Law - Obstruction of Police (阻撓警務人員 阻差辦公)

Section 36(b) of the Offences against the Person Ordinance provided that any person who wilfully obstructed any police officer in the due execution of his duty was guilty of an offence.

This offence consists of three elements: 

1. there must be an obstruction of the officer; 
2. the officer must at that time have been performing his duty; and 
3. the person obstructing the officer must have done so wilfully. 

In Hinchcliffe v Sheldon [1955] the applicable test of obstructing means "making it more difficult for the police to carry out their duties". 

HKSAR vs Tam Lap Fai

The citizen might wish to

• exercise his right of silence
• seek clarification from the officer as to what the matter concerned
• persuade the office that he had made a mistake
• protect or advise a relative or close friend
• he may have other more urgent matters to attend to for the time being

Conducts of this kind would NOT normally be regarded as obstructing the police.

市民可能希望

• 保持緘默；
• 要求警察澄清所為何事，以及要他做甚麼；
• 與警察理論，企圖糾正警察的錯誤；
• 想保護正被警察查問的親友，或給親友意見；
• 另有急事要做

以上情況通常不構成阻撓警務人員罪。

The circumstances need to be considered are:

• what he had done
• how it was done
• what the officer was doing
• effect of what the person had done on what the officer was doing
• 當事人做了甚麼
• 如何做
• 警員當時在做甚麼
• 當事人的行為對警員所做的事有何影響

What may be obstructing in one set of circumstances may not be in another, even though the undertaken act is the same in both instances (R v Robinson)

It was not necessary for the prosecution to prove that the conduct in question made the officer's work substantially more difficult.

(HKSAR v TAM LAP FAI FACC15/2004)

23. Police officers have an onerous (艱巨的) duty to discharge in the detection of crimes and the making of enquiries. Private citizens have a moral or social duty to assist them. After all, police officers are there to protect the safety and property of private citizens. There are however bound to be situations where co-operation is not readily forthcoming from a private citizen to a police officer doing his duty: the citizen may wish to exercise his right of silence; or he may wish to seek clarification from the officer as to what the matter concerns or what it is that is expected or required of him, or he may wish to reason with the officer and to try to persuade the officer that he has made a mistake, or he may wish to protect or advise a relative or close friend who is being questioned by the police, or he may have other more urgent matters to attend to for the time being. Conduct of this kind would not normally be regarded as obstructing the officer in the due execution of his duty because it is neither the type of criminal conduct contemplated by the statutory provision nor is it wilful in the sense that it is deliberate (蓄意的) and without lawful excuse.

24. Whether particular conduct amounts to wilful obstruction of an officer in the due execution of his duty is always a matter of fact and degree. It is important to look at all the circumstances of each case, including what the person has done and how it is done, what the officer is doing, and the effect of what the person has done on what the officer is doing. As LeGrandeur PCJ pointed out in R v. Robinson, (paragraph 13), “what may be an obstruction in one set of circumstances may not be in another, even though the act undertaken is the same in both instances.”