HKSAR v. Leung Shing Chi and Others

DCCC280/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 280 OF 2012

--------------------

--------------------

---------------------

Reasons for Sentence

---------------------

1.In these proceedings the three defendants were jointly charged with one count of inflicting grievous bodily harm, contrary to section 19 of the Offence against the Person Ordinance, Cap. 212. They were convicted after trial.

2.The details of my findings have been set out earlier in my reasons for decision, and I will not repeat them.  For the purpose of giving my reasons for sentence, I would summarise it thus:

· The three defendants were officers of the Hong Kong Correctional Services Department. On 18 September 2009, in the course of their duties, they were inside the Consultation Room on the ground floor of Lai Chi Kok Reception Centre trying to subdue an emotional and intransigent inmate.

· D1 and D2 were last seen pinning the inmate on to the floor, while D3 issued warning of his intention of administering Oleoresin Capsicum Spray if the inmate did not calm down.

· A few minutes later, the inmate, now more compliant, was led by the three defendants up to the Protected Room on the 1st floor. There he stayed for the next 21 hours under the supervision of other CSD officers and the surveillance of the CCTV camera.

· Some time before 8 am the next day, he was found motionless in the protected cell. Despite repeated resuscitation attempts, he was certified dead in the hospital at 0848 hours. The post-mortem examination found multiple injuries on him and the cause of death was as stated in the autopsy report was “Extensive Soft Tissue Injury”.

3.It is my finding that in the course of carrying out their duties, the defendants had exceeded the power bestowed by the law, used forces beyond what were reasonable and necessary and had caused grievous injuries on the victim.

4.There is no evidence on what had actually happened inside the Consultation Room during those several minutes when the defendants were alone with the deceased.  I, therefore, did not make any findings on the specific acts done by each defendant.  I found, however, the defendants were acting in concert and hold each one of them equally liable.

5.Before passing sentence and, indeed, before convicting, this court has been well aware that all of the defendants had an unblemished record. As the background reports and the flood of letters pleading for leniency on their behalves testify, indeed all the defendants have positively good character. As a person as well as a CSD officer, each of the defendants has earned the love and respect of their superiors, co-workers, family members and friends by their industry and dedication.  They have also been loving providers for their families.

6.The convictions would certainly spell disaster to their own lives and those of the people around them.  In addition to the humiliation that accompanies their fall from grace, they would almost definitely lose their jobs, their pensions and all the rewards they have painstakingly earned with years of hard work.

7.Their families would lose the main if not the only financial support.  Against these, the actual severity of the sentence order to be meted out would pale into insignificance.

8.Yet, on the other hand, one cannot ignore the suffering of the victim and the suffering of the people who cared for him. One cannot possibly imagine the fear, the pain and the agony he and his loved ones must have endured.

9.The long term damage, and in my view this is a far more serious one, is the effect of the reputation of the Correctional Services Department in Hong Kong.  This unfortunate incident, as much as I would like to believe it to be an one-off incident, would always haunt the Department, undermine its moral authority as well as the good governance of Hong Kong.

10.The court accepts that in the heat of the moment, in their zealousness to carry out their duties, the line between what was necessary and what was excessive would be too fine to tread.  It is always easy to analyse and criticise with the benefit of being a disinterested observer and hindsight.

11.Yet, the hard fact is at the time there were three officers, one of them armed with Oleoresin Capsicum Spray, to restrain one person.  Granted that that person might be difficult, emotionally disturbed and not susceptible to reason, he was unarmed, outnumbered and out of any possible means to avoid the assault or to escape.

12.While it is conceivable that as a result the restrained party might sustain some injuries on the limbs or any other body pasts where it was necessary to apply physical pressure to secure submission, common-sense dictates that 117 external injuries and deep bruises on the scalp and thigh as found on the deceased could only be caused by excessive force.

13.It is difficult to imagine, if the defendants’ sole intention was to restrain the deceased and bring him up to the Protected Room, how it was possible to cause the number of injuries and, in particular, those serious injuries on the scalp and the thigh.  These injuries must have caused the deceased a lot of pain and eventually his life.

14.The deceased was placed in the care of the defendants by the authority of the law.  The law had bestowed the power on the defendants to keep law and order within the confines of the prison, and the responsibility that came with it must be to exercise it sparingly and judiciously.  In the confined environment of Lai Chi Kok Reception Centre, where public scrutiny is almost impossible, the society can only rely on the judgment and good sense of the officers in entrusting the power of the Correctional Services Department.

15.In this instance the defendants had crossed the line by such a large margin that the deceased ended up with multiple injuries and losing his life. They had thus betrayed the trust and expectation of the law and the society.  Their conduct, if unpunished, would ultimately undermine the confidence of the society on the Correctional Services Department and, indeed, the Criminal Justice System.

Authorities

16.The maximum sentence under section 19 of the Offences against the Person Ordinance, Cap. 212, is three years.  The offence is included in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, as an “excepted offence”, for which a suspended sentence of imprisonment was not an option: see section 109B(1) of the Criminal Procedure Ordinance.

17.As has been pointed out by the learned editors of Archbold Hong Kong 2012 (at paragraph 20-221), there is no guideline sentence for such an offence,‘although the courts have consistently indicated that custodial sentences of some length are the normal means of dealing with such cases’.

18.In my view, the most aggravating factor in the present case is the fact that the defendants as Correctional Services Officers had abused their positions and abused the trust of the society by using excessive force on an inmate, thereby causing him serious injuries.

19.Although there must beplenty of instances of violence within the confines of the penitentiary, the cases that made their way to the courts were usually concerned with violence amongst inmates and violence on the officers.  While they are grim and serious in their own ways, they could offer little assistance for the present purpose.  Despite the joint effort of the prosecution, the defence and the undersigned, I can find no sentencing authority on facts similar to the present case.

20.The most approximate authority came from England: R v. Lewis [1976] Crim LR 144:-

The defendant was a police officer with 24 years of service. In the course of questioning a suspect who he suspected to be not forthcoming, the defendant struck him twice in the face, causing his nose to bleed, banged his head against a wall and on a table and kicking him.

He also incited his colleague to do the same. The victim suffered a broken nose, a perforated ear drum, bruising and cuts. Finally, he had to make up some false information in order to stop the beating. The defendant’s sentence of two years’ imprisonment on a plea to charge of assault occasioning actual bodily harm was upheld and the view of the Court of Appeal was reported thus:

“the court appreciated the tragedy of the matter in the light of (the defendant)’s excellent record. However the public interest must be served. Police officers were in a position of great trust and if that trust was broken the results for them must be serious. The sentence was correct in principle and not excessive”.

Prison violence cases

21.My attention is also draw to the following cases involving violence in prison.

Yip Sze Ming HCMA 500/2003:

One inmate attacked another inmate from behind by punching his head and face repeatedly, deforming his nasal bone and causing linear abrasions in left loin. He pleaded guilty to inflicting grievous bodily harm (section 19) in the magistrates’ court. On appeal, the learned judge of the First Instance considered the starting point of 18 months proper.

Vu Wan Tien HCMA 996/1986:

An inmate struck another inmate on the body and head with an iron bar from a prison workshop. The victim suffered a lacerated wound over the temple and several superficial scratch marks over the right forearm and shoulder. On a plea to a charge of inflicting grievous bodily harm, the defendant was sentenced to nine months. On appeal, the Court of First Instance approved the sentence order as proper.

Other magistrates’ appeal cases

22.Other cases under the same sentence came from Magistrates’ levels.  The defence has helpfully submitted a number of decisions on sentencing of wounding charges.  I have studied them carefully and found that they confirmed what the learned editors of Archbold’s view: the circumstances for committing the offence are so varied that the sentence order could range from Community Service Order to a term of imprisonment.

23.Nonetheless, I found those cases do give me a prospective of sorts, a term of imprisonment for offences of this nature is the norm, and it could range from a short term to a more substantial one.

24.In passing sentence I noted that none of these cases were as serious as the present one.  The injuries had been so serious that they contributed to the victim’s demise.  The defendants should consider themselves lucky that they were not charged with manslaughter.  Having considered the severity of the injuries and the implication of the loss of public confidence, I found that I have to send a clear message to the society in order to salvage the reputation of the Criminal Justice System: such behaviour, even if committed by those working within the system, could not and would not be connived and would be seriously punished.  Taking into account of the authorities referred to above, I will adopt 24 months as a starting point for the charge.

Mitigating factors

25.As I repeatedly said in open court, these are not decisions made easily or lightly.  I am fully aware of the implications of the conviction to the individuals concerned and I am fully aware of the implications of the sentence order to be passed.

26.I would not repeat the particulars of the individual defendants. My reading of their background reports and the letters pleading leniency on their behalves confirmed my belief that they are not abstract representation of the Evil.  All of them have families, friends and colleagues who care for them and respect them.  They have in turn done their parts to earn such affection and respect.  They have made positive contributions to the society.  In another word, they are but humans who could falter and in this instance, they did.  But I also have the interest of the victim and the society to consider.  They too deserve their justice.

27.Having considered the whole circumstances, I would give credit to their clear record, contributions they have already made to the society, and on humanitarian grounds reduce the sentence from 24 months to 16.  They are to take effect immediately.