Section 36(a) of the Offences against the Person Ordinance: Assault with Intent to Commit an Arrestable Offence

Section 36(a) of the Offences against the Person Ordinance: Assault with Intent to Commit an Arrestable Offence

Section 36(a) of the Offences against the Person Ordinance creates the offence of "assaulting another person with intent to commit an arrestable offence". The prosecution must prove the following two elements: 

(a) that the defendant assaulted another person; and 

(b) that, in committing that assault, the defendant intended to commit an arrestable offence. 

Assault 

The prosecution must first prove that the defendant assaulted another person. "Assault" covers conduct causing another to apprehend immediate unlawful force (assault), as well as the actual application of unlawful force to another (battery). As to what constitutes an assault, see "common assault". 

Mens Rea 

The key to this offence is that, in committing the assault, the defendant must have had the specific intent to commit an arrestable offence. The prosecution need not prove that the defendant actually committed, or embarked upon, the arrestable offence, nor that his assault caused any bodily harm; it is sufficient to prove that, at the time of the assault, the defendant intended to commit an arrestable offence. However, the assault and the intent to commit the arrestable offence must be concurrent, that is, the defendant must have had that criminal intent at the very time of committing the assault. 

Arrestable Offence 

Under section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), an arrestable offence means an offence for which the sentence is fixed by law, or for which a person may be sentenced to imprisonment for a term exceeding 12 months. In addition, an attempt to commit such an offence is itself an arrestable offence.