Section 36(b) of the Offences against the Person Ordinance: Assaulting, Resisting or Wilfully Obstructing a Police Officer in the Due Execution of His Duty

Section 36(b) of the Offences against the Person Ordinance: Assaulting, Resisting or Wilfully Obstructing a Police Officer in the Due Execution of His Duty 

Assaulting, Resisting or Wilfully Obstructing 

"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". 

As for "resisting", this generally means using physical force to oppose action being taken by a police officer. Unlike "wilful obstruction", "resisting" ordinarily requires actual physical opposition, rather than mere verbal argument or disobedience; that physical opposition need not, however, amount to an assault—struggling free from a police officer's grip, for example, may suffice to constitute resistance. At common law, "resisting" is narrower in meaning than "obstructing", and requires an element of opposition going beyond mere obstruction. 

As for "wilful obstruction", the Court of Final Appeal has clearly set out the elements of this offence, namely: 

(a) there must be an act of obstructing a police officer; 

(b) the police officer must at the time have been acting in the execution of his duty; and 

(c) the person obstructing the police officer must have done so wilfully. 

Whether by assaulting, resisting or wilfully obstructing, the offence is made out only if the police officer was at the time acting "in the due execution of his duty"; if the arrest or action in question was not itself lawful, then the defendant's assaulting or resisting that action does not constitute an offence under this section (see "in the due execution of duty" and "police officers acting unlawfully" below). 

Mere disobedience to a police officer does not necessarily amount to "resisting" or "wilful obstruction". In a Court of Final Appeal case, the court held that a finding of wilful obstruction is a "question of fact and degree", depending on "all the circumstances of each case". Applying common sense, the test of wilful obstruction does not extend to "conduct that might merely cause inconvenience to an officer, or require him to expend some trivial additional effort". In the same case, the judge gave examples of conduct that would not ordinarily be regarded as obstructing an officer in the due execution of his duty: 

• a member of the public may wish to exercise his right to silence; 
• he may wish to ask the officer about the nature of the matter, what the officer expects him to do, or what he is required to provide; 
• he may wish to reason with the officer, and try to explain that the officer may have misunderstood the situation; 
• he may wish to protect or advise a relative or friend who is being questioned by the police; or 
• he may at the time have other, more pressing matters to attend to. 

Mens Rea 

The prosecution must prove that the defendant intended to do the following: to commit an arrestable offence; to assault, resist or wilfully obstruct a police officer acting in the due execution of his duty; or to resist or prevent the lawful arrest or detention of himself or of another for any offence. 

Police Officer 

The term "police officer" draws no distinction based on rank. A member of the Auxiliary Police Force, when on duty, is a police officer for the purposes of section 63 of the Police Force Ordinance (Cap. 232).