Introduction
This case note will analyse the Divisional Court decision in Director of Public Prosecutions v Santa-Bermudez [2003] EWHC 2908 (Admin), a key authority on the commission of an assault by an omission. The note will summarise the facts, procedural history, legal issue and the court’s reasoning. It will conclude with a critical evaluation of whether the judgment, which extends liability for assault to omissions in specific circumstances, should be followed in the common law jurisdiction of Hong Kong.
Material Facts
A police officer, PC Hill, was preparing to lawfully search the respondent, Mr Santa-Bermudez. Before conducting the search, she explicitly asked him if he had any needles or other sharp objects in his pockets. The respondent replied that he did not. Relying on this assurance, the officer placed her hand inside one of his pockets and her finger was pierced by a hypodermic needle. The respondent then smirked at the officer when she reacted to the injury.
Procedural History
The respondent was charged with assault occasioning actual bodily harm (ABH), contrary to section 47 of the Offences Against the Person Act 1861. At the Crown Court, the trial judge accepted a submission of no case to answer from the defence. The judge ruled that an omission could not, as a matter of law, constitute an assault. The Director of Public Prosecutions subsequently appealed this terminating ruling by way of case stated to the Divisional Court.
Key Legal Issue
The central legal issue before the Divisional Court was whether an assault could be committed by an omission. Specifically, the court had to determine whether the respondent’s failure to correct his false statement about not having a sharp object, thereby exposing the officer to a known danger, could constitute the actus reus of an assault occasioning ABH.
The Court’s Decision and Reasoning
The Divisional Court allowed the appeal, holding that an assault could indeed be committed by an omission in these circumstances. Lord Justice Kay, giving the leading judgment, found that the trial judge had erred in law. His reasoning was based on an extension of the principle established in R v Miller [1983] 2 AC 161, where it was held that a person who creates a dangerous situation has a duty to take reasonable steps to avert that danger.
Kay LJ reasoned that Mr Santa-Bermudez had created a dangerous situation by carrying the uncapped needle. He then exposed PC Hill to that danger by his false assurance that he had no sharp objects on his person. This lie created a duty upon him to rectify the situation by telling the truth. His failure to do so was a breach of that duty and constituted the actus reus of the assault. The injury was a direct result of the respondent’s failure to act on his duty. Therefore, the respondent's conduct, viewed as a whole, was capable of amounting to an assault.
Critical Analysis: Applicability in Hong Kong
The question arises as to whether the reasoning in Santa-Bermudez should be followed in Hong Kong. As a common law jurisdiction, Hong Kong courts often look to English case law for persuasive authority. The principle established in Santa-Bermudez appears to be a logical and justifiable development of common law principles that would be suitable for adoption in Hong Kong.
The offence of assault occasioning ABH in Hong Kong is found in section 39 of the Offences against the Person Ordinance (Cap. 212), which is analogous to section 47 of the English Act. The legal principles underpinning assault are fundamentally the same. The Miller principle, upon which Santa-Bermudez is based, is a well-established concept concerning liability for omissions across the common law world. It is therefore highly probable that a Hong Kong court would find the extension of this principle to assault persuasive. Adopting this precedent would offer important protection to police officers and others, such as medical professionals, who are required to perform searches or physical examinations. It upholds a sound policy that individuals should not be able to endanger others through deceitful omissions and then evade criminal liability.
A potential counter-argument is that this decision stretches the definition of "assault" too far from a positive act and risks creating uncertainty around the boundaries of criminal liability for omissions. However, the duty identified in Santa-Bermudez is narrowly defined: it arises only where the defendant has created the danger and by their words or conduct causes the victim to be exposed to it. This provides a clear basis for liability and does not represent an uncontrolled expansion of the law. On balance, the judgment provides a just outcome on its facts and closes a potential loophole in the law.
Conclusion
DPP v Santa-Bermudez confirms that an assault can be committed by an omission where a defendant creates a dangerous situation and fails in their duty to avert the harm. This is a logical progression of the Miller principle. Given Hong Kong's common law heritage and the similar statutory framework for assault, the reasoning in Santa-Bermudez is sound and its adoption would be a sensible and just development for the law in that jurisdiction, ensuring that those who endanger others through omissions are held accountable.
References
Director of Public Prosecutions v Santa-Bermudez [2003] EWHC 2908 (Admin).
Offences Against the Person Act 1861.
Offences against the Person Ordinance (Cap. 212) (Hong Kong).
R v Miller [1983] 2 AC 161.
