DCCC280/2012 HKSAR v.LEUNG SHING SHI AND OTHERS - LawHero
DCCC280/2012
區域法院（刑事）Deputy District Judge E. Lin30/8/2012
DCCC280/2012
A A
DCCC280/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 280 OF 2012 C
D
---------------------- D
HKSAR
E E
v.
F Leung Shing-shi(D1) F
So Ka-wai(D2)
G Tang Yuk-po(D3) G
-----------------------
H H
Before: Deputy District Judge E. Lin
Date: 31 August 2012 at 2.32 pm
I Present: Miss Virginia Lau, SPP of the Department of Justice, I
for HKSAR
J Mr Oliver H Davies, instructed by Wong & Co., for all J
Defendants
Offence: Inflicting grievous bodily harm (對他人身體加以嚴重傷害)
K K
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L L
Reasons for Verdict
M M
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N N
Background
O 1. An innocent man died while he was in the lawful custody O
of the Hong Kong Correctional Service Department on 16 August
P 2009. The deceased person, Mr Chen Chu-nan (hereinafter referred P
to as ‘the deceased’), was an otherwise healthy 30 year old
Q Taiwanese national with no known history of major illness or Q
substance abuse. Arrested in Hong Kong by the police on the 12th
R R
day of August, he was under a court order to be remanded in Lai
Chi Kok Reception Centre until 11 September 2009.
S S
T 2. On the morning of 15 August 2009 the deceased was T
examined by a doctor who found him perfectly healthy. Later he
U was observed to be acting oddly and murmuring to himself. The U
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V V
A A
CSD officer in charge thought fit to request another medical
examination. He was not cooperative. While waiting for his turn
B B
to see the doctor he rushed into the Consultation Room on the
C ground floor of Lai Chi Kok Reception Centre, followed by other C
CSD officers.
D D
3. At 11.18 am he was taken to a Protected Room for
E E
observation. At about 0748 hours on the 16th day of August 2009,
he was found unconscious by CSD officers. Attempts of
F F
resuscitation proved futile. He was certified dead at 0848 hours
G in Princess Margaret Hospital. The post-mortem examination G
identified no less than 117 external bruises and injuries on his
H person, including reddish bruises to the head, around the eyes, H
neck, trunk, including shoulders, chest, buttocks and hips, all
I I
four of his limbs, and extensive haemorrhaging on the back of
the upper right thigh. On the left side of his scalp there was a
J J
deep bruise. The cause of death was listed in the autopsy report
K
as ‘extensive soft tissue injury’. K
L 4. Prior to his detention in the Protected Room he was in L
the Consultation Room with three Correctional Services Officers,
M the defendants in these cases. Two of them, namely D1 and D2, M
were last seen to be trying to restrain the deceased by pressing
N N
him down under the watchful eyes of D3, the CSD Principal
Officer.
O O
P The Charge P
5. As a result of the incident the defendants faced one
Q charge of inflicting grievous bodily harm, contrary to section Q
19 of the Offences Against the Person Ordinance, Cap. 212, the
R R
particulars of which read:
S S
‘Leung Shing-chi, So Ka-wai and Tang Yuk-po, on the
15th day of August 2009, at Lai Chi Kok Reception
T Centre, Sham Shui Po, Kowloon, in Hong Kong, unlawfully T
and maliciously inflicted grievous bodily harm upon
U
Chen Chu-nan.’ U
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V V
A A
The Law
6. The power of the Correctional Services officers comes
B B
from the following sources, namely:
C C
(1) Section 101A of the Criminal Procure Ordinance,
D Cap. 211, the relevant part of which reads:- D
E ‘A person may use such force as reasonable in the E
circumstances in the prevention of crime or in
effecting or assisting in the lawful arrest of
F offenders or of persons lawfully at large.’ F
G (2) The Prison Rules 237 and 238 made pursuant to G
section 25 of the Prisons Ordinance, Cap. 234,
H H
the relevant parts of which read:
I ‘(237) Use of force I
J (1) No officer of the Correctional J
Services Department, in dealing
with prisoners, shall use force
K unnecessarily and, when the K
application of force to a prisoner
is necessary, no more force than is
L L
necessary shall be used.’
M ‘(238) Occasions when arms may be used M
(4) Every officer of the Correctional
N Services Department may use arms N
against any prisoner using violence
to any brother officer or other
O O
person, provided that such officer
has reasonable grounds to believe
P that the officer of the P
Correctional Services Department or
other person is in danger of life
Q or limb, or that other grievous Q
hurt is likely to be caused to him.
R R
(5) Before using arms against a
prisoner under the authority
S contained in paragraph 2, the S
officer shall warn such prisoner
that he is about to fire on him.
T T
(6) An officer of the Correctional
U
Services Department shall not, in U
the presence of his superior
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V V
A A
officer, use arms of any sort
against the prisoner in the case of
B an outbreak or attempt to escape B
except under the express orders of
such superior officer.
C C
(7) The use of arms under this rule
D
shall be, as far as possible, to D
disable and not to kill.’
E E
7. Cap. 23 of the CSD’s own departmental codes and
procedures also set out the following guidelines for the use of
F F
force and arms:-
G G
‘23.01 Stipulations on the use of force or arms
H H
(3) The use of force or arms is an
exceptional and extreme measure. It is
I an officer’s last resort either to I
protect himself or other persons from a
J serious threat of injury or to enable J
him to meet a concerted threat to good
order or security.
K K
(4) An officer shall display self-
L discipline and exercise a high degree L
of restraint when dealing with any
person and shall not resort to the use
M of force or arms unless such action is M
clearly necessary. The use of force or
N arms under this order shall be, as far N
as possible, to disable and not to
kill.’
O O
‘23.05 Degree of Force
P P
(1) The principle governing the degree of
Q force or arm is that only the minimum Q
force necessary may be used to achieve
the lawful purpose. Once this has been
R attained the use of such force or arms R
shall cease immediately.
S S
(3) Batons or extendable truncheons will
not be used when two or more officers
T are dealing with a single, unarmed T
prisoner, except on the order of a
senior officer present.’
U U
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V V
A A
8. An internal memo of the CSD dated 20 January 2000 also
set out the guidelines on the use of OC foam and its
B B
decontamination.
C C
9. Briefly put, a Correctional Services officer has the
D legal power to use force when necessary, but the force used D
cannot be more than necessary. If the force is used
E E
unnecessarily or the degree of force exceeds what is necessary
they cannot be said to be acting within lawful authority, and
F F
if such force causes injury to the inmate he will be held
G liable in accordance with the law. G
H 10. It is the prosecution’s contention that in the process H
of restraining the deceased they had used unnecessary force and
I I
thereby unlawfully and maliciously inflicted grievous bodily
harm on his person.
J J
K
On Joint Enterprise K
11. The defendants were charged jointly in this case. The
L prosecution contends that they were all party to a joint L
enterprise while the deceased was within the Consultation Room
M being subject to unreasonable force by a one or more of the M
defendants. In such a case the prosecution does not have to
N N
prove which of the defendants is responsible for inflicting
which particular injury or at what point each of the defendants
O O
joined in (see HKSAR v Terrado Alfredo S & Anor, unreported
P Cr.App. No. 112/2005), and each is liable for the consequences P
of an overt act (see R v Britain & Shackell (1848) 3 Cox CC 76.
Q In the CFA case of Sze Kwan Lung & Ors [2004] 3HKLRD 328 at page Q
339, Bokhary PJ explained the principle thus:
R R
‘(33) Joint enterprise is an expression used to denote
S S
the conduct of two or more persons who take part
together in the course of criminal conduct. So
T many and varied are the circumstances in which T
the doctrine of joint enterprise operates that no
single case can be expected to provide an
U occasion for discussing every aspect of the U
doctrine. One such set of circumstances by no
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V V
A A
means uncommon in the experience of our courts is
where multiple injuries are inflicted on a victim
B set upon by a group of assailants. Many injuries B
are inflicted, only one injury proves fatal, and
evidence does not show which assailant inflicted
C the fatal injury. The circumstances of the C
present case are comparable since the prosecution
D
is unable to say which particular person actually D
started the fire.
E E
(34) While this is not the occasion for giving a
definitive decision on the entirety of the
F doctrine of joint enterprise, it is in my view, F
as indicated above, the doctrine is distinct from
the common law principles of aiding, abetting,
G counselling and procuring. Each participant is G
criminally liable for all the acts done in the
pursuance of the joint enterprise and, whether or
H H
not he intended it, he will be criminally liable
for any such act if it is of a type which he
I foresaw as a possible incident of the execution I
of the joint enterprise and he participated in
the joint enterprise with such foresight. This
J may be traced at least as far back as Alderson J
B’s famous direction to the jury in Macklin v
Murphy’s case [1838] 168 ER 1136, and it is the
K K
effect of our law as it has been clearly
understood at least since the decision of Privy
L Council on appeal from Hong Kong in Chan Wing Siu L
v R [1985] AC 168 which involved murder and
wounding with intent. I have particularly in
M mind what Sir Robin Cooke, as Lord Cooke of M
Thorndon then was, said at page 175G and H and
N 177B in the course of delivering their Lordship’s N
advice in that case.”
O (35) After examining the authorities in Australia and O
New Zealand, as well as in England, Sir Robin
Cooke said this at pages 177G to 178B:
P P
“The test of mens rea here is subjective. It
Q is what the individual accused in fact Q
contemplated that matters. As in other cases
where the state of a person’s mind has to be
R ascertained, this may be inferred from his R
conduct and any other evidence throwing light
on what he foresaw at the material time,
S S
including, of course, any explanation that he
gives in evidence or in a statement put in
T evidence by the prosecution. It is no less T
elementary that all questions of weight are
for the jury. Prosecution must prove the
U necessary contemplation beyond all reasonable U
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V V
A A
doubt, although that may be done by the
inferences as just mentioned.”’
B B
The Issues
C C
12. In the present case there can be no dispute that the
D defendants did have the power to use and did use force to subdue D
the deceased, and that the deceased did sustain grievous bodily
E harm. The issues to be determined are whether the injuries had E
been caused by the defendants’ use of force and whether the
F force used had exceeded what was necessary in the circumstances. F
G G
13. This is a criminal trial, needless to say that the
prosecution has a duty to prove all the elements of the crime
H H
beyond a reasonable doubt. The defendants have no burden to
I prove anything. I
J 14. In this case the defendants had elected not to give J
evidence at the end of the prosecution’s case. This is their
K K
right and no adverse inference can be drawn against them. It
simply means that this court does not have an alternative, if
L L
any, version of facts to consider. Again it does not affect the
M burden of the prosecution to prove every element of the crime M
beyond a reasonable doubt.
N N
15. The defendants in this case are men of good character.
O O
In considering the evidence of the prosecution and in drawing
inferences from the primary facts, the court would particularly
P P
bear this fact in mind for it is accepted that men of good
Q character are generally less likely to commit crimes and that if Q
they choose to give evidence, their testimonies would carry more
R weight than those who do choose not to put forward this fact R
before the court.
S S
The Voir Dire Proceedings
T T
16. Each defendant had given two statements during the
U
Police investigation of the incident. The prosecution sought to U
produce them as evidence. A voir dire was thus held to determine
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V V
A A
their admissibility. Six police officers were called by the
prosecution to produce the statements. All the police officers
B B
agreed in court that they suspected a crime had been committed
C when they interviewed the defendants. For some reasons they C
decided to invite the defendants to give evidence only as
D witnesses. None of the defendants had been warned that what they D
were going to say would be used as evidence against them. They
E E
were not reminded of their rights to silence.
F F
17. Although the statements were voluntary in the sense
G that they were not obtained by threat or violence and that they G
were clearly relevant, I ruled at the end of the prosecution’s
H case that the statements were inadmissible as the defendants H
were given the impression that they would not be charged for
I I
what they were going to say in the statements. As such, the
statements were not voluntary in the eyes of the law: see the
J J
statement of principal by Lord Sumner in Ibrahim v Rex [1914] AC
K
599 at page 609. K
L 18. Furthermore, the defendants were giving statements in L
respect of a matter which occurred in the course of their
M duties. They were compelled by their duties to give an account M
of what had transpired. To use a statement taken under such
N N
circumstances would be a breach of the guarantee under section
11(2)(b) of the Hong Kong Bills of Rights Ordinance.
O O
P 19. I also consider that this is a proper case to use my P
discretionary power to exclude. Accordingly all the statements
Q had been excluded. Q
R R
Evidence
20. Although I have considered all of the evidence, for the
S S
sake of brevity here I would only set out the most essential
T parts pertaining to my decision. T
U U
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V V
A A
The Undisputed Evidence
21. Part of the evidence had been admitted under section
B B
65C of the Criminal Procedure Ordinance, Cap. 211, see MFI-1 to
C 4. I would not repeat them in full. Parts of the witnesses’ C
testimonies were not challenged. The followings are, in my view,
D the most salient features in this case as gleaned from the D
admitted facts and matters not disputed:
E E
• After Chen Chun-nan was arrested by police on 12
F F
August 2009, by a court order he was remanded in
G custody in Lai Chi Kok Reception Centre until 11 G
September 2009.
H H
• The deceased, aged 33, was of moderate built; he
I I
weighed 58kg and his height was 163cm. He was not
a drug dependent, had not suffered from any serious
J J
illness or psychiatric illness or undergone any
K surgical operation. He had no history of allergy K
to drugs or been prescribed any psychiatric
L treatment or medicine. He had self-harm idea or L
act. He had not been prescribed with any long term
M M
or specialist medication.
N N
• In the morning on 15 August 2009, Dr Wong Chi-ho,
PW7, carried out physical examination of the
O O
deceased in Lai Chi Kok Reception Centre. The
P doctor made the following remarks in the deceased’s P
Health Screen Form: ‘Good past health’, ‘Not known
Q drug addict’, ‘No alleged assault’, ‘No claimed Q
allergy’ and ‘Stable’.
R R
• On the same day the deceased was observed to be
S S
behaving oddly. Therefore arrangement was made to
take him back from the reception office to the
T T
hospital in Lai Chi Kok Reception Centre (both on
U the ground floor of the same building) for a second U
examination.
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V V
A A
• The three defendants were on duty in the hospital
B B
on the morning of 15 August 2009. Tang Yuk-po, D3,
the principal officer, was issued with OC foam, and
C C
the other two defendants were each equipped with an
D extendable truncheon before they carried out their D
duties. At about 11 am, inside the Consultation
E Room, OC foam was used on the deceased. After the E
incident a report for the use of OC foam had been
F F
filed. There was no report for the use of the
extendable truncheons.
G G
H • At 1109 hours, the deceased was escorted to the H
Protected Room (Cell No. 4) on the 1st floor of Lai
I Chi Kok Reception Centre. The Protected Room was I
equipped with padded walls and was used to confine
J J
refractory or violent inmates, presumably to allow
them to calm down. The room was designed to prevent
K K
those confined within from injuring themselves or
L others. Except for the approved articles such as L
bedpan and blanket, no other article was placed
M inside. M
N N
• From 1118 hours on 15 August to 0805 hours the next
day, the deceased was kept in the Protected Room.
O O
CSD officers checked on the deceased through the
P observation window every 15 minutes. In addition P
his movements were monitored and recorded by a CCTV
Q camera. The CCTV footage (P6 and P6A)showed the Q
deceased walking, sitting or laying on the floor
R R
restlessly most of the time. Occasionally he used
his body to bang against the padded wall or door,
S S
crawling on the floor, attempting to open the door,
T wandering in the room playing with his clothing and T
his own fingers. Before he was taken to the
U U
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A A
Protected Room he was alone in the Consultation
Room with the three defendants.
B B
C • At 0748 hours on 16 August 2009 the deceased was C
found unconscious. Despite repeated resuscitation
D attempts by Correctional Services officer, the D
paramedics of the ambulance, hospital staffs and
E E
the doctor attached to the A&E Department of
Princess Margaret Hospital, he was certified dead
F F
at 0848 hours.
G G
22. There is no direct evidence on what happened in the
H Consultation Room where the deceased was alone with the three H
defendants. What had happened could only be inferred from the
I factual evidence and from that of the forensic experts. I
J J
Events Leading to the Deceased’s Confinement in the Protection
Room
K K
23. On the morning of 14 August 2009, Mr. Kwong Kwok-bun
L
AOII of CSD(PW2) first met the deceased when he was admitted to L
Lai Chi Kok Reception Centre. According to his evidence, at 0930
M hours on 15 August 2009 he saw the deceased again at the M
reception office. As the deceased did not carry the inmate
N identification slip as he was supposed to, PW2 had to check with N
the computer record to confirm his identity. PW2 found the
O O
deceased acting strangely and repeatedly left his assigned seat
to talk to PW2, demanding to leave. PW2 therefore arranged for
P P
him to be seen by the doctor again. At around 1015 hours the
Q deceased suddenly left his seat and ran up the staircase leading Q
to the hospital on the 1st floor. PW2 told him to walk back down
R slowly and the deceased did as told. During the 50 minutes when R
the deceased was under the charge of PW2, he had kept the latter
S S
under observation. That morning, of more than 20 inmates under
his supervision, only the deceased behaved in such a way. He did
T T
not notice if the deceased had any injuries on his person.
U U
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A A
24. Under cross-examination PW2 accepted that he first gave
his statement in June 2010 and that his recollection of the
B B
events that day was not that clear.
C C
25. In the same morning AO Koon Kin-yip (PW1) was tasked
D with maintaining orders in the hospital corridor. At about 1030 D
he heard commotions and subsequently saw the deceased standing
E E
on the staircase leading to the hospital floor, a place where
inmates were not allowed to be. He assisted PW2 to command the
F F
deceased to walk down the staircase and then took the deceased
G to wait outside the MO’s office. While waiting the deceased was G
murmuring to himself and grinning foolishly. Therefore PW1
H commanded him to sit outside the Treatment Room and then he H
resumed to attend his other duties.
I I
26. At around 11 am PW1 heard So Ka-wai (D2) and Leung
J J
Shing-chi (D1) shout at someone in Putonghua along the lines of
K
‘Sit down, the doctor is not ready yet’, and then saw the K
deceased running into the Consultation Room. D1 and D2 attempted
L to stop him but ended up following him into the room. D3 Tang L
Yuk-po, also ran into the room. PW1 was the last one to enter
M the room at some 20 to 30 seconds later. As soon as PW1 entered M
the Consultation Room its door was closed. PW1 could not be sure
N N
who closed it.
O O
27. In the Consultation Room PW1 saw the deceased standing
P next to the doctor’s desk, his upper body bent on the same, with P
D2 and D3 holding down each of his shoulders. From the way PW1
Q described it, the deceased’s head must have propped on his chin Q
on the desk and his face was facing the computer table (see
R R
P9(22) and P2A). The deceased kept wriggling his body, shouting,
‘I want to go home’. D3 repeatedly told the deceased to calm
S S
down and then instructed D1 and D2 to force the deceased down
T onto the floor, but even then the shouting and the struggling T
continued. Then D3 told the deceased not to move any more or OC
U foam will be used. U
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V V
A A
28. At that point PW1 suddenly remembered there were some
B B
30 inmates waiting in the corridor and that there was only one
other colleague on duty, so he left the room to attend to other
C C
duties. He stated that he did not witness the use of OC foam,
D nor did he see anyone using the extendable truncheons. He did D
not remember hearing any noise coming out of the Consultation
E Room. E
F 29. At about 1059 hours D3 came out and instructed PW1, who F
was about 4 metres away from the Treatment Room, to escort all
G G
other inmates back to their own cells before going back into the
room again.
H H
I 30. Before the deceased entered the Consultation Room PW1 I
recalled that there was no injury on the deceased’s face. He was
J not sure if there were bruises on the deceased’s collar bone or J
limbs. He did not see any of the injuries on the deceased as
K K
shown in the post-mortem picture P8(4). He was inside the
Consultation Room for about three minutes, the last minute of
L L
which the deceased was already on the floor. He did not notice
M the presence of any injury on the deceased before he left. M
N 31. A few minutes later PW1 saw the three defendants taking N
the deceased up to the hospital ward, with D2 and D3 on each
O O
side and D3 walking behind. The deceased had his face lowered.
There was pepper spray stain, a yellowish liquid, all over the
P P
deceased’s face, but PW1 did not remember seeing redness on the
Q deceased’s neck. PW1 also stated it was a natural response for Q
the part of the skin that came into contact with pepper spray to
R turn red. R
S S
32. Under cross-examination PW1 agreed since the event took
place a long time ago his recollection was not very clear. He
T T
agreed he could not remember very clearly what happened that
U
day. When asked again if he was sure that D3 give order to U
evacuate the inmates he first confirmed that this was the case
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V V
A A
according to his recollection and then stated that he was not
sure. Likewise, on the question of how much pepper spray he saw
B B
on the deceased’s face, PW1 first stated that he saw it covering
C the whole face, and when further questioned he was not sure C
after all. He did clarify, under cross-examination, that when he
D saw the deceased emerging from the Consultation Room on the way D
to the hospital ward on the 1st floor he was being held on the
E E
arms by D1 and D2. PW1 did not notice if the deceased showed any
sign of limping.
F F
G 33. CSD Officer 4399 Mr. Chang Pak-ming (PW9), was on duty G
on the 1st floor on the morning of 15 August 2009. He was asked
H by D3 to fetch the doctor as an inmate had to go to the H
Protected Room. He was outside the Protected Room when D2 gave
I I
an injection to the deceased. Not long after Dr Wong Chi-ho
(PW7) arrived and he went in to assist the doctor to carry out
J J
an examination of the deceased.
K K
34. From the CCTV footage the whole process lasted no more
than 77 seconds. PW7 only saw redness on the skin of the
L L
deceased’s face and on the upper interior chest. He saw no other
M injuries on the deceased. Although the light was adequate he saw M
fit to carry out the visual examination with the help of the
N torch held by the CSD officer. N
O O
Evaluation of PW1’s Evidence
35. At best PW1 can be described as a reluctant witness.
P P
His reluctance can be clearly illustrated by his manner of
Q answering questions in court. On many occasions he deflected the Q
questions put or simply avoided them by coming up with something
R else. I had to repeatedly remind him that he was under oath and R
directed questions to be put again. One could imagine, and hope,
S S
that a death during lawful custody was not a common occurrence,
yet PW1 seemed to be suggesting in court that he did not have
T T
the curiosity to pay attention to the event and that it did not
U
leave much impression on him. U
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V V
A A
36. Furthermore, it is difficult to understand how, in the
heat of the moment when he saw the deceased being held down but
B B
still was struggling, he suddenly remembered he had other duties
C to attend to and leave the room immediately and henceforth did C
not bother to try to find out what happened next. However,
D according to his evidence he did leave the room at that point D
and, in my view, it must imply that he was satisfied the
E E
situation was under control and his assistance was not required.
At that point the deceased was restrained by two CSD officers
F F
and D3 was about to use OC foam on him which would further
G reduce the strength of his resistance. G
H 37. Although I have reservation on the part of PW1’s H
evidence concerning his leaving the Consultation Room, I accept
I I
his account of events up to the point of his leaving the room
and what he saw after he had left it. The deceased had no
J J
significant injuries on him before entering the room.
K K
38. It is not clear how much time the defendants spent with
L L
the deceased. PW1 stated that he stayed inside the Consultation
M Room for three minutes before leaving to attend to the other M
duties and, ‘approximately several minutes later, he saw the
N three defendants escorting the deceased to the hospital ward. N
According to the CCTV recording P7(7), the deceased was in the
O O
elevator at 11.09 on the way to the Protected Room on the 1st
floor. The same picture showed that he was being escorted by D1
P P
and D2 who held on to each of his hands. At 1118 hours he
Q entered the Protected Room (I noted that the Admitted Facts MFI- Q
1 wrongly put the time as 1120).
R R
Evidence During the Deceased’s Confinement in the Protected Room
S S
39. After the deceased had been taken into the Protected
Room at 1118 hours he was observed through the observation
T T
window by CSD officers on duty every 15 minutes. In addition
U
four CSD officers were specifically deployed to monitor the U
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V V
A A
deceased through the CCTV monitor (see MFI-1, paragraph 20 and
22).
B B
C 40. At 1120 hours a CSD officer took Polaroid photograhps C
of the deceased (See P7(11-12). He had no upper garment on. The
D Polaroid photographs were of such poor quality that it is D
impossible to tell if the deceased had injury on his person.
E E
41. At 0340 hours on 16 August 2009, CSD officer Chiu Pak-
F F
ming (PW4) checked on the deceased and found him sitting on the
G floor of the Protected Room. He noticed a bruise the size of a G
fist on the deceased’s outer thigh. He did not notice if there
H was any bruises on his face. H
I I
42. A large portion of the CCTV footage filmed during the
deceased’s confinement in the Protected Room had been played in
J J
open court (part of which was played fast forward to save time
K
see P6A). The parties agreed that the undersigned can review the K
footage or any part thereof in chambers. The prosecution has
L also prepared a chart describing some of the deceased’s L
significant movements during the 20 hours 47 minutes he spent
M inside the Protected Room. The accuracy of the description is M
not challenged: See MFI-4 and P19.
N N
43. The CCTV footage is grainy and of very low resolution.
O O
It fails to show details on the deceased person. It does show
P (at 030009) a large patch of bruise on the outer side of the P
deceased right thigh.
Q Q
44. I noted that when the deceased was interacting with the
R R
CSD officers and when he was examined by PW7 he did not appear
to be agitated but instead was rather docile and even
S S
cooperative.
T T
45. In the CCTV recording, the deceased’s body was in full
U view at all times, except for the few minutes during which he U
CRT26/31.8.2012/NB 16 DCCC280/2012/Verdict
V V
A A
covered himself with a blanket, and there were a few seconds in
which one could not make out where his hands were.
B B
C 46. From the time the deceased entered the Protected Room C
to sometime after 072009 hours (See P19, when he was last seen
D moving by adjusting his right hand once), the deceased had been D
restless most of the time. Having reviewed the whole footage I
E E
cannot detect any instance in which the deceased tried to
mutilate himself. Given that the walls of the Protected Room are
F F
all padded and it is designed to prevent the inmate detained
G therein from hurting himself, I found his movements during his G
confinement in the Protected Room did not cause any injuries on
H him. H
I I
The Resuscitation
47. At 0740 hours PW4 was informed that the deceased had
J J
collapsed and went immediately to the Protected Room. He saw two
K
CSD officers performing cardiopulmonary resuscitation (‘CPR’) on K
the deceased. The cardio-defibrillator PW4 set up on the
L deceased did not detect any heart beat. He took over the CPR and L
then tried to put on an intravenous drip. He gave the deceased
M an injection of adrenaline and atropine before the deceased was M
taken to the Princess Margaret Hospital.
N N
48. Mr Ip Chi-man, PW3, was the paramedic working for the
O O
Fire Services Department. When he arrived at Lai Chi Kok
P Reception Centre, the deceased had already been moved to the P
corridor and other CSD officers were carrying out CPR on him. He
Q took over the resuscitation procedure and noticed that there Q
were many bruises on the deceased’s trunk and limbs. At the time
R R
the deceased was neither breathing nor had any pulse.
S S
49. At 0816 the deceased was examined by Dr Wong Cheung-lu,
T resident of Prince Margaret Hospital(PW5). He too detected no T
vital signs. In accordance with the standard resuscitation
U protocol, the deceased was given adrenaline injection, his air U
CRT26/31.8.2012/NB 17 DCCC280/2012/Verdict
V V
A A
passage was kept open by first injecting a muscle relaxant
before plying open his mouth by a laryngeal blade and inserting
B B
a tube into the deceased’s throat. At the time PW5 noticed there
C were bruises on the deceased’s eyes, back and sides. There were C
yellowish discharges close to the eyelids. PW5 maintained that
D none of the resuscitation procedure carried out would cause the D
injuries shown on P8 (6, 7 and 13). The deceased did not respond
E E
to the resuscitation and was certified dead at 0848 hours on 16
August 2009 (see P10).
F F
G 50. The evidence of PWs 3 to 5 was not challenged. Having G
considered their evidence, I found the resuscitation procedure
H had been carried out by the book and could not have caused any H
significant external injury to the deceased.
I I
Evidence of Medical Examination
J J
51. Dr Wong Chi-ho (PW7) was a medical doctor attached to
K
Lai Chi Kok Reception Centre since March 2008. Having examined K
the deceased at 0930 hours on 15 August 2009 he gave the
L deceased a clean bill of health (see MFI-1, paragraph 4, and the L
supplementary medical report P15, A6). PW7 found the deceased’s
M physical condition to be ‘stable’ and found his general health M
condition ‘satisfactory’.
N N
52. At 1118 hours (see MFI-4 and P19), that is after the
O O
incident in the Consultation Room, he entered the Protected Room
P where he carried out a ‘thorough examination’ of the deceased. P
In court PW7 explained that by ‘thorough’, he meant
Q ‘sufficient’. He found red marks on the deceased’s eyes, both Q
cheeks, anterior chest wall, which were ‘consistent with OC
R R
foam’ (see P14, the memo dated 23 December 2009). He saw no
foreign substance on the deceased’s face, nor did he detect any
S S
serious injuries and swelling. The deceased was given intra-
T muscular injection for his ‘unstable emotion and violent T
behaviour’.
U U
CRT26/31.8.2012/NB 18 DCCC280/2012/Verdict
V V
A A
53. At 0755 hours on 16 August 2009, when PW7 saw the
deceased again, the paramedics had already arrived and had been
B B
carrying out resuscitation procedure. In an undated
C supplementary medical report (P15), in answer to question 17, C
PW7 stated that he did not notice the extensive bruising on the
D deceased’s body, yet when asked directly in the next question D
about the large patch of bruises on the right thigh and eyes he
E E
said that he did notice them but he had ‘no opinion over these
bruises because of lack of clinical information at present’. In
F F
court he stated he also saw bruises on the deceased’s face and
G limbs similar to those shown on P8(6-7). G
H 54. PW7 did not make any notes of his findings on 16 August H
2009 although, as he agreed under cross-examination, he had a
I I
duty to do so. He agreed to the defence’s counsel’s suggestion
the reason for not doing so was ‘perhaps he was too busy’. He
J J
did not remember when he wrote the undated P15. He gave
K
ambiguous answers when questioned on the apparent contradictions K
between answers to Questions 17 and 18 in P15. In answer to my
L question he said that he did not remember how many inmates died L
on his watch.
M M
55. From the CCTV footage played in court, PW7 entered the
N N
Protected Room at 11:13:22 and left at 11:14:39, spending less
than 77 seconds inside for his ‘thorough’ or, as the good doctor
O O
qualified in court, ‘sufficient’ examination. At all times
P during this examination he was about 3 feet away from the P
deceased, with a CSD officer standing in between, carrying out
Q visual examination with the aid of a torch held not by him but Q
by the said CSD officer. From the footage, despite its poor
R R
quality, I was given an impression that it was the CSD officer
who decided for PW7 where to look at by pointing the torch at
S S
various body parts of the deceased.
T T
U U
CRT26/31.8.2012/NB 19 DCCC280/2012/Verdict
V V
A A
Evaluation of PW7’s Evidence
56. I was not impressed by PW7 as a witness. He was
B B
evasive and defensive in answering questions by the prosecution
C and the defence. Even accepting that he had a heavy workload, C
for a doctor attached to the hospital of the Correctional
D Services Department, his primary concern should be the well- D
being of the inmates. I find it incredible that PW7 could have
E E
no recollection of how many inmates died on his watch, albeit by
August 2009 he was attached to Lai Chi Kok for only 17 months.
F F
He was either less than honest or simply being callous. The
G cursory manner in which he carried out the examination of the G
deceased in the Protected Room was disgraceful to say the least.
H The indifferent attitude could also be reflected from the CCTV H
footage: not a moment during the 77 seconds’ examination when he
I I
was inside the Detention Room did he approach the deceased to
carry out a closer inspection. The CSD officer was always
J J
standing in between, directing the doctor’s attention with a
K
torch. I found the part of his observation of the deceased after K
the latter was taken up to the Protected Room very doubtful.
L L
The Forensic Evidence
M 57. The prosecution called Dr Ng Chung-ki, PW8, a senior M
forensic pathologist of Kwai Chung Public Mortuary, to elaborate
N N
on the Autopsy Report (P17) compiled by him. His expertise is
not challenged.
O O
P 58. P17 sets out all the bruises found on the deceased. P
PW8 marked them on P8A. There were 84 headings of external
Q bruises. Excluding the tattoo marks (item 82), a total of 117 Q
bruises were identified on various parts of the deceased,
R R
including 10 items of multiple/small bruises. Internal
examination revealed a reddish bruise in his scalp, various
S S
injuries in his thoracic cavity and fracture on three of his
T left ribs. T
U U
CRT26/31.8.2012/NB 20 DCCC280/2012/Verdict
V V
A A
59. Having viewed the CCTV footage of the Protected Room
(P7), PW8 was of the view that the injuries found on the
B B
deceased could not have been inflicted during his detention
C therein. He also ruled out the possibility that the injuries C
were post-mortem. For the same reason, and also in view of the
D quantity and extent of the injuries found, he also ruled out the D
possibility that injuries were produced after the deceased was
E E
found collapsed in the Protected Room.
F F
60. Paragraph 2 of the remarks in P17 stated that the soft
G tissue injuries in the right buttock and right thigh were G
recent, consistent with the body parts hitting against or being
H hit with a hard object. From their number and distribution they H
were suggestive of a violent assault or vigorous struggle,
I I
whereas the fracture ribs could have been caused by the external
cardiac massage performed during resuscitation. The injuries on
J J
the limbs could have been defence injuries caused by the
K
victim’s attempt to ward off weapons with his limbs. K
L 61. On 18 August 2012 PW8 gave a further written opinion on L
the cause of the bruises (P18), the relevant part of which
M reads: M
“i. All the bruises and haemorrhage in the muscles of
N the right buttock and right thigh found in the N
deceased by the autopsy are consistent with having
been produced by blunt force. The infliction of
O O
the bruises required a moderate amount of force,
whereas the haemorrhage in the muscles involved a
P significantly greater amount of force. The P
injuries did not show a specific shape to suggest
a particular causation. Events such as falling on
Q hard objects, punching with fist, kicking, hitting Q
by hard object are all possible causes of these
injuries. However, judging from their large
R R
number and wide distribution, the incident leading
to these injuries would involve multiple impacts
S to different areas of the body. Therefore, they S
are unlikely to be accidental in origin and area
suggestive of a violent assault or vigorous
T struggle as mentioned in the autopsy report. The T
bruises found in the deceased were mostly located
U
in the body parts that were only covered by thin U
layers of soft tissues such as those on the face,
CRT26/31.8.2012/NB 21 DCCC280/2012/Verdict
V V
A A
upper front of the chest, hips, back of the hands
and front of the legs. These bruises should have
B become visible externally shortly after B
infliction. As to the bruises on the right
buttock and right thigh, they were associated with
C bruising in the underlying muscles. Therefore, it C
is possible that these bruises were formed by
D
diffusion of blood from damage in the deep D
subcutaneous or muscle layers. As the diffusion
of blood in the tissues take time the bruises
E might have a delayed appearance and appear some E
hours after infliction.”
F F
62. In a further report dated 10 August 2011 (P21), PW8
G gave his opinion on the specific injuries found on the deceased. G
He found most of the injuries consistent with being caused by
H blunt forces. However, when asked in Question 12 if the injuries H
could be caused by a struggle he opined:
I I
“The sort of injuries sustained during an assault or a
J struggle depends on the degree and form of violence of J
the event. Therefore, to determine whether the
injuries present are resulted from an assault or a
K struggle often relies on the circumstantial evidence of K
the event. In the present case the number and severity
of the deceased’s injuries are suggestive of a violent
L L
assault. Nonetheless, just basing on the autopsy
findings alone, the possibility that the injuries were
M sustained during a vigorous struggle could not be M
entirely excluded.”
N N
63. PW8 agreed in court that if the deceased had suffered
from severe alcohol withdrawal it could have contributed to his
O O
demise. Yet the mere presence of marked fatty change in the
P liver (as was found in the autopsy report P17) could be P
suggestive of alcohol abuse but was not a reliable sign to
Q indicate the degree of abuse owing to individual variations. Q
R R
64. PW8 further stated that the bruise found on the
deceased’s head were not visible externally and could be caused
S S
by blunt forces. If the deceased was suffering from bleeding
T disorder, PW8 would expect it to be a persistent condition. T
Therefore he would expect to find bruises showing signs of
U healing, but none of which was found. U
CRT26/31.8.2012/NB 22 DCCC280/2012/Verdict
V V
A A
65. Under cross-examination PW8 pointed out that bruises
B B
would have appeared minutes or hours after the impact and were
C obvious to the eye. While those injuries could have been C
produced post-mortem, this would have required a much greater
D degree of violence and PW8 had never heard of or seen a case D
with so many post-mortem injuries as in this case in the 20
E E
years of his professional life. He ruled out a bleeding disorder
as he detected no sign of the same in the deceased.
F F
G 66. As to the possibility of self-mutilation during the G
time when the deceased was covering himself with the blanket
H (see P7, at 1253 to 1404 hours), PW8 explained that there were H
two common causes for self mutilation: (i) To manufacture
I I
evidence for implicating others; such injuries were usually a
small cut and abrasions and as a process was very painful. The
J J
extent of injuries rendered this unlikely. (ii) Mental
K
disturbances, in which case one should be able to see the K
deceased inflicting injuries on himself on other parts of the
L footage, which there was none. L
M Defence Evidence M
67. After I ruled that there was a case to answer, the
N N
defendants elected not to give evidence on factual issue, which
simply means that I would have to decide on the factual matters
O O
on the merit or otherwise of the prosecution case. The defence
P did call Dr Beh Swan Lit, a Clinical Associate Professor in P
Forensic Pathology at the Department of Pathology, Faculty of
Q Medicine, University of Hong Kong to give an expert’s Q
interpretation of the facts. His expertise was not challenged.
R R
His opinion was reduced into writing and produced as D1. Apart
from stating that the redness over the deceased’s eyes could
S S
have been caused by the OC foam, coupled with the deceased’s own
T rubbing, Dr Beh did not seek to account for every injury found T
on the deceased as it was a known fact that there was a struggle
U between the latter and the CSD officers. U
CRT26/31.8.2012/NB 23 DCCC280/2012/Verdict
V V
A A
68. If I understand it correctly, Dr Beh was saying that
B B
the injuries found on the deceased could be less serious than
C they look and they could have been caused by much minor impacts. C
D 69. Dr Beh based his opinion on the assumption that the D
deceased was, at the time, suffering from a bleeding disorder.
E E
Since people with a bleeding disorder are likely to bleed more
profusely and for a longer period following the injury, the
F F
appearance of resulting bruises would appear bigger (see
G paragraph 49, D1). Therefore the deceased G
‘will be more likely to bleed and the bleeding would
H H
also take longer to stop. In such an individual any
trauma would lead to the loss of more blood through the
I damaged blood vessels and hence the appearance of a I
larger area of bruising (see paragraph 38, D1).
J J
70. When invited to elaborate on the correlation between
K
the degree of force to be applied and the time of bruises to K
appear and the size of the bruises, Dr Beh stated that there was
L no precise formula available as there are too many variants L
involved. Dr Beh did say that most of the injuries found on the
M deceased’s body were caused within a day. The injuries on the M
thigh and the head could have been caused by blunt forces. He
N N
expected a lot of superficial injuries should be visible shortly
after their infliction. Having reviewed the CCTV footage, Dr Beh
O O
stated that he did not see any significant physical contacts
P which could cause the injuries found on the deceased, nor did he P
see specific signs to indicate the injuries were self-inflicted.
Q He agreed that some of the injuries could have caused during the Q
struggle in the consultation room.
R R
Evaluation of the Expert Evidence
S S
71. Both expert witnesses struck me as fair, impartial and
T objective. I defer to their expertise on these matters. When T
read closely, both witnesses were not that different in their
U opinions. The injuries found on the deceased were recent and U
CRT26/31.8.2012/NB 24 DCCC280/2012/Verdict
V V
A A
there were no signs to suggest that they were self-inflicted.
Except for the fractured ribs the injuries could not have been
B B
caused by the attempts of resuscitation. Both could not identify
C exactly the manner in which any of the injuries were inflicted, C
nor could one correlate the degree of force used to cause any of
D the injuries found. The absence of abrasion means that the D
injury could have been caused by a blunt force, although both
E E
experts could not give a timeframe in which the injuries must
have been visible. Both agreed that it should be very soon after
F F
their infliction.
G G
72. The experts differed on the degree of force that could
H have caused the bruises. On the assumption that the deceased H
suffered from a bleeding disorder, Dr Beh opined that an
I I
individual suffering from such a condition would lose more blood
and the resulting bruises would appear bigger and more sinister
J J
as the result of smaller traumas.
K K
73. However, but accept such findings would require several
leaps of faith. One would have to assume the followings:
L L
M (i) The deceased was a drinker. M
(ii) He drank excessively and chronically.
N (iii) His drinking problem was so serious that he N
suffered from severe alcohol withdrawal syndrome.
O O
(iv) His alcohol withdrawal syndrome was so serious
that it compromised his blood coagulating system;
P P
(v) his blood coagulating system was so compromised
Q that it rendered him vulnerable to bleeding Q
excessively caused any minor trauma, resulting
R in the bruises subsequently found on the R
deceased.
S S
74. None of the above assumptions was supported by any
T T
evidence, admissible or otherwise. Dr Beh agreed that he could
U
find no physical proof or any evidence to support the U
postulation that the deceased was a chronic alcoholic. He agreed
CRT26/31.8.2012/NB 25 DCCC280/2012/Verdict
V V
A A
that the deceased’s fatty liver could have a number of causes
other than alcoholism. He also agreed, under cross-examination,
B B
that a chronic alcoholic did not necessarily develop a bleeding
C disorder. C
D 75. Dr Beh’s assumption on the deceased’s drinking habit D
was based on a reference to one Dr Tsang Fan-kwong’s report in
E E
one Professor Vanezis’ report (see paragraph 20, D1). Neither of
these reports was available in this hearing, nor were their
F F
authors called to give evidence. The undersigned has not been
G able to assess their credibility and the credibility of any of G
the above factual assumptions. This court is therefore unable to
H make a factual finding for the rest of the assumptions in order H
to give credit of Dr Beh’s prognosis.
I I
76. I should also add that Dr Ng, PW8, in his testimony
J ruled out the possibility of bleeding disorder: if the deceased J
had suffered from such a condition, it would be chronic and
K K
there should be healed injury on the body. There were none. I
therefore found that the existence of a bleeding disorder cannot
L L
be sustained for want of evidence. Accordingly I prefer the
M opinion of Dr Ng, PW8, on the cause of injuries. M
N Factual Findings N
77. The events occurred in 2009, August. For some reason
O O
the prosecution only decided to prosecute two years later. The
quality of the witnesses’ evidence would of course suffer. Yet
P P
most of the evidence was not in dispute. From the evidence
Q available I find that the deceased, although emotionally Q
disturbed at the time, was of sound health when he was examined
R by PW7. I find beyond any doubt that the events leading to the R
deceased’s rushing into the Consultation Room could not have
S S
resulted in any significant injuries found on him.
T T
78. When PW1 left the Consultation Room the deceased was
U
held down by D1 and D2, with D3 overseeing. There could be no U
doubt that at that point the trio was acting in concert trying
CRT26/31.8.2012/NB 26 DCCC280/2012/Verdict
V V
A A
to subdue the deceased. They were exercising the power bestowed
on them by the law to keep the order in Lai Chi Kok Reception
B B
Centre. I am satisfied that up to this point they had not been
C acting in excess of their power. C
D 79. There is no evidence to make a finding of exactly how D
long the trio stayed with the deceased inside the consultation
E E
room. PW1 estimated it to be several minutes. During this
period, OC foam, which only D3 was equipped with, was used on
F F
the deceased.
G G
80. There was no also evidence accounting for what had
H H
happened during the time the defendants were alone with the
I deceased in the Consultation Room. Yet after the deceased was I
detained in the Protected Room for about 21 hours, multiple
J injuries had been found on his person. From the evidence J
available there was nothing during his detention that could
K K
cause any significant injuries on the deceased.
L L
81. Both experts agree that the injuries found on the
M deceased were recent ones. They should be visible soon after M
their infliction. Even Dr Beh, the expert witness for the
N defence, said that the injuries could have caused during the N
time the deceased was with the three defendants in the
O O
Consultation Room. On that point I do not accept the evidence of
PW7, who said that he could not see the injuries found on the
P P
deceased were not visible.
Q Q
82. From the evidence available I found the only time in
which the multiple injuries were inflicted on the deceased was
R R
the time the defendants were with the deceased inside the
S Consultation Room. I was convinced beyond all reasonable doubt S
that the defendants were responsible for those injuries.
T T
83. While it would be impossible to account for each of the
U U
117 external injuries found on the deceased, I accept PW8’s
CRT26/31.8.2012/NB 27 DCCC280/2012/Verdict
V V
A A
postulation that at least the injuries to the scalp and thigh
were caused by blunt forces. At the time when PW1 left the
B B
Consultation Room the deceased had already been overpowered by
C D1 and D2 who were pinning him down onto the desk and then C
pressed him down on the floor. At this point D3 had announced
D his intention to use the OC foam which is designed to inflict D
discomfort and reduce the will and power to resist. It would
E E
seem that no more force was necessary other than continuing to
pin him down on the shoulders. Yet after this incident multiple
F F
injuries were found on the deceased.
G G
84. They can only be the result of what was done by the CSD
H officers to the deceased. The extent and the number of injuries H
were such that I am left with no doubt at all that the defendant
I I
had used unnecessary and grossly excessive force in order to
subdue him. If the three defendants’ sole intention was to
J J
restrain the deceased in order to calm him down and bring him up
K
for detention in the Protected Room, they could have continued K
restraining him until the OC foam took its effect.
L L
85. Although it is not clear whether the OC foam was
M administered before or after the aforesaid injuries were M
inflicted, in both cases the infliction of blunt forces on the
N N
head and the thigh was unnecessary, excessive and unjustified.
In so doing, the CSD officers were acting outside of their
O O
lawful power.
P P
86. There is no evidence for me to find which of the
Q defendants was responsible for which particular injury found on Q
the deceased. Yet since the three defendants were acting in
R R
concert both before and after the attack, I found that all the
defendants are jointly liable for the infliction of the
S S
aforesaid injuries.
T T
U U
CRT26/31.8.2012/NB 28 DCCC280/2012/Verdict
V V
A A
87. For the above reasons, I found the defendants guilty as
charged.
B B
C C
D D
(E. Lin)
E E
Deputy District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/31.8.2012/NB 29 DCCC280/2012/Verdict
V V
A A
DCCC280/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 280 OF 2012 C
D
---------------------- D
HKSAR
E E
v.
F Leung Shing-shi(D1) F
So Ka-wai(D2)
G Tang Yuk-po(D3) G
-----------------------
H H
Before: Deputy District Judge E. Lin
Date: 31 August 2012 at 2.32 pm
I Present: Miss Virginia Lau, SPP of the Department of Justice, I
for HKSAR
J Mr Oliver H Davies, instructed by Wong & Co., for all J
Defendants
Offence: Inflicting grievous bodily harm (對他人身體加以嚴重傷害)
K K
---------------------
L L
Reasons for Verdict
M M
---------------------
N N
Background
O 1. An innocent man died while he was in the lawful custody O
of the Hong Kong Correctional Service Department on 16 August
P 2009. The deceased person, Mr Chen Chu-nan (hereinafter referred P
to as ‘the deceased’), was an otherwise healthy 30 year old
Q Taiwanese national with no known history of major illness or Q
substance abuse. Arrested in Hong Kong by the police on the 12th
R R
day of August, he was under a court order to be remanded in Lai
Chi Kok Reception Centre until 11 September 2009.
S S
T 2. On the morning of 15 August 2009 the deceased was T
examined by a doctor who found him perfectly healthy. Later he
U was observed to be acting oddly and murmuring to himself. The U
CRT26/31.8.2012/NB 1 DCCC280/2012/Verdict
V V
A A
CSD officer in charge thought fit to request another medical
examination. He was not cooperative. While waiting for his turn
B B
to see the doctor he rushed into the Consultation Room on the
C ground floor of Lai Chi Kok Reception Centre, followed by other C
CSD officers.
D D
3. At 11.18 am he was taken to a Protected Room for
E E
observation. At about 0748 hours on the 16th day of August 2009,
he was found unconscious by CSD officers. Attempts of
F F
resuscitation proved futile. He was certified dead at 0848 hours
G in Princess Margaret Hospital. The post-mortem examination G
identified no less than 117 external bruises and injuries on his
H person, including reddish bruises to the head, around the eyes, H
neck, trunk, including shoulders, chest, buttocks and hips, all
I I
four of his limbs, and extensive haemorrhaging on the back of
the upper right thigh. On the left side of his scalp there was a
J J
deep bruise. The cause of death was listed in the autopsy report
K
as ‘extensive soft tissue injury’. K
L 4. Prior to his detention in the Protected Room he was in L
the Consultation Room with three Correctional Services Officers,
M the defendants in these cases. Two of them, namely D1 and D2, M
were last seen to be trying to restrain the deceased by pressing
N N
him down under the watchful eyes of D3, the CSD Principal
Officer.
O O
P The Charge P
5. As a result of the incident the defendants faced one
Q charge of inflicting grievous bodily harm, contrary to section Q
19 of the Offences Against the Person Ordinance, Cap. 212, the
R R
particulars of which read:
S S
‘Leung Shing-chi, So Ka-wai and Tang Yuk-po, on the
15th day of August 2009, at Lai Chi Kok Reception
T Centre, Sham Shui Po, Kowloon, in Hong Kong, unlawfully T
and maliciously inflicted grievous bodily harm upon
U
Chen Chu-nan.’ U
CRT26/31.8.2012/NB 2 DCCC280/2012/Verdict
V V
A A
The Law
6. The power of the Correctional Services officers comes
B B
from the following sources, namely:
C C
(1) Section 101A of the Criminal Procure Ordinance,
D Cap. 211, the relevant part of which reads:- D
E ‘A person may use such force as reasonable in the E
circumstances in the prevention of crime or in
effecting or assisting in the lawful arrest of
F offenders or of persons lawfully at large.’ F
G (2) The Prison Rules 237 and 238 made pursuant to G
section 25 of the Prisons Ordinance, Cap. 234,
H H
the relevant parts of which read:
I ‘(237) Use of force I
J (1) No officer of the Correctional J
Services Department, in dealing
with prisoners, shall use force
K unnecessarily and, when the K
application of force to a prisoner
is necessary, no more force than is
L L
necessary shall be used.’
M ‘(238) Occasions when arms may be used M
(4) Every officer of the Correctional
N Services Department may use arms N
against any prisoner using violence
to any brother officer or other
O O
person, provided that such officer
has reasonable grounds to believe
P that the officer of the P
Correctional Services Department or
other person is in danger of life
Q or limb, or that other grievous Q
hurt is likely to be caused to him.
R R
(5) Before using arms against a
prisoner under the authority
S contained in paragraph 2, the S
officer shall warn such prisoner
that he is about to fire on him.
T T
(6) An officer of the Correctional
U
Services Department shall not, in U
the presence of his superior
CRT26/31.8.2012/NB 3 DCCC280/2012/Verdict
V V
A A
officer, use arms of any sort
against the prisoner in the case of
B an outbreak or attempt to escape B
except under the express orders of
such superior officer.
C C
(7) The use of arms under this rule
D
shall be, as far as possible, to D
disable and not to kill.’
E E
7. Cap. 23 of the CSD’s own departmental codes and
procedures also set out the following guidelines for the use of
F F
force and arms:-
G G
‘23.01 Stipulations on the use of force or arms
H H
(3) The use of force or arms is an
exceptional and extreme measure. It is
I an officer’s last resort either to I
protect himself or other persons from a
J serious threat of injury or to enable J
him to meet a concerted threat to good
order or security.
K K
(4) An officer shall display self-
L discipline and exercise a high degree L
of restraint when dealing with any
person and shall not resort to the use
M of force or arms unless such action is M
clearly necessary. The use of force or
N arms under this order shall be, as far N
as possible, to disable and not to
kill.’
O O
‘23.05 Degree of Force
P P
(1) The principle governing the degree of
Q force or arm is that only the minimum Q
force necessary may be used to achieve
the lawful purpose. Once this has been
R attained the use of such force or arms R
shall cease immediately.
S S
(3) Batons or extendable truncheons will
not be used when two or more officers
T are dealing with a single, unarmed T
prisoner, except on the order of a
senior officer present.’
U U
CRT26/31.8.2012/NB 4 DCCC280/2012/Verdict
V V
A A
8. An internal memo of the CSD dated 20 January 2000 also
set out the guidelines on the use of OC foam and its
B B
decontamination.
C C
9. Briefly put, a Correctional Services officer has the
D legal power to use force when necessary, but the force used D
cannot be more than necessary. If the force is used
E E
unnecessarily or the degree of force exceeds what is necessary
they cannot be said to be acting within lawful authority, and
F F
if such force causes injury to the inmate he will be held
G liable in accordance with the law. G
H 10. It is the prosecution’s contention that in the process H
of restraining the deceased they had used unnecessary force and
I I
thereby unlawfully and maliciously inflicted grievous bodily
harm on his person.
J J
K
On Joint Enterprise K
11. The defendants were charged jointly in this case. The
L prosecution contends that they were all party to a joint L
enterprise while the deceased was within the Consultation Room
M being subject to unreasonable force by a one or more of the M
defendants. In such a case the prosecution does not have to
N N
prove which of the defendants is responsible for inflicting
which particular injury or at what point each of the defendants
O O
joined in (see HKSAR v Terrado Alfredo S & Anor, unreported
P Cr.App. No. 112/2005), and each is liable for the consequences P
of an overt act (see R v Britain & Shackell (1848) 3 Cox CC 76.
Q In the CFA case of Sze Kwan Lung & Ors [2004] 3HKLRD 328 at page Q
339, Bokhary PJ explained the principle thus:
R R
‘(33) Joint enterprise is an expression used to denote
S S
the conduct of two or more persons who take part
together in the course of criminal conduct. So
T many and varied are the circumstances in which T
the doctrine of joint enterprise operates that no
single case can be expected to provide an
U occasion for discussing every aspect of the U
doctrine. One such set of circumstances by no
CRT26/31.8.2012/NB 5 DCCC280/2012/Verdict
V V
A A
means uncommon in the experience of our courts is
where multiple injuries are inflicted on a victim
B set upon by a group of assailants. Many injuries B
are inflicted, only one injury proves fatal, and
evidence does not show which assailant inflicted
C the fatal injury. The circumstances of the C
present case are comparable since the prosecution
D
is unable to say which particular person actually D
started the fire.
E E
(34) While this is not the occasion for giving a
definitive decision on the entirety of the
F doctrine of joint enterprise, it is in my view, F
as indicated above, the doctrine is distinct from
the common law principles of aiding, abetting,
G counselling and procuring. Each participant is G
criminally liable for all the acts done in the
pursuance of the joint enterprise and, whether or
H H
not he intended it, he will be criminally liable
for any such act if it is of a type which he
I foresaw as a possible incident of the execution I
of the joint enterprise and he participated in
the joint enterprise with such foresight. This
J may be traced at least as far back as Alderson J
B’s famous direction to the jury in Macklin v
Murphy’s case [1838] 168 ER 1136, and it is the
K K
effect of our law as it has been clearly
understood at least since the decision of Privy
L Council on appeal from Hong Kong in Chan Wing Siu L
v R [1985] AC 168 which involved murder and
wounding with intent. I have particularly in
M mind what Sir Robin Cooke, as Lord Cooke of M
Thorndon then was, said at page 175G and H and
N 177B in the course of delivering their Lordship’s N
advice in that case.”
O (35) After examining the authorities in Australia and O
New Zealand, as well as in England, Sir Robin
Cooke said this at pages 177G to 178B:
P P
“The test of mens rea here is subjective. It
Q is what the individual accused in fact Q
contemplated that matters. As in other cases
where the state of a person’s mind has to be
R ascertained, this may be inferred from his R
conduct and any other evidence throwing light
on what he foresaw at the material time,
S S
including, of course, any explanation that he
gives in evidence or in a statement put in
T evidence by the prosecution. It is no less T
elementary that all questions of weight are
for the jury. Prosecution must prove the
U necessary contemplation beyond all reasonable U
CRT26/31.8.2012/NB 6 DCCC280/2012/Verdict
V V
A A
doubt, although that may be done by the
inferences as just mentioned.”’
B B
The Issues
C C
12. In the present case there can be no dispute that the
D defendants did have the power to use and did use force to subdue D
the deceased, and that the deceased did sustain grievous bodily
E harm. The issues to be determined are whether the injuries had E
been caused by the defendants’ use of force and whether the
F force used had exceeded what was necessary in the circumstances. F
G G
13. This is a criminal trial, needless to say that the
prosecution has a duty to prove all the elements of the crime
H H
beyond a reasonable doubt. The defendants have no burden to
I prove anything. I
J 14. In this case the defendants had elected not to give J
evidence at the end of the prosecution’s case. This is their
K K
right and no adverse inference can be drawn against them. It
simply means that this court does not have an alternative, if
L L
any, version of facts to consider. Again it does not affect the
M burden of the prosecution to prove every element of the crime M
beyond a reasonable doubt.
N N
15. The defendants in this case are men of good character.
O O
In considering the evidence of the prosecution and in drawing
inferences from the primary facts, the court would particularly
P P
bear this fact in mind for it is accepted that men of good
Q character are generally less likely to commit crimes and that if Q
they choose to give evidence, their testimonies would carry more
R weight than those who do choose not to put forward this fact R
before the court.
S S
The Voir Dire Proceedings
T T
16. Each defendant had given two statements during the
U
Police investigation of the incident. The prosecution sought to U
produce them as evidence. A voir dire was thus held to determine
CRT26/31.8.2012/NB 7 DCCC280/2012/Verdict
V V
A A
their admissibility. Six police officers were called by the
prosecution to produce the statements. All the police officers
B B
agreed in court that they suspected a crime had been committed
C when they interviewed the defendants. For some reasons they C
decided to invite the defendants to give evidence only as
D witnesses. None of the defendants had been warned that what they D
were going to say would be used as evidence against them. They
E E
were not reminded of their rights to silence.
F F
17. Although the statements were voluntary in the sense
G that they were not obtained by threat or violence and that they G
were clearly relevant, I ruled at the end of the prosecution’s
H case that the statements were inadmissible as the defendants H
were given the impression that they would not be charged for
I I
what they were going to say in the statements. As such, the
statements were not voluntary in the eyes of the law: see the
J J
statement of principal by Lord Sumner in Ibrahim v Rex [1914] AC
K
599 at page 609. K
L 18. Furthermore, the defendants were giving statements in L
respect of a matter which occurred in the course of their
M duties. They were compelled by their duties to give an account M
of what had transpired. To use a statement taken under such
N N
circumstances would be a breach of the guarantee under section
11(2)(b) of the Hong Kong Bills of Rights Ordinance.
O O
P 19. I also consider that this is a proper case to use my P
discretionary power to exclude. Accordingly all the statements
Q had been excluded. Q
R R
Evidence
20. Although I have considered all of the evidence, for the
S S
sake of brevity here I would only set out the most essential
T parts pertaining to my decision. T
U U
CRT26/31.8.2012/NB 8 DCCC280/2012/Verdict
V V
A A
The Undisputed Evidence
21. Part of the evidence had been admitted under section
B B
65C of the Criminal Procedure Ordinance, Cap. 211, see MFI-1 to
C 4. I would not repeat them in full. Parts of the witnesses’ C
testimonies were not challenged. The followings are, in my view,
D the most salient features in this case as gleaned from the D
admitted facts and matters not disputed:
E E
• After Chen Chun-nan was arrested by police on 12
F F
August 2009, by a court order he was remanded in
G custody in Lai Chi Kok Reception Centre until 11 G
September 2009.
H H
• The deceased, aged 33, was of moderate built; he
I I
weighed 58kg and his height was 163cm. He was not
a drug dependent, had not suffered from any serious
J J
illness or psychiatric illness or undergone any
K surgical operation. He had no history of allergy K
to drugs or been prescribed any psychiatric
L treatment or medicine. He had self-harm idea or L
act. He had not been prescribed with any long term
M M
or specialist medication.
N N
• In the morning on 15 August 2009, Dr Wong Chi-ho,
PW7, carried out physical examination of the
O O
deceased in Lai Chi Kok Reception Centre. The
P doctor made the following remarks in the deceased’s P
Health Screen Form: ‘Good past health’, ‘Not known
Q drug addict’, ‘No alleged assault’, ‘No claimed Q
allergy’ and ‘Stable’.
R R
• On the same day the deceased was observed to be
S S
behaving oddly. Therefore arrangement was made to
take him back from the reception office to the
T T
hospital in Lai Chi Kok Reception Centre (both on
U the ground floor of the same building) for a second U
examination.
CRT26/31.8.2012/NB 9 DCCC280/2012/Verdict
V V
A A
• The three defendants were on duty in the hospital
B B
on the morning of 15 August 2009. Tang Yuk-po, D3,
the principal officer, was issued with OC foam, and
C C
the other two defendants were each equipped with an
D extendable truncheon before they carried out their D
duties. At about 11 am, inside the Consultation
E Room, OC foam was used on the deceased. After the E
incident a report for the use of OC foam had been
F F
filed. There was no report for the use of the
extendable truncheons.
G G
H • At 1109 hours, the deceased was escorted to the H
Protected Room (Cell No. 4) on the 1st floor of Lai
I Chi Kok Reception Centre. The Protected Room was I
equipped with padded walls and was used to confine
J J
refractory or violent inmates, presumably to allow
them to calm down. The room was designed to prevent
K K
those confined within from injuring themselves or
L others. Except for the approved articles such as L
bedpan and blanket, no other article was placed
M inside. M
N N
• From 1118 hours on 15 August to 0805 hours the next
day, the deceased was kept in the Protected Room.
O O
CSD officers checked on the deceased through the
P observation window every 15 minutes. In addition P
his movements were monitored and recorded by a CCTV
Q camera. The CCTV footage (P6 and P6A)showed the Q
deceased walking, sitting or laying on the floor
R R
restlessly most of the time. Occasionally he used
his body to bang against the padded wall or door,
S S
crawling on the floor, attempting to open the door,
T wandering in the room playing with his clothing and T
his own fingers. Before he was taken to the
U U
CRT26/31.8.2012/NB 10 DCCC280/2012/Verdict
V V
A A
Protected Room he was alone in the Consultation
Room with the three defendants.
B B
C • At 0748 hours on 16 August 2009 the deceased was C
found unconscious. Despite repeated resuscitation
D attempts by Correctional Services officer, the D
paramedics of the ambulance, hospital staffs and
E E
the doctor attached to the A&E Department of
Princess Margaret Hospital, he was certified dead
F F
at 0848 hours.
G G
22. There is no direct evidence on what happened in the
H Consultation Room where the deceased was alone with the three H
defendants. What had happened could only be inferred from the
I factual evidence and from that of the forensic experts. I
J J
Events Leading to the Deceased’s Confinement in the Protection
Room
K K
23. On the morning of 14 August 2009, Mr. Kwong Kwok-bun
L
AOII of CSD(PW2) first met the deceased when he was admitted to L
Lai Chi Kok Reception Centre. According to his evidence, at 0930
M hours on 15 August 2009 he saw the deceased again at the M
reception office. As the deceased did not carry the inmate
N identification slip as he was supposed to, PW2 had to check with N
the computer record to confirm his identity. PW2 found the
O O
deceased acting strangely and repeatedly left his assigned seat
to talk to PW2, demanding to leave. PW2 therefore arranged for
P P
him to be seen by the doctor again. At around 1015 hours the
Q deceased suddenly left his seat and ran up the staircase leading Q
to the hospital on the 1st floor. PW2 told him to walk back down
R slowly and the deceased did as told. During the 50 minutes when R
the deceased was under the charge of PW2, he had kept the latter
S S
under observation. That morning, of more than 20 inmates under
his supervision, only the deceased behaved in such a way. He did
T T
not notice if the deceased had any injuries on his person.
U U
CRT26/31.8.2012/NB 11 DCCC280/2012/Verdict
V V
A A
24. Under cross-examination PW2 accepted that he first gave
his statement in June 2010 and that his recollection of the
B B
events that day was not that clear.
C C
25. In the same morning AO Koon Kin-yip (PW1) was tasked
D with maintaining orders in the hospital corridor. At about 1030 D
he heard commotions and subsequently saw the deceased standing
E E
on the staircase leading to the hospital floor, a place where
inmates were not allowed to be. He assisted PW2 to command the
F F
deceased to walk down the staircase and then took the deceased
G to wait outside the MO’s office. While waiting the deceased was G
murmuring to himself and grinning foolishly. Therefore PW1
H commanded him to sit outside the Treatment Room and then he H
resumed to attend his other duties.
I I
26. At around 11 am PW1 heard So Ka-wai (D2) and Leung
J J
Shing-chi (D1) shout at someone in Putonghua along the lines of
K
‘Sit down, the doctor is not ready yet’, and then saw the K
deceased running into the Consultation Room. D1 and D2 attempted
L to stop him but ended up following him into the room. D3 Tang L
Yuk-po, also ran into the room. PW1 was the last one to enter
M the room at some 20 to 30 seconds later. As soon as PW1 entered M
the Consultation Room its door was closed. PW1 could not be sure
N N
who closed it.
O O
27. In the Consultation Room PW1 saw the deceased standing
P next to the doctor’s desk, his upper body bent on the same, with P
D2 and D3 holding down each of his shoulders. From the way PW1
Q described it, the deceased’s head must have propped on his chin Q
on the desk and his face was facing the computer table (see
R R
P9(22) and P2A). The deceased kept wriggling his body, shouting,
‘I want to go home’. D3 repeatedly told the deceased to calm
S S
down and then instructed D1 and D2 to force the deceased down
T onto the floor, but even then the shouting and the struggling T
continued. Then D3 told the deceased not to move any more or OC
U foam will be used. U
CRT26/31.8.2012/NB 12 DCCC280/2012/Verdict
V V
A A
28. At that point PW1 suddenly remembered there were some
B B
30 inmates waiting in the corridor and that there was only one
other colleague on duty, so he left the room to attend to other
C C
duties. He stated that he did not witness the use of OC foam,
D nor did he see anyone using the extendable truncheons. He did D
not remember hearing any noise coming out of the Consultation
E Room. E
F 29. At about 1059 hours D3 came out and instructed PW1, who F
was about 4 metres away from the Treatment Room, to escort all
G G
other inmates back to their own cells before going back into the
room again.
H H
I 30. Before the deceased entered the Consultation Room PW1 I
recalled that there was no injury on the deceased’s face. He was
J not sure if there were bruises on the deceased’s collar bone or J
limbs. He did not see any of the injuries on the deceased as
K K
shown in the post-mortem picture P8(4). He was inside the
Consultation Room for about three minutes, the last minute of
L L
which the deceased was already on the floor. He did not notice
M the presence of any injury on the deceased before he left. M
N 31. A few minutes later PW1 saw the three defendants taking N
the deceased up to the hospital ward, with D2 and D3 on each
O O
side and D3 walking behind. The deceased had his face lowered.
There was pepper spray stain, a yellowish liquid, all over the
P P
deceased’s face, but PW1 did not remember seeing redness on the
Q deceased’s neck. PW1 also stated it was a natural response for Q
the part of the skin that came into contact with pepper spray to
R turn red. R
S S
32. Under cross-examination PW1 agreed since the event took
place a long time ago his recollection was not very clear. He
T T
agreed he could not remember very clearly what happened that
U
day. When asked again if he was sure that D3 give order to U
evacuate the inmates he first confirmed that this was the case
CRT26/31.8.2012/NB 13 DCCC280/2012/Verdict
V V
A A
according to his recollection and then stated that he was not
sure. Likewise, on the question of how much pepper spray he saw
B B
on the deceased’s face, PW1 first stated that he saw it covering
C the whole face, and when further questioned he was not sure C
after all. He did clarify, under cross-examination, that when he
D saw the deceased emerging from the Consultation Room on the way D
to the hospital ward on the 1st floor he was being held on the
E E
arms by D1 and D2. PW1 did not notice if the deceased showed any
sign of limping.
F F
G 33. CSD Officer 4399 Mr. Chang Pak-ming (PW9), was on duty G
on the 1st floor on the morning of 15 August 2009. He was asked
H by D3 to fetch the doctor as an inmate had to go to the H
Protected Room. He was outside the Protected Room when D2 gave
I I
an injection to the deceased. Not long after Dr Wong Chi-ho
(PW7) arrived and he went in to assist the doctor to carry out
J J
an examination of the deceased.
K K
34. From the CCTV footage the whole process lasted no more
than 77 seconds. PW7 only saw redness on the skin of the
L L
deceased’s face and on the upper interior chest. He saw no other
M injuries on the deceased. Although the light was adequate he saw M
fit to carry out the visual examination with the help of the
N torch held by the CSD officer. N
O O
Evaluation of PW1’s Evidence
35. At best PW1 can be described as a reluctant witness.
P P
His reluctance can be clearly illustrated by his manner of
Q answering questions in court. On many occasions he deflected the Q
questions put or simply avoided them by coming up with something
R else. I had to repeatedly remind him that he was under oath and R
directed questions to be put again. One could imagine, and hope,
S S
that a death during lawful custody was not a common occurrence,
yet PW1 seemed to be suggesting in court that he did not have
T T
the curiosity to pay attention to the event and that it did not
U
leave much impression on him. U
CRT26/31.8.2012/NB 14 DCCC280/2012/Verdict
V V
A A
36. Furthermore, it is difficult to understand how, in the
heat of the moment when he saw the deceased being held down but
B B
still was struggling, he suddenly remembered he had other duties
C to attend to and leave the room immediately and henceforth did C
not bother to try to find out what happened next. However,
D according to his evidence he did leave the room at that point D
and, in my view, it must imply that he was satisfied the
E E
situation was under control and his assistance was not required.
At that point the deceased was restrained by two CSD officers
F F
and D3 was about to use OC foam on him which would further
G reduce the strength of his resistance. G
H 37. Although I have reservation on the part of PW1’s H
evidence concerning his leaving the Consultation Room, I accept
I I
his account of events up to the point of his leaving the room
and what he saw after he had left it. The deceased had no
J J
significant injuries on him before entering the room.
K K
38. It is not clear how much time the defendants spent with
L L
the deceased. PW1 stated that he stayed inside the Consultation
M Room for three minutes before leaving to attend to the other M
duties and, ‘approximately several minutes later, he saw the
N three defendants escorting the deceased to the hospital ward. N
According to the CCTV recording P7(7), the deceased was in the
O O
elevator at 11.09 on the way to the Protected Room on the 1st
floor. The same picture showed that he was being escorted by D1
P P
and D2 who held on to each of his hands. At 1118 hours he
Q entered the Protected Room (I noted that the Admitted Facts MFI- Q
1 wrongly put the time as 1120).
R R
Evidence During the Deceased’s Confinement in the Protected Room
S S
39. After the deceased had been taken into the Protected
Room at 1118 hours he was observed through the observation
T T
window by CSD officers on duty every 15 minutes. In addition
U
four CSD officers were specifically deployed to monitor the U
CRT26/31.8.2012/NB 15 DCCC280/2012/Verdict
V V
A A
deceased through the CCTV monitor (see MFI-1, paragraph 20 and
22).
B B
C 40. At 1120 hours a CSD officer took Polaroid photograhps C
of the deceased (See P7(11-12). He had no upper garment on. The
D Polaroid photographs were of such poor quality that it is D
impossible to tell if the deceased had injury on his person.
E E
41. At 0340 hours on 16 August 2009, CSD officer Chiu Pak-
F F
ming (PW4) checked on the deceased and found him sitting on the
G floor of the Protected Room. He noticed a bruise the size of a G
fist on the deceased’s outer thigh. He did not notice if there
H was any bruises on his face. H
I I
42. A large portion of the CCTV footage filmed during the
deceased’s confinement in the Protected Room had been played in
J J
open court (part of which was played fast forward to save time
K
see P6A). The parties agreed that the undersigned can review the K
footage or any part thereof in chambers. The prosecution has
L also prepared a chart describing some of the deceased’s L
significant movements during the 20 hours 47 minutes he spent
M inside the Protected Room. The accuracy of the description is M
not challenged: See MFI-4 and P19.
N N
43. The CCTV footage is grainy and of very low resolution.
O O
It fails to show details on the deceased person. It does show
P (at 030009) a large patch of bruise on the outer side of the P
deceased right thigh.
Q Q
44. I noted that when the deceased was interacting with the
R R
CSD officers and when he was examined by PW7 he did not appear
to be agitated but instead was rather docile and even
S S
cooperative.
T T
45. In the CCTV recording, the deceased’s body was in full
U view at all times, except for the few minutes during which he U
CRT26/31.8.2012/NB 16 DCCC280/2012/Verdict
V V
A A
covered himself with a blanket, and there were a few seconds in
which one could not make out where his hands were.
B B
C 46. From the time the deceased entered the Protected Room C
to sometime after 072009 hours (See P19, when he was last seen
D moving by adjusting his right hand once), the deceased had been D
restless most of the time. Having reviewed the whole footage I
E E
cannot detect any instance in which the deceased tried to
mutilate himself. Given that the walls of the Protected Room are
F F
all padded and it is designed to prevent the inmate detained
G therein from hurting himself, I found his movements during his G
confinement in the Protected Room did not cause any injuries on
H him. H
I I
The Resuscitation
47. At 0740 hours PW4 was informed that the deceased had
J J
collapsed and went immediately to the Protected Room. He saw two
K
CSD officers performing cardiopulmonary resuscitation (‘CPR’) on K
the deceased. The cardio-defibrillator PW4 set up on the
L deceased did not detect any heart beat. He took over the CPR and L
then tried to put on an intravenous drip. He gave the deceased
M an injection of adrenaline and atropine before the deceased was M
taken to the Princess Margaret Hospital.
N N
48. Mr Ip Chi-man, PW3, was the paramedic working for the
O O
Fire Services Department. When he arrived at Lai Chi Kok
P Reception Centre, the deceased had already been moved to the P
corridor and other CSD officers were carrying out CPR on him. He
Q took over the resuscitation procedure and noticed that there Q
were many bruises on the deceased’s trunk and limbs. At the time
R R
the deceased was neither breathing nor had any pulse.
S S
49. At 0816 the deceased was examined by Dr Wong Cheung-lu,
T resident of Prince Margaret Hospital(PW5). He too detected no T
vital signs. In accordance with the standard resuscitation
U protocol, the deceased was given adrenaline injection, his air U
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A A
passage was kept open by first injecting a muscle relaxant
before plying open his mouth by a laryngeal blade and inserting
B B
a tube into the deceased’s throat. At the time PW5 noticed there
C were bruises on the deceased’s eyes, back and sides. There were C
yellowish discharges close to the eyelids. PW5 maintained that
D none of the resuscitation procedure carried out would cause the D
injuries shown on P8 (6, 7 and 13). The deceased did not respond
E E
to the resuscitation and was certified dead at 0848 hours on 16
August 2009 (see P10).
F F
G 50. The evidence of PWs 3 to 5 was not challenged. Having G
considered their evidence, I found the resuscitation procedure
H had been carried out by the book and could not have caused any H
significant external injury to the deceased.
I I
Evidence of Medical Examination
J J
51. Dr Wong Chi-ho (PW7) was a medical doctor attached to
K
Lai Chi Kok Reception Centre since March 2008. Having examined K
the deceased at 0930 hours on 15 August 2009 he gave the
L deceased a clean bill of health (see MFI-1, paragraph 4, and the L
supplementary medical report P15, A6). PW7 found the deceased’s
M physical condition to be ‘stable’ and found his general health M
condition ‘satisfactory’.
N N
52. At 1118 hours (see MFI-4 and P19), that is after the
O O
incident in the Consultation Room, he entered the Protected Room
P where he carried out a ‘thorough examination’ of the deceased. P
In court PW7 explained that by ‘thorough’, he meant
Q ‘sufficient’. He found red marks on the deceased’s eyes, both Q
cheeks, anterior chest wall, which were ‘consistent with OC
R R
foam’ (see P14, the memo dated 23 December 2009). He saw no
foreign substance on the deceased’s face, nor did he detect any
S S
serious injuries and swelling. The deceased was given intra-
T muscular injection for his ‘unstable emotion and violent T
behaviour’.
U U
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A A
53. At 0755 hours on 16 August 2009, when PW7 saw the
deceased again, the paramedics had already arrived and had been
B B
carrying out resuscitation procedure. In an undated
C supplementary medical report (P15), in answer to question 17, C
PW7 stated that he did not notice the extensive bruising on the
D deceased’s body, yet when asked directly in the next question D
about the large patch of bruises on the right thigh and eyes he
E E
said that he did notice them but he had ‘no opinion over these
bruises because of lack of clinical information at present’. In
F F
court he stated he also saw bruises on the deceased’s face and
G limbs similar to those shown on P8(6-7). G
H 54. PW7 did not make any notes of his findings on 16 August H
2009 although, as he agreed under cross-examination, he had a
I I
duty to do so. He agreed to the defence’s counsel’s suggestion
the reason for not doing so was ‘perhaps he was too busy’. He
J J
did not remember when he wrote the undated P15. He gave
K
ambiguous answers when questioned on the apparent contradictions K
between answers to Questions 17 and 18 in P15. In answer to my
L question he said that he did not remember how many inmates died L
on his watch.
M M
55. From the CCTV footage played in court, PW7 entered the
N N
Protected Room at 11:13:22 and left at 11:14:39, spending less
than 77 seconds inside for his ‘thorough’ or, as the good doctor
O O
qualified in court, ‘sufficient’ examination. At all times
P during this examination he was about 3 feet away from the P
deceased, with a CSD officer standing in between, carrying out
Q visual examination with the aid of a torch held not by him but Q
by the said CSD officer. From the footage, despite its poor
R R
quality, I was given an impression that it was the CSD officer
who decided for PW7 where to look at by pointing the torch at
S S
various body parts of the deceased.
T T
U U
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A A
Evaluation of PW7’s Evidence
56. I was not impressed by PW7 as a witness. He was
B B
evasive and defensive in answering questions by the prosecution
C and the defence. Even accepting that he had a heavy workload, C
for a doctor attached to the hospital of the Correctional
D Services Department, his primary concern should be the well- D
being of the inmates. I find it incredible that PW7 could have
E E
no recollection of how many inmates died on his watch, albeit by
August 2009 he was attached to Lai Chi Kok for only 17 months.
F F
He was either less than honest or simply being callous. The
G cursory manner in which he carried out the examination of the G
deceased in the Protected Room was disgraceful to say the least.
H The indifferent attitude could also be reflected from the CCTV H
footage: not a moment during the 77 seconds’ examination when he
I I
was inside the Detention Room did he approach the deceased to
carry out a closer inspection. The CSD officer was always
J J
standing in between, directing the doctor’s attention with a
K
torch. I found the part of his observation of the deceased after K
the latter was taken up to the Protected Room very doubtful.
L L
The Forensic Evidence
M 57. The prosecution called Dr Ng Chung-ki, PW8, a senior M
forensic pathologist of Kwai Chung Public Mortuary, to elaborate
N N
on the Autopsy Report (P17) compiled by him. His expertise is
not challenged.
O O
P 58. P17 sets out all the bruises found on the deceased. P
PW8 marked them on P8A. There were 84 headings of external
Q bruises. Excluding the tattoo marks (item 82), a total of 117 Q
bruises were identified on various parts of the deceased,
R R
including 10 items of multiple/small bruises. Internal
examination revealed a reddish bruise in his scalp, various
S S
injuries in his thoracic cavity and fracture on three of his
T left ribs. T
U U
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59. Having viewed the CCTV footage of the Protected Room
(P7), PW8 was of the view that the injuries found on the
B B
deceased could not have been inflicted during his detention
C therein. He also ruled out the possibility that the injuries C
were post-mortem. For the same reason, and also in view of the
D quantity and extent of the injuries found, he also ruled out the D
possibility that injuries were produced after the deceased was
E E
found collapsed in the Protected Room.
F F
60. Paragraph 2 of the remarks in P17 stated that the soft
G tissue injuries in the right buttock and right thigh were G
recent, consistent with the body parts hitting against or being
H hit with a hard object. From their number and distribution they H
were suggestive of a violent assault or vigorous struggle,
I I
whereas the fracture ribs could have been caused by the external
cardiac massage performed during resuscitation. The injuries on
J J
the limbs could have been defence injuries caused by the
K
victim’s attempt to ward off weapons with his limbs. K
L 61. On 18 August 2012 PW8 gave a further written opinion on L
the cause of the bruises (P18), the relevant part of which
M reads: M
“i. All the bruises and haemorrhage in the muscles of
N the right buttock and right thigh found in the N
deceased by the autopsy are consistent with having
been produced by blunt force. The infliction of
O O
the bruises required a moderate amount of force,
whereas the haemorrhage in the muscles involved a
P significantly greater amount of force. The P
injuries did not show a specific shape to suggest
a particular causation. Events such as falling on
Q hard objects, punching with fist, kicking, hitting Q
by hard object are all possible causes of these
injuries. However, judging from their large
R R
number and wide distribution, the incident leading
to these injuries would involve multiple impacts
S to different areas of the body. Therefore, they S
are unlikely to be accidental in origin and area
suggestive of a violent assault or vigorous
T struggle as mentioned in the autopsy report. The T
bruises found in the deceased were mostly located
U
in the body parts that were only covered by thin U
layers of soft tissues such as those on the face,
CRT26/31.8.2012/NB 21 DCCC280/2012/Verdict
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A A
upper front of the chest, hips, back of the hands
and front of the legs. These bruises should have
B become visible externally shortly after B
infliction. As to the bruises on the right
buttock and right thigh, they were associated with
C bruising in the underlying muscles. Therefore, it C
is possible that these bruises were formed by
D
diffusion of blood from damage in the deep D
subcutaneous or muscle layers. As the diffusion
of blood in the tissues take time the bruises
E might have a delayed appearance and appear some E
hours after infliction.”
F F
62. In a further report dated 10 August 2011 (P21), PW8
G gave his opinion on the specific injuries found on the deceased. G
He found most of the injuries consistent with being caused by
H blunt forces. However, when asked in Question 12 if the injuries H
could be caused by a struggle he opined:
I I
“The sort of injuries sustained during an assault or a
J struggle depends on the degree and form of violence of J
the event. Therefore, to determine whether the
injuries present are resulted from an assault or a
K struggle often relies on the circumstantial evidence of K
the event. In the present case the number and severity
of the deceased’s injuries are suggestive of a violent
L L
assault. Nonetheless, just basing on the autopsy
findings alone, the possibility that the injuries were
M sustained during a vigorous struggle could not be M
entirely excluded.”
N N
63. PW8 agreed in court that if the deceased had suffered
from severe alcohol withdrawal it could have contributed to his
O O
demise. Yet the mere presence of marked fatty change in the
P liver (as was found in the autopsy report P17) could be P
suggestive of alcohol abuse but was not a reliable sign to
Q indicate the degree of abuse owing to individual variations. Q
R R
64. PW8 further stated that the bruise found on the
deceased’s head were not visible externally and could be caused
S S
by blunt forces. If the deceased was suffering from bleeding
T disorder, PW8 would expect it to be a persistent condition. T
Therefore he would expect to find bruises showing signs of
U healing, but none of which was found. U
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A A
65. Under cross-examination PW8 pointed out that bruises
B B
would have appeared minutes or hours after the impact and were
C obvious to the eye. While those injuries could have been C
produced post-mortem, this would have required a much greater
D degree of violence and PW8 had never heard of or seen a case D
with so many post-mortem injuries as in this case in the 20
E E
years of his professional life. He ruled out a bleeding disorder
as he detected no sign of the same in the deceased.
F F
G 66. As to the possibility of self-mutilation during the G
time when the deceased was covering himself with the blanket
H (see P7, at 1253 to 1404 hours), PW8 explained that there were H
two common causes for self mutilation: (i) To manufacture
I I
evidence for implicating others; such injuries were usually a
small cut and abrasions and as a process was very painful. The
J J
extent of injuries rendered this unlikely. (ii) Mental
K
disturbances, in which case one should be able to see the K
deceased inflicting injuries on himself on other parts of the
L footage, which there was none. L
M Defence Evidence M
67. After I ruled that there was a case to answer, the
N N
defendants elected not to give evidence on factual issue, which
simply means that I would have to decide on the factual matters
O O
on the merit or otherwise of the prosecution case. The defence
P did call Dr Beh Swan Lit, a Clinical Associate Professor in P
Forensic Pathology at the Department of Pathology, Faculty of
Q Medicine, University of Hong Kong to give an expert’s Q
interpretation of the facts. His expertise was not challenged.
R R
His opinion was reduced into writing and produced as D1. Apart
from stating that the redness over the deceased’s eyes could
S S
have been caused by the OC foam, coupled with the deceased’s own
T rubbing, Dr Beh did not seek to account for every injury found T
on the deceased as it was a known fact that there was a struggle
U between the latter and the CSD officers. U
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A A
68. If I understand it correctly, Dr Beh was saying that
B B
the injuries found on the deceased could be less serious than
C they look and they could have been caused by much minor impacts. C
D 69. Dr Beh based his opinion on the assumption that the D
deceased was, at the time, suffering from a bleeding disorder.
E E
Since people with a bleeding disorder are likely to bleed more
profusely and for a longer period following the injury, the
F F
appearance of resulting bruises would appear bigger (see
G paragraph 49, D1). Therefore the deceased G
‘will be more likely to bleed and the bleeding would
H H
also take longer to stop. In such an individual any
trauma would lead to the loss of more blood through the
I damaged blood vessels and hence the appearance of a I
larger area of bruising (see paragraph 38, D1).
J J
70. When invited to elaborate on the correlation between
K
the degree of force to be applied and the time of bruises to K
appear and the size of the bruises, Dr Beh stated that there was
L no precise formula available as there are too many variants L
involved. Dr Beh did say that most of the injuries found on the
M deceased’s body were caused within a day. The injuries on the M
thigh and the head could have been caused by blunt forces. He
N N
expected a lot of superficial injuries should be visible shortly
after their infliction. Having reviewed the CCTV footage, Dr Beh
O O
stated that he did not see any significant physical contacts
P which could cause the injuries found on the deceased, nor did he P
see specific signs to indicate the injuries were self-inflicted.
Q He agreed that some of the injuries could have caused during the Q
struggle in the consultation room.
R R
Evaluation of the Expert Evidence
S S
71. Both expert witnesses struck me as fair, impartial and
T objective. I defer to their expertise on these matters. When T
read closely, both witnesses were not that different in their
U opinions. The injuries found on the deceased were recent and U
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A A
there were no signs to suggest that they were self-inflicted.
Except for the fractured ribs the injuries could not have been
B B
caused by the attempts of resuscitation. Both could not identify
C exactly the manner in which any of the injuries were inflicted, C
nor could one correlate the degree of force used to cause any of
D the injuries found. The absence of abrasion means that the D
injury could have been caused by a blunt force, although both
E E
experts could not give a timeframe in which the injuries must
have been visible. Both agreed that it should be very soon after
F F
their infliction.
G G
72. The experts differed on the degree of force that could
H have caused the bruises. On the assumption that the deceased H
suffered from a bleeding disorder, Dr Beh opined that an
I I
individual suffering from such a condition would lose more blood
and the resulting bruises would appear bigger and more sinister
J J
as the result of smaller traumas.
K K
73. However, but accept such findings would require several
leaps of faith. One would have to assume the followings:
L L
M (i) The deceased was a drinker. M
(ii) He drank excessively and chronically.
N (iii) His drinking problem was so serious that he N
suffered from severe alcohol withdrawal syndrome.
O O
(iv) His alcohol withdrawal syndrome was so serious
that it compromised his blood coagulating system;
P P
(v) his blood coagulating system was so compromised
Q that it rendered him vulnerable to bleeding Q
excessively caused any minor trauma, resulting
R in the bruises subsequently found on the R
deceased.
S S
74. None of the above assumptions was supported by any
T T
evidence, admissible or otherwise. Dr Beh agreed that he could
U
find no physical proof or any evidence to support the U
postulation that the deceased was a chronic alcoholic. He agreed
CRT26/31.8.2012/NB 25 DCCC280/2012/Verdict
V V
A A
that the deceased’s fatty liver could have a number of causes
other than alcoholism. He also agreed, under cross-examination,
B B
that a chronic alcoholic did not necessarily develop a bleeding
C disorder. C
D 75. Dr Beh’s assumption on the deceased’s drinking habit D
was based on a reference to one Dr Tsang Fan-kwong’s report in
E E
one Professor Vanezis’ report (see paragraph 20, D1). Neither of
these reports was available in this hearing, nor were their
F F
authors called to give evidence. The undersigned has not been
G able to assess their credibility and the credibility of any of G
the above factual assumptions. This court is therefore unable to
H make a factual finding for the rest of the assumptions in order H
to give credit of Dr Beh’s prognosis.
I I
76. I should also add that Dr Ng, PW8, in his testimony
J ruled out the possibility of bleeding disorder: if the deceased J
had suffered from such a condition, it would be chronic and
K K
there should be healed injury on the body. There were none. I
therefore found that the existence of a bleeding disorder cannot
L L
be sustained for want of evidence. Accordingly I prefer the
M opinion of Dr Ng, PW8, on the cause of injuries. M
N Factual Findings N
77. The events occurred in 2009, August. For some reason
O O
the prosecution only decided to prosecute two years later. The
quality of the witnesses’ evidence would of course suffer. Yet
P P
most of the evidence was not in dispute. From the evidence
Q available I find that the deceased, although emotionally Q
disturbed at the time, was of sound health when he was examined
R by PW7. I find beyond any doubt that the events leading to the R
deceased’s rushing into the Consultation Room could not have
S S
resulted in any significant injuries found on him.
T T
78. When PW1 left the Consultation Room the deceased was
U
held down by D1 and D2, with D3 overseeing. There could be no U
doubt that at that point the trio was acting in concert trying
CRT26/31.8.2012/NB 26 DCCC280/2012/Verdict
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A A
to subdue the deceased. They were exercising the power bestowed
on them by the law to keep the order in Lai Chi Kok Reception
B B
Centre. I am satisfied that up to this point they had not been
C acting in excess of their power. C
D 79. There is no evidence to make a finding of exactly how D
long the trio stayed with the deceased inside the consultation
E E
room. PW1 estimated it to be several minutes. During this
period, OC foam, which only D3 was equipped with, was used on
F F
the deceased.
G G
80. There was no also evidence accounting for what had
H H
happened during the time the defendants were alone with the
I deceased in the Consultation Room. Yet after the deceased was I
detained in the Protected Room for about 21 hours, multiple
J injuries had been found on his person. From the evidence J
available there was nothing during his detention that could
K K
cause any significant injuries on the deceased.
L L
81. Both experts agree that the injuries found on the
M deceased were recent ones. They should be visible soon after M
their infliction. Even Dr Beh, the expert witness for the
N defence, said that the injuries could have caused during the N
time the deceased was with the three defendants in the
O O
Consultation Room. On that point I do not accept the evidence of
PW7, who said that he could not see the injuries found on the
P P
deceased were not visible.
Q Q
82. From the evidence available I found the only time in
which the multiple injuries were inflicted on the deceased was
R R
the time the defendants were with the deceased inside the
S Consultation Room. I was convinced beyond all reasonable doubt S
that the defendants were responsible for those injuries.
T T
83. While it would be impossible to account for each of the
U U
117 external injuries found on the deceased, I accept PW8’s
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A A
postulation that at least the injuries to the scalp and thigh
were caused by blunt forces. At the time when PW1 left the
B B
Consultation Room the deceased had already been overpowered by
C D1 and D2 who were pinning him down onto the desk and then C
pressed him down on the floor. At this point D3 had announced
D his intention to use the OC foam which is designed to inflict D
discomfort and reduce the will and power to resist. It would
E E
seem that no more force was necessary other than continuing to
pin him down on the shoulders. Yet after this incident multiple
F F
injuries were found on the deceased.
G G
84. They can only be the result of what was done by the CSD
H officers to the deceased. The extent and the number of injuries H
were such that I am left with no doubt at all that the defendant
I I
had used unnecessary and grossly excessive force in order to
subdue him. If the three defendants’ sole intention was to
J J
restrain the deceased in order to calm him down and bring him up
K
for detention in the Protected Room, they could have continued K
restraining him until the OC foam took its effect.
L L
85. Although it is not clear whether the OC foam was
M administered before or after the aforesaid injuries were M
inflicted, in both cases the infliction of blunt forces on the
N N
head and the thigh was unnecessary, excessive and unjustified.
In so doing, the CSD officers were acting outside of their
O O
lawful power.
P P
86. There is no evidence for me to find which of the
Q defendants was responsible for which particular injury found on Q
the deceased. Yet since the three defendants were acting in
R R
concert both before and after the attack, I found that all the
defendants are jointly liable for the infliction of the
S S
aforesaid injuries.
T T
U U
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A A
87. For the above reasons, I found the defendants guilty as
charged.
B B
C C
D D
(E. Lin)
E E
Deputy District Judge
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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