HKSAR v. CHAN SIU TAN AND ANOTHER

CACC 38/2017

[2018] HKCA 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38 OF 2017

(ON APPEAL FROM DCCC NO. 980 OF 2015)

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J U D G M E N T

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1.  The 5^th and 6^th applicants seek leave to appeal against their convictions after trial by District Court Judge Dufton, on 14 February 2017, of an assault occasioning actual bodily harm to Tsang Kin Chiu (“Tsang”) in the early hours of the morning of 15 October 2014 outside a Government pump station in Lung Wo Road, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212 and the sentence of 2 years’ imprisonment imposed on them on 17 February 2017 in consequence of that conviction.

2.  In addition, the 5^th applicant seeks leave to appeal against his conviction of common assault on Tsang on 15 October 2014 at interview room 7, Central Police Station, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance and the sentence of one month’s imprisonment imposed in consequence of that conviction, ordered to be served concurrently with the sentence of imprisonment imposed in respect of Charge 1.

The trial

3.  The 5^th and 6^th applicants, police constables in the Hong Kong Police Force, were jointly charged with five other police officers with causing grievous bodily harm with intent to Tsang (Charge 1).  All seven defendants were acquitted of that charge, but all of them were convicted of the alternative offence of an assault occasioning actual bodily harm to Tsang.  In addition, the 5^th applicant was convicted of the common assault of Tsang at interview room 7 of Central Police Station.

The prosecution case

4.  On the night of 14/15 October 2014 a significant body of police officers cleared protesters of the Occupy Central Movement.  All the defendants, save for the 4^th defendant were members, of Quick Response Team A 2-2.  During the night the 4^th defendant was re‑assigned to that team by the 2^nd applicant.  As the judge noted “Part of what happened that night was captured on video by TVB, Apple Daily, ATV and Now TV and the police video teams.  Photographs from Apple Daily and Oriental Daily also showed Tsang being escorted and carried facedown.” [1]  The judge went on to note “CCTV of the Central Police Station recorded two police officers taking Tsang into and out of the police station.” [2]

5.  It was the prosecution case that Tsang had poured a liquid from a position that he occupied on a planter located above the underpass on Lung Wo Road as police officers passed through the underpass.  Having been intercepted and arrested by uniformed police officers, he was handed over to a party of a total of six police officers of which the 4^th applicant was a member. Subsequently, they were joined by a seventh police officer.  Rather than being taken to the place at which other detainees were transported from the area by vehicle, the police officers took him to the Lung Wui Road Government Building Pump Station East Substation.  There, the defendants assaulted Tsang.

6.  Then, the 5^th and 6^th applicants escorted Tsang in a motorcar to Central Police Station, where they detained him in interview room 7.  There, in the presence of the 6^th applicant, the 5^th applicant assaulted Tsang by hitting the right side of his face twice with the back of his hand.  He did so after Tsang refused his request that he unlock his mobile telephone.  Thereafter, they escorted him by coach to the Police College at Wong Chuk Hang, where Tsang was detained.

7.  The judge noted that the defence objected to the admissibility of the video footage, photographs and CCTV on the grounds that there was “…no or no sufficient evidence as to the origin of the videos and photographs; that the videos and photographs had not been tampered with; the provenance and history of the photographs; and the authenticity and accuracy of the CCTV recordings”.[3]  Also, the defence invited the judge to exercise his discretion to exclude the evidence.  Having conducted a voir dire, the judge ruled that material admissible in evidence at the trial.[4]

The defence case

8.  None of the defendants gave or called evidence in the defence case at trial in either the voir dire or the general issue.  It was the 5^th and 6^th applicants’ case, as advanced in cross‑examination and submissions, inter alia, that Tsang’s evidence of the alleged assault on him by the 5^th applicant in interview room 7 at Central Police Station was inconsistent and unreliable, such that it should be rejected.  Further, it was submitted that Tsang’s evidence of having identified the 5^th and 6^th applicants in two confrontations, as being two of the party of police officers who had assaulted him at substation and both of whom were present at the time that the 5^th applicant assaulted him at the police station ought to be ruled inadmissible, or excluded in the exercise of his discretion, by the judge. Notwithstanding that the evidence had been ruled admissible, nevertheless the judge was invited to give it no weight.

The 5^th and 6^th applicants’ grounds of appeal against conviction

9.  By Ground 1.1 Ms Draycott SC submitted for the 5^th and 6^th applicants that the judge erred in law in ruling that the appropriate test to determine whether the video footage, including the CCTV video footage, and the photographs was prima facie authentic was “whether the evidence, if believed by the jury, would be sufficient to prove the matter beyond reasonable doubt.” [5]  That being a matter of law only, the leave of this Court was not required.

10.  Ms Draycott acknowledged on behalf of the 5^th and 6^th applicants that the remaining grounds advanced in Ground 1, Ground 2 and Ground 3, save for Ground 1.3.5 and Ground 1.3.10, were grounds argued by the 1^st and 2^nd applicants and determined by this Court not to be reasonably arguable.  Whilst acknowledging that determination, this Court was informed that the 5^th and 6^th applicants “…will rely on these grounds before the full court.”

Discussion

11.  For the reasons that I gave in the judgments in respect of the applications for leave to appeal against conviction of the 1^st and 2^nd applicants, adopted and repeated in the judgment in respect of the applications of the 4^th and 7^th applicants, I am satisfied that Ground 1.1 of the grounds of appeal of the 5^th and 6^th applicants concerns an issue of law only, for which the leave of this Court is not required.

12.  For the reasons that I gave in the judgments in respect of the applications of the 1^st and 2^nd applicants, together with the judgment I gave in respect of the 3^rd applicant [6], I am satisfied that the other grounds of appeal advanced on behalf of the 5^th and 6^th applicants, identified above as having been addressed in the judgments in respect of the 1^st and 2^nd applicants, are not reasonably arguable.

Other grounds of appeal advanced by the 5^th and 6^th applicants

The authenticity of the TVB video footage - David Wong’s evidence

13.  By Ground 1.3.5, Ms Draycott submitted that the judge had erred in accepting the evidence of Mr David Wong that the explanation for the break or gap in continuity in the TVB video footage P1 (a) between the “first shot” and the “second shot”, based on his comparison of that video footage with the Blu‑ray disc at TVB, was that in the intervening period of 49 seconds between the two shots the view of the group of persons carrying Tsang was obscured by the presence of a van between the cameraman and that group until the group arrived alongside the substation.

14.  Ms Draycott submitted that the judge had failed to resolve the conflict between David Wong’s evidence to the effect described above and the evidence of Superintendent Ng Lok Chun, which it was contended was to the effect that “the police had cleared all vehicles from the pavement and none were allowed there.”

15.  The judge said that David Wong testified that he had compared the TVB video footage P1 (a) with the Blu‑ray disc and concluded “that apart from certain blocked shots which were missing, the video footage on (a) had not been edited.” [7]  That was true of both the video and sound recordings.  David Wong had explained that P1 (a) “were split into first shot and second shot.  The first shot comprised of the first 10 seconds, which showed a man being carried by a group”, whereas, “the second shot is the remainder of the footage showing the assault at the substation.” [8]

16.  Of the blocked shot, the judge said:[9]

“ ...David Wong compared the blu-ray discs with the footage WSL1 (a) he saw that the first shot and second shot came from the same camera, camera B.  After the first shot David Wong saw that the group turned into an area where they were blocked by a van (“the blocked shot”).  The second shot is when the group appeared again on camera.  David Wong said the first shot, the blocked shot and the second shot could all be seen on blu‑ray disc B as one continuous shot without editing.”

17.  In his consideration of the submissions made as to the video footage, the judge noted that the main criticism was that there was “no continuous recording”.[10]  Further, he observed that there was “much criticism” of the evidence of David Wong in respect of the “blocked shot”.[11]  In addressing those criticisms, inter‑alia, the judge considered the submissions that had been made on behalf of the 1^st applicant that it was “impossible for a van to enter the path where David Wong said the group were blocked by a vehicle.” [12]

18.  The judge noted that Ms Lam for the 6^th applicant relied on the evidence of Superintendent Ng to the effect that no cars were allowed to drive on the pavement.  Of the evidence relevant to that submission, the judge said:[13]

“ In cross-examination Ms Lam showed SP Ng photograph 11,

exhibit P24. After SP Ng agreed the pavement was cleared that night Ms Lam asked SP Ng if he agreed that no car was allowed to drive on the red pavement. SP Ng replied, “All along no vehicles are supposed to be driven up to this pavement.” Ms Lam then showed photograph 12 and asked the same question to which SP Ng replied “Right.” ”

19.  Of that evidence, the judge said “all that SP Ng was saying is no vehicles were supposed to be driven on the red pavement.” [Italics added.]  Clearly, the judge was alive to the possibility that, although drivers were not supposed to drive vehicles on that pavement, nevertheless that remained a possibility.

20.  It is to be noted that photograph 11 depicted a broad pink/red pavement that ran on a gradient parallel to but above the road beneath, until it reached a flat piece of land.  There, the pavement and the road ran alongside one another at the same level.  Photograph 12 was a photograph taken part way down the gradient, depicting a closer view of the pavement and road at the same level alongside one another.  To the right side of each photograph was the substation.

21.  In rejecting the submission made on behalf of the 1^st applicant that it was not possible for a van to enter that path or pavement, because of the presence of a “concrete barrier together with fixed and continuous railing”, the judge said that:[14]

“ Police video, exhibit P8 …, clearly shows that the railings are not continuous. Railings run parallel with the substation. On approaching the underpass and before reaching the railings there is a recess or lay‑by where cars can pull in and park or drive alongside the substation. At the end of the railings there is clearly sufficient space for a vehicle to access the path.”

22.  Having regard to the submissions of the 1^st and 6^th applicants that it was “…unlikely a van could have reached the path David Wong said was the location of the block shot”, the judge said:[15]

“ Accepting there were many people around that early morning I am satisfied, having viewed the police videos, there was nothing to prevent a van from driving onto the path.”

23.  In the result, the judge concluded that the submission “does not cause me to doubt the evidence of David Wong that after the first shot he saw the group turned into an area where they were blocked by a van.” [16]

Conclusion

24.  In my judgment nothing has been advanced in support of this ground of appeal that suggests that the judge failed to have regard to relevant evidence or that his evaluation of the evidence was flawed.  On the contrary, his analysis of the evidence was thorough and painstaking.  Accordingly, in my judgment this ground of appeal is not reasonably arguable.

Admissibility of the CCTV footage at Central Police Station

25.  By Ground 1.3.10 Ms Draycott submitted on behalf of the 5^th and 6^th applicants that there was a possibility that the two discs of the CCTV video footage, recorded at Central Police Station in the early hours of 15 October 2014, had been handled by a person who was not a witness before the court.  That possibility arose from the “doubt as to the chain of evidence relating to the CCTV footage.” In her oral submissions, Ms Draycott acknowledged that the submission was a “minor point”.  The relevance of that submission, it appears, was the implied primary ground of appeal that the judge had erred in admitting the CCTV footage into evidence, relying on it himself and evidence from witnesses arising from it.  Certainly, in the written submissions of both the 5^th and 6^th applicants it was submitted that the judge was “wrong in finding that the CCTV recordings were prima facie authentic.”

26.  In his reasons for verdict the judge noted that he had conducted a voir dire to determine, inter‑alia, the admissibility of the CCTV footage.[17]  He noted that objection had been taken that there was “… no or no sufficient evidence to establish the authenticity of the CCTV recordings and the accuracy of the recordings” and that three witnesses, police officers with the Complaints Against Police Office, had been called by the prosecution and one had been tendered for cross‑examination.[18]  Also, he said that, having watched the CCTV footage in court, Tsang Kin Chiu (“Tsang”) had identified himself as “the person in the black T‑shirt, with stars on the back” depicted as “being escorted” by the same two police officers who had travelled with him in a car to the police station and subsequently to the Police College at Wong Chuk Hang.[19]

27.  In the result, the judge ruled that he was satisfied that, if believed, the evidence of those three police officers and the evidence of Tsang “was sufficient to prove the authenticity of the CCTV recordings beyond reasonable doubt.” [20]

28.  Then, having summarised the evidence at considerable length and having addressed the various submissions made on behalf of the applicants the judge said:[21]

“ Having carefully considered the evidence and viewed the CCTV recordings, I am satisfied there are no signs of tampering or discontinuity which cause me to doubt the authenticity, accuracy and integrity of the CCTV recordings. I find the prosecution have proved the authenticity of the CCTV recordings beyond reasonable doubt.

In addition, I accept the evidence of Tsang that the CCTV recordings showed him being escorted to and from room 7 in the Central Police Station.  On this evidence I find the prosecution have proved the authenticity of the CCTV recordings beyond reasonable doubt.  [Italics added.]

29.  In reaching those conclusions, the judge noted that SPC 16408 testified that he had burnt two discs from the hard disk of the CCTV recordings and that he had referred to one of those discs in his evidence‑in‑chief, exhibit P 15 (a).  In cross‑examination, he had identified the second disc, exhibit P 15 (b), both of which discs contained his handwriting.  He explained that he had burnt two discs so that one could be produced as an exhibit and the other used for investigation.  However, SPC 16408 said that he had not written the words “Recorded by SPC 16408” found on exhibit P 15 (b), which words had not been written in his presence.[22]

30.  Sergeant 14827 testified that he had written a reference in red on both of the discs and that, when he did so, the writing “Recorded by SPC 16408” on exhibit P 15 (b) was written on that disc.  The writing in red on the two discs differed slightly. For his part, Sergeant 14827 handed over the two discs to Sergeant 45918, who attached a yellow exhibit label, exhibit P 15 (c) to exhibit P 15 (b), whilst exhibit P 15 (b), was kept as a working copy for the investigation.

31.  Having noted that issue was taken on behalf of the 5^th applicant that the judge could not be satisfied that SPC 16408 had burnt the disc, exhibit P 15 (a), and that Sergeant 45918 had been given two discs and that issue was taken on behalf of the 6^th applicant as to the “chain of the two discs”, the judge said:[23]

“ The discrepancy in the evidence as to the red handwriting and when the words “Recorded by SPC 16408” were written does not cause me to doubt the evidence of SPC 16408 that he burnt two discs, exhibits P15 (a) and (b). 

In addition, as was acknowledged by Mr Chung in court and in his written submission, the video content of the two discs are the same [24].  This lends support to the evidence of SPC 16408 that he burnt two discs.”

32.  In the written submissions of the 5^th and 6^th applicants it was submitted that the issue that arose from the fact that it was not known “when, or by whom, the words ‘Recorded by SPC 16408’ ” were written on exhibit P 15 (b) evidenced the fact that “someone unidentified had handled the discs before they were produced at trial” and that gave rise to “…the possibility that someone not before the court had tampered with the discs.”

33.  In support of that submission, it was contended that the judge had given insufficient regard to various relevant factors.  However, each and every one of those factors were matters to which the judge said he had regard:[25]

“ I have also taken into account that no one from Chubb was called to give evidence that the CCTV system was functioning properly [26]; no evidence was called to show those who had access to the CCTV recording had not tampered with the recording [27]; SPC 16408 did not compare what he recorded on the two discs with the CCTV footage [28]; and the location of camera 9 on the sketches was clearly wrong [29] and that none of the police officers were shown the CCTV recordings.”

34.  In the result, the judge reaffirmed his earlier finding as to the authenticity of the CCTV recordings:[30]

“ …I remain satisfied on the evidence of the prosecution has proved the authenticity of the CCTV recordings beyond reasonable doubt.”

Discussion

35.  It is clear that the submissions made to the judge in respect of the authenticity of the CCTV recordings placed great weight on the unexplained presence of some writing on the working copy exhibit of the discs copied by SPC 16408.  What was canvassed was the bare possibility that there had been tampering.  No attempt was made to point to any deficiencies in the CCTV recordings themselves.  That is not surprising, since there is nothing to which attention could be drawn.

36.  The CCTV recordings depict a person, whom Tsang identified as himself, being escorted by two men into and out of Central Police Station.  As noted earlier, the judge said that Tsang had identified himself from the CCTV “as the person in the black T‑shirt with stars on the back” and that he was depicted “being escorted by the 2 police officers to interview room 7 ”.[31]  The judge accepted that evidence.[32]  Similarly, he accepted Tsang’s evidence[33] that he was depicted in photograph P 13 “as the person in the black T‑shirt, with stars on the back, being carried facedown to the dark corner.” [34]  Clearly, the two men in the CCTV footage are police officers.  At times they are accompanied by uniformed police officers as they make their journey through places where uniformed police officers are present.

37.  As noted earlier, the judge said that, inter‑alia, having viewed the CCTV recordings “… I am satisfied there are no signs of tampering or discontinuity which cause me to doubt the authenticity, accuracy and integrity of the CCTV recordings.”  Nothing has been suggested to this Court which suggests otherwise.  I too have watched the CCTV recordings and am satisfied that that it is not reasonably arguable that the judge erred in making the finding set out above.

Conclusion

38.  I am satisfied that this ground of appeal is not reasonably arguable and I refuse leave to appeal on this ground.

Tsang’s identification of the 5^th and 6^th applicants in direct confrontations

39.  By Grounds 5 and 4, Ms Draycott submitted for the 5^th and 6^th applicants respectively that the judge had erred in not excluding the evidence of Tsang’s identification of the 5^th and 6^th applicants in separate direct confrontations.  Further, by Grounds 4 and 5, she submitted that the judge had erred in failing to exercise his discretion to exclude the evidence of those identifications, as more prejudicial than probative.

40.  On behalf of the 5^th and 6^th applicants Ms Draycott contended that the judge had failed to take into account that 5^th and 6^th applicants had been “unlawfully compelled” to take part in the identification procedure.  Further, having found that the failure to hold a non‑consensual group identification was in breach of the of the Hong Kong Police’s “Force Procedure Manual”, it was contended that the judge had failed to assess the impact on the fairness of the trial.

41.  Next, she submitted that, notwithstanding the fact that the 5^th and 6^th applicants had declined to take part in any identification procedure, the judge was wrong to find that use of the direct confrontation procedure was not unfair.  In making that finding, she said that the judge was wrong to find that holding a non‑consensual group identification was impractical without the cooperation of the suspect.  Ms Draycott contended that no greater degree of cooperation was required of the suspect for a group direct confrontation as opposed to a direct confrontation of the suspect.  Similarly, it was submitted that the judge was wrong to find that in closing their eyes the 5^th and 6^th applicants were “covering their face”, thereby demonstrating non‑cooperation which precluded the holding of the group direct confrontation procedure.

42.  Further, Ms Draycott submitted that the judge failed to have sufficient regard to the fact that photographs of the 5^th and 6^th applicants had been published widely in the media after 15 October 2014.  It was contended that the judge erred in stating that he distinguished the judgment of this Court in The Queen v Kwong Yiu Hung [35]. That case was authority for the proposition that identification by direct confrontation was unreliable by reason of photographs viewed by the witness prior to the identification.  Similarly, Ms Draycott submitted that the judge had erred in distinguishing the judgment of Beeson J in HKSAR v Mui Tak Ming [36]. The issue was the quality of the identification not the reason for its nature.

43.  Finally, Ms Draycott said that the judge had failed to have regard to the fact that Tsang was demonstrably hostile to the police and that the judge had found that his claim to have been assaulted at the time of his arrest was untrue.

The judge’s analysis

44.  The judge said that objection had been taken to the admissibility of the evidence on the basis that “…the holding of direct confrontations and the procedure adopted during the confrontations were unfair” and that he had received evidence, including video recordings of the two direct confrontations, on the issue.[37]

45.  The judge noted that the direct confrontations of Tsang with the 5^th and 6^th applicants had occurred on 27 January 2015 at Tsuen Wan Police Station, the purpose of which was to afford Tsang the opportunity to identify the police officer who had slapped him whilst he was in interview room 7 at Central Police Station in the early hours of the morning of 15 October 2014.  The judge went on to say:[38]

“ In the first direct confrontation Tsang identified D5 as the police officer who slapped him. In the second direct confrontation Tsang identified D6 as the police officer who was present when he was slapped, describing him as one of the escorting officers. Tsang also identified D5 and D6 in court as the persons he identified in the direct confrontations.”

46.  Of the circumstances, purpose and conduct of the direct confrontations, the judge said:[39]

“ Tsang attended Tsuen Wan Police Station on 27 January 2015 accompanied by his legal representatives, including Mr Vidler. D5 and D6 were also accompanied by their legal representatives…

The purpose of the confrontations was to see whether Tsang could identify the police officer who slapped him on the face. In each of the confrontations Tsang was told that the person he was asked to look at may or may not have been involved in the case.

Notwithstanding the defendants closed their eyes during the confrontations Tsang identified D5 in the first confrontation as the one who slapped him on the face inside room 7 and identified D6 in the second confrontation as one of the escorting officers.  In cross‑examination Tsang said escorting meant escorting into room 7 and disagreed he did not identify D6 as being the police officer present when he was assaulted inside room 7.”

47.  Of the circumstances leading to the identification of the 5^th and 6^th applicants respectively had been obtained by direct confrontation, the judge said “…all the defendants refused to participate in identification procedures from a very early stage.” [40]  He noted that, on 3 November 2014, Superintendent So had directed that a letter be sent to the legal representatives of all seven applicants seeking written confirmation as to whether or not they were prepared to take part in identification procedures.[41]  Apparently, that was to confirm earlier intimations given on behalf of the seven applicants that they were not prepared to take part in any identification procedures.  A letter of that date sent to those representing the seven applicants invited them to confirm whether they were prepared to take part in identification procedures.[42]  The letter asked whether the recipients were willing to take part in: [43]

“ …formal identification parades or any other means a formal identification process (including group identifications or direct confrontations).”

The recipients were asked to reply “as soon as possible.” 

48.  The judge went on to note that, on 3 November 2014, those representing all the applicants, save for the 1^st applicant, had written in reply to that letter stating that “their clients would not take part in any formal identification parade including group identification or direct confrontation.” [44]  The letters written on behalf of the 5^th and 6^th applicants stated that those legal representatives had:[45]

“ …instructions to confirm that our client, upon legal advice, shall NOT take part in formal identification parades and any other means a formal identification process (including group identifications or direct confrontation). [Italics added.]

49.  It was an admitted fact that the 5^th and 6^th applicants respectively had signed forms, dated 26 November 2014, entitled “Identification Parade Notice to Suspect”, in which it was stated that it proposed that each of them appear on an identification parade at which a witness would be afforded the opportunity “…to pick out from a group, if he is present, the person whom the witness has said that he has seen before on a special occasion.” [46]  It is to be noted that the form went on to state:

“ You are not obliged to attend a parade. If you decline to do so, this fact may be given in evidence at any subsequent Court proceedings at which time a witness may be given the opportunity of identifying you. It will also be open to the police to make alternative arrangements before any Court proceedings, to test whether the witness does identify you as the person who he saw on the occasion in question. It should be pointed out to you that neither identification in Court nor identification under whatever other arrangements the Police may make, may be as fair to you as a formal identification parade. You are entitled to request a formal identification parade rather than any other method of identification if you so prefer.” [Italics added.]

50.  The forms were marked, respectively by encircling phrases or the deletion of phrases, to communicate that the 5^th and 6^th applicants had read the forms and that they were not willing to attend an identification parade.

Discussion

(i) “Unlawfully compelled” attendance at the identification procedure

51.  The submissions of the 5^th and 6^th applicants that they were “unlawfully compelled” to attend the identification procedure on 27 January 2015 were wholly unsupported by any particulars.  It is to be noted that it had been submitted to the judge on behalf of the 5^th applicant that he had been “forced to take part” in the identification procedure.  The judge rejected that submission:[47]

“ In court Mr Cheung explained by force he meant that the confrontation was held against the will of D5. There was no evidence before the court the D5 was forced to go to the police station. D5 was accompanied throughout by his lawyer. D5 was asked if he agreed to a formal identification parade and was explained his rights.”

52.  It was an admitted fact that each of the applicants “…attended a direct confrontation at the parade room at Tsuen Wan Police Station”, which was video recorded.[48]  As the judge noted, they were “legally represented during the confrontations”.[49]  Further, in respect of the form, dated 26 November 2014, entitled “Identification Parade Notice to Suspect”, in which, having been informed of the consequences, each of the 5^th and 6^th applicants had indicated that they were unwilling to attend an identification parade, the judge noted:[50]

“ At the beginning of each confrontation the defendants were referred to this notice and again asked if they agreed to take part in a formal identification parade. Both defendants refusing to take part in a formal identification parade the police proceeded to conduct the direct confrontations.”

53.  Clearly, both the 5^th and 6^th applicants had stated and consistently repeated that they did not consent to take part in any consensual identification procedure.  Equally clearly, as the judge said, they were aware of “the consequences of refusing to take part in a formal identification procedure, namely in particular that the police would conduct a non‑consensual identification procedure.[51]  Obviously, it was in full knowledge of those circumstances, no doubt by arrangement, that the 5^th and 6^th applicants and their respective lawyers were present on 27 January 2015.

54.  As Mr Leung pointed out in his written submissions, by a letter dated 23 January 2015 the police had written to those representing the 5^th and 6^th applicants confirming that they would attend an identification procedure on 27 January 2015.[52]  The submission that the 5^th and 6^th applicants were “unlawfully compelled” to attend the identification procedure is not a reasonably arguable ground of appeal.  Indeed, is wholly unarguable and ought not to have been advanced.

(ii)  Non-consensual direct confrontation by Tsang of the 5^th and 6^th applicants

55.  The judge noted that the Hong Kong Police “Force Procedure Manual” provided for five types of identification procedures:[53]

“ …identification parade; consensual group identification; non-consensual group identification; non-consensual group identification without informing the suspect; and direct confrontation.”

He went on to say “…the holding of a direct confrontation is the last option to be considered and only where a non‑consensual group identification is impractical.” [54]

56.  The judge said that he was satisfied “…that the holding of a conventional non-consensual group identification was impractical.” [Italics added.] [55]  It is clear, from the context in which he made that finding, that he had in mind circumstances where “…the suspect is to be informed in advance and therefore requires a degree of cooperation from the suspect.” [56]  Of the circumstances obtaining in the case of the 5^th and 6^th applicants, the judge said that he was satisfied that, “the defendant would have refused to cooperate by closing their eyes, just as they did in the direct confrontations.” [57]  Of course, had they done so in either a non‑consensual or consensual group confrontation, that would have made them distinctive and vitiated the purpose of that identification process.  In that context, it is to be noted that the 6^th applicant did not respond to requests of the Chief Inspector to stand up or to look forward.  Rather, he remained seated with his eyes closed.

57.  The judge went on to note that “covering of the face” was quoted in paragraph 6 of the Force Procedures Manual as an example of a suspect refusing to cooperate.  As a result, the judge said that he was satisfied that Superintendent So was “…not at fault in not arranging a conventional non‑consensual group identification.” [58]

58.  Then, the judge noted that the circumstances in which a non‑consensual group identification procedure could be held without informing a suspect who is on bail “…must therefore necessarily be limited.”[59]  It is to be noted that the 5^th and 6^th applicants had been interdicted and, it appears, reported to work at the police station only once a month.[60]  Nevertheless, the judge went on to say that he did not agree with Superintendent So’s determination that “…the consideration of holding a non‑consensual group identification was only an option for the Chief Inspector holding a conventional identification procedure in the event of (sic) unforeseen circumstances occurred during that procedure.” [61]  

59.  Having said that he was “…not satisfied sufficient consideration had been given by Superintendent So to this option before deciding to hold a direct confrontation”,[62] the judge concluded that there had been “non‑compliance with the Force Procedures Manual on visual identification of suspects by not properly considering whether to hold a non‑consensual group identification without informing the suspect”.[63]

60.  Having adverted to the judgment of Deputy-Judge Barnes, as Barnes J was then, in a magisterial appeal in HKSAR v Lo Ho Chung [64], the judge went on to say that such non‑compliance “…was not an automatic basis to exclude evidence of the identification.”  Rather, the judge said “… what is important is whether the parade was conducted fairly.” [65]

61.  In determining that the direct confrontations by Tsang of the 5^th and 6^th applicants were “conducted fairly”,[66] the judge said that he took into account that each of them knew of the consequences of refusing to take part in “a formal identification procedure.”  Moreover, the judge observed that the 5^th and 6^th applicants were legally represented during the confrontations.

62.  The significance of those determinations of the judge is to be viewed in the context that each of the direct confrontation identification procedures took about 30 minutes.  Clearly, it was made explicitly obvious throughout the procedure that the prospective confrontation was not to be a group confrontation, but rather a direct confrontation by Tsang of the 5^th and 6^th applicants.  No doubt, in those circumstances it was to be inferred, particularly since they were legally represented, that the 5^th and 6^th applicants who were present voluntarily were prepared to continue to participate voluntarily in the direct confrontations.

(iii) Media photographs

63.  At trial, it was submitted that, in determining whether or not to admit the evidence of the confrontation by Tsang of the 5^th and 6^th applicants, the judge must have regard to the fact that photographs of the 5^th and 6^th applicants had been published in the media after the events the subject of the charges.  The ground of appeal advanced in this Court is that the judge failed to have sufficient regard to that consideration.

64.  It is clear that, for his part, the judge was very much alive to the significance of the submission made on behalf of the 5^th and 6^th applicants. He said so repeatedly.  First, the judge noted:[67]

“ In cross-examination Tsang agreed that one reason he viewed video footage was to find out the identity of the police officers who assaulted him and that in the few days following the incident he paid special attention to the media coverage which showed the faces of the suspects.” [Italics added.]

65.  Then, the judge went on to note that Tsang testified that he had seen photographs published in the Apple Daily and Ming Pao newspapers on 16 and 17 October 2014 [68], each of which newspapers published six portrait photographs of six men alleged to have been assailants.[69]  Also, Tsang said that he “should have seen” the photographs that were exhibits P 12 and P 13 before the confrontation.  Further, the judge said:[70]

“ Tsang agreed that he had seen the photographs many, many times.” [71]

66.  However, the judge observed that “Tsang disagreed that he identified D5 and D6 because he had seen the photographs in the newspaper and media coverage.” [72]

67.  In the result, the judge determined:[73]

“ Notwithstanding Tsang had viewed the video footage many times and seen photographs of the defendants in the media prior to attending the direct confrontations, I found no grounds to exercise my discretion to exclude the evidence by reason of unfairness.”

68.  In accepting the identification evidence of Tsang of the 5^th and 6^th applicants as “…the two police officers who escorted him in the car to the Central Police Station” and that they were “two of the police officers who assaulted him at the substation”, once again the judge said that he did so having had regard to the fact that:[74]

“ Tsang had viewed the video footage many times and seen photographs of the defendant in the media prior to attending the direct confrontations.”

Discussion

69.  Highly relevant to a consideration of the impact of the undisputed evidence that Tsang had viewed the video footage and photographs of the events “many, many times” prior to the confrontation are the circumstances of Tsang’s opportunity to view the two police officers.  Of that evidence, the judge said:[75]

“ I am satisfied that Tsang had the opportunity of observing the faces of both police officers in the Central Police Station where he was with them for just over an hour in what was clearly very good lighting.” [Italics added.]

70.  As the judge noted, counsel for both the 5^th and 6^th applicants at trial referred the judge to the judgment of this Court in The Queen v Kwong Yiu Hung as relevant to the discretion to exclude evidence of direct confrontation in circumstances where, prior to the confrontation, a photograph of the applicant had been published in the newspaper together with a statement that the applicant, who was named, was sought by the police “to assist in investigation” of a robbery.  An identifiable fingerprint had been found on an envelope at the scene of the robbery.  The envelope contained a ring that Mr and Mrs Yeung had bought earlier.  At trial, the judge had refused to allow the evidence of the identification of the applicant by confrontation Mr and Mrs Yeung, who were present at the scene of the robbery.

71.  On 30 January 1988, Mr and Mrs Yeung, their son and an employee, Ms Wong, were robbed at commercial premises operated by the Yeungs.  On 31 March 1988, the newspaper article and photographs were published in a “well‑known Chinese newspaper”.  The applicant was arrested on 21 April 1988.  The confrontation by the married couple of the applicant occurred on 6 May 1988.  A week or so earlier, the police officer‑in‑charge of a proposed identification parade had declined to conduct an identification parade because the applicant’s features were so unusual that those on the identification Parade could not be said to be of “similar build and appearance”.  In October 1988, the jury were unable to reach a verdict and a retrial was ordered.

72.  Prior to the retrial, on 17 December 1988, Yeung Hui Lap, the son of Mr and Mrs Yeung, identified the applicant at an identification parade.  Yeung Hui Lap was also present at the robbery and had answered the door to the premises to the three robbers.  In ruling that evidence admissible at the second trial the judge noted that the identification parade had been held 14 months after the robbery. The applicant was convicted.

73.  The judge said that, in addition, counsel for the 6^th applicant also relied on the judgment of Beeson J in a magisterial appeal in HKSAR v Mui Tak Ming.

74.  For his part, the judge observed that neither case involved a refusal by the applicant to participate in an identification parade.  Of the relevance of that observation, the judge went on to state:[76]

“ In considering whether to exclude the evidence of the confrontation, all the circumstances are to be considered including why a confrontation was held and whether the confrontation was conducted fairly.”

75.  Having noted that in Kwong Yiu Hung, Yeung Hui Lap had testified that he had seen the photograph in the newspaper only once, at the time of its publication, albeit that his mother had testified that they had all seen it together on a much later occasion, Pennlington JA said that the admission of the evidence at trial was a matter for the judge’s discretion.  In refusing the application for leave to appeal against conviction, he went on to say:[77]

“ …we are satisfied that we should only interfere with the exercise of that discretion if it was based on incorrect principles or was clearly wrong. We do not consider that either of those reasons was present here.” [Italics added.]

76.  The circumstances of identification by confrontation obtaining in HKSAR v Mui Tak Ming were bizarre.  The main issue at trial, was the identification by an undercover police officer of the applicant as the person who, at three meetings on 13 December 2003, had made assertions that supported the charge of claiming to be a member of a Triad Society.  The undercover police officer identified the applicant at a confrontation held on 15 November 2005.

77.  Of the circumstances in which the identification by confrontation occurred, Beeson J noted that there was no evidence that the applicant had refused to take part in an identification parade.  Rather, it appeared that it had occurred, because after a long wait at the police station, the lawyer representing the applicant had invited that process.  Beeson J said:[78]

“ The confrontation was carried out when the Appellant was alone in an office in the police station. PW1 was shown a man sitting in an office and was asked to confirm whether he was Mui Tsz Kor.”

Beeson J went on to say:[79]

“ Accepting however that such a decision was within the discretion of the investigating officer, it fell to the Magistrate to examine carefully the weaknesses and strengths of the identification thus obtained. It is not sufficient for the Magistrate simply to say that it was the Appellant’s choice and thus he could not complain about it. It was for her to investigate any inherent weaknesses in the procedure and here the confrontation procedure, was of negligible value in assessing the reliability of PW1’s identification.”

78.  In allowing the appeal and quashing the conviction, Beeson J said that the magistrate “did not go on to consider whether there were any inherent weakness in the procedure” and determine that the identification evidence was “too tenuous to be relied on safely.” [80]

The circumstances of the identification of the 6^th applicant by Tsang

79.  Multiple grounds of appeal were advanced specifically in respect of the circumstances of the identification of the 6^th applicant.  In part, they replicated submissions that had been made to the judge at trial.  This Court was asked to note the contrast in the evidence as to Tsang’s identification of the 5^th applicant compared with that of the 6^th applicant. It was suggested that the identification of the 5^th applicant was “unprompted and within a reasonable time”, whereas Tsang had viewed the 6^th applicant for more than two minutes, during which he exchanged glances and gestures with Mr Vidler before he identified the 6^th applicant.

80.  There is no dispute that in the course of viewing the 6^th applicant in the direct confrontation, Tsang asked first, that the 6^th applicant stand up and secondly, that he look straight ahead.  As the judge noted although Tsang’s request that he stand up was conveyed by Chief Inspector Tse, the officer‑in‑charge of the identification procedure to the 6^th applicant, the latter did not respond as requested.  Rather, he continued to sit and did so with his eyes closed.[81]  Tsang viewed the 6^th applicant for just over two minutes before returning to his seat and stating that he identified the 6^th applicant.  Further, immediately prior to returning to his seat, Tsang and Mr Vidler, his lawyer, had made hand gestures.

81.  The judge noted that issue was taken in respect of the length of time that Tsang had viewed the 6^th applicant before stating that he identified him and in respect of those hand gestures.  Further, he noted that complaint was made by Ms Lam that, compliance with paragraph 37 of the Force Procedure Manual required that the requests made by Tsang that the 6^th applicant stand up and look straight ahead be met by an enquiry of Tsang as to whether or not he could identify the person by appearance only.[82]

82.  The judge rejected the submission made by Ms Lam that Mr Vidler’s hand gesture “was a confirmation or indication by Mr Vidler that Tsang was to identify the defendant.”  On the contrary, he determined “A careful look at the hand gesture of Mr Vidler, in particular in slow motion, it (sic) is clear that all Mr Vidler was doing was indicating Tsang Kin Chiu to sit down.” [83]

83.  In rejecting the submission that there had been a breach of the provisions of paragraph 37 of the Force Procedure Manual in that, in face of his requests that the 6^th applicant stand up and look straight ahead, Tsang had not been asked whether or not he could identify the 6^th applicant on the basis of appearance only, the judge made the obvious statement that in an identification parade the suspect, together with all the other participants “would be standing up and should be looking forward.”[84]  Here, of course, the 6^th applicant was seated with his eyes closed.

84.  The judge went on to state that he accepted Tsang’s denial that he had asked to view the 6^th applicant again because “he was not sure of the identity.”  He noted Tsang’s evidence that he had made that request “because when he made the identification D6’s eyes were closed.  Although he could identify D6 with his eyes closed, Tsang wanted to confirm his identity with his eyes open.” [85]

85.  It is to be noted that Tsang had complained to Chief Inspector Tse, immediately after having told him that he identified the 6^th applicant, “I want to know, (when) I asked him to stand up, (why is it that) he could refuse to do so.  (When) he was asked to open his eyes wide,… [Indistinct]… He sat (down) turning his face away.” [86]

86. Here, the judge clearly had in the forefront of his mind that Tsang had an opportunity to observe the two men in the interview room in Central Police Station for about an hour in “very good lighting” conditions.  Clearly, having referred on a number of occasions to the fact that the applicant had seen the various relevant newspaper photographs and video footage “many, many times” the judge was very obviously alive to the reason that counsel for the 5^th and 6^th applicants cited the judgment of this Court in The Queen v Kwong Yiu Hung, namely as an illustration of how evidence of identification by confrontation was properly excluded in circumstances in which a photograph of the applicant had been published in a newspaper identifying him obviously as a suspect in a crime.

87.  In observing that in neither that case, nor in HKSAR v Mui Tak Ming, had the respective applicants refused to participate in an identification parade the judge was not distinguishing those cases.  Rather, clearly he was identifying a separate issue.  The fact of a refusal to participate in an identification parade or, in the case of the 5^th and 6^th applicants, a refusal to take part not only in “formal identification parades as” but also “any other means of formal identification process (including group identifications direct confrontations) was highly relevant to a consideration of the fairness of identification by way of direct confrontation”.

88.  Although emphasis has been placed in the submissions advanced on appeal on behalf of the 6^th applicant as to the length of time that Tsang viewed the 6^th applicant before stating that he identified him, in contrast to the time he spent before identifying the 5^th applicant, it is to be noted that that issue, or the fact that he spent more than two minutes viewing the 6^th applicant was not canvassed in cross‑examination of Tsang at trial.  Of course, Tsang was cross‑examined both in the voir dire and in the general issue by counsel for the 6^th applicant.  At trial, it was a matter touched on in submissions only and given greater emphasis on appeal.  In the absence of any cross‑examination whatsoever of Tsang on the issue, there was simply no evidence from Tsang on the matter.

89.  However, viewing the video footage of the identification procedure is itself informative.  As noted earlier, during the identification procedure Tsang had conveyed separate requests to Chief Inspector Tse that the suspect stand up and, secondly that the suspect look straight ahead.  Although those requests were communicated to the 6^th applicant, he did not comply with either request.  It is readily apparent from the video footage that prior to, between and after those requests Tsang bent down at the one‑way mirror, apparently in order to view the suspect.  In context, it is to be remembered that Tsang was standing and the suspect was seated.  Shortly after he had begun viewing the suspect from a standing position, Tsang bent down to do so for nine seconds.  Then, at 12:01:08 hours he requested that the suspect stand up.  The 6^th applicant not having complied with that request, Tsang resumed viewing the suspect from a standing position before he bent down to do so for five seconds before requesting, at 12:01:36 hours, that the suspect be asked to look straight ahead.  Again, the 6^th applicant did not comply.

90.  In the ensuing period of about one minute, Tsang bent down to view the suspect on three separate occasions, for a total of 46 seconds, ending at 12:02:42 hours.  On the third occasion, he did so having moved to the left of the position he had occupied hitherto to view the suspect.  Then, at 12:02:48 hours Tsang looked in the direction of Mr Vidler, raised his right arm in response to which Mr Vidler made the gesture, which the judge said was an invitation for Tsang to sit down.  At 12:02:52 hours Chief Inspector Tse invited Tsang to sit down.  Having done so, Tsang confirmed to Chief Inspector Tse that he identified the 6^th applicant.

Conclusion

91.  In all the circumstances, in my judgment no reasonably arguable grounds of appeal have been advanced that the judge erred in admitting and relying on the evidence of identification by direct confrontation of Tsang by the 5^th and 6^th applicants.

The credibility of Tsang

92.  It is to be implied by Grounds 7 and 6 of the 5^th and 6^th applicants respectively, that it is submitted that the judge erred in relying on the evidence of Tsang to identify each of the 5^th and 6^th applicants as persons who had been in the group who had assaulted him at the substation and who then escorted him by motorcar to Central Police Station and in determining that the video footage and photographs were authentic.  Similarly, it is to be implied that it was submitted the judge erred in doing so by failing to have regard to his own findings that:

●     Tsang had lied about being assaulted by police officers who had arrested him initially;

●     he had “reservations” about Tsang’s evidence of what he said was an incomplete First Information of Complaints Against Police report of what he had told DSP 50117. [Italics added.]

93.  Further, it was submitted that the judge ought to have had regard to the inconsistencies between Tsang’s out‑of‑court statements and his evidence as to the number of his assailants.  Also, it was submitted that, in having regard to Tsang’s explanations in evidence, the judge had placed insufficient weight on the fact that Tsang was accompanied by a lawyer when he gave the incomplete First Information of Complaints Against Police report and when he made a witness statement confirming the accuracy of statements made in his application for leave to apply for Judicial Review.

Discussion

94.  The judge conducted an exhaustive recitation and analysis of the evidence relevant to the issues of the credibility of Tsang.[87]  He did so under no less than twelve separate headings, reflecting the multiple issues taken by the applicants at trial and their lengthy submissions.

95.  The judge stated specifically on three separate occasions that he approached Tsang’s evidence with caution, namely: having regard to the judge’s rejection of Tsang’s testimony of the circumstances of his initial arrest and, in particular that he had been assaulted by police officers;[88] that Tsang’s memory had been refreshed from viewing photographs and video footage [89] and having regard to Tsang’s postings on Facebook.[90]  In respect of identification evidence, which clearly included Tsang, the judge said that he reminded himself of the “special need for caution before convicting the defendants in reliance on evidence of identification.” [91]

96.  In the result, the judge concluded:[92]

“ ...I am satisfied so I am sure that I can safely rely on the evidence of Tsang that after he was subdued for pouring liquid on the police he was handed over to other police officers who escorted him, carried him by his arms and legs face down and took him to the substation (the dark corner) where they dumped him on the ground and assaulted him.”

97.  I propose here to address the primary submissions advanced on behalf of the applicants.  Whilst I do not address each and every contention, I have had regard to all such submissions.

(i) The circumstances of Tsang’s initial arrest: Tsang’s lies?

98.  The judge noted that Tsang had been charged and, having pleaded not guilty, had been tried on a charge or charges, the particulars of which were not provided, arising from the allegation that he had poured a liquid from a flyover bridge onto police officers beneath.  However, at the trial before District Court Judge Dufton, Tsang testified, which evidence the judge accepted, that he was the person depicted in police video footage wearing a black T‑shirt with stars on the back pouring a liquid as alleged.[93]

99.  Of the circumstances in which Tsang had been placed under arrest by police officers, the judge said that on the voir dire Tsang had testified that he “simply grabbed and did not resist at all.” [94]  However, the judge said of Tsang’s testimony on the general issue, “Tsang said he did not struggle but resisted; resisted strongly but not violently; and struggled violently when the police tried to handcuff him, his evidence was this was because the police assaulted him.” [95]

100.  In the result, the judge determined:[96]

“ I accept the evidence of the police officers as to how Tsang resisted. I reject that the police assaulted Tsang.”

101.  Of his determination of the significance of those findings, the judge said:[97]

“ The fact I do not accept the evidence of Tsang as to how he was subdued does not cause me to doubt his evidence that after he was subdued he was escorted by other police officers; carried by his arms and legs face down and taken to the substation where he was dumped on the ground and assaulted.

Nor does the fact that Tsang denied the charges brought against him arising from his conduct that evening cause me to doubt his evidence as to what happened after he was subdued.”

Nevertheless, the judge concluded by stating that he approached the evidence of Tsang “with caution.” [98]

102.  The judge’s approach to determining that he rejected Tsang’s evidence that in his initial arrest he was assaulted by those police officers but his subsequent determination that he accepted Tsang’s evidence of what happened thereafter, in particular that he was carried facedown to the substation and dumped on the ground, where he was assaulted, accords with the classic direction given to juries that they may reject part of a witness’s evidence and yet accept another part of his evidence.  The judge did not determine that Tsang “lied” as contended.  He said variously that he rejected or did not accept his evidence.  Be that as it may, it is to be noted that in any event he said that he approached his evidence with caution.  

103.  Also, the judge stated that he took into account the fact that Tsang had pleaded not guilty at his own trial, but went on to observe that Tsang had not given evidence at that trial.[99]  An issue raised on behalf of the applicants was how the defence case had been advanced in the trial.  In cross‑examination of Tsang in the voir dire the question of how his own lawyers at his trial had approached prosecution witnesses in respect of the issue of whether or not Tsang was the person pouring water from the planter onto policemen below was raised by counsel for the 1^st applicant:[100]

“ Q. What was the position taken by those who represent you, was that you or was that not you when he was cross‑examining the police witnesses?

104.  Earlier, in their cross-examination, Tsang had said “I only know that we as the defence did not have the duty to adduce evidence as to whether that person was me or not.” [101]  He went on to say “When my lawyer took instructions from me I was never required to answer whether that person was me or not.” [102] For his part, the judge said that he did not “have a transcript of that trial” and did not know what questions had been put.[103]

105.  Clearly, the judge was alive to the matters that were relevant to a determination of whether or not he accepted the other parts of Tsang’s evidence.

(ii) Tsang’s complaints

106.  The judge addressed at length the multiple submissions that were made on behalf of all of the applicants in respect of Tsang’s complaints and failures to complain, namely: the failure of Tsang to complain at the first available opportunities, the ambit of his complaints, the limits of his cooperation and what was said to be inconsistencies in his complaints.

107.  The judge noted that there was no dispute that, having arrived at the Police College at Wong Chuk Hang, Tsang had been advised of his rights at 6:12 a.m.; that he had been served with a Notice to Persons in Custody at 7:40 a.m. and that at 8:16 a.m. he had requested to see a doctor in respect of injuries he said he had sustained when he was arrested by the police.  However, because Tsang asked to see a lawyer first, at 8:35 a.m. Tsang consulted with his lawyer, Ms Tanya Chan.  At 10 a.m. Tsang stated that he wished to make a complaint against the police.  It was in those circumstances that the document entitled First Information of Complaints Against Police Report, exhibit P 26, was compiled by DSPC 50117 at 10:25 a.m.  At 11:05 a.m. Tsang was examined by Dr Zenith Wu at the Ruttonjee and Tang Shiu Kin Hospital, where photographs were taken of his injuries.  The judge noted that injuries discerned on Tsang were described as “fresh” and were detailed in a medical examination form and medical report.[104]  At 23:13 hours, after he had been granted bail, Tsang produced a handwritten list of complaints entitled ‘CAPO Complaints’ to Inspector Law of CAPO. 

(iii) The failure to make early complaints

108.  The judge said that he rejected the complaints that were made on behalf of the applicants that Tsang had not complained to the driver of the motorcar in which he had taken him to Central Police Station, the Duty Officer at that police station, the driver of the coach that took him to the Police College and his fellow detainees.  He said that he accepted Tsang’s evidence that he did not regard those persons as “reliable or appropriate persons” to receive his complaint and that he did not know his fellow detainees.  Also, he noted that two of the police officers that he said had assaulted him were with him at all times.[105]  The judge said that it was “…not at all surprising Tsang waited until after he saw his lawyers before making a complaint.”  Nothing has been advanced on behalf of the 5^th and 6^th applicants to suggest that it is reasonably arguable that the judge fell into error in making that determination.  It accorded with plain common sense.

(iv)  Tsang’s statements/evidence as to the number of his assailants

109.  Of the number of police officer assailants against whom Tsang made allegations, the judge noted that the first reference by Tsang to “seven persons” was in his testimony.[106]  There is no dispute that the First Information of Complaints Against Police Report stipulated six complainees only, one of whom was identified, namely DPC 9008.  The judge noted that what he described as the “formal complaint” made later in the day on 15 October 2014 merely stated that Tsang was assaulted by several persons.  In fact, that handwritten document, ‘CAPO Complaint’, stipulated that Tsang was assaulted by “a number of police officers.[107]  Also, the judge said that Tsang’s first witness statement described an assault by a group of males and stated that he did not know how many of them had punched and kicked him.[108]  Finally, the judge noted that in applying for leave to apply for Judicial Review, Tsang had said that he had been “attacked by a group of six”.[109]

110.  The judge noted that Tsang had said that, in the compilation of the First Information of Complaints Against Police Report, he had told DSPC 50117 that he had been assaulted by “six or seven persons”, although Tsang was not sure “whether he had corrected this”.  Tsang observed that in respect of his description of injuries DSPC 50117 would not amend the written record he made of the complaint.  Noting that at the time of the compilation of the complaint Tsang was accompanied by Ms Tanya Chan, a barrister and member of the Civic party, the judge said:[110]

“ I have my reservations DSPC 50117 did not write down what Tsang said, in particular if Tsang pointed out the error.” [Italics added.]

111.  Nevertheless, the judge went on to say that notwithstanding those “reservations” that “…does not cause me to doubt his evidence that he was assaulted, which assault was captured on the video footage.”  Noting that Tsang had been carried facedown and assaulted whilst lying on the ground in that position, the judge said “… it is not at all surprising he was unable to say exactly how many people assaulted him.” [111]

112.  Subsequently, the judge addressed his reservations about Tsang’s evidence that DSPC 50117 did not write down what he had to say about his injuries further, noting that the First Information of Complaints Against Police Report did contain a record, albeit brief, that there were injuries “to the head, the face, the left arm and left hand, the neck, the chest and the entire back.” [112] Clearly, that was a reference to the areas of injury described on the drawings of a skeleton figure of a man.  However, the judge went on to conclude that, notwithstanding those reservations, that they:[113]

“ …do not cause me to doubt Tsang’s evidence that after he was subdued he was carried to the substation where he was assaulted, which assault was captured on the video footage.”

113.  Once again, the judge’s approach accorded with the direction given to juries, referred to earlier, that they may reject part of the evidence of the witness but accept other parts.  Nothing has been advanced on behalf of the 5^th and 6^th applicants to suggest that it is reasonably arguable that the judge fell into error in making that determination.

(v) Tsang’s stipulation of DPC 9008 as one of his assailants

114.  As noted earlier, DPC 9008 is the only one of Tsang’s assailants that Tsang identified in the First Information of Complaints Against Police Report.  He did so by stipulating his rank and number.  The judge noted that Tsang said “…he heard the number in the detention room when forms were being filled in.” [114]  Of the circumstances in which Tsang said that he had come to learn of the number 9008, the judge said he had heard the number mentioned when a police officer dealing with the handover of detainees had asked who had escorted Tsang.[115]

115.  The judge noted [116] that issue had been taken with Tsang by Ms Lam, in cross‑examination on behalf of the 6^th applicant, of how he had reported earlier that he had come to know of the police officer’s number as being 9008.  It was pointed out to Tsang that in his application for leave to apply for judicial review, Tsang had stated that he came to know that one of the two police officers, who had escorted him in a motorcar from the substation to Central Police Station and was with him in the interview room at that police station when he was assaulted by the other police officer, had “the police identity number 9008 (a fact that he later gleaned from some paperwork after he been transferred to detention in Wong Chuk Hang, Aberdeen.” [117]  The judge said that Tsang rejected the suggestion that there was a difference in the accounts, explaining “that he heard the number at the same time the police were dealing with the document.” [118]

116.  The judge said that, in addition to Tsang, two other witnesses spoke to the circumstances in which detainees had been documented at the Police College.  Detective Sergeant 51344 and PC 9765 testified of the process by which a ‘Short Arrest Form’ was compiled of each detainee in Room 3.  PC 9765 testified that he had described DPC 9008 as the arresting officer on that form.  He did so after he had asked the plainclothes officer‑in‑charge of Room 3 who was the arresting officer of Tsang.  An officer, identifying himself as officer 9008, claimed that he was that arresting officer.  Also, against the time 06:10, he had entered on the form that DPC 9008 was the escorting officer.[119]  He had done so because he assumed that, as arresting officer, DPC 9008 was also the escorting officer.

117.  The judge said that he noted that in the application for leave to apply for judicial review Tsang had not specifically stated that he had heard the number DPC 9008, whereas that was his oral testimony.  Of the suggested difference, the judge said that it was “more apparent than real.” [120]  He went on to say that even if it could be said that “this is a material difference”, the fact remained that the Short Arrest Form described DPC 9008 as the arresting officer.[121]

118.  The judge stated that he accepted the evidence of Detective Sergeant 51344 and PC 9765 that they had been told DPC 9008 was Tsang’s arresting officer and also that he accepted “the evidence of Tsang that he heard the number, from which he believed one of the two officers escorting him was DPC 9008.” [122]

119.  In the result, the judge said that the fact that DPC 9008 had been described as the arresting officer on that form was “supporting evidence for the identification of D6 by Tsang.” [123]

120.  Again, it is clear that the judge had examined the submissions made on behalf of the applicants carefully and in great detail.  The applicants have pointed to nothing that suggests that it is reasonably arguable that he fell into error in determining that he accepted Tsang’s evidence in that regard.

(vi)  Tsang’s hatred of the police

121.  Under the rubric “Hatred of the police” the judge addressed the submissions that Tsang’s dislike of the police rendered his evidence unreliable.[124]  There was no dispute that in a Facebook posting Tsang had described the police as “scum”.  The judge said that he accepted Tsang’s explanation that that description referred to particular misconduct by particular police officers and was not generic.  However, he went on to say that the evidence caused him to approach Tsang’s evidence with “caution” but, having done so, he said that he had no doubt as to his evidence of what had happened to him after he had been subdued at his initial arrest.

122.  I am satisfied that nothing has been advanced by the 5^th and 6^th applicants in support of these grounds of appeal that suggests that it is reasonably arguable that the judge fell into error in accepting the evidence of Tsang of the identification of the 5^th and 6^th applicants.

Charge 2 : the judge’s reliance on Tsang’s evidence     

123.  By Ground 8, complaint was made on behalf of the 5^th applicant that, given the judge’s finding that Tsang had ‘lied’ about the initial assault on him at the time of his arrest, the judge erred in accepting the unsupported evidence of Tsang that he had been hit by the 5^th applicant whilst they were together in interview room 7 at Central Police Station.

124.  As the judge noted in his consideration of the evidence relevant to Charge 2, Tsang had testified that he had taken advantage of an opportunity, when the two police officers who escorted him throughout stepped outside the interview room, to take three photographs [125] of his face and head with his mobile telephone.  To do so he retrieved his mobile telephone from a plastic bag into which, as requested, he had placed his personal possessions whilst he was in the interview room.  Having taken the photographs, he turned the mobile telephone off.  Tsang said that he believed that the police officers had seen him taking the photographs, because when they returned to the room they asked him to give them the mobile telephone and unlock it.  His refusal to provide them with the password to open the telephone led to the 5^th applicant striking the right side of his face twice with the back of his hand.[126]  The judge noted that Tsang was the only witness who had testified about what it happened inside interview room 7.[127]

Tsang’s failure to disclose the three photographs that he said he took of himself at Central Police Station

125.  The judge noted that “much of the criticisms of Tsang’s evidence revolve around his assertion that whilst in room 7 he took three photographs of his face.” [128]  Complaint was made at trial on behalf of the 5^th applicant that Tsang did not disclose the existence of three photographs that he had taken of himself on his smart telephone until he was giving evidence.  He said that he did so when the two police officers left him alone in the room briefly. 

126.  In the CAPO Complaint, he made at 23:13 hours on 15 October 2014, Tsang complained of having been assaulted by one police officer whilst in an interview room at Central Police Station.  However, in that brief handwritten complaint he made no mention of the circumstances in which that assault had occurred.  In his witness statement, dated 19 October 2014, Tsang complained “While in a room of Central Police Station, I was assaulted by one male, who was one of the above group of Chinese males, while in the presence of another.” [129]  Tsang went on to say “…while in interview room number 7 (as far as I can recall) of Central Police Station, one of the two males struck me twice across the right side of my face using the back of his hand.  I subsequently learned that the officer who was in the room at the time I was assaulted by the other officer was DPC 9008.” [130]

127.  In Form 86, dated 22 October 2014, it was asserted on behalf of Tsang as the applicant that whilst in interview room 7 at Central Police Station “…officers presented the applicant with his mobile telephone, and demanded that he enter the PIN number to unlock it in order for them to view its contents.  The applicant refused.  Upon the applicant’s refusal, the second officer (i.e. not 9008) slapped the applicant forcefully across the right side of his face with the back of his right hand.” [131]  Tsang went on to allege that he was struck a second blow in a similar manner by the same police officer.

128.  In none of those documents did Tsang describe having taken three photographs of himself in interview room 7 of Central Police Station with his mobile telephone.

129.  Of the criticism made of Tsang’s evidence that he was depicted in the CCTV as entering and leaving interview room 7 with his hands tied behind his back, the judge said that he accepted Tsang’s evidence that at his request, because the plastic ties had been applied too tightly, the plastic ties had been removed whilst he was in interview room 7.[132]  The judge noted that the 6^th applicant was seen in the CCTV to be carrying a plastic bag when he and Tsang left interview room 7, whereas neither the 5^th nor 6^th applicant was carrying a bag when they entered the room.[133]  The judge said that “the CCTV recordings support Tsang’s evidence that he was told to put his belongings in a plastic bag.[134]

130.  The judge noted that, in cross-examination of Tsang on behalf of the 5^th applicant, part of the CCTV footage shown to him depicted two female police officers entering interview room 7.  The CCTV footage displayed the time between 03:58:24 and 04:02:02 hours.  In the context of Tsang’s statement on Form 86 that, whilst in interview room 7, he had yelled out that he was being attacked and asked for assistance, the judge noted that Tsang denied that the entry of the two female officers was connected with his call for help.[135]  Further, the judge noted that it was Tsang’s evidence that he had been assaulted after the two female police officers came into the room.

131.  The judge accepted Tsang’s evidence, having viewed the photographs on his mobile telephone in court, that he was mistaken to have said in cross‑examination that the photographs were taken at 4:18.  In re‑examination, he corrected that evidence and said that the time was 4:33.  In determining that the mistake was of no significance, the judge referred to Tsang’s evidence that he believed that the assault had taken place after the two female police officers entered the room.[136]

132.  Finally, having made a comparison of the background of the three photographs on Tsang’s mobile telephone with photograph 19, a photograph of interview room 7,[137] the judge said that the background in the latter photograph was “consistent” with the background in the three photographs.  Specifically, he pointed to a plastic/glass sheet attached to the wall in which two notices were clearly visible in photograph 19 and said that the top screw (fasting to the wall) is “…what appears to be the left corner of the plastic/glass sheet” depicted in one of the photographs [138] taken by Tsang on his mobile telephone.[139]

133.  Then, of the criticism made of Tsang, that he had failed to disclose the existence of the three photographs in the judicial review proceedings, to CAPO or to the Department of Justice, the judge said that he accepted Tsang’s explanations in respect of the judicial review proceedings and CAPO.  First, they were not disclosed in the judicial review proceedings because other photographs, which depicted both his front and his back, were used.[140]  Secondly, they were not disclosed to CAPO because neither Tsang nor his lawyers trusted CAPO.[141]  He noted that the distrust of Tsang and his lawyers was “made very clear” by the affirmation of Ms Tanya Chan.[142]  The term “distrust” is a considerable understatement of the vitriolic views expressed by her in the affirmation.  However, in respect of the Department of Justice, the judge said that, once a criminal investigation had commenced, Tsang ought to have disclosed the existence of the three photographs.

134.  In the result, the judge concluded “…the fact Tsang did not disclose existence of the three photographs does not however cause me to doubt his evidence that he was slapped inside room 7.” [143]

135.  Earlier, the judge had rejected the submission that notwithstanding the fact that he had agreed to allow a forensic examination of his mobile telephone by the police but then insisted on its return when the examination was unsuccessful due to encryption, Tsang “deliberately avoided the truth about the photographs being revealed.” [144]  In making that determination, the judge said that the handing over his mobile telephone for forensic examination was “…not the action of a person who wants to deliberately avoid the truth about the photographs being revealed.”  Further, the judge said that the fact that Tsang was not prepared to leave his mobile telephone overnight for further forensic examination “did not cause me to doubt his evidence.” [145]

Conclusion

136.  It is clear that the judge had examined the submissions made on behalf of the 5^th applicant carefully and in painstaking detail.  The 5^th applicant has pointed to nothing of any substance that suggests that he fell into error in determining that he accepted Tsang’s evidence that the 5^th applicant slapped him twice whilst he was in interview room 7.  I am not satisfied that Ground 8 of the 5^th applicant’s ground of appeal against conviction is reasonably arguable.

137.  In the result, the judge said that he was sure that he could rely on the evidence of Tsang:[146]

“ …that the two police officers who escorted him in the car to the Central Police Station were two of the police officers who assaulted him at the substation.”

138.  In making that determination, the judge said:[147]

“ The evidence of Tsang does not however stand alone. Police officers who knew D5 and D6 recognised D5 and D6 from video footage and photographs taken prior to Tsang being assaulted. The CCTV recordings show two police officers escorting Tsang in and out of the Central Police Station. I am satisfied this evidence is capable of supporting the identification by Tsang of D5 and D6.”

139.  The judge said that he had accepted the evidence of WSI Wu that she “…recognised D5 on the TVB footage P1 (h) and marked which person was D5 on a screen capture of the shot and “recognised D5 on the photograph exhibit P 12 and circled D5 on a copy of the photograph”.[148]  Similarly, the judge said that he accepted the evidence of IP Wong, namely that he “recognised D6 on the second part of the ATV footage [149] and marked which person was D6 on a screen capture of the shot” and that he “recognised D6 on the photograph exhibit P 12 and circled D6 on a copy of the photograph”.[150]

140.  Subsequently, the judge went on to say:[151]

“ I am satisfied the recognition of D5 by WSI Wu and D6 by IP Wong and the CCTV recordings provide supporting evidence for the identification of D5 and D6 by Tsang.”

The judge’s identification of the 5^th and 6^th applicants from the video footage, photographs and CCTV recordings

141.  By Ground 4 of the grounds of appeal advanced on behalf of the 5^th applicant, Ms Draycott submitted that the judge had erred in identifying the 5^th applicant from the video footage.  In particular, he was wrong to rely on his own recognition of the shoes worn by the person he found to be the 5^th applicant. They were commonplace.

142.  By Ground 9 of the grounds of appeal advanced on behalf of the 5^th applicant and Ground 7 of those advanced on behalf of the 6^th applicant, Ms Draycott advanced identical grounds of appeal.  She complained that the judge erred in relying on his identification of the respective applicants as depicted in the video footage and CCTV footage by reference to their clothing, in particular their shoes.  She invited the Court to note that the prosecution had not pointed to any significant features of their clothing.  Further, the judge “did not canvass” that method of identification with the parties, so that the 5^th and 6^th applicants had no opportunity to challenge that line of reasoning.

143.  In her oral submissions, Ms Draycott confirmed that issue was taken with the judge’s identification of the 5^th and 6^th applicants in the video footage, CCTV and the photographs.

The respondent’s submissions

144.  For the respondent, Mr Leung acknowledged that the prosecution had not sought to identify to the judge any significant features of the clothing worn by the 5^th and 6^th applicants as being relevant to their identification.  On the other hand, at trial the prosecution had invited the judge to find that the 5^th and 6^th applicants were depicted in video footage and photographs, other than in their material in which WSI Wu and IP Wong identified the 5^th and 6^th applicants respectively.  Similarly, the prosecution had invited the judge to find that the 5^th and 6^th applicants were depicted in parts of the CCTV footage of Central Police Station.

The judge’s analysis

(i)  Tsang’s evidence

145.  For his part, the judge accepted Tsang’s evidence and said:[152]

“ I am sure I can safely rely on the evidence of Tsang that the two police officers who escorted him in the car to the Central Police Station were two of the police officers who assaulted him at the substation… I am satisfied so I am sure I can safely rely on the identification by Tsang that D5 and D6 were these two police officers.”

146.  Subsequently, having said in effect, that the recognition evidence of WSI Wu and IP Wong of the 5^th and 6^th applicants from the video footage of Tsang being escorted prior to the assault at the substation and his own identifications of them from the CCTV provided supporting evidence for the identification of the 5^th and 6^th applicants by Tsang, the judge said:[153]

“...taking into account that:

(i) D5 and D6 were present when Tsang was handed over by the uniform police officers;

(ii) D5 and D6 escorted and carried Tsang prior to Tsang being assaulted;

(iii) D5 and D6 escorted Tsang to the Central Police Station after Tsang was assaulted; and

(iv) the inherent improbability D5 and D6 would handover Tsang to some other police officers only for them to collect Tsang again and take him to the Central Police Station,

I am satisfied so I am sure the only inference to draw is that D5 and D6 were two of the police officers who assaulted Tsang and then escorted him to the Central Police Station.”

(ii) Recognition evidence

147.  Then, the judge moved on to consider “recognition evidence”.  The judge said that he accepted the evidence of WSI Wu that she “…recognised D5 on the TVB footage P1 (h) and marked which person was D5 on a screen capture of the shot and “recognised D5 on the photograph exhibit P 12 and circled D5 on a copy of the photograph”.[154]   Similarly, he said that he accepted the evidence of IP Wong, namely that he “ recognised D6 on the second part of the ATV footage [155] and marked which person was D6 on a screen capture of the shot” and that he “recognised D6 on the photograph exhibit P 12 and circled D6 on a copy of the photograph”.

(iii)  The judge’s identification of the 5^th and 6^th applicants in the video footage and photographs.

148.  Acknowledging that WSI Wu said that she was unable to identify the 5^th applicant in ATV video footage or in the photograph exhibit P 13, nevertheless the judge said:[156]

“ ...I am nevertheless satisfied D5 can be seen on the ATV footage and is the person holding the left leg of Tsang in the photograph exhibit P 13. I am satisfied the facial appearance is the same and the clothing consistent with that seen in the TVB footage and the photograph exhibit P 12.” [Italics added.]

149.  Acknowledging that IP Wong said that he was unable to identify the 6^th applicant in the TVB footage or in photograph exhibit P 12, the judge said that, nevertheless he himself did so.[157]  Of the TVB footage exhibit P 1 (g), he said that the 6^th applicant was “holding the left arm of Tsang”.  Similarly, he said of photograph exhibit P 13 the 6^th applicant was depicted “carrying Tsang’s left arm”.[158]  Moreover, he said that he was satisfied “the facial appearance is the same and the clothing consistent with that seen in the ATV footage and the photograph exhibit P 12.” [159] [Italics added.]

(iv) The judge’s identification of the 5^th and 6^th applicants from the CCTV

150.  The judge noted that neither Tsang nor any of the other prosecution witnesses, who testified that they knew the 5^th and 6^th applicants respectively, had been asked to see if they could identify them “escorting Tsang on the CCTV recordings, exhibit P 15.”[160]  Similarly, the judge acknowledged that, unlike in the case of the 1^st, 2^nd, 3^rd and 4^th applicants “…the prosecution do not point to any of the clothing as being distinctive or to any particular part of the assault footage showing the clothing of D5 or D6.”

151.  Of the CCTV video footage, the judge said that he was satisfied that the CCTV recordings clearly show the same two police officers” taking Tsang into and out of Central Police Station.[161]  He made that finding on the basis of the finding he made immediately before, namely that “the facial features of the two police officers can be seen on the CCTV recordings as for example shown on screen captures 21, 22 and 23 attached to the prosecution submissions.” [162]  Of their facial appearances he said that it was “…the same in the CCTV recordings as in the video footage and photographs.” [163]  The judge went on to say “The clothing of D5 and D6 is consistent with the clothing seen in the video footage and photographs.”

Supporting evidence

152.  The judge said that:[164]

“ …the recognition of D5 by WSI Wu and D6 by IP Wong and the CCTV recordings provide supporting evidence for the identification of D5 and D6 by Tsang.”

(v)  The judge’s regard to the shoes worn by the 5^th and 6^th applicants as supporting evidence of Tsang’s identification of them as two of the persons who assaulted him

153.  The judge said that it could be seen in the video footage and photographs that the 5^th applicant was wearing “a grey T‑shirt, a black sleeveless jacket and dark trousers” and that the 6^th applicant was wearing “a light blue/grey T‑shirt with two rows of writing on the front, a black sleeveless jacket and blue trousers.” [165]

154.  Then, having said that “the most important feature of D5 and D6’s clothing are the shoes”, which he said could be seen in photograph exhibit P 13, the judge said:[166]

“ D5 and D6 are wearing similar shoes. I would describe the shoes as black plimsolls with white laces and a white horizontal band that joins the upper shoe to the sole. The shoes can also be clearly seen in the CCTV recordings, exhibit P15, camera 12 between 03:43:40 - 03:43:50 when Tsang is taken to room 7 and camera 2 between 04:51:20 - 04:51:33 when Tsang is taken from room 7. D6’s shoes can also be seen on the CCTV recording from camera 14 between 04:51:48 - 04:51:58.”

155.  Having noted “there had been no identification of D5 or D6 from the footage showing the assault at the substation”, the judge embarked on a consideration of whether or not similar footwear could be identified in the video footage and photographs.

156.  The judge said that the 5th and 6th applicants were depicted in photograph exhibit P 13, in which Tsang was being carried facedown, “…holding the left leg and left arm” of Tsang respectively, and in the first nine seconds of the TVB footage exhibit P1 (a).[167]  Those were references to his earlier findings to that effect from his own viewing of the exhibits.  By reference to the “white horizontal band” which he said he discerned on the shoes of two of the persons depicted in the TVB video footage P1 (h), the judge said that they were seen walking together in the group of persons who were carrying Tsang and were seen in that group in screen capture 18, attached to the prosecution’s closing submissions, “about 10 seconds after Tsang is dropped on the ground”.[168]

157.  Finally, the judge had regard to his findings, from viewing the CCTV footage, of the footwear worn by the 5^th and 6^th applicants in the context of his findings of shoes with the “white horizontal band” worn by two of the persons in the group who had carried Tsang to the substation and were observable a short time later.  He said:[169]

“ I find it an odd coincidence that the shoes worn by D5 and D6 are the same as the two persons seen walking with D1, D2, D3, D4 and the seventh person. I am satisfied this is supporting evidence for Tsang’s identification that D5 and D6 were two of the persons who assaulted him.

Having carefully considered all the evidence and viewed the video evidence and photographs, I am satisfied so I am sure D5 and D6 are the persons marked by the prosecution on screen capture 18 attached to the prosecution’s closing submissions.  From the photographs, video footage and CCTV recordings the hairstyles of D5 and D6 are seen to be very different.  The video footage of the assault at the substation is, in my view, sufficiently clear to distinguish between D5 & D6.”

Discussion

158.  There is no dispute that at the trial the prosecution invited the judge himself to identify the 5^th and 6^th applicants as depicted in video footage and photographs, other than in the limited material in which WSI Wu or IP Wong identified the 5^th and 6^th applicants respectively as being depicted.  Equally, there is no dispute that the prosecution did not invite the judge to have regard to the clothing worn by the 5^th and 6^th applicants to identify them in that material.  As the judge noted, that approach of the prosecution was in contrast to the invitations made by the prosecution to the judge in respect of the 1^st, 2^nd, 3^rd and 4^th applicants.

159.  It is to be noted that, although in the written closing submissions of the 5^th and 6^th applicants[170] the issue of the judge identifying either or both of them from the video material was addressed, those submissions were limited, in effect, to contending that it was unsafe to do so based on facial features or appearance.  None of those submissions addressed a consideration of the clothing, including footwear, worn by the 5^th and 6^th applicants as constituting supporting or otherwise relevant evidence.  No doubt, that was because no such submission had been made in respect of the 5^th and 6^th applicants in the prosecution’s closing submissions.[171]  It has not been suggested that the issue of identification of footwear arose in the oral submissions of the parties or in any exchange with the parties on the judge, in respect of which there is no transcript.

160.  In those circumstances, in my view there is force in the complaint made on behalf of the 5^th and 6^th applicants that they were not afforded an opportunity to make submissions on a matter that had not been raised by the prosecution but which the judge was considering and on which he made very significant findings.  Also, it is to be noted that the judge relied on a single feature, namely “a white horizontal band” between the sole and the upper shoe for purposes of identification, albeit that he had also described the shoes as “black plimsolls with white laces”.

Conclusion

161.  In those particular circumstances, in my judgment it is reasonably arguable that the judge erred in relying on what he identified as footwear worn by the 5^th and 6^th applicants as “supporting evidence for Tsang’s identification that D5 and D6 were two of the persons who assaulted him.” [172]

The judge’s identification of the 5^th and 6^th applicants in the party walking with/carrying Tsang

162.  The judge’s identification of the 5^th and 6^th applicants as being depicted in photograph exhibit P 13, holding the left leg and left arm of Tsang respectively, was made, to the knowledge of the defence, at the invitation of the prosecution.  It was made from a photograph of good quality, in which facial features and clothing were captured with clarity.  As the judge noted, although photograph exhibit P 13 depicted only the left side of the face of the person carrying Tsang’s left arm, the Apple Daily moving photograph showed the full face of that person.

163.  In describing the clothing worn by those persons as being “consistent” with, inter‑alia, the photograph exhibit P 12, in which the 5^th and 6^th applicants were identified respectively by WSI Wu and IP Wong, no doubt the judge was averting to his description that the 5^th applicant was “wearing a grey T‑shirt, black sleeveless jacket and dark trousers” whereas the 6^th applicant was wearing “a light blue/grey T‑shirt with rows of writing on the front a black sleeveless jacket and blue trousers.”  Certainly, some of those items of clothing can be discerned on them in photograph exhibit P 12, in which they were identified by WSI Wu and IP Wong.  The judge has identification of the 5^th and 6^th applicants in the video footage are identifications of the 5^th and 6^th applicants at the time of the handover of Tsang from the initial arresting officers and, thereafter, for the 6^th applicant at times at which Tsang was being escorted as he walked and later when Tsang was being carried.  However, none of the identifications by the judge are of identifications of the 5^th and 6^th applicants at the substation.

Conclusion

164.  No reasonably arguable grounds of appeal have been advanced on behalf of the 5^th and 6^th applicants that the judge erred in making those identifications of the 5^th and 6^th applicants from photograph exhibit P 13 or the video footage.

165.  Accordingly, for the reasons set out earlier the 5^th and 6^th applicants may appeal to the Full Court on Ground 1.1 without the leave of this Court.  I grant the 5^th applicant leave to appeal on Grounds 4.1, 4.4 and 4.5, namely in respect of the identification of the 5^th applicant in the video footage of the assault and in respect of Ground 9, save in respect of Ground 9.4 to the extent that the judge identified the 5^th and 6^th applicants by reference to their facial appearance.  I grant the 6^th applicant leave to appeal in respect of Ground 7, save in respect of Ground 7.4 to the extent that the judge identified the 5^th and 6^th applicants by reference to their facial appearance.  I refuse the 5^th and 6^th applicants leave to appeal on all their other grounds of appeal against conviction.

166.  The 5^th and 6^th applicants are advised that they have the right to renew their applications for leave to appeal against conviction on the grounds on which leave has been refused, but they are informed that if they do so and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the respective applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

Grounds of appeal against sentence

167.  I am satisfied that the grounds of appeal against sentence are reasonably arguable and I grant the 5^th and 6^th applicants leave to appeal against sentence.

[1] Reasons for Verdict, paragraph 9.

[2] Reasons for Verdict, paragraph 10.

[3] Reasons for Verdict, paragraph 24.

[4] Reasons for Verdict, paragraph 11.

[5] Reasons for Verdict, paragraph 47.

[6] HKSAR v Pak Wing Bun (CACC 38/2017; unreported, 23 March 2018).

[7] Reasons for Verdict, paragraph 104.

[8] Reasons for Verdict, paragraphs 105-106.

[9] Reasons for Verdict, paragraph 107.

[10] Reasons for Verdict, paragraph 120.

[11] Reasons for Verdict, paragraph 122.

[12] Reasons for Verdict, paragraph 131.

[13]  Reasons for Verdict, paragraph 137.

[14] Reasons for Verdict, paragraph 132.

[15] Reasons for Verdict, paragraph 139.

[16] Reasons for Verdict, paragraph 139.

[17] Reasons for Verdict, paragraph 11.

[18] Reasons for Verdict, paragraphs 235-236.

[19] Reasons for Verdict, paragraph 239.

[20] Reasons for Verdict, paragraph 250.

[21] Reasons for Verdict, paragraphs 311-312.

[22] Reasons for Verdict, paragraphs 253-254.

[23] Reasons for Verdict, paragraphs 259-260.

[24] See §37 of the submissions of D5 on the voir dire.  

[25] Reasons for Verdict, paragraph 317.

[26] See §23I (i) of the submissions of D6 on the voir dire.

[27] See §23I (ii) of the submissions of D6 on the voir dire.

[28] See §23I (iii) of the submissions of D6 on the voir dire.

[29] See §23II (ix) of the submissions of D6 on the voir dire.

[30] Reasons for Verdict, paragraph 318.

[31] Reasons for Verdict, paragraph 239.

[32] Reasons for Verdict, paragraph 312.

[33] Reasons for Verdict, paragraph 229.

[34] Reasons for Verdict, paragraph 85.

[35] The Queen v Kwong Yiu Hung [1990] 1 HKC 171.

[36] HKSAR v Mui Tak Ming (HCMA 1093/2006; unreported, 17 April 2007).    

[37] Reasons for Verdict, paragraph 513.

[38] Reasons for Verdict, paragraph 512.

[39]  Reasons for Verdict, paragraphs 517-519.  The judge’s footnotes have been deleted.

[40] Reasons for Verdict, paragraph 521.

[41] Reasons for Verdict, paragraph 521.

[42] Reasons for Verdict, paragraph 522.

[43] Exhibit P 33.

[44] Reasons for Verdict, paragraph 522.

[45] Exhibits P 34 and P 35.

[46] Exhibits P 30 (a) and P 30 (b).

[47] Reasons for Verdict, paragraph 560.

[48] Appeal Bundle, page 30, paragraphs 23-24.

[49] Reasons for Verdict, paragraph 540.

[50] Reasons for Verdict, paragraph 539.

[51] Reasons for Verdict, paragraph 539.

[52] Exhibits P 36 and P 37.

[53] Reasons for Verdict, paragraph 520.

[54] Reasons for Verdict, paragraph 529.

[55] Reasons for Verdict, paragraph 531.

[56] Reasons for Verdict, paragraph 530.

[57] Reasons for Verdict, paragraph 532.

[58] Reasons for Verdict, paragraph 532.

[59] Reasons for Verdict, paragraph 534.

[60] Reasons for Verdict, paragraphs 592 and 600.

[61] Reasons for Verdict, paragraph 535.

[62] Reasons for Verdict, paragraph 535.

[63] Reasons for Verdict, paragraph 536.

[64] HKSAR v Lo Ho Chung [2001] 3 HKLRD 274.

[65] Reasons for Verdict, paragraph 537.

[66] Reasons for Verdict, paragraphs 544 and 552.

[67] Reasons for Verdict, paragraph 553.

[68] Exhibits D5(1) and D5(2).

[69] Reasons for Verdict, paragraph 554.

[70] Reasons for Verdict, paragraph 554.

[71] Reasons for Verdict, paragraph 554.

[72] Reasons for Verdict, paragraph 555.

[73] Reasons for Verdict, paragraph 562.

[74] Reasons for Verdict, paragraph 590.

[75] Reasons for Verdict, paragraph 584.

[76] Reasons for Verdict, paragraph 558.

[77] The Queen v Kwong Yiu Hung,page 177 H.

[78] HKSAR v Mui Tak Ming,paragraph 18.

[79] Ibid,paragraph 23.

[80] Ibid,paragraphs 21 and 25.

[81] Reasons for Verdict, paragraph 551. Appeal Bundle, page 724 G-Q.

[82] Exhibit D5 (3), paragraph 37 “… If a witness wishes to hear any parade member speak, adopt a specified posture or see the member move, the witness will be first asked whether or not he can identify any person (s) on parade on the basis of appearance only.”

[83] Reasons for Verdict, paragraph 546.

[84] Reasons for Verdict, paragraph 550.

[85] Reasons for Verdict, paragraph 588.

[86] Appeal Bundle, page 1005 at counter #26.

[87] Reasons for Verdict, paragraphs 320-422.

[88] Reasons for Verdict, paragraph 331.

[89] Reasons for Verdict, paragraph 374.

[90] Reasons for Verdict, paragraph 421.

[91] Reasons for Verdict, paragraph 424.

[92] Reasons for Verdict, paragraph 423.

[93] Reasons for Verdict, paragraphs 322 and 324.

[94] Reasons for Verdict, paragraph 326.

[95] Reasons for Verdict, paragraph 328.

[96] Reasons for Verdict, paragraph 328.

[97] Reasons for Verdict, paragraphs 329-330.

[98] Reasons for Verdict, paragraph 331.

[99] Reasons for Verdict, paragraph 330.

[100] Appeal Bundle, page 436 K-M.

[101] Appeal Bundle, page 435 L-M.

[102] Appeal Bundle, pages 435 T - 436 A.

[103] Appeal Bundle, page 436 H-J.

[104] Reasons for Verdict, paragraph 408.

[105] Reasons for Verdict, paragraph 406.

[106] Reasons for Verdict, paragraph 352.

[107] Exhibit P 38.

[108] Reasons for Verdict, paragraph 353. Appeal Bundle, pages 953-956, MFI-G.

[109] Reasons for Verdict, paragraph 353.

[110] Reasons for Verdict, paragraph 355.

[111] Reasons for Verdict, paragraph 355.

[112] Reasons for Verdict, paragraph 407.

[113] Reasons for Verdict, paragraph 409.

[114] Reasons for Verdict, paragraph 628.

[115] Reasons for Verdict, paragraph 629.

[116] Reasons for Verdict, paragraph 630.

[117] Appeal Bundle, page 967 at paragraph 17. MFI-H (1).

[118] Reasons for Verdict, paragraph 631.

[119] Reasons for Verdict, paragraph 638.

[120] Reasons for Verdict, paragraph 642.

[121] Reasons for Verdict, paragraph 643.

[122] Reasons for Verdict, paragraph 642.

[123] Reasons for Verdict, paragraph 644.

[124] Reasons for Verdict, paragraphs 416-421.

[125] Exhibit P 39.

[126] Reasons for Verdict, paragraphs 775-778.

[127] Reasons for Verdict, paragraph 773.

[128] Reasons for Verdict, paragraph 783.

[129] Appeal Bundle, page 953, paragraph 3.

[130] Appeal Bundle, page 954, A. #15.

[131] Appeal Bundle, page 967, paragraphs 18-19.

[132] Reasons for Verdict, paragraph 784.

[133] Reasons for Verdict, paragraphs 785-786.

[134] Reasons for Verdict, paragraph 786.

[135] Reasons for Verdict, paragraph 790.

[136] Reasons for Verdict, paragraph 802.

[137] Exhibit P 25.

[138] Exhibit P 39(4).

[139] Reasons for Verdict, paragraphs 803-804.

[140] Reasons for Verdict, paragraph 810.

[141] Reasons for Verdict, paragraph 809.

[142] MFI-I.

[143] Reasons for Verdict, paragraph 811.

[144] Reasons for Verdict, paragraph 800.

[145] Reasons for Verdict, paragraph 801.

[146] Reasons for Verdict, paragraph 590.

[147] Reasons for Verdict, paragraph 591.

[148] Reasons for Verdict, paragraphs 593-595.

[149] Exhibit P3 (2).

[150] Reasons for Verdict, paragraphs 601-602.

[151] Reasons for Verdict, paragraph 614.

[152] Reasons for Verdict, paragraph 590.

[153] Reasons for Verdict, paragraph 614.

[154] Reasons for Verdict, paragraphs 593-595.

[155] Exhibit P3 (2).

[156] Reasons for Verdict, paragraph 599.

[157] Reasons for Verdict, paragraphs 605 and 608.

[158] Reasons for Verdict, paragraph 605.

[159] Reasons for Verdict, paragraph 608.

[160] Reasons for Verdict, paragraph 609.

[161] Reasons for Verdict, paragraph 610.

[162] Reasons for Verdict, paragraph 611.

[163] Reasons for Verdict, paragraph 613.

[164] Reasons for Verdict, paragraph 614.

[165] Reasons for Verdict, paragraph 616.

[166] Reasons for Verdict, paragraph 617.

[167] Reasons for Verdict, paragraph 619.

[168] Reasons for Verdict, paragraph 621.

[169] Reasons for Verdict, paragraphs 622-623.

[170] MFI-17 (the 5^th applicant’s closing submissions); MFI-18 (the 6^th applicant’s closing submissions).

[171] MFI-12 (the prosecution’s closing submissions).

[172] Reasons for Verdict, paragraph 622.