HKSAR v. LEUNG SHING CHI AND OTHERS

CACC 382/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 382 OF 2012

(ON APPEAL FROM DCCC NO. 280 OF 2012)

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DECISION

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1.  This is the 1^st to 3^rd applicants’ application for bail pending appeal.

2.  On 31 August 2012, the 1^st to 3^rd applicants were convicted after trial in the District Court of one joint count of inflicting grievous bodily harm, contrary to section 19 of Offences against the Person Ordinance, Cap 212.  On 20 September 2012, they were each sentenced to 16 months imprisonment.   Their earliest date of discharge is 21 July 2013.

3.  The applicants have applied for leave to appeal against conviction and sentence.  The applications are listed to be heard on 21 May 2013.

Relevant legal principles

4.  Under section 83R of Criminal Procedure Ordinance, Cap 221, the Court of Appeal may grant bail pending appeal against conviction and sentence.

5.  Bail pending appeal is exceptional.  Generally, bail should only be granted where it appears that the appeal would be successful, or where there is a risk that the whole or a substantial part of the sentence would have been served by the time the appeal was heard : HKSAR v Lau Man Kin [2010] 1 HKLRD 336. These have been referred to as the “merits” ground and the “time” ground.  In respect of the time ground, an applicant has also to show that the intended appeal is at least reasonably arguable: see HKSAR v. Lau Man Kin at p.338 para. 8.

6.  In the present case, the applicants rely on both the merits ground and the time ground.

Facts of the case

7.  The facts of the case as found by the trial judge had been summarised in the Reasons for Sentence (at paragraph 2), which I shall adopt:

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

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

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

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

8.  The trial judge found the 1^st to 3^rd applicants to have acted outside their lawful power in using unnecessary, excessive and unjustified force in seeking to subdue the inmate (“the Deceased”) and had inflicted grievous bodily injuries on him.  He further found the applicants to have acted in concert, hence liable jointly for the offence charged.

Grounds of appeal

9.  In the Perfected Grounds of Appeal, three grounds are put forward in support of the application for leave to appeal against conviction and another three grounds in support of the application for leave to appeal against sentence.  For the purpose of this bail application, no submission has been advanced on the grounds for appeal against sentence.

10.  The applicants’ core complaint against their conviction is the trial judge’s evaluation of and conclusion on the medical experts’ evidence.  At the trial, the prosecution had called the doctor (PW7) who examined the Deceased at the Lai Chi Kok Reception Centre both before and after the incident at the consultation room and a pathologist (PW8) who performed the post-mortem examination on the Deceased.  The defence also called a forensic pathologist (DW1).  The trial judge was not impressed with the evidence of PW7 and found his evidence on the examination of the Deceased after he was taken into the protected cell to be very doubtful.  As to PW8 and DW1, the trial judge found them both to be fair, impartial and subjective, but he preferred the opinion of PW8 on the cause of the injuries found on the Deceased to that of DW1.  In particular, he had difficulty in accepting DW1’s opinion that the Deceased suffered from bleeding disorder that would cause him to lose more blood with the result of bruises appearing bigger and sinister as the result of smaller traumas.  His reasoning appears at paras.73-76 of the Reasons for Verdict.

11.  Mr Grossman SC, who appears for the applicants together with Mr Lam, indicates that the applicants will be applying for leave to adduce fresh evidence at the hearing of the application for leave to appeal.  The fresh evidence consists of: (i) witness statement of the Deceased’s accomplice, Chan Jui-Ying; (ii) A report of Dr Tsang Fan Kwong; and (iii) the evidence given at the death inquest of the Deceased which took place after the trial.  In a nutshell, the purpose of the fresh evidence is to address the gap in the evidence referred to by the trial judge in his Reasons for Verdict.

12.  Mr Grossman SC further indicates that the applicants will be amending their grounds of appeal to add a further ground that they did not have a fair trial by reason of the incompetence of their trial counsel.  This is premised on three points: (i) Despite being urged by the applicants to do so, the trial counsel did not call Dr Tsang as a defence witness or put in his report.  Neither did he call Chan Jui-ying to establish the drinking habit of the Deceased.  (ii) The admission as evidence of the witness statements given by the applicants to the police during investigation should not have been opposed because they would at least have given an extra curial explanation of what happened.  (3) The advice to the applicants not to give evidence when they were prepared to do so and when their statements to the police had been excluded, making it incumbent upon themselves to explain, was wrong.

13.  Ms Lau who appears for the respondent submits that the applicants should not be admitted to bail because they do not have an arguable appeal.   She has given very detailed written submissions in this regard.

Reasons for decision

14.  In an application for bail pending appeal, it would not be appropriate to embark upon a detailed analysis of the grounds of appeal.  However, I do accept that the applicants’ intended application to adduce fresh evidence is not a straightforward one, having regard to the fact that some of the fresh evidence has all along been available to the applicants and that in considering the relevance and importance of the fresh evidence, one must take care not to confuse the cause of the Deceased’s death and the cause of the injuries found on him.  It is the latter that is of concern to the criminal trial and in turn the appeal against conviction.  The intended additional ground of incompetence of counsel, if established, would have removed some of the obstacles facing the application to adduce fresh evidence. I agree with Ms Lau’s submission that counsel has a wide discretion as to the manner in which proceedings are conducted and that, as a general rule, a party is bound by the conduct of his or her counsel: Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126 at para.47.  However, at this stage of the proceedings and without the benefit of comments or explanation by trial counsel, I do not feel able to proceed on the assumption that the decisions now complained of by the applicants were all tactical in nature and were part of a defence strategy to which the applicants had agreed to.  Taking a broad view of the matter.  I am of the view that it cannot be said that the intended appeal against convictions is not reasonably arguable.

15.  It is not disputed that if bail were not granted, the applicants would have served a substantial part of their sentence by the time their appeal is heard.

Conclusion

16.  In these circumstances, I consider it is appropriate to admit each of the applicants to bail upon the following conditions:

(1)  Cash bail of $50,000;

(2)  Not to leave Hong Kong;

(3)  To surrender all travel documents;

(4)  To reside at the address given; and

(5)  To report every Tuesday and Friday between 10:00 am and 12:00 noon to:

(a)  Cheung Sha Wan Police Station in the case of the 1^st applicant;

(b)  Wong Tai Sin Police Station in the case of the 2^nd applicant;

(c)  Tsing Yi Police Station in the case of the 3^rd applicant.