Letter to the Secretary for Justice
---- Re: Decision not to Prosecute Police Officers for Torture (released on 28 Feb 1999)
Ms. Elsie Leung,
Secretary for Justice,
Department of Justice,
3rd Floor, High Block,
Queensway Government Offices,
66 Queensway, Hong Kong.
Dear Ms. Leung,
Re: Decision not to Prosecute Police Officers for Torture HKSAR v Chuen Lai Sze and 3 Ors, MA 470/98
The perfected judgment in respect of this appeal has very recently become available in the High Court public library. As you are aware, it concerns the torture of a Hong Kong citizen by 4 police officers purportedly acting in the course of their official duties. We have studied the judgment and the Administration's reasons for not prosecuting the police officers under the Crimes (Torture) Ordinance ("the CTO") which are given in the Administration's Report to the United Nations under the International Covenant on Civil and Political Rights (ICCPR). Attached as Annex 1, Annex 2 and Annex 3 to this letter are relevant extracts of the court's judgment, the Administration's ICCPR Report and the CTO respectively.
The essence of the Administration's case for not charging the officers under the CTO is that it would have been necessary to prove the officers intended to inflict severe pain on the victim. The Administration asserted in its ICCPR Report that there was "no reasonable prospect of securing a conviction" under the CTO, presumably because it considered the pain inflicted was not severe enough.
The first issue we raise is that the Administration's summary of the case in its ICCPR Report fails to adequately summarise the way in which the victim was proven to have been tortured. This is a serious omission because as a result, the United Nations Human Rights Committee who will consider and evaluate the Report is not in a position to properly judge the merits of the Administration's justification for not prosecuting under the CTO.
The second and most important issue we raise is that we believe the Administration's justification for not charging the officers under the CTO is without merit. Reading the judgment, it is in our view indisputable that what the officers were proven beyond reasonable doubt to have done to the victim showed an intention to inflict severe pain. It is an understatement to say that the officers' actions were extreme. In an effort to extract a confession from him and to force him to borrow money from others, the following steps were taken over a period of approximately 4 hours:
(1) Police officer handcuffed the victim, took him to an empty refuse room in the building in which he lived, and ordered him to lie on his back on the floor. One of the officers then sat on the victim's pelvis and another on his shins while he was punched in the chest.
(2) The officers then stuffed a shoe in his mouth and inflicted a form of water torture that involved pouring water into his ears, nose and mouth until he found it difficult to breathe, while 2 of the officers sat on him.
(3) Next the 4 officers carried him to the railings in the refuse room, which was on the 16th floor, and threatened to throw him to his death. It was at this point that the victim agreed to co-operate with the officers, but the torture continued.
(4) The officers returned the victim to his former position of lying on the floor of the refuse room. One of the officers pressed his thumbs into the victim's neck, while another officer poured more water into his nose and mouth, causing him to lose consciousness.
With reference to the Administration's ICCPR Report at paragraph 111, this conduct shows, by any remotely reasonable standard, an intention to inflict pain "above that which is normal". If it does not, how severe does the alleged torture have to be before the Administration will prosecute under the CTO?
The Administration's decision to charge the officers only with assault occasioning actual bodily harm and to prosecute them in the Magistrate's Court resulted in the officers receiving remarkably light sentences of 4 months in two officer's cases, and 6 months in the other 2 cases. The length of those sentences combined (20 months) is considerably less than that which the victim is likely to have received if he had been convicted on a charge of possessing 56 grams of heroin after his confession to same was extracted by these officers by means of torture. Had the officers been charged under the CTO, they would have been liable to a sentence of life imprisonment.
The Administration's decision not to charge the officers under the CTO sets a precedent for future cases. The message it has sent to our disciplined services is that the Administration will not prosecute its officers under the CTO when they torture persons unless the torture is of such a heinous type that it is worse than the torture inflicted on the victim in this case.
Human Rights Monitor takes the view that no reasonable person would deny that what the officers did to this victim constituted torture, including for the purposes of the definition in the CTO. Accordingly, they should have been prosecuted under the CTO. Even if -- and this appears to us to be unlikely in the extreme -- a jury had accepted that the alleged acts were proven but that the intention to inflict severe pain had not been proven, the jury could have convicted the officers for assault occasioning actual bodily harm which charge could have been offered in the alternative.
Human Rights Monitor urges the Administration to reconsider its position. We believe it is appropriate for the Administration to state publicly -- and in particular to inform the disciplined services -- that the test it has previously applied for prosecutions under the CTO has been reconsidered and that in future, cases of a similar nature will be prosecuted under the CTO.
Finally, this case causes Human Rights Monitor to question the Administration's decisions in the other 21 cases of alleged torture by Immigration Department officers considered in light of the CTO but found to be unsubstantiated, referred to in paragraph 108 of the Administration's ICCPR Report.
We intend to urge the Legislative Council to consider this matter and to investigate the other cases of alleged torture.
We look forward to receiving your response to the issues raised above as a matter of urgency.
Law Yuk Kai (signed)
c.c.   Mr. Gary Cheng (DAB)
Ms. Selina Chow (Liberal Party)
Ms. Rita Fan (Ind.)
Ms. Emily Lau (The Frontier)
Mr. Martin Lee (Democratic Party)
Ms. Christine Loh (Citizens Party)
Ms. Magaret Ng (Ind.)
Mr. Dennis Chang (Chair, IPCC)
Extract from Judgment of Deputy Judge Lugar-Mawson HKSAR vs Chuen Lai-Sze and 3 Others, MA 470/98 26 September 1998
Pages 2-3 of Judgment
The evidence led at trial relevant to the issues in this appeal is as follows:
All four appellants are police officers from Special Duty Squad at Kwai Chung Police Station. In the early evening of 3 March 1997, YIU So-man, the first prosecution witness, was intercepted by the 3rd and 4th appellants at the Ground Floor of Wing Lok House on the Fuk Loi Estate, Tsuen Wan, close to where he lived. He was handcuffed and taken to the refuse room on the 16th Floor. Having been asked what he thought he had done wrong and having refused to answer, he was ordered to lie on the floor on his back. The 3rd appellant sat on his pelvis and punched him in the chest. The 4th appellant removed his spectacles and sat on his shins. The 2nd appellant entered the room and, after discussion with her colleagues, told him that his methadone card had been found, together with a quantity of heroin. When YIU denied that the heroin was his, he was punched in the chest by the 3rd appellant.
The 1st appellant, the inspector in charge of the team, then joined the officers and a further discussion took place which YIU was unable to hear. The second appellant stuffed a shoe in his mouth. Then the 1st appellant, followed by the 2nd appellant, poured water from metal drinks cans into his ears, nose and mouth until he found it difficult to breathe, whilst the 3rd and 4th appellant sat on his body. He said that a Coca-Cola can and a San Miguel beer can were used to do this. Some sheets of cardboard were placed under him.
He was told that he would be released if he was able to borrow money to buy drugs. When he expressed doubt at being able to do this, all four officers carried him to the railings in the refuse room and the 1st appellant threatened to have him thrown to the ground. He agreed to cooperate. He was returned to his position on the floor, where the 3rd appellant pressed his thumbs onto his neck, whilst the 2nd appellant poured more water into his nose and mouth, which caused him to lose consciousness.
When he came around, the 4th appellant handed him a mobile phone. He made a call to his mother and asked her for $7,000. Other police officers then arrived . He was given a change of clothing, as his own were wet, and released on the basis that they would be in touch with him again shortly. He managed to receive his spectacles, which were broken, and his wallet from which he said $200 were missing.
YIU was uncertain as to exactly how long the incident lasted but believed it was approximately four hours and that he had been released at around 1 p.m. He was not convinced at the time that those who had assaulted him were police officers.
Extract from Report of the Hong Kong Special Administrative Region of the People's Republic of China in respect of the International Covenant on Civil and Political Rights
109. In April 1998, four Police officers were found guilty of assaulting a drug addict to force a confession. They were charged and convicted for assault occasioning actual bodily harm under the Offences against the Person Ordinance. The complainant alleged that the Police beat him up, poured water into his ears and nose, and stuffed a shoe in his mouth. Commentators have asked why the officers were not charged under the Crimes (Torture) Ordinance. Some have suggested that this was in order to avoid the severe penalties imposed under section 3 of the Ordinance. That view is unfounded.
110. The Critical issue in determining whether it is appropriate to lay a charge of torture under section 3 of the Crimes (Torture) Ordinance is whether the prosecution can prove beyond reasonable doubt that an official has internationally inflicted severe pain or suffering on another in the performance or purported performance of his official duties. On an application of the ordinary rules of statutory interpretation concerning criminal statutes, section 3 requires that the prosecution must prove that the accused-
(a) committed the act which inflicted pain intentionally; and (b) intended that his act would result in severe pain.
111. The word 'severe' clearly indicated the intention of the legislature to require proof beyond reasonable doubt a degree of pain above that which is normal in order to qualify as torture. Thus, it would not suffice for a court to be satisfied only that there was an intention to inflict pain. In the case under discussion, those whose duty it was to decide whether to charge and what (if any) charge to lay, concluded that there was no reasonable prospect of securing a conviction for an offence alleging an offence against section 3 of the Crimes (Torture) Ordinance. In reaching this conclusion, they did not overlook the fact that - within section 3 - 'severe pain' included mental pain.
Extract of Crimes (Torture) Ordinance, Cap 247
(2) For the purposes of this Ordinance a person shall be regarded as having acted in an official capacity if at the time he acts (be he acting in Hong Kong or elsewhere) that capacity is related either to the Government of, or any public authority in, Hong Kong or to the government of, or any other authority in, a country or territory outside Hong Kong being an authority which is similar or analogous to a public authority in Hong Kong.
(1) A public official or person acting in an official capacity, whatever his nationality or citizenship, commits the offence of torture if in Hong Kong or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
(2) For the purposes of this Ordinance, it is immaterial whether pain or suffering is physical or mental and whether it is caused by an act or an omission.
(5) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.