2. Assaulting police officer in execution of duty (Section 63 Police Force Ordinance)
Under section 63 of the Police Force Ordinance, a person commits an offence and will be liable to a fine of $5,000 and to imprisonment for 6 months if he does the following acts.
- 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.
The Court of Appeal reiterated that the offence of assaulting a police officer is a serious one and that the sentencing court should have regard to the defendant’s acts and the circumstances surrounding the commission of the offence. The customary sentence is one of immediate imprisonment so as to reflect the need for public deterrence. (Secretary for Justice v. LHY ([2021] HKCA 155, [20]-[24]).
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