2. Assaulting police officer in execution of duty (S.63 Police Force Ordinance)
· Assaulting or resisting any police officer in the execution of his duty;
· Refusing to assist any such officer in the execution of his duty when called upon to do so;
· By the giving false information with intent to defeat or delay the ends of justice, wilfully misleads or attempts to mislead any police officer.
If it cannot be shown that the assault or resistance is sustained whilst the officer is in execution of his duty, the charge cannot be made out. For example, where there is no evidence that the arrest of a suspect was lawful, he could not be charged for having assaulted a police officer in the execution of his duty. It has been established in England that where a police officer physically restrains a person, but does not at that time intend or purport to arrest him, then the officer commits an assault, even if an arrest would have been justified; accordingly, an assault by a defendant in such circumstances is not an assault committed on a police officer acting in the due exercise of his duty, but Hong Kong courts have not ruled on this issue yet.
An “assault” is an act, and not just a mere omission to act, by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.