In the Due Execution of Duty

In the Due Execution of Duty 

The powers, duties and responsibilities of police officers are governed principally by the Police Force Ordinance and other relevant ordinances. Those ordinances establish the powers of police officers to stop and search persons and vehicles, to seize property, to enter premises with or without a warrant, and to arrest and detain persons. Where a power conferred by an ordinance is not expressed to be exercisable only with the consent of another person (not being a police officer), the officer may, where necessary, use reasonable force in exercising that power. 

Duties of Police Officers 

Under section 10 of the Police Force Ordinance, the Hong Kong Police Force bears a wide range of statutory duties. In maintaining public order, the Force is responsible for keeping the peace, regulating processions and assemblies in public places, controlling road traffic and removing obstructions, and preserving order at places of public resort; for the purpose of carrying out these duties, a police officer is entitled to enter free of charge any place open to the public. 

In preventing and combating crime, the Force is responsible for preventing and detecting all manner of criminal offences and unlawful acts, and for arresting all persons who satisfy the statutory conditions for arrest. 

In protecting life and property, the Force is responsible for preventing injury to life and damage to property, assisting in rescue at fires, protecting public property, and taking proper charge of unclaimed or lost property and seeking to trace its owner. 

In enforcing the law and judicial process, the Force is responsible for serving and executing court documents (including summonses, warrants and detention orders), bringing prosecutions, attending criminal courts and maintaining order therein, escorting and guarding prisoners, and assisting coroners in the discharge of their duties. 

In addition, the Force is responsible for assisting in the enforcement of laws relating to revenue, customs, health, immigration and quarantine, assisting in maintaining order in Hong Kong waters, and dealing with stray animals. 

At common law, the duties and responsibilities of a police officer include taking all steps that he considers necessary to keep the peace, to prevent crime, or to protect property from criminal damage. 

Powers of Police Officers 

Section 54(1)(a) of the Police Force Ordinance (Cap. 232) empowers a police officer, where he finds any person in any street or other public place, or on board any vessel or conveyance, at any time by day or night, acting in a suspicious manner, to stop that person in order to require him to produce proof of identity for inspection. 

Section 49 of the Public Order Ordinance (Cap. 245) empowers a police officer, where he reasonably believes it necessary for the prevention, detection or investigation of any offence (being an offence for which the penalty is prescribed by law, or for which a person may on first conviction be sentenced to imprisonment), to require any person to produce proof of identity for inspection. 

A police officer also has the power of arrest at common law, and in addition enjoys the broad statutory power of arrest under section 50 of the Police Force Ordinance (Cap. 232). Section 50(2) empowers a police officer, where he is forcibly resisted in his attempt to make an arrest, or where the person to be arrested attempts to evade arrest, to use all means necessary to effect the arrest, whether by the officer or by other persons. Nevertheless, the force used must not exceed what is reasonably necessary in the circumstances. 

Police Officers Acting Unlawfully 

Where a police officer acts beyond the scope of his lawful powers, that conduct is not in the due execution of his duty. 

HKSAR v Osunwoke Ifeanyi John [2018] HKCFI 672 is a good illustration of when and how a police officer acts otherwise than in the due execution of his duty. Having viewed the video footage, the court found that, before being struck repeatedly with a baton by a police officer, the defendant had not pushed against or struggled with the officer; the defendant tried to step back from the officer, and when an officer raised his baton, the defendant grabbed hold of it, held it above his head, turned his back on the officer and walked away. The court observed that the use of the baton in these circumstances was "swift, unnecessary violence, far exceeding what the situation required". Given that the degree of force used was unreasonable, the officer was not acting in the due execution of his duty, and the defendant was entitled to use reasonable force to extricate himself. 

Where a police officer makes an unlawful arrest, any other police officer who comes to his assistance is likewise acting beyond the scope of the due execution of duty.