Re The Attorney General

CACC000408/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 408 OF 1972

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Coram: Full Court (Rigby, C.J., Huggins and Leonard, JJ.)

Date of Judgment: 21st August, 1972.

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JUDGMENT

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Rigby, C.J.:

1. This is an application made to this court by the Attorney General under Section 8lA of the Criminal Procedure Ordinance, Cap. 221 for this court to review a sentence imposed by a magistrate on the ground that that sentence was manifestly inadequate. It is necessary to state at once that the considerations which will influence this court in considering an application of this kind are essentially different in degree to the considerations which would influence the same court on the hearing of an ordinary criminal appeal against sentence. In applications of this nature made by the Attorney General for the review of a sentence imposed by a lower court this court will not interfere with that sentence unless it can be clearly and unequivocally said, in the words of the statute itself, that the sentence was, in truth, "manifestly inadequate".

2. The respondent is a woman officer in the Prisons Department and is 27 years of age. She was jointly charged, together with two other prison officers junior to herself, and also with two young inmates of the Tai Lam Chung Treatment Centre, with this offence of occasioning actual bodily harm. Having regard to the view which this court takes of this case, it is necessary to refer to the facts at some length. The person upon whom this assault was carried out was an 18-year-old female who had recently been admitted to the Tai Lam Chung Treatment Centre for treatment. She had been convicted on the 17th of March of the offence of smoking dangerous drugs and the magistrate had remanded her to the Tai Lam Chung Treatment Centre for a report as to her suitability for admission to this centre and for such interim treatment as might be necessary. She had, in fact, been placed in a ward in the hospital of the Treatment Centre for treatment for withdrawal symptoms and for general observation.

3. On the 18th of March, the day after her admission, it is clear that she was assaulted by two of the inmates of that treatment centre, one, a girl aged 16 who only two months previously had given birth to a child and the other, a girl. I think, about 18 years of age. That was the subject of a separate charge of common assault brought against those two females. The sole reason for that assault was apparently that the complainant was married to a policeman.

4. On the night of the 27th of March, or the early morning of the 28th of March, an inmate of the prison hospital escaped from the hospital. It would appear that at the material time the escapee, together with the present complainant, were the only inmates in that particular ward of the hospital. Later, in the course of that morning, the complainant was beaten by the two same inmates of the hospital who had previously assaulted her on the 18th March. It is quite clear on the evidence that a party to that beating was a prison officer who was jointly charged with the respondent in this case. The reason for that beating was that it was hoped that the complainant would be able to give some information as to how and when the escape had taken place. She was beaten with clenched fists and kicked by the two hospital inmates. That assault took place in the early part of the afternoon. In the course of that assault, according to the evidence given by the complainant herself. The present respondent came in and said that it was meal time and asked the two inmates to stop the beating. After the meal the complainant was returned to her ward and she was thereafter moved from that ward first to another ward and then apparently to yet a third ward. She was taken to the third ward on the instructions of the respondent. From there she was taken by the two hospital inmates into a washroom or lavatory and the door was locked. Then, according to the evidence of the complainant, the present respondent told these two inmates to take off the complainant's clothes, a jacket and trousers, so that she was in fact stripped naked. Thereupon, upon the instructions of the respondent, the two hospital inmates proceeded to beat the complainant with their fists and kick her with their legs. Her chest was hit and she was told by the respondent that if she did not "admit"(presumably to knowledge of the manner and method in which the escape had been carried out) the respondent would go out and get a rope and tie her up and burn her with a cigarette. Thereupon, the respondent left the toilet and came back with a rope and a cigarette. The respondent then lit the cigarette and burned the front part of the complainant's chest. The two hospital inmates were beside the complainant and she had been tied up by those two persons on the instructions of the respondent. The respondent then gave the cigarette to the two hospital inmates and asked them to burn the complainant. She was then further kicked and ill-treated and assaulted and, at one stage, according to her evidence, the respondent pulled her up by her hair, struck her on the back and she was then repeatedly hit again. This went on for some time and later she was released. That was on the 28th.

5. On the 30th, the period of remand having expired, she was taken back to the magistrate and there she made a complaint that she had been assaulted whilst in the Tai Lam Chung Treatment Centre. She was thereafter examined by two doctors who found bruises and abrasions on her and scabs consistent with superficial burns on her chest and a scab on the back.

6. Those were briefly the facts, and it was upon those facts, together with the medical evidence, that the respondent and those charged with her were convicted of this savage and brutal assault. The respondent was the officer-in-charge of the hospital section on duty at the time the woman escaped from the hospital. She was, therefore, despite her protestations to the contrary, clearly interested in trying, if possible, to find out when the other patient had escaped and how she had escaped, and there can be little doubt that it was with a view to trying to find that out that this unfortunate woman was maltreated in this way.

7. It was a perfectly disgraceful case, and one of which this court must take the most serious view. It cannot be too strongly emphasized that persons in custody must not be maltreated or subjected to violence by those in charge of their custody and where instances of this kind do come to light, and are very rightly and properly brought to prosecution resulting in a conviction, it is imperative that these courts deal with exemplary severity with those concerned in such brutal maltreatment. The respondent was placed in a position of trust and responsibility over this unfortunate woman in her custody. It is true to say that any one of the judges now sitting in this court, on these facts would have imposed peremptory prison sentences ranging from 18 months to 2 years on the respondent in this case. We bear in mind - and the learned magistrate did, and rightly so - that the respondent was a woman of good character. But the fact remains that not only did she take part in this savage assault herself, but she actively encouraged and incited two of the inmates of this Centre - one of whom was a young girl aged 16 - to take part in this brutality. In the view of this court the sentence imposed was manifestly inadequate. The application for leave to review the sentence is granted : the sentence imposed by the learned magistrate is set aside and the sentence we impose in lieu thereof is one of 15 months' imprisonment.

8. On further argument by Mr. Bernacchi, with leave of the Court.

9. The submission made by Mr. Bernacchi, as we understand it, is this : where this court, on an application by the Attorney General under section 81A of the Criminal Procedure Ordinance to review a suspended sentence of imprisonment on the ground that it is manifestly inadequate, accedes to that application and quashes the original sentence and imposes a longer term of imprisonment, it may increase the sentence but cannot interfere with the discretion of the magistrate that such a sentence should be suspended. For example, where a sentence of 6 months, suspended for 18 months, has been imposed by a magistrate, this court may increase that length of sentence, but the actual sentence itself must remain - the suspended sentence - because this court has no power to interfere with the discretion of the magistrate as to suspending that sentence.

10. In our view that contention is totally unsustainable and unacceptable. Section 8lA defines sentence as including "any mothod of disposing of a case following a conviction and an order under section 36 of the Magistrates Ordinance". Section 8lB enables this court, if it considers that a sentence was manifestly excessive or manifestly inadequate, to quash the sentence passed by the court and pass such other sentence as it thinks ought to have been passed. In our view, the sentence that we are imposing in this case is an entirely different sentence from that which was passed by the magistrate. What this court has done is to quash the original sentence and to pass a different sentence. In our view, there is, with respect, no substance whatsoever in the argument put forward by Mr. Bernacchi and we accordingly reject it.

11. We direct that the sentence will run as from the date that this application first came before this court and was adjourned through no fault of the present respondent - that is to say, the sentence will run as from 24th July.

12. The application by the Attorney General in respect of the second respondent who was not served with these papers is adjourned sine die.

Representation:

Statton, P.C.C. for Applicant.

Bernacchi, Q.C. & Miss Chua (K.S. Yung & Co.) for 1st Respondent.

2nd Respondent absent - not served.