I write this blog in reply to a comment from the preceding blog (see below). It is in English in order to save time.
請標少指教。
本人認為林老師有可能犯香港法例第二二八章《簡易程序治罪條例》第二十三條。
因為環境證供，有理由顯示警方在執行職務時受到阻礙。（動用了２男警及１女警來調解林老師離開封鎖線。）
如果警方收到通知而經評估後派遣六人警隊作處理，但處理途中因林老師的行為用了三人作調解。因回應市民的質疑時減少了警力是否構成阻礙警方依法執行公務？
本人認為林老師有可能犯香港法例第二二八章《簡易程序治罪條例》第二十三條。
因為環境證供，有理由顯示警方在執行職務時受到阻礙。（動用了２男警及１女警來調解林老師離開封鎖線。）
如果警方收到通知而經評估後派遣六人警隊作處理，但處理途中因林老師的行為用了三人作調解。因回應市民的質疑時減少了警力是否構成阻礙警方依法執行公務？
Thank you for the suggestion. Let's look at S.23 Cap 228 first:
Any person who resists or obstructs a public officer or other person lawfully engaged, authorized or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein shall be liable to a fine of $1000 and to imprisonment for 6 months.
I should first point out, though not an issue here, that the penalty should be a fine of $2000 instead of $1000 reading in conjunction with S.113B, Cap 221. (An umbrella amendment to convert the fine into 6 levels and this law was implemented in 1999. A plain reading of the ordinance misleads people to believe their eyes and unaware of the levels.)
S.23 Cap 228 creates a general offence to protect the public officer. Is a policeman a public officer then? Let's look at the interpretation of this term in S.2 Cap 228.
"public officer," (公職人員) or "public department," (公共機關) extends to and includes the Chief Executive and every officer or department invested with or performing duties of a public nature, whether under the immediate control of the Chief Executive or not;
One may argue a policeman is also a public officer. I cannot dispute about this. However, when there is a specific offence to cope with the crime, we should consider the specific offence.
S.36 Cap 212 (Offences Against the Person Ordinance) specifically creates such an offence to assist and protect the police when carrying out their duty without hindrance. It says,
Any person who-
(a) assaults any person with intent to commit an arrestable offence; or
(b) assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer; or
(c) assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence,
shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years.
In that case, we do not use the general offence when a specific offence is available. Analogously, if a policeman is assaulted in the course of performing his duty, a charge of assaulting a police officer is considered instead of common assault. If a policeman who is off duty and has a dispute with his neighbour and is assaulted, a charge of common assault is laid since the policeman is not executing his duty when the dispute arises. If a Custom and Excise officer is assaulted in the course of his duty, there is only common assault, assault occasioning actual bodily harm etc available. There is no charge of assaulting a custom officer.
The number of officers involved and the time consumed are factors one may consider whether an obstructing charge should be laid but the ultimate question, like what I put forward in the preceding blog, is whether the act constitutes obstructing police in the first place. We have to consider all circumstances of the case. Like I said previously in reply to one of the comments, I believe Ms Lam has a mistaken belief that the police did not carry out their duty in a fair manner. Even if a charge of obstructing the police is made out, it does not mean she must be charged. We have to consider the prosecution policy as well. If I can decide on the case, I will let her go even though her ugly behaviour call for condemnation instead glorification.
Frankly, there are always many facets in an incident. There can be different approaches and views. Nothing is absolute. I may be wrong in many eyes but after all, a view comes from my practical experience and the legal precedents.
(b) assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer; or
(c) assaults any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence,
shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years.
In that case, we do not use the general offence when a specific offence is available. Analogously, if a policeman is assaulted in the course of performing his duty, a charge of assaulting a police officer is considered instead of common assault. If a policeman who is off duty and has a dispute with his neighbour and is assaulted, a charge of common assault is laid since the policeman is not executing his duty when the dispute arises. If a Custom and Excise officer is assaulted in the course of his duty, there is only common assault, assault occasioning actual bodily harm etc available. There is no charge of assaulting a custom officer.
The number of officers involved and the time consumed are factors one may consider whether an obstructing charge should be laid but the ultimate question, like what I put forward in the preceding blog, is whether the act constitutes obstructing police in the first place. We have to consider all circumstances of the case. Like I said previously in reply to one of the comments, I believe Ms Lam has a mistaken belief that the police did not carry out their duty in a fair manner. Even if a charge of obstructing the police is made out, it does not mean she must be charged. We have to consider the prosecution policy as well. If I can decide on the case, I will let her go even though her ugly behaviour call for condemnation instead glorification.
Frankly, there are always many facets in an incident. There can be different approaches and views. Nothing is absolute. I may be wrong in many eyes but after all, a view comes from my practical experience and the legal precedents.
