5. Assaulting a Police Officer in the Execution of His Duty, etc.

5. Assaulting a Police Officer in the Execution of His Duty, etc.

Under section 63 of the Police Force Ordinance, any person who assaults or resists a police officer acting in the execution of his duty, or aids or incites any person to so assault or resist, or who, on being called upon to assist such an officer in the execution of his duty, refuses to do so, or who, with intent to obstruct or delay the course of justice, gives false information so as deliberately to mislead or attempt to mislead a police officer, is liable on summary conviction to a fine at level 2 (that is, a fine of $5,000) and to imprisonment for 6 months. 

Assaulting or Resisting 

"Assault" covers conduct causing another to apprehend immediate unlawful force (assault), as well as the actual application of unlawful force to another (battery). As for "resisting", this generally means using physical force to oppose action being taken by a police officer, and 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. See "Assault with intent to commit an offence, or assault on a police officer, etc.". 

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. See "Assault with intent to commit an offence, or assault on a police officer, etc.". 

In the Execution of Duty 

Under section 10 of the Police Force Ordinance, a police officer must act within the scope of the duties and powers conferred on him by law in order to be acting "in the execution of his duty". This covers the core work under section 10 of the Police Force Ordinance and at common law, including keeping the peace (such as regulating processions and assemblies, controlling traffic and removing obstructions), preventing and detecting crime, protecting life and property (such as rescue at fires and the safekeeping of lost property), and serving court documents (such as summonses and warrants). 

In discharging these duties, a police officer enjoys three principal statutory powers: to stop a suspicious person in a public place (section 54(1)(a) of the Police Force Ordinance), to require the production of proof of identity for the prevention or investigation of an offence punishable by imprisonment (section 49 of the Public Order Ordinance), and to effect a lawful arrest (section 50 of the Police Force Ordinance). Where a citizen resists or flees, section 50(2) empowers the officer to use all means necessary to effect the arrest, but the force used must still not exceed what is reasonably necessary; and if a police officer acts beyond the scope of his lawful powers (for example, by using excessive force), that conduct is not, in law, in the due execution of his duty. 

See "Assault with intent to commit an offence, or assault on a police officer, etc.". 

Mens Rea 

On a charge under section 63 of the Police Force Ordinance, the prosecution need not prove that the defendant knew that the person assaulted was a police officer, nor that the defendant knew that the officer was acting in the execution of his duty; the offence is not one of assaulting an officer in the knowledge that he is acting in the execution of his duty, but of assaulting an officer who is acting in the execution of his duty. 

If the defendant honestly believed that the victim was not a police officer, or honestly believed in certain circumstances that would mean the officer was not acting in the due execution of his duty, he may contend that the general legal principles as to mens rea and mistake of fact apply, and that his criminal liability should be judged according to that belief held at the time. Where a mistake of fact is available to the defendant as a defence, the existing authorities clearly establish that the mistake need not be reasonable. In other words, even if the defendant's mistaken belief was objectively unreasonable, it may still amount to a valid defence provided it was honestly held. Whether the belief was reasonable may, however, be an important factor in assessing whether it was honestly held. 

In another case, the court held that, although the prosecution need not prove that the defendant knew the person assaulted was a police officer, an honest mistake of fact by the defendant as to that person's identity (for example, an honest and reasonable belief that he was a thug rather than a police officer) would be highly relevant in assessing whether the resistance offered was reasonable, and whether the force he used in exercising a right of self-defence or lawful justification was proportionate. 

Sentencing Principles 

The maximum penalty for this offence is a fine of $5,000 and 6 months' imprisonment. 

In a Hong Kong case, the court noted that, whether under section 36(b) of the Offences against the Person Ordinance or section 63 of the Police Force Ordinance, and notwithstanding the difference in their maximum penalties, the offence of "assaulting a police officer" is a serious one. In another case, the court held that the offences of assaulting and resisting a police officer have no sentencing guidelines and that an immediate custodial sentence is usually imposed. Sentences must have a deterrent effect, so as to protect the safety of police officers in the execution of their duty. In sentencing, the court must consider all the circumstances of the assault on, or resistance to, the police officer, and sentence according to what the defendant did and the circumstances in which he committed the offence of assaulting or resisting a police officer.