Section 36(c) of the Offences against the Person Ordinance: Assault with Intent to Resist or Prevent Lawful Apprehension or Detention

Section 36(c) of the Offences against the Person Ordinance: Assault with Intent to Resist or Prevent Lawful Apprehension or Detention

Lawful Arrest or Detention for Any Offence 

The prosecution must prove that the person assaulted was entitled to arrest or detain the defendant for an offence. The words "any offence" mean a criminal offence, and do not include civil process or arrest for a breach of the peace. Conduct amounting merely to a breach of the peace, or a likely breach of the peace, does not constitute a criminal offence. 

A citizen's power of arrest is contained in section 101 of the Criminal Procedure Ordinance (Cap. 221). A citizen may, without a warrant, arrest "any person whom he may reasonably suspect of having committed an arrestable offence". Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1) defines an "arrestable offence" as an offence for which the penalty is fixed by law, or for which a person may be sentenced to imprisonment for a term exceeding 12 months. 

In addition, section 101A of the Criminal Procedure Ordinance empowers a citizen, in effecting an arrest, to use such force as is reasonable in the circumstances. 

Mens Rea 

The key to section 36(c) is that the defendant must have had a specific intent: namely, an intent to resist or prevent the lawful arrest or detention of himself or of another. The prosecution need not prove that the defendant knew that the arrest or detention was lawful in law—in other words, even if the defendant was unaware of the legal basis for the arrest or detention, the mens rea is established so long as he deliberately used force to prevent the arrest or detention. 

However, if the defendant honestly believed that the arrest or detention was unlawful (for example, he honestly believed that the other person was not a police officer, or honestly believed in certain facts that would render the arrest or detention unlawful), the prosecution may in that case find it difficult to prove that the defendant did indeed have the intent to prevent a lawful arrest or detention. The defendant is to be judged on the facts as he honestly believed them to be, and not on the objective facts. Even if his mistaken belief was objectively unreasonable, it may still amount to a valid defence provided it was honestly held. Nonetheless, whether the belief was reasonable is an important factor in assessing whether it was honestly held. 

For example, A is walking alone at night when a plain-clothed man, B, suddenly seizes A from behind and forcibly drags him, without producing any proof of identity or identifying himself. A honestly believes that B is a robber attempting to rob him, and therefore fights back, injuring B. It later transpires that B was in fact a plain-clothes police officer carrying out a lawful arrest. In these circumstances, A's mistaken belief is a pure mistake of fact—he was not mistaken as to the law, but honestly believed that the person before him was simply not a police officer. A is to be judged on the facts as he honestly believed them to be. Because A honestly believed that he was being unlawfully attacked, the mens rea of "an intent to prevent a lawful arrest" may not be established.