HKSAR v. LAU CHEUK NGAI AND OTHERS

CACC 38/2017

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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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  The three applicants (Lau Cheuk Ngai) (D2), a Detective Senior Inspector; (Lau Hing Pui) (D4), and (Wong Wai Ho) (D7), both police constables of the Hong Kong Police Force, together with four other police officers (D1, D3, D5 and D6), were jointly charged with the offence of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance.  D5 (Chan Siu-tan) faced an additional charge of common assault.

2.  The applicants and the other four defendants all pleaded not guilty to the charge(s).  After a trial lasting 32 days before Judge Dufton (the Judge) in the District Court, the defendants were acquitted of the charge of causing grievous bodily harm with intent, but convicted of the alternative charge of assault occasioning actual bodily harm.  D5 was also convicted of the common assault charge.  Each of the defendants was sentenced to 2 years’ imprisonment in respect of the charge of assault occasioning actual bodily harm.  D5 was further sentenced to a concurrent term of 1 month’s imprisonment in respect of the common assault charge.

3.  The defendants had all filed notices for leave to appeal against conviction and sentence, but their applications had yet to be set down for hearing.  The three applicants seek bail pending appeal.

The Prosecution Case

4.  The incident occurred on the evening of 14/15 October 2014 during what was known as “the Occupy Central Movement” when many police officers, both in uniform and in plainclothes, carried out Operation Solarpeak to clear protestors, including those congregating in Lung Wo Road between the junctions of Man Yiu Street and Tim Mei Avenue near Central Government Complex.

5.  At about 2.45 am on 15 October 2014, the police moved eastbound along Lung Wo Road and cleared the barricades set up by the protestors near to the underpass on Lung Wo Road.  The police then passed through the underpass and Tsang Kin Chiu (Tsang) appeared on the planter above Lung Wo Road wearing goggles and mask, and splashed liquid of an unknown nature from a transparent plastic bottle onto police officers on Lung Wo Road.  He then raised the plastic bottle and was about to drop it down towards Lung Wo Road when a police sergeant pulled him off the planter and pinned him down.

6.  Tsang struggled violently and other officers assisted and subdued him.  Tsang’s goggles and mask were removed and he was sprayed with pepper spray before he was handcuffed behind his back with a plastic zip-tie.  Tsang was then handed over to D1 to D6, members of a team of crime officers, who escorted Tsang away in the direction of Lung Wo Road westbound.

7.  Tsang was held by his four limbs and then carried through Tamar Park by four police officers ‘face-down” including D4 whilst D2 and another Chief Inspector, Wong Cho-shing (D1) walked beside or behind them.  Another police officer (D7) joined in whilst Tsang, instead of being taken to the police transportation in accordance with the previously arranged operational plan, was being carried to a place outside the northern side of Lung Wui Road Government Building Pump Station East Substation (the substation) in Tamar Park where he was dropped to the ground.

8.  Tsang was then kicked and punched by a group of police officers and his back was hit by what he believed to be a blunt instrument.  Tsang could only curl himself up into a ball when blows were raining down on him for about 4 minutes during which D1 stood guard.  D2 and another police officer left the substation during the assault, but returned after about one minute.  After the assault, Tsang was frog-marched to Lung Wo Road to board a car and D5 and D6 sat on either side of him and accompanied him to the Central Police Station.  D5 was alleged to have slapped Tsang on the face in the presence of D6 in the police station.

9.  The series of events were captured by video footages and photos of leading news media, including TVB, ATV, Now TV, Apple Daily and Oriental Daily.  The assault on Tsang was captured by a TVB cameraman and the captured footage was broadcasted as news to its audience.  The TVB video footage shows clearly seven persons took Tsang to the substation: one in front leading the way; two in front and two at the back holding Tsang’s four limbs with one walking beside them and one following behind.

10.  Similar news footage covering Tsang’s handling by the 7 police officers, including the applicants and their assault on him were obtained from other medium.  The news footage of ATV captured how the uniform police officers who arrested Tsang handed him over to D1 to D6.

11.  News footages from TVB and Apple Daily showed how Tsang was escorted by D1 to D6 towards Lung Wo Road westbound and on reaching the substation, D7 joined D1 to D6 and helped carry Tsang to the north side of the substation.  Tsang was seen being dropped to the ground and was assaulted for about 4 minutes.

12.  D2 and D4 were identified as two of the officers to whom Tsang was handed over and who escorted Tsang to the substation where Tsang was assaulted.  They were seen holding Tsang or walking beside him as he was being carried “face-down” to the north side of the substation.  D7 was said to be the bespectacled officer who joined D1 to D6 at the substation because he was deployed to same team as D1 to D6 and shortly before the assault on Tsang took place, he said he was joining other team members.

13.  The prosecution suggested that when D4 and D7 were assaulting Tsang with other officers, D2 was close by and appeared to be keeping watch.  D2 then left the substation for about one minutes during the assault on Tsang and he appeared to be talking on the earpiece after putting the earpiece in his right ear.  D2 then returned and remained at the substation until Tsang was taken away after the assault at which time, D2 was walking behind Tsang.  The prosecution suggested that D2 was acting in concert with the others in assaulting Tsang.

14.  After the assault was over, the applicants, D1, D3, D5 and D6 put Tsang on board a van parked on Lung Wo Road and he was taken back to the Central Police Station, accompanied by D5 and D6.

15.  Tsang complained and he was taken to Ruttonjee Hospital for medical examination.  He was found to have multiple bruises all over his body, including multiple circular reddish bruises of 2 cm diameter over the anterior chest wall and the back.  Those injuries were consistent with Tsang being assaulted by punching, kicking, striking, hitting with a blunt object or falling onto the ground.  Some of the injuries were congruent with the size and configuration of police retractable batons.

16.  It was the prosecution case against the applicants that there was a concerted effort to assault Tsang because of what he did and that the applicants were parties of such concerted effort.

The Defence Case

17.  The defence did not dispute that Tsang had been assaulted, but suggested that the applicants were not the persons depicted in the relevant video footages and photos showing the actual assault.  Objection was taken to the admissibility of those video footages and photos on the grounds that the video clips were not the original ones and that the cameramen who actually recorded the relevant video clips were not called to give evidence.

18.  It was suggested that the video footages and the photos did not depict the presence of the applicants during the assault on Tsang and that the identification evidence against them was poor.  The defence case was that the prosecution evidence was insufficient to prove beyond reasonable doubt that the defendants were the officers who actually assaulted Tsang.

19.  On behalf of D2 and D4, it was suggested that after Tsang was subdued and handed over to D1 to D6 and in the course of being taken to the substation, there had been a change of guard and that the officers who actually took Tsang to the substation were not D1 to D6 or at least not all six of them.

20.  It was argued on behalf of D2 that his presence during the assault on Tsang, even if established, was insufficient to establish that he was a party to the assault.  It was further argued that the person identified as D2 had in fact attempted to stop the others from further assaulting Tsang.

21.  None of the applicants gave or called any evidence, but they suggested that the prosecution evidence was insufficient to establish the charge(s) against them.

The Judge’s Findings

22.  In a 224-page reasons for verdict, the judge detailed the evidence and carefully dealt with each of the points raised by counsel for the defendants.  The judge ruled that the video footages and the photos were prima facie authentic and were all admissible as circumstantial evidence.

23.  The judge concluded, on both direct and/or circumstantial evidence and his visual identification that the applicants were three of the officers who took part in assaulting Tsang at the substation.

24.  The judge pointed out that instead to being taken directly to where the coaches and cars were parked for processing arrested persons in accordance with the operational plan, Tsang was taken to the substation and the only reasonable inference was that he was taken there to be assaulted.

25.  The judge emphasized that D2, as one of the leaders and officers-in-charge of the team, not only took part in carrying Tsang to the substation, but was also present and witnessed the assault on Tsang by his subordinates.  The judge concluded that D2 intended and did encourage and support the other defendants, including D4 and D7 to carry out the assault on Tsang.

26.  However, the judge took the view that Tsang’s injuries did not constitute grievous bodily harm and he therefor only convicted the applicants of assault occasioning actual bodily harm.

Grounds of Appeal

27.  The grounds of appeal against conviction put forward on behalf of the applicants basically are attacks on the judge’s decisions on two matters, namely (1) the admissions as evidence of the video footages and the photos as authentic documents when the original video recordings were not produced and the cameramen were not called to give evidence; and (2) the identifications of the applicants from the video footages and the photos as the assailants when the quality of the relevant footages/photos showing the presence of the assailants and the assault were blurred.

28.  On behalf of D2, Mr Selwyn Yu SC, further suggested that D2’s presence at the substation when Tsang was being assaulted, even if established, could not lead to the only irresistible inference that he was a party to the joint enterprise to assault Tsang.  Mr Yu argued that the judge had overlooked the attempts by D2, if he had been properly identified to have been present, to intervene the assault on Tsang.

29.  Mr Edwin Choy, on behalf of D4 and D7, suggested that the judge had relied on his own recognition to support his conclusion that D4 and D7 were two of the assailants when the video footage of the assault was of very low quality and that the judge’s reliance of D4’s clothing as a means of identification was unsafe.  He emphasized that D4 had not been positively identified as one of the officers who were presented at the substation.

30.  Mr Choy repeated the suggestion that there was a 40-odd second “blocked shot” from the time Tsang was handled by D1 to D6 to the time of the assault and it was possible that during the “blocked shot” period there was a change of guard whereby someone else took over D4’s role in carrying Tsang to the substation.  Mr Choy further submitted that even if D4 was involved in taking Tsang to the substation, that did not mean that he was involved in assaulting Tsang.

31.  Mr Choy pointed out that D7 was not one of the officers who carried Tsang to the substation and suggested that the judge’s reliance on the other circumstantial evidence to conclude that D7 was the bespectacled officer who took part in assaulting Tsang was unsatisfactory.  He suggested that the judge had indulged in speculation in reaching his conclusion that D7 was one of the assailants. 

Discussion

32.  I have considered the background of the case and the relevant evidence carefully.  I have also viewed the relevant video footages and the photos.  It may not be necessary or desirable for me to express too strong or too definite a view on the applicant’s prospect of success, but on the materials presently available, I am of the view that the applicants had very little chance to successfully upset the conviction.

33.  On the entirety of the evidence and in particular the video footages and the photos that, in my view, had been properly admitted as evidence and in the absence of any evidence from the defence to contradict, challenge or explain the prosecution evidence, it is unrealistic to suggest that D2 and D4, being two of the officers to whom Tsang was handed over after he was subdued and handcuffed, were not two of the six officers who took Tsang to the substation where he was assaulted.

34.  The suggestion of a “change of guard” was unsupported by any evidence and was contrary to what was clearly depicted in the video footages and the photos as well as the other circumstantial evidence. The fact that D2 and D4 were two of the officers to whom Tsang was handed over, on the facts of the case, would lead to the only irresistible inference that they were part of the same six officers who took Tsang to the substation where he was assaulted.  They were also identified as two of the officers who took part in assaulting Tsang at the substation.

35.  It is equally unrealistic to suggest that D2’s presence during the assault was not sufficient to lead to the irresistible inference that he was a party to the assault.  The suggestion that D2 had tried to intervene to stop the assault on Tsang was not convincing.

36.  In my view, the judge was correct in inferring as he did that D7 joined D1 to D6 to take Tsang to the substation and took part in assaulting Tsang.

37.  On the material presently available, I am not persuaded at all that any of the applicants has a strong arguable case to upset the conviction.

38.  However, I am concerned about the time factor.

39.  Police officers assaulting an arrested person, someone they should protect, is an extremely serious matter.  However, this is an unprecedented case which is not likely to repeat itself.

40.  The offence was committed in the midst of the Occupy Central Movement when a lot of people, including those who should be setting good examples, not only openly defied the law, but considered it right and a glory to do so.  Police officers were entrusted with the unenviable task of trying to enforce the law in extremely difficult circumstances.

41.  As pointed out to the judge, police officers, in carrying out their duties, had to work very long hours without proper rest and they were also subject to unwarranted and serious insulting remarks as well as violent behavior from some of the protestors of whom Tsang was perhaps an infamous example.

42.  The applicants and their colleagues were acting under immense stress in the face of the violent and provocative behavior of the protestors, many of whom were oblivious to the fact that police officers were there to maintain law and order, and to safeguard the well-being of the society as a whole.

43.  When police officers were trying to clear the protestors, having removed the barricades set up by them, Tsang splashed liquid of an unknown nature onto them.  Tsang’s arrogance and stupidity, as demonstrated by his unsavoury, highly offensive and provocative behaviour, unfortunately led to an equally senseless response from the applicants, who together with the other defendants had decided to teach Tsang a lesson by taking him to the substation to assault him.  It is in such circumstances that the court has to assess a suitable sentence.

44.  The maximum sentence for an offence of assault occasioning actual bodily harm is three years’ imprisonment (s 39 of Offences against the Person Ordinance, Cap 212, Laws of Hong Kong)

45.  Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2 ½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.

46.  The 32-day trial concluded on 14 February 2017 and the 2-year sentence was imposed on the applicants three days later.  The application for leave to appeal has yet to be set down for hearing before a single judge of the Court of Appeal.  Indeed, three other defendants had not even filed their perfected grounds of appeal.

47.  Bearing in mind the number of defendants, the length of the trial, the length of the judgment and the voluminous transcripts and documents involved, it is unlikely that the appeal proper can be dealt with within the next 6 to 9 months by which time, the applicants would have completed a major part, if not the entirety of their 2 years’ imprisonment.

48.  Unless grant bail pending appeal, there is also a risk that the applicants would have served a sentence longer than they need to serve even if their convictions are maintained.  In the circumstances, it is right to exercise my discretion to grant the applicants bail pending appeal on the following conditions:

D2

(1)  Cash in the sum of $50,000 and a cash surety of the like amount;

(2)  Surrendering of all travel documents except the identity card and prohibition of leaving Hong Kong without the prior permission of the court; and

(3)  To reside at his reported address.

D4

(1)  Cash in the sum of $10,000 and a cash surety of the like amount;

(2)  Surrendering of all travel documents except the identity card and prohibition of leaving Hong Kong without the prior permission of the court; and

(3)  To reside at his reported address.

D7

(1)  Cash in the sum of $10,000 and a cash surety of the like amount;

(2)  Surrendering of all travel documents except the identity card and prohibition of leaving Hong Kong without the prior permission of the court; and

(3)  To reside at his reported address.