Friday, October 17, 2014

Was the assault on Ken Tsang by Hong Kong police officers "torture"?

Some have described the October 15th assault by Hong Kong police officers on protester and Civic Party member, Ken Tsang, as an offence of "torture", which under Hong Kong law carries a maximum sentence of life imprisonment.  The TVB video clip  (WSJ website) shows a man whose hands are bound behind his back lying on the ground while several police officers repeatedly kick and hit him for less than four minutes.  While the circumstances seen in this clip are highly suggestive of a criminal offence, it is unlikely to be torture.  It remains unclear what happened to Tsang after he was taken into police custody and detention.  These circumstances would need to be taken into consideration before coming to a final view on the matter.
     Article 1(1) of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as follows:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."  
In summary, the definition involves five elements: (i) the pain or suffering inflicted must be severe; (ii) the infliction of severe pain or suffering must be intentional; (iii) the infliction must have an official character to implicate the state; (iv) the infliction must be for a specified purpose; and (v) there is the lawful sanctions exception.
     Hong Kong enacted the offence of torture in s. 3 of the Crimes (Torture) Ordinance (Cap. 427) (CTO), which came into force on 21 January 1993.  There has yet to be a prosecution for this offence  and any such prosecution would require the specific consent of the Secretary for Justice (s. 4).  The CTO defines torture in a substantively different way than Art. 1(1) of CAT.  The offence is committed if a "public official or person acting in an official capacity...intentionally inflicts severe pain or suffering on another in the performance or purported performance of his or her official duties".  It is a defence to prove one had "lawful authority, justification or excuse" for the conduct.  In comparison to Art. 1(1), there is no specific purpose requirement, nor mention of liability by "consent or acquiescence" but here normal principles of party liability would apply to extend liability beyond the principal offender(s).  Section 3 also confers a wider defence than the "lawful sanctions" exception in Art. 1(1).  In its concluding observations (as recent as 2009), the UN Committee Against Torture recommended that Hong Kong abolish this defence because it is inconsistent with the position that the CAT "does not authorize any possible defense for acts of torture".  Given this incongruence with international law, a court is likely to interpret the defence of "lawful authority, justification or excuse" in a restrictive manner.  As the officers were public officials who were delivering an arrestee into custody at the time and acting without any apparent excuse or justification, the only real issue is whether the assault by the police was such as to constitute "severe pain or suffering" under s. 3(1) of the CTO.  
     In referring to what constitutes "cruel, inhuman or degrading treatment or punishment" (CIDTP) within Art. 3 of the Hong Kong Bill of Rights, the Court of Final Appeal held that "a very high threshold must be surmounted" (Ubamaka Edward Wilson, Secretary for Security (2012) 15 HKCFAR 743, [172]).  Ill-treatment that meets the "minimum level of severity" would be expected to involve "'actual bodily injury or intense physical or mental suffering' or mistreatment of an intensity 'capable of breaking an individual's moral and physical resistance'" ([182] citing from R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 at [53-55] (HL)).  In trying to distinguish "torture" from "inhuman or degrading treatment or punishment" in Art. 3 of the European Convention on Human Rights, the European Court of Human Rights has said that torture should involve ill-treatment of a greater degree of severity.  The "special stigma" of "torture" should only attach to "deliberate inhuman treatment causing very serious and cruel suffering" (Al Nashiri v Poland [2014] ECHR 833 at [508] (24 July 2014)).  
     In Ireland v UK [1978] ECHR 1, the European Court did not find prolonged sensory deprivation techniques used on detainees as constituting torture. However these techniques (involving wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink) constituted inhuman and degrading treatment.  It was not until 1996 (in Aksoy v Turkey [1996] ECHR 68), that the European Court found “torture” for the first time in a case involving “Palestinian hanging" (being strung up by the arms, tied together behind one’s back) and electrocution of the genitals ([14] & [23]).   
     More recent cases have shown that the line between 'torture' and 'inhuman or degrading treatment or punishment' is not easy to draw.  In Ochelkov v Russia [2013] ECHR 312 (11 Apr 2013), the applicant was arrested and taken to the police station. When he was released the evening of the following day, he went to the hospital and was diagnosed with a closed cranio-cerebral injury, concussion, and multiple injuries to the head, back, arms and chest ([85]).  He remained in hospital for 12 more days and had treatment in the surgery department ([85]).  The applicant claimed that while in police custody, he was tied to a chair whereupon officers hit him on the head with a chair leg, kicked him in various parts of the body and punched him in the face ([11]).  The ill-treatment lasted more than a hour.  In the end the applicant lost consciousness.  The Court found that the applicant was "beaten up by police officers and that as a result of those beatings he sustained injuries", that there were no circumstances which might have necessitated the use of violence on the applicant, that the applicant did not resist arrest, attempt to escape, refuse to comply with lawful orders or threaten the officers, that the use of force by the police was retaliatory in nature and aimed at forcing the applicant to submit, and that the treatment caused mental and physical suffering but no long-term damage to health ([95]).  The Court, however, concluded that the treatment amounted to "inhuman and degrading treatment" but did not find "torture" ([96]).  
     By contrast, torture was found in another not too dissimilar case.  In Belousov v Ukraine [2013] ECHR 1104 (7 Nov 2013), the applicant was arrested from his hostel on suspicion of sexual abuse of two young girls.  Seven hours later, when accompanied by police who were conducting a search of his room, he was seen "limping, stooping [with] bruises and swelling on his face" and "clothes were dirty and wrinkled" ([17]).  The Court accepted the applicant's version of events, that "the police officers handcuffed him, punched him in various parts of his body, strangled him, squeezed his genitals and painfully twisted his arms urging [him] to confess" ([62]).  The injuries that resulted were "soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular, face and groin area" ([67]).  The Court also noted that the treatment "was administered behind closed doors by a number of police officers whose violence the applicant had no means of resisting", that the physical pain must have been "exacerbated by feelings of helplessness, acute stress and anxiety" and that "the treatment was intentional, lasted for several hours in a row and was aimed at extracting" a confession from him ([67]).  It concluded that the treatment amounted to torture ([68]).
     As the severity of the assault on Ken Tsang (as seen in the video clip) was less severe in terms of duration, manner and injuries than the treatment in both the Ochelkov and Belousov cases, it is safe to conclude that the assault on Tsang did not amount to torture.
     In Hong Kong there is no specific criminal offence to inflict CIDTP.  Such conduct would come within the offences in the Offences Against the Person Ordinance (Cap. 212) (OAPO).  It would seem from the video clip and injuries sustained by Tsang that there is a reasonable prospect of conviction for the offence of assault occasioning actual bodily harm (s. 39 OAPO) and if the injuries are severe enough inflicting grievous bodily harm or wounding (s. 19 OAPO). It is doubtful there is enough evidence to prove an intention to cause grievous bodily harm, thereby ruling out the more serious offence in s. 17.  Written by Simon N.M. Young.

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