In the religious context I believe the following considerations apply:

(1) that S.T.T. is a sect of Taoism, or at least with strong Taoist connections;

(2) that there are a number of adherents or followers, i.e. disciples;

(3) that the cane was present in a box clearly marked which was 'on top of the alter,' which alter constituted something of religious significance within the Tan;

(4) there was a symbolism pertaining to the caning, in that five strokes were administered to five different parts of the body and that there were five transgressions described as failing to display, (i) benevolence, (ii) righteousness, (iii) obedience, (iv) respectfulness, (v) filial behaviour.

It is for me to determine whether the caning can be considered to be lawful in that it be a religious rite acceptable or capable of being properly acknowledged under the head of public policy.

I conclude that I do not consider that disciplinary action, in the circumstances under review, constitute a religious rite acceptable to, or acknowledged as being consistent with, public policy."

11. The first ground in the perfected grounds of appeal was that the learned judge was not bound by R. v. Brown. This ground has now been abandoned. The second ground which was framed in the alternative was that even if R. v. Brown was binding on the court the special circumstances of the case were such as to afford a valid defence to this type of assault.

12. We can see little merit in this submission. On the material which is before us there is no evidence that corporal punishment is an accepted form of punishment in the Taoist religion. The only evidence giving rise to any such inference is the evidence to the effect that the rattan stick had been kept on the altar. It may have been the practice of A1 to keep the stick there. There is no testimony to the effect that chastisement forms part of Taoist religious ceremonies or that it is in any way in the public interest to extend the scope of defences to assaults in the manner proposed.

13. Mr Lunn QC for the applicants submitted that the assault amounted to 'religious mortification' and as such came within the exceptions to the general principle that there could no consent to an assault which occasioned actual bodily harm. These exceptions are referred to in the Attorney General's Reference (No. 6 of 1980) 1981 2 ALL ER 1057 and R. v. Brown cited above. Mr Lunn placed particular reliance upon the reference in the dissenting speech of Lord Mustill in R. v. Brown to 'religious mortification', which he contended was made as recognition that it constituted a defence to the infliction of harm. However, Lord Mustill's speech properly read revealed that the reference was made simply in the course of listing a situation that could be one in which one person may agree to the infliction of harm or risk thereof, by another; one that after consideration might be regarded as a special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it. But Lord Mustill did not proceed to so address it as it had little in common with the case before him. In addition, it did not appear to him to be discussed in the authorities and he saw no advantage in exploring it. Plainly, Lord Mustill did not accept that 'religious mortification' was a special situation that afforded a defence to a charge of inflicting harm. Nor do we so accept it in the absence of any authority, or even evidence that society does tolerate such infliction of bodily harm.

14. Moreover, it is clear from the passage we have cited from the reasons for verdict given by Caird DJ that he found as a fact in the circumstances of the case the assault did not constitute such a religious rite. This being the case, we do not think that what took place could amount to 'religious mortification'

15. R. v. Wilson The Times 5 March 1996 was unknown to counsel and the court at the hearing of this application on 6 March. We afforded counsel the opportunity of making further submissions today. Wilson demonstrates that the categories of consensual conduct concerned with physical adornment amounting to actual bodily harm - such as jewellery piercing and tattooing - which are widely accepted by society and therefore not criminal, are not closed. This we accept. However, the conduct in Wilson was not related to religious mortification and the case was decided upon its own special facts. The decision is neither relevant, nor helpful, in the instant application. These convictions were in no way unsafe or unsatisfactory and the applications are accordingly dismissed.