HKSAR v. WONG CHO SHING AND OTHERS

CACC 38 /2017

[2019] HKCA 1204

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)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1.  The applicants, D1, D2, D3, D5 and D6, each apply for a certificate to the Court of Final Appeal on the basis of what are said to be four points of law of great and general importance. The four points of law are expressed in the case of each applicant in identical terms as follows:

“Question 1: When the authenticity (and thus relevance) of video recorded material is in issue, does the test for admissibility require the party seeking to admit it to establish to any legal standard, that the material is in fact authentic or is it sufficient merely to ask whether the dispute evidence, if believed by the tribunal of fact, would be sufficient to prove authenticity beyond a reasonable doubt.

Question 2: When the authenticity/relevance (and thus admissibility) of various video footages is in issue and where the original footage is in existence and obtainable by the prosecution:-

(1) is it permissible in law to use the impugned footages to authenticate one another?

(2) is it permissible in law first to assess and find one of the footages to be “prima facie” authentic and then use that footage as a control sample to authenticate other impugned footages?

(3) or does the law require the authenticity of the comparator footage to be proved beyond doubt?

Question 3: Where original video footage is in existence, readily obtainable by the prosecution and where any examination of it would instantly demonstrate how relevant and important it is to the issue of authenticity/relevance (so that its production should and could be made by Court order) is it compatible with the requirements of a fair trial:-

(1) to permit the prosecution to use internet-down loaded, edited video footages which purport to be the same as the original video footage notwithstanding that the former’s authenticity is challenged?

(2) to permit a prosecution witness (who alone had had access to the original video footage) to give hearsay evidence of his own comparison between the original video footage and the edited, downloaded footages, in support of the authenticity of the internet-footages, in circumstances where neither the Judge nor the defence had access to the original video footage or were privy to such comparison exercise so that the witness’s evidence was incapable of effective challenge?

Question 4:     Absent production of the (readily available) original video footages, was the totality of evidence before the trial Judge capable in law of proving the authenticity of the disputer, edited video footages beyond a reasonable doubt?”

2.  Having invited any of the parties who wished to elect for an oral hearing of this application to give notice in writing within 7 days of the Court’s direction of 5 August 2019, and no notice having been subsequently received, the parties were informed on 16 August 2019 that the matter would be dealt with on the papers following receipt of all written submissions from the parties.  Accordingly, this is the Court’s judgment.

3.  Question 1 corresponds to the principal question of law advanced by all applicants before the Court of Appeal.  In its judgment, the Court discussed at length the relevant authorities and concluded that the law as set out in HKSAR v Lee Chi Fai^[1], applying the Northern Ireland Court of Appeal decision in R v Murphy^[2], was correctly stated.  It noted, with some interest, that both decisions are cited in the leading textbook on civil and criminal evidence, namely Phipson on Evidence^[3], for the proposition that “there must be some – some courts say “prima facie” – evidence capable of authenticating the document for it to get past the trial judge into evidence”^[4]. It determined that, properly understood, the first instance decision in R v Robson^[5] was not authority for the proposition put forward by the applicants that authenticity must be established on the balance of probabilities.

4.  In any event, the judge (sitting as both judge and jury) was ultimately to find, following a painstaking assessment of the evidence, which the Court also itself conducted, that the authenticity of the impugned material was proved beyond reasonable doubt.  Accordingly, the argument was said by the Court to be rather academic.

5.  The law is well-settled in this jurisdiction and we do not think, even without the judge rendering the argument somewhat academic by his findings, that it raises a point of law of great and general importance.

6.  It follows from our view of the correctness of Lee Chi Fai and Murphy that, in respect of Question 2, the authenticity of video recordings may plainly be proved circumstantially.  In the course of the judgment of this Court, we cited a passage from Murphy to the effect that^[6]:

“Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the camera man who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources. The film may be proved authentic by comparing it with others taken of the same event, taken at the same time or even at a different time. Or, as in the instant case of the heli-tele film, by comparing it with a film of the same events that is authentic beyond doubt.”

7.  The same passage was cited with approval by this Court in Lee Chi Fai^[7] and by the Court of Final Appeal in HKSAR v Yeung Ka Ho^[8], which, it should be noted, has also applied both Lee Chi Fai and Murphy.

8.  The argument put forward does not raise a point of law but, rather, a factual complaint as to whether the circumstantial evidence, painstakingly evaluated and relied upon by the judge (and examined by this Court), did in fact authenticate the impugned material.  We decline to certify it as a point of law of great and general importance.

9.  Question 3 raises the issue of whether the failure to produce the original tape recordings but to allow the production of open source material downloaded from the Internet, and to allow PW8 to testify as to his observation of the originals, was compatible with a fair trial.  With respect, the argument now articulated goes somewhat further than the argument before this Court and is worded carefully to focus on the fairness of the trial rather than any professional failings on the part of trial counsel in dealing with the evidence at trial. 

10.  At no stage of the trial proceedings did any of the defendants’ counsel (which included highly experienced Senior Counsel and junior counsel from the criminal Bar) ever mount any application for the originals to be produced at trial; nor did anyone ever make any objection to the ‘open source’ material being adduced by the prosecution; nor was any objection made to the admissibility of the evidence of PW8; nor was an application for a stay of proceedings mounted on the basis that a fair trial was impossible without the original tape recordings.  None of the leading counsel at the appeal before us made any criticism of their predecessors’ conduct in any of these respects.

11.  As the Court held, at paragraph 122 of its judgment, and as is we think obvious, that was because there was a deliberate tactical decision by trial counsel to take advantage of the absence of the originals and its ramifications as they conceived them to be.

12.  Where such a tactical decision has been taken, which fresh counsel on appeal considers he would not have taken, that is not a valid basis for complaint, unless, of course, it is said that trial counsel’s decision was flagrantly incompetent.  That has never been contended and, had it been alleged, or had it been suggested that there was some other basis for attacking the conduct of trial counsel, as affecting the fairness of the trial, we would have wanted to hear from all trial counsel as to why they did what they did (or did not do); and it would have been the primary duty of fresh counsel on appeal to find out: see HKSAR v Apelete[9], at paragraphs 55 to 74.  As it was, the conduct of counsel at trial was never impugned at the appeal.

13.  In our judgment, this is not a question of law which even arises from the decision of this Court and we decline to so certify.

14.  In respect of Question 4, by the very terms in which it is expressed, it does not raise a question of law, whether of great and general importance or otherwise. Rather, the complaint impugns the judge’s resolution of the facts. Accordingly, it does not amount to a question of law of great and general importance.

15.  For the above reasons, we decline to certify any of the four questions posed.