過分武力 Excessive Force

疑犯暴斃 3懲教員囚16月
使用過度暴力 官批濫權

【明報專訊】台灣詐騙案疑犯陳竹男被還押荔枝角收押所期間，3名懲教員使用過度暴力制服對方後，疑犯翌日被發現死在保護室內，3人早前被裁定引致他人嚴重受傷罪成，昨日被判囚1年4個月。法官直指3被告濫用權力，其行為削弱懲教署的道德權力及良好管治。

由於事主陳竹男（33歲）的死因研訊下月5日展開，預料為期30日，懲教署發言人及懲教事務職員協會主席趙志強均表示，不宜評論今次案件。

但趙志強表示，一般而言，因犯人性格各異，部分更有濫藥習慣或暴力傾向，懲教員作為前線執法者，有時亦會遇到犯人情緒失控，「我們監管很貼身，可能無身體屏障，若他們情緒反應很大甚至有暴力行為，只能靠身上武器，亦無可避免身體接觸」，懲教員只能靠即時反應判斷形勢。

工會：對執法構成衝擊

他又表示，同僚之間對事件感惋惜，對執法亦構成衝擊，他們會先仔細研究判辭，稍後約見署方商討是否有需要檢討現行指引。

署方發言人則指有關懲教人員已於今年2月被停職，又指今次純屬個別事件，懲教署會仔細研究判辭，並作適當跟進，而懲教署對員工使用武力有明確規定。

過百親友同僚到庭支持

3名被告梁盛志（46歲）、蘇嘉瑋（34歲）及鄧旭波（48歲）一如以往，昨獲過百名親友及同僚到庭支持，法庭內通道亦站滿人。早前曾指3人使用過分暴力的暫委法官練錦鴻昨指當日事主手上並無武器，又不能逃走，其中一被告更手持胡椒噴霧，難以想像3人僅為制服事主，卻需將對方毆至重傷。練官相信，事主必帶着極大痛楚下死亡，絕不能忽視其痛苦。

練官續指案件已嚴重影響懲教署的聲譽，對署方造成長期損害，並削弱其道德權力及良好管治，希望今次僅為單一事件。他又說，懲教署賦予3被告權力，他們必須謹慎及小心使用，且懲教院所屬密封空間，公眾難以監管，需依賴懲教員良好的意識；惟3名被告身為懲教員，竟濫用其職權及社會的信任，是本案最嚴重之處，若不加以懲罰，將削弱社會對刑事司法的信心。

法官表示，考慮3人並非完全邪惡，今次定罪亦令3人失去努力多年的工作、退休金及其應得酬勞，加上他們對社會貢獻甚多，終判3人各監禁1年4個月。
【案件編號﹕DCCC280/12】 (21/9/2012 明報)

3名懲教署職員沒有被控謀殺已屬幸運，判監也算輕手。有到庭聽審的懲教署職員表示，對於怎樣才算使用過分武力，認為難以界定。事實上不論使用甚麼指引，都不能夠對每一種情況定出仔細原則，大原則是在當時的情況下，使用合理的武力。以香港的整體情況而言，尚算不錯。我這樣講，很多人會不同意，會舉警方使用胡椒噴霧對付示威者及以武力方法驅散或抬走示威者為例，提出反駁。使用武力怎樣才算合理，沒有絕對準則。如果要制服囚犯，把他毆至遍體鱗傷而死，怎樣講都不是合理武力。

如果你不同意我對香港執法人員評價的講法，讓我們看以人權立國的老大哥----美國的案例來比較一下。下面一則新聞摘自Seattle Weekly去年的報導，今年5月29日美國聯邦最高法院駁回Malaika Brooks的上訴。從案情而言，發生在大陸的話，我一點也不驚訝。美國嘛，也司空見慣。如果在香港的話，黑衫示威圍了警察總部。用下面這件案作為比較，香港不算差罷？

Malaika Brooks Case: Pregnant Woman Tasered by Seattle Police Can't Sue Them, Court Rules

By Rick Anderson Tue., Oct. 18 2011 at 6:00 AM

21 Comments

Categories: City of Seattle

Malaika Brooks, the pregnant woman Tasered by Seattle police during a 2004 traffic stop, finally won her battle after seven years but may have lost the war, at least in federal court.

A U.S. appeals court in San Francisco yesterday ruled that the Seattle woman was the victim of excessive force when Seattle police Tasered the then-seven-months-pregnant Brooks with a stun gun three times. But the court also said the three officers involved cannot be sued by Brooks in U.S. court. They have qualified immunity from any legal action because laws regarding stun-gun use were unclear at the time of the incident.

"It's a terrible ruling," says Brooks' Seattle attorney Eric Zubel. He still hadn't been able to reach Brooks late yesterday to ask whether she wanted to continue the lawsuit, but there's a chance she could. "At least the appeals court agreed the police were clearly out of line by Tazing her," Zubel says. "We could still pursue a civil assault-and-battery claim in the state courts if she so chooses."

The case was detailed in a Seattle Weekly cover story earlier this year. Brooks was driving her 12-year-old son Jahrod to the African American Academy on Beacon Hill when an officer pulled her over for doing 32 in a 20-mph school zone.

Brooks, then 34, denied the violation and refused to sign the traffic citation, mistakenly thinking it was an admission of guilt. The officer threatened to arrest her for failing to sign the ticket. Brooks again refused but said she'd "accept" the ticket.

Two other officers arrived and Brooks was asked to step from the car (her son had already gone on to school). She refused, and an officer displayed a Taser stun gun and asked if she knew what it could do to her. Brooks told the officers she was pregnant.

"How pregnant?" one asked. Her baby was due in two months, she said. She again refused to step out.

After a discussion among the officers, one opened the driver's door, reached in and grabbed Brooks by the left arm as another cop put the device to Brooks' thigh in touch-stun mode and shocked her with 50,000 volts. She began honking her horn, screaming for help as she resisted.

She was given another shock on the arm, and she stopped blowing the horn. She was shocked a third time in the neck, and Brooks then fell over on the car seat, unable to move. She was pulled out of the car and held face-down on the street while being handcuffed. After an examination by fire-department medics, she was jailed for resisting arrest. The charges ultimately were dismissed.

Brooks, who two months later gave birth to a healthy baby girl, has been in court since, contending that police used excessive force. Her case worked its way up to a federal appeals panel last year, where two of three judges ruled that the police had acted within the law and used proper force.

But after another appeal, Brooks' attorney Zubel was allowed to appear before the full 11-member court at a session in Pasadena, Calif., in December to re-argue the issue, resulting in yesterday's ruling.

In concluding that Seattle police unnecessarily Tazered Brooks, the court, writes Judge Richard A. Paez, recognizes "the importance of having people sign their traffic citations when required to do so by state law. However, we have no difficulty deciding that failing to sign a traffic citation and driving 32 miles per hour in a 20-mile-per-hour zone are not serious offenses."

Officers also were at no risk from the the pregnant driver, Paez adds. "At no time did Brooks verbally threaten the officers. She gave no indication of being armed and, behind the wheel of her car, she was not physically threatening....A reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers' use of force was unreasonable and therefore constitutionally excessive."

However, because case law on the use of lasers in 2004 "was not sufficiently clear at
the time of the incident to render the alleged violation clearly established," the court concluded, "the defendant officers are entitled to the defense of qualified immunity."

The case has cost city taxpayers at least $345,000 in legal fees and left Brooks with weighty legal costs and several Taser scars. "If the police had done their job right," says Zubel, "this never would have happened."