ATTORNEY GENERAL v. CHAN YUEN LUNG AND OTHERS

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H E A D N O T E

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COMMON ASSAULT - DEMENTED INMATE IN OLD PEOPLE'S HOME WO LEGAL JUSTIFICATION FOR CHAINING TO BED FOR FEAR OF RPPETITION OF PAST VIOLENCE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 220 OF 1989

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J U D G M E N T

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1. This is a case stated by Mr Venning in Fanling Magistrates Court at the instance of the Attorney General following the dismissal, at the close of the prosecutions case of a charge of assault against the three respondents.

2. The magistrate found the following facts:-

"4.1 The 1st Respondent was at the material time responsible for the management and operation of God's Love Care Home. The 2nd and 3rd Respondents were nurses employed by God's Love Care Home.

4.2. The alleged Victim, CHEUNG Hak was about 85 years old and had been incontinent and demented before his admission to God's Love Care Home.

4.3 The alleged victim, CHEUNG Hak, was placed at the God's Love Care Home on the 9th August, 1987 through the introduction of the Social Welfare Department.

4.4    On the 13th day of March, 1988, the alleged victim was tied on his four limbs with two metal chains and four padlocks against the bed as shown in the photographs which are annexed hereto. One piece of cloth insulator round the left wrist of the alleged victim was present.

4.5    The alleged victim was subsequently admitted to hospital for observation where no injuries whatever were detected.

4.6 The alleged victim was subsequently admitted to another home for the aged (Shun Fuk). The supervisor CHAN Pui-kwan, testified that since his admission CHEUNG Hak had to be tied up every day with safety jackets which was known and consented to by CHEUNG Hak's family, the evidence revealed that he very often tore several of the safety jackets and when that happened he would dismantle and break chairs, tore clothes and bedding, disturbed and endangered the lives of other inmates. His troublesome behaviour was successfully checked by resorting to safety vests made of cloth but never chains, although he tore several of those vests,"

3. Each of the respondents made a cautioned statement admitting that they decided to chain and padlock the victim for his own safety and the safety of other inmates, but only after cloth vests were proved to be unsuccessful.

4. The magistrate found that the force applied was justified and necessary in the interests of the victim and others a prima facie case had not therefore been established.

5. The questions of law arising for the opinion of the court are:-

(1)    Whether the magistrate was correct in holding that the use of chains and padlocks by the respondents to restrain the victim was not an unlawful application of physical force.

(2)    Whether he was correct in holding that there was no case to answer.

6. The term "assault" may be used to include both an assault and a battery. When, as is usually the ease, the word "assault" is used to mean a battery, it simply means an act by which a person intentionally or recklessly applies unlawful force to the complainant. R v. Williams (1984) 78, CAR 275 at 279.

7. The victim was demented - but the fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is hot imprisoned, it being possible for a person to be imprisoned in law without his being conscious of the fact and appreciating the position in which he is placed : Meering v. Grahame - White Aviation Company Ltd. (1919) 122 L.T. 44, 51, 53, 54. [See also R. v. Smith 2 CAR p. 448, 449].

8. No consent, express or implied, was given by, or on behalf of, the victim to his being chained to his bed.

9. The Common Law gives no right to institutions such as this Old People's Home to manacle its inmates. Statutory sanction to the imposition of physical restraint is given by, for example, S. 69 of the Mental Health Ordinance, Cap. 136, and Prison Rules 57 to 68A, made under S. 25 of the Prisons Ordinance, Cap. 234. There is no such legislation relating to Old People's Homes. Unless therefore there was legal justification for the respondents' actions, they are guilty of assault.

10. Justification may be found to exist in the case of necessity. An act which would otherwise be a crime may in some cases be excused if the defendant can, show that (i) it was done only in order to avoid consequences which could not otherwise be avoided and which, if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil; (ii) that no more was done than was reasonably necessary for that purpose; and (iii) that the evil inflicted by it was not disproportionate to the evil avoided. Stephen, Digest of the Criminal Law, P.9.

11. There was no evidence as to the victim's behaviour on 13th March. Had he on that evening been violent and not amenable to reasonable restraint designed to protect himself or others from injury, It would be open to the magistrate to find that the respondents were justified in taking more extreme restrictive measures, pending the arrival of the police. it would then have been up to the latter whether they applied to the court for his legal detention elsewhere.

12. The respondents however, would not have been justified in chaining him up night after night, on the basis of his behaviour in the past, which seems to be the tenor of their cautioned statements.

13. For these reasons both questions are answered in the negative. The case is remitted to the magistrate, who is directed to continue the trial.