COMMISSIONER OF POLICE v. TELEVISION BROADCASTS LTD

HCMP 114, 115, 118,
119 & 120/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NOS 114, 115, 118, 119 &120 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NOS 392-396 OF 2015)

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HCMP 114/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 114 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO 392 OF 2015)

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BETWEEN

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HCMP 115/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 115 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO 393 OF 2015)

_________________

BETWEEN

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HCMP 118/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 118 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO 394 OF 2015)

_________________

BETWEEN

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HCMP 119/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 119 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO 395 OF 2015)

_________________

BETWEEN

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HCMP 120/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 120 OF 2016

(formerly known as CONFIDENTIAL MISCELLANEOUS PROCEEDINGS NO 396 OF 2015)

_________________

BETWEEN

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(Heard Together)

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J U D G M E N T

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The applications

1. By way of 5 Originating Summons (OS), all dated 31 December 2015, the Applicant applied for a production order to produce journalistic material against each of the 5 Respondents, pursuant to section 84(1) and (2) of the Interpretation and General Clauses Ordinance, Cap 1 (IGCO). 

2. The 5 Respondents are Television Broadcasts Limited (TVB), Apple Daily Limited (Apple Daily), Asia Television Limited (ATV), i-CABLE Communications Limited (i-CABLE) and PCCW Media Limited (PCCW). 

3. The journalistic material requested for was identical in the case of all 5 Respondents:

“The full and unedited video and sound recordings made between 3:20 a.m. and 3:43 a.m. on 15^th October 2014 of Tamar Park, Lung Wo Road, Admiralty, Hong Kong, or, of Male TSANG Kin Chiu and other person or persons present with or around the said TSANG Kin Chiu in the said Tamar Park, together with the full identity and personal particulars of the maker(s) of the aforesaid recordings.”

4. Mr David Leung SC, Deputy Director of Public Prosecutions representing the Applicant, wrote to the court on the same date (31 December 2015), requesting to have the applications heard in Chambers (not open to public), citing the need for confidentiality so as not to jeopardize the pending trials.  I acceded to the request at the time. 

5. Upon further consideration and after reading the affirmations and submission from some Respondents, however, I formed the view that the matter should be heard in open court.  I therefore informed parties on the date of the original hearing (8 January 2016) that I would adjourn the matter to be heard in open court and that all 5 applications would be heard together.  

6. At the hearing on 19 February, all respondents except ATV were represented and have filed affirmation(s) in response.  

7. The Applicant in effect seeks the production of:

(1) the full and unedited video and sound recordings made between 3:20 am and 3:43 am on 15 October 2014 of

(a)  Tamar Park, Lung Wo Road, Admiralty, Hong Kong; or

(b) of [Tsang] and other persons with or around [Tsang] in the said Tamar Park; and

(2) the full identity and personal particulars of the maker(s) of the said recordings.

8. I will refer (1)(a) as the “general footage” which covers the whole of Tamar Park within the time slot, and (1)(b) as the “Tsang footage” as it is confined to the particular areas of Tamar Park on which Tsang’s presence was observed.

Affirmations in support of the applications

9. Woman Senior Inspector of the Police, Wong Sau-ling (Wong), filed two affirmations in support of each application.  But for some facts peculiar to each Respondent, the contents of the two affirmations are basically the same. 

10. In the first affirmation, Wong sets out the background of the case.

Background of the case

11. Wong deposed that at around 3:20 am on 15 October 2014, police officers were carrying out dispersal operation at Lung Wo Road between Man Yiu Street and Tim Mei Avenue.  The operation covered Tamar Park.  A protestor (later found to be Tsang) wearing a pair of goggles and a face mask was seen standing on a planter splashing liquid from a plastic bottle down to the carriageway of Lung Wo Road underpass.  When Tsang was about to throw the bottle down, uniformed police rushed up and warned him to stop.  Tsang put up a struggle and pepper spray was applied to Tsang’s face after his goggles and face mask were removed. 

12. At about 3:25 am, Tsang was finally subdued by the uniformed police and he was arrested.  Water was applied to Tsang’s face to wash his eyes and face. 

13. At about 3:30 am, uniformed police handed Tsang over to the custody of about 4 plainclothes officers (subsequently found to be Wong Cho-shing, Lau Hing-pui, Chan Siu-tan and Kwan Ka-ho).  Tsang and the uniformed officers were unable to recall the identity of those officers. 

14. Tsang was escorted by a group of Chinese males in plainclothes wearing vest emblazoned with the word “police” (subsequently found to be the four officers mentioned above and two other officers, Lau Cheuk-ngai and Pak Wing-bun) on a pavement near an embankment of the underpass of Lung Wo Road.  When in the part of the Tamar Park north of Lung Wo Road, Tsang was being carried face down with his four limbs being held.  Tsang was carried to outside the Lung Wui Road Government Building Pump Station East Substation (“Substation”) in Tamar Park where another officer (later found to be Wong Wai-ho) joined the six officers.  Tsang was allegedly thrown to the ground and made to face the wall of the Substation. He was allegedly kicked and punched at his head by some or all of the seven officers.  Tsang believed a blunt instrument was used to hit his back.  After the alleged assault (“First Assault Incident”), which lasted about 4 minutes, Tsang was escorted away from the Substation by the seven officers. 

15. Tsang was brought to a van parked at Lung Wo Road by two members of the group (later found to be Chan Siu-tan and Kwan Ka-ho) which brought them to the Central Police Station. 

16. At about 3:43 am, the two officers and Tsang arrived at the Central Police Station.  While in an interview room at the said police station, Chan Siu-tan allegedly used the back of his right hand to strike Tsang’s right face twice (“Second Assault Incident”). 

17. Tsang was brought to the Temporary Detention Centre at Wong Chuk Hang and after he made a complaint to the Duty Officer that he had been assaulted by the police officers, arrangement was made for him to be medically examined.  Multiple fresh injuries comprising mainly of reddish bruises were found on Tsang’s body.  There were also abrasions on Tsang’s right forearm, hand and left knee.

18. Wong deposed that the police found and downloaded 1,193 open source video footages apparently covering the First Assault Incident, contents of many appeared to be overlapping. 

19. Wong also deposed that the identification of the seven officers in relation to any part of the allegation is mainly based on the open source footages.  Video recording filmed by the police and CCTV cameras installed in the Tamar Park or the Substation did not capture the First Assault Incident.  

20. In respect of each of the 5 Respondents, Wong gave details of the open source footages broadcasted. 

Criminal proceedings against the seven officers

21. Subsequent to police investigation and upon obtaining legal advice from the Department of Justice, on 15 October 2015 (exactly one year after the incident), all seven officers (Wong Cho-shing (D1), Lau Cheuk-ngai (D2), Pak Wing-bun (D3), Lau Hing-pui (D4), Chan Siu-tan (D5) and Kwan Ka-ho (D6) and Wong Wai-ho (D7)) were jointly charged with one count of “causing grievous bodily harm with intent”, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212; and D5 was charged with one additional count of “common assault” contrary to Common Law and punishable under section 40 of Cap 212. 

22. Their case was transferred to the District Court on 8 December 2015 (DCCC 980/2015).  A pre-trial review (“PTR”) was originally set to take place on 11 March 2016, with a trial of 20 days commencing on 1 June 2016. I was informed by Mr Leung that the PTR had been re-fixed to 24 March 2016 by consent.

23. Wong deposed that counsel acting for D1-D7 had indicated that the admissibility of the open source footages, which the prosecution intends to use as evidence, would be an issue during the trial of the seven officers in the District Court.

Criminal Proceedings against Tsang

24. On 15 October 2015, Tsang was also charged with one count of “assaulting police officers in due executions of their duties” and four counts of “resisting a police officer in due execution of his duty”, all contrary to section 36(b) of Cap 212.  The trial will take place at the Eastern Magistracy (ESCC 3433/2015) on 11 April 2016, with 5 days reserved.

25. Wong then deposed as to her belief that the conditions under section 84(3)(a) to (d) had been satisfied.

26. Whilst Wong had deposed, in her first affirmation, that she had reasonable grounds to believe that the footages described as being broadcasted by each of the respondent were “edited version(s) of the originally filmed footage(s)”, she did not set out the basis of her belief.  Leave was granted for her to file a second affirmation to deal with this issue.

27. It was only in her second affirmation that Wong mentioned, for the first time, that she had been “given to understand” by the police officers of the Organized Crime and Triad Bureau that the police video teams had made 4 videos “which captured a person believed to be [Tsang] standing on a planter … splashing liquid to police officers …”  No details was given as to what was exactly shown in these videos.

The Law

28. Before I deal with the merits of the application, I will first set out the relevant provisions under Part XII of IGCO and the applicable legal principles.

Section 81  Interpretation

In this Part, unless the context otherwise requires-

‘premises’ (處所) includes any place and in particular, includes-

(a)  any vehicle, vessel, aircraft or hovercraft;

(b)  any tent or movable structure.

Section 82  Meaning of ‘journalistic material’

(1) Subject to subsection (2), in this Part ‘journalistic material’ (新聞材料) means any material acquired or created for the purposes of journalism.

(2) Material is only journalistic material for the purposes of this Part if it is in the possession of a person who acquired or created it for the purposes of journalism.

(3) A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes.

Section 83  Power to enter and search or seize

A provision in any Ordinance which confers on, or authorizes the issue of a warrant conferring on, any person the power to enter any premises and to search the premises or any person found on the premises or to seize any material (whether of a general or particular kind and whether or not the word ‘material’ is used in that provision) shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material.

Section 84  Application for production order in respect of journalistic material

(1) A person on whom there is or may be conferred under a provision in any Ordinance, being a provision to which section 83 applies, the power to enter any premises and to search the premises or any person found on the premises or to seize any material, may apply to a judge of the Court of First Instance or District Court for an order under subsection (2) in relation to material which is known or suspected to be journalistic material.

(2) If on an application under subsection (1) a judge is satisfied that the conditions in subsection (3) are fulfilled he may make an order that the person who appears to be in possession of journalistic material specified in the application shall-

(a) produce it to the applicant to take away; or

(b) give the applicant access to it,

not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify.

(3) The conditions to be fulfilled for the purposes of subsection (2) are that-

(a) there are reasonable grounds for believing-

(i)  that an arrestable offence has been committed;

(ii) that there is material which consists of or includes material known or suspected to be journalistic material on premises specified in the application;

(iii) that the material is likely to be-

(A) of substantial value to the investigation of the arrestable offence; or

(B) relevant evidence in proceedings for the arrestable offence;

(b) but for section 83 the applicant would be or could have been authorized under the provision mentioned in subsection (1) to enter onto the premises specified in the application and to search the premises or a person found on the premises or to seize the material specified in the application;

(c) other methods of obtaining the material-

(i)  have been tried and failed; or

(ii) have not been tried because they were unlikely to succeed or would be likely to seriously prejudice the investigation; and

(d) there are reasonable grounds for believing that it is in the public interest that an order should be granted, having regard to-

(i)  the benefit likely to accrue to the investigation; and

(ii) the circumstances under which a person in possession of the material holds it.

(4) An application for an order under subsection (2) shall be made inter partes.

(5) Any person who without reasonable cause fails to comply with an order made under subsection (2) commits an offence and is liable to a fine at level 6 and to imprisonment for 1 year.

Section 89  Miscellaneous

(1) The costs of any application under this Part and of anything done or to be done in pursuance of an order made under it shall be at the discretion of the judge.

(2) For the avoidance of doubt, it is declared that nothing in this Part shall be construed as requiring a judge to make an order under this Part where he considers that, in all the circumstances of the case, it would not be in the public interest to make that order.

(3) Unless a judge otherwise directs, proceedings inter partes under this Part shall be held in open court.

(4) Rules of court may provide for the practice and procedure applying to proceedings under this Part.

29. Ma CHCJ (as he then was) in the case of So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11, set out the features of section 84 (at page 46):

“(5) In the case of an application under section 84, the following features are present : -

(a) The application is made either to a judge of the District Court or of the Court of First Instance.

(b) The Applicant must demonstrate those requirements stipulated in section 84(3). Of particular note here is the requirement in section 84(3)(c) that other methods of obtaining the material have been tried and failed or that such methods have not been tried because they were unlikely to succeed or would be likely seriously to prejudice the investigation.

(c) Of note also is the public interest the Court must take into account not only under section 84(3)(d) (which is somewhat limited) but also under section 89(2). These provisions require a court to have a broad view of the public interest in considering whether such orders should be made.

(d) The application is to be made inter partes. O.118 r.3 states that such applications must be made by way of originating summons and that there must be a supporting affidavit. This exemplifies one of the singular features of an application made under this section, namely, that the Respondent has full notice well in advance of just what is sought.

(e)  An order under section 84, once made, requires the journalist or newspaper respondent to produce the journalistic material sought or to allow the applicant to take it away not later than 7 days from the date of the order or such longer period as may be permitted by the Court.  In other words, access is not immediate.”

The Rationale underlying section 84 of IGCO

30. The rationale underlying Part XII of IGCO has been summarized by the Court of Appeal in Apple Daily Ltd v The Commissioner of the Independent Commission Against Corruption (No 2) [2000] 1 HKLRD 647.  Keith JA said at 654C:

“Part XII of the IGCO … relates to the important role played by a free and independent press as public watchdog. The press should be able to speak out on matters of public interest without fear of reprisal, and journalists need to protect the confidentiality of the sources of the information they receive. On the other hand, the legitimate requirements of law enforcement agencies may in exceptional cases make it necessary for journalistic materials to be the subject of seizure and inspection. In this sensitive area, Part XII of the IGCO requires a judge of the Court of First Instance or the District Court to hold the balance between these competing interests.”

31. To succeed in its application, the Applicant has to pass a two-stage test.

32. First, the Applicant has to satisfy this Court that the conditions set out in section 84(3) of IGCO are met.  These conditions are known as “access conditions”.

33. As to how the judge should consider whether the access conditions have been satisfied, useful guidance can be found in R (British Sky Broadcasting Ltd And Others) v Chelmsford Crown Court [2012] 2 Cr App R 33 (at 463 (para 34)) and Malik v Manchester Crown Court, Chief Constable of Greater Manchester Police [2008] EWHC 1362 (admin) (at para 48): A person who applies for an order should provide a clear and compelling case in justification of it.  A close and penetrating examination of the facts advanced by way of justification is required.

34. The fact that the access conditions are satisfied is not enough.  The judge must then exercise his or her discretion.  Moses LJ said in the British Sky Broadcasting case (at para 35):

“The judge must then exercise his discretion; the fact that the applicant has satisfied the access conditions is not enough. He must exercise that discretion compatibly with Art. 10, even if the access conditions are satisfied. First, the objective must be sufficiently important to justify the inhibition such orders inflict on the exercise of the fundamental right to disseminate information. Second, the means chosen to limit the right must be rational, fair and not arbitrary and third, the means used must impair the right as little as is reasonably possible (Gaunt at [33]).”

Scope of the applications

35. Having set out the relevant provisions and the legal principles, I will first consider whether the scope of the application (which is identical to all 5 respondents) is too wide.

36. On the evidence and information before me, 3:20 am to 3:25 am was the time when the police carried out the dispersal operation and Tsang had allegedly splashed liquid onto the carriageway while standing on a planter (“Splash Liquid Incident”).  At 3:25 am, Tsang was subdued by uniformed police.  At 3:30 am, Tsang was taken over by officers said to be D1, D4, D5 and D6.  D1-D6 were said to escort Tsang and later carried him facedown by holding onto his four limbs.  Then at the Substation, D1-D7 allegedly assaulted Tsang. 3:43 am was the time when Tsang arrived at the Central Police Station with D5 and D6.

37. The arrestable offences allegedly committed by Tsang and D1-D7 centred on the Splash Liquid Incident, the arrest of Tsang, and the First and Second Assault Incident.  There is no basis for believing that any general footage covering the whole of Tamar Park would be of “substantial value to the investigation to” or amount to “relevant evidence in proceedings for” the arrestable offence.

38. Tsang was taken to a police van after the First Assault Incident and was then driven to the Central Police Station, with the arrival time at 3:43 am.  There was no allegation of any further assault after the First Assault Incident at the Substation.  The Second Assault Incident was alleged to have taken place at the police station.  I cannot see how any footages filmed by any Respondents, if any, showing Tsang being taken to the van or to the police station can be said to be of substantial value to the investigation of, or amount to relevant evidence in proceedings for the arrestable offence.

39. For these reasons, I find that the Applicant has failed to satisfy the condition in section 84(3)(a)(iii) in relation to the general footage and any footage of Tsang after the First Assault Incident.  In other words, even the Tsang footage requested for is too wide.

40. While I appreciate the Applicant was being cautious and, preferring to err on the safe side, decided to cover a wider period, once it is made known to the Applicant the reasons for the opposition, the Applicant should have amended the OS to reflect accurately what it is really seeking instead of being seen or perceived to be changing its stance as the arguments developed.

41. After taking out the general footage and the part of Tsang footage after the First Assault Incident, the particulars of the application would be as follows:

“The full and unedited video and sound recordings made of Male TSANG Kin Chiu and other person or persons present with or around the said TSANG Kin Chiu in Tamar Park from 3:20 a.m. until the said TSANG was escorted away from Tamar Park, with the full identity and personal particulars of the maker(s) of the recordings.”

42. The application, thus redefined, covers two aspects: (1) the recordings of Tsang at Tamar Park; and (2) the identity of the maker(s).

43. Mr Leung’s team has helpfully set out, in table form, the open source footage said to be from the respective Respondents.  The footages were separated into 6 periods as follows:

(a)  0320 to 0325 hrs – the Splash Liquid Incident;

(b) 0325 hrs – Uniformed officers subdued Tsang;

(c)  0330 hrs – D1, D4, D5 and D6 took over Tsang;

(d) D1-D6 escorting Tsang, in which facial feature of the officers could be seen;

(e)  D1-D6 carried Tsang facedown by holding his four limbs;

(f)  D1-D7 and Tsang at the First Assault Incident.

44. TVB showed footages of periods (d), (e) and (f) above.

45. Apple Daily showed only period (f) above.

46. ATV showed periods (b), (c) and (f) above, though period (f) was originated from the Apple Daily footage.

47. i-CABLE showed periods (a), (b) and (f) above, again (f) was originated from Apple Daily.

48. PCCW showed periods (a), (d) and (f) above.

49. I will deal with the application against TVB, Apple Daily, i- CABLE and PCCW, in that order, first before I deal with the application against the unrepresented ATV.

TVB

50. Despite Wong’s suggestion that some of the open source footages shown by TVB had been edited, Mr David Wong, News Production Manager of TVB, deposed that footages covering the three periods (d), (e) and (f) were unedited and already in the public domain.

51. Mr David Wong deposed, in a nutshell, that an order for the production of the journalistic materials already in the public domain could potentially undermine the freedom and integrity of the press, adding that media in Hong Kong needs to preserve confidentiality and to maintain, and seen to maintain, impartiality.

52. Mr David Wong was prepared to assist the Applicant, if required, by giving evidence in court to confirm that those footages in the public domain were authentic and unedited.

53. Mr David Wong was also reluctant to reveal the identities of the cameramen due to their refusal to let their identities be known, and for fear of violence on the reporters and cameramen of TVB.  Mr Wong cited the recent example of the “Mongkok riot” on 9 February 2016, in which reporters and cameramen of TVB were assaulted, and the arrest of a man for inciting the public to assault TVB reporters posted in the internet, in support.

54. As far as TVB is concerned, I am satisfied on the evidence before me that the footages of the three periods (d), (e) and (f) in the public domain were unedited.  

55. There is no basis to suggest that TVB was in possession of any recordings relating to (a), (b) or (c).

56. Mr Leung made it clear that the purpose of the present application is to prove the “chain of evidence” in the trial of the seven policemen (D1-D7) in the District Court case in view of the stance indicated by the defence made known to the prosecution.

57. Mr Leung admitted that the prosecution could always adduce open source footage or footage in the public domain by other methods, including by way of circumstantial evidence.  He submitted, however, that the prosecution is required to do its best to produce the best evidence in court.  The best evidence concerning the recordings would be from the maker(s).  For this reason Mr Leung submitted that the production order needs to cover both the recordings and the identity and personal particulars of the maker(s).  Without the identity and personal particulars of the maker(s), the prosecution would still have to rely on the alternative method to have the open source footages adduced.  And for this same reason, Mr Leung submitted that the offer by Mr David Wong was not good enough as the latter was not the maker of the recordings.

58. Mr Leung attempted to argue that the unedited recordings are of substantial value for the investigation of the arrestable offences (faced by D1-D7) in accordance to section 84(3)(a)(iii)(A).  I cannot see how it can be said that the Applicant requires them for any investigation purposes when D1-D7 have already been charged and the trial will take place in June, particularly when charges were laid one year after the event, upon seeking legal advice.

59. Whilst section 84(3)(a)(iii)(B) refers to “relevant evidence in proceedings for the arrestable offence”, I do not think the purpose of this subsection is to assist the prosecution to prove the chain of evidence, particularly when the issue of public interest is considered (which I will address later).

60. I am not satisfied that condition (3)(a)(iii) has been met here.

61. As to condition (3)(c), Wong in her first affirmation exhibited correspondence between the police and TVB in the months of October to January 2015. In the first two letters TVB was asked to “provide more information” about the footages.  TVB responded by saying it was their company policy not to release any footage unless a court order is properly obtained.  In the December letter, the police again asked TVB for more information.  On this occasion the police requested the cameraman to assist as a witness.  TVB responded in January 2015 by reiterating that copy of the footage will not be released unless there is a court order, adding that TVB will not be involved in the investigation by the police unless a court order is properly obtained.

62. Bearing in mind the requests from the police were very general in nature and that there was no indication that the police was asking for the original unedited recording, in my view, it cannot be said that condition (3)(c)(i) has been met.  On the other hand, TVB had made it quite clear that they would not give a copy or get involved in the investigation unless a court order is properly obtained, I am prepared to say that condition (3)(c)(ii) was met, ie other method of obtaining the material have not been tried because they were unlikely to succeed.

63. I now turn to condition (3)(d), to be considered in conjunction with section 89(2). I have already ruled that the unedited recordings requested for cannot be said to be of substantial value to the investigation.  I therefore cannot see that there is “any benefit likely to accrue to the investigation”.

64. I remind myself that there should not be any bias in favour of the freedom of the press or to regard it as some sort of paramount consideration (to quote Ma CHCJ (as he then was) in the case of So Wing Keung (at para 43(1)).  

65. I also remind myself what Eady J had said in the British Sky Broadcasting case (at para 25):

“… Here, it is argued that production orders of this scope are indeed capable of discouraging those responsible for visual news coverage from carrying out their task. If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment. At the moment, to the extent that they are perceived as being separate from the police and relatively neutral when disputes are taking place, they have more opportunity of carrying out their task and, correspondingly, the public has a greater opportunity of receiving the coverage they intend to provide. All the judge had to say on this topic was that he did not accept the assertion of Mr Parkinson ‘… that if he was forced to hand over the material he would be seen as part of the police and would thus lose his objectivity and independence’. The point is not that he would be actually losing his objectivity or independence, but rather that he would be disadvantaged by the perception of others.”

66. After balancing the importance of the freedom, integrity and impartiality of the press against the need to combat crime and to bring those guilty to justice, and bearing in mind the unedited recordings have already been uploaded and now in the public domain, together with the fact that Mr David Wong offers to give evidence in the trial, in the particular circumstances of this case, I am not satisfied that it is in the public interest to grant a production order of the full and unedited footage in the possession of TVB.

67. I now turn to the request for the identity and personal particulars of the maker(s) of the recordings.

68. Having considered the definition of journalistic material as defined in section 82, I am unable to see how journalistic material could be interpreted so as to include the identity and personal particulars of the maker(s) of the recording. Since the identity and personal particulars of the maker(s) of the recordings do not amount to journalistic material, an application for the production of the maker’s identity and personal particulars under section 84 is, in my view, misconceived.

69. Whilst I accept the concern regarding of the safety of the TVB journalists is a legitimate one, such concern, for the reason that identity and personal particulars do not amount to journalistic material, has no bearing in this application.

70. For these reasons, I refuse the application by the Applicant for a production order against TVB.

Apple Daily

71. The five open source footages from Apple Daily only covered the First Assault Incident, ie period (f).  There is no basis to say that Apple Daily was in possession of the recording of any other period.  The Editor-in-chief of Apple Daily, Chan Pui Man, and the associate publisher of Apple Daily, Cheung Kim Hung, deposed that what was seen in the public domain were in fact uploaded from the full unedited footage and sound recordings that the Respondent had in its possession.  The Respondent did not have any other recordings.

72. For the same reasons I have given in respect of the application against TVB, I am not satisfied that the condition in section (3)(a)(iii) has been met.

73. As for condition (3)(c), Wong in her first affirmation exhibited letters written to Apple Daily in October, November and December 2014, requesting Apple Daily to provide information generally and to ask a cameraman identified as “Kenji” to assist the investigation as a witness.  Apple Daily did not respond to any of these letters.  As the requests were of a general nature and did not relate to the production of the original unedited raw material, it is difficult to see how condition (3)(c)(i), ie other methods of obtaining the material have been tried and failed.

74. For the same reasons I gave in relation to the application against TVB, I find that it is not in the public interest to grant a production against Apple Daily.  I would also add that since Mr David Wong of TVB offers to give evidence to testify that the open source footages from TVB were authentic and unedited, there is even less reason to make such a production order against Apple Daily.

75. Again, for the same reasons I gave relating to the issue of the identity and personal particulars of the maker(s) of the recording given in respect of the application against TVB, such an application against Apple Daily is misconceived.

76. For these reasons, the application for a production order against Apple Daily is dismissed.

i-CABLE

77. The open source footages from i-CABLE cover periods (a), (b) and (f).  As indicated earlier, (f) – the First Assault Incident was originated from the footage of Apple Daily.  In effect, the Applicant seeks the production of the original unedited recordings of (a) and (b) as there is no basis to suggest i-CABLE was in possession of any footage covering any other period. 

78. The Respondent opposed to this application first on the ground that the Applicant sued the wrong party, and second, the Applicant has failed to satisfy the conditions under section 84(3).

79. As to the submission that the Applicant wrongly commenced and maintained its proceedings against the Respondent, the argument goes like this.  The OS was addressed to i-CABLE Communications Limited at an address in Harbour City, Canton Road, Kowloon.  The OS was not served properly on them as the OS together with Wong’s first affirmation and exhibits were served on a subsidiary of the Respondent, i-CABLE News Limited, at a different address.  The Company Secretary of the Respondent in his affirmation exhibited an Acknowledgment of Receipt of Served Document (Acknowledgment) to show that the typed name of the Respondent and the address in Canton Road had been changed, in hand-writing, to that of i-CABLE News Limited and an address in Hoi Shing Road, Tsuen Wan.

80. Mr Gerard McCoy SC leading Ms Annie Leung of counsel submitted that the Respondent was only a holding company and the recordings sought by the Applicant were not at the address in Harbour City.  Citing section 84(3)(a)(ii): that there is material which consists of or includes material known or suspected to be journalistic material on premises specified in the application, the Respondent submitted that there was no journalistic material specified in the application, ie the Harbour city address, and the application must fail.

81. Mr Leung submitted that under section 88 of IGCO, notice of the application under section 84(2) may be served by leaving it at a person’s proper address.  Under section 88(4) the proper address of a person in the case of an officer of a body corporate is the registered or principal office of that body.  He submitted that the OS and the supporting affirmation had been served by leaving them at the Respondent’s principal business address at Hoi Shing Road, Tsuen Wan. Mr Leung also submitted that under Order 118 of the Rules of the High Court, the application needs to be supported by an affirmation.  Since Wong had referred to the address in Tsuen Wan in the affirmation, the condition in section 84(3)(a)(ii) has been met. 

82. I am not impressed with this submission of Mr Leung.  While the affirmation was in support of the application, the premises on which journalistic material is known or suspected to be present is the address specified in the application. I do not agree that one would need to read through the supporting affirmation to find out where the premises were.

83. The address specified in the application is the Harbour City address. The person who served the OS and the supporting affirmation saw fit to change the name and the address on the Acknowledgment to show the name of i-CABLE News Limited and an address in Tsuen Wan.  Nothing was done to rectify the inconsistencies shown by the names and addresses on these two documents.  

84. Further, on 8 January 2016, when I informed the parties that the matter had to be heard in open court, Mr McCoy had already alerted the Applicant of this jurisdictional point.  Yet, the Applicant did not see fit to amend the OS by substituting the correct party, or at the very least, add the Tsuen Wan address on the OS itself.  The Applicant failed to meet condition (3)(a)(ii).

85. Mr Leung asked me to allow him to amend the OS by adding the Tsuen Wan address should I rule against him, submitting that there is no prejudice to the Respondent.  Mr McCoy objected.

86. In view of my decision on the merits of the application, which I will deal with shortly, it would be academic to grant any leave to amend.

87. The open source footages from i-CABLE cover periods (a) and (b): the Splash Liquid Incident and the arrest of Tsang.

88. Although reference was made to the criminal proceedings against Tsang, I do not detect from Wong’s affirmations that there was any issue regarding the production of any open source footages in his trial.  The reference to any admissibility issue regarding the open source footages related to the trial of D1-D7 only.

89. In any event, regarding the allegation against Tsang, from Wong’s second affirmation, it was disclosed, for the first time, that the police has 4 videos capturing the Splash Liquid Incident.  According to the Brief Facts exhibited in Wong’s second affirmation in relation to the trial of Tsang, the total length of the 4 police videos (on SD cards) amount to 106 minutes.  There is no detail as to what those 4 police videos show at all. 

90. In the British Sky Broadcasting case, production orders were granted by a judge against 4 media organizations and one freelance journalist to produce footages covering the violence and disorder occurred when the Essex police enforced a court order and conducted a large scale of eviction during the Dale Farm evictions.  The production orders were quashed upon judicial review.  During the operation the police themselves had recorded footages of the violence but were unable to adduce such evidence.  Moses LJ stated (at paras 40 and 41):

“40. The judge dismissed the importance of that evidence. Whilst it might not have been necessary for the police to produce everything they had obtained, at the least there should have been a clear account of the extent of the film they had obtained, the period over which it had been obtained and what it showed. Without such material the judge was in no position to judge the value which the respondents’ film might add to that which the police had already obtained. Nor was he in any position to judge the necessity of its production. The police, in such applications, ought to be in a position to give a full and accurate account of the evidence they have obtained; this is possible without the production of the material itself.

41. Absent such an account, there is no basis for assessing the additional value of any material.  The extent to which material obtained might add to that which the police already had was of particular importance to any assessment of proportionality.”

91. The footage from i-CABLE was not even listed as exhibit in the brief facts in Tsang’s case.  As in the case of British Sky Broadcasting, I cannot assess how any unedited recordings filmed by i-CABLE might add to that which the police had already obtained.  I cannot see how the footage from i-CABLE would be of “substantial value to the investigation of the arrestable offence (against Tsang)” – particularly when Tsang is already charged so the investigation must have concluded; or that such recordings would amount to “relevant evidence in proceedings for the arrestable offence (against Tsang)”.  

92. Further, I cannot see how any unedited recordings filmed by i-CABLE would be of substantial value to the investigation of the arrestable offences against D1-D7, or the same recordings would amount to relevant evidence in proceedings for the arrestable offences against D1-D7.  I should add that Mr Leung in his written submission stated that the police video did not capture Tsang’s face, but there is no evidence by way of affirmation before me to support such a contention.

93. In any event, apart from the police videos and those open source footages, the uniformed police who witnessed the Splash Liquid Incident, who subdued Tsang and arrested him, would be able to give evidence to provide the link between the man wearing goggles and face mask and Tsang.  

94. Further, as conceded by Mr Leung, the prosecution can adduce the open source footages by alternative method when the maker(s) cannot be called to give evidence.

95. For these reasons I am not satisfied that the Applicant had met the condition in section 84(3)(a)(iii).

96. As to condition (3)(c), Wong’s first affirmation exhibited two letters issued by the police in November and December 2014 to one Wong Yue-fat (黃餘發) described as the Chief News Editor of the News Department of Cable Television.  The first letter requested for general information.  The second repeated the request but also asked for the reporter to assist the police as a witness.  Wong deposed that no response was received from the “Respondent”.  Bearing in mind that the Respondent is i-CABLE Communications Limited when the letters were addressed to the Chief News Editor of the News Department of Cable Television, it is hard to see how the Applicant had met condition (3)(c).

97. Even if the Applicant were found to have met the access conditions, in view of the fact that the police already had 4 videos of over 100 minutes covering the Splash Liquid Incident and I was not informed of the contents of those police videos, I do not think it is in the public interest to make the production order after performing the balancing exercise.

98. As for the request for the identity and personal particulars of the maker(s), for the same reasons I have given in respect of the application against TVB, I find that the application is misconceived.

99. The Applicant’s application against i-CABLE is dismissed.

PCCW

100. There are also three recordings in the public domain from PCCW covering periods (a), (d) and (f).

101. The Respondent, by an affirmation filed by Mr Chan Wai Yuen, a solicitor of the firm representing it, conceded that (in respect of footage (f)) the conditions prescribed by section 84(3) have been satisfied in relation to the District Court case against the seven policemen.

102. Mr Reading SC leading Ms Adgie Chan took a neutral stance in respect of the application, saying that while the Respondent does not oppose the application as such, it is incumbent on the Applicant to prove to the satisfaction of the court that the journalistic material sought is indeed necessary.

103. Although Mr Chan Wai Yuen conceded that the footage (f) met the condition under section 84(3), I still have to be satisfied that that was indeed the case.

104. No concession was made by the Respondent in relation to period (d).  That footage (period (d)) was already dealt with by me when I consider the application against TVB.

105. I have already given my reasons, in relation to the application against TVB (footage covering periods (d), (e) and (f)), why I do not agree that the condition in section 84(3)(a)(iii) has been met.  The same reasoning applies here.

106. The fact that Mr David Wong of TVB offers to give evidence to testify that the open source TVB footages of periods (d), (e) and (f) were authentic and unedited, when added into the balancing exercise, gives me even less reason to consider ordering the production of footages of periods (d) and (f) against this Respondent.

107. As to the open source footage covering (a), I have already given my reasons why the condition in section 84(3)(a)(iii) had not been met when I dealt with the application against i-CABLE.  The same reasoning applies here.

108. As for the request for the identity and personal particulars of the maker(s), I note that the Respondent was willing to provide the same should a production order be made requiring them to do so.  I have already ruled that journalistic material does not include the identity and personal particulars of the maker(s).  That being the case, I do not have any power to order the production of the identity and personal particulars of the maker of the recordings under section 84(2).

ATV

109. ATV is not represented and no affirmation has been filed to indicate their stance.

110. The open source footages from ATV covered periods (b), (c) and (f), but (f) was originated from Apple Daily, so effectively ATV’s footages only covered (b) and (c) as there is no basis to believe that ATV was in possession of any footage covering any other period.

111. Footage of period (b) concerns the subduing and arrest of Tsang while period (c) relates to the taking over of Tsang by D1, D4, D5 and D6.

112. Whilst there is no direct evidence before me that these footages were unedited, bearing in mind the closeness of the viewing time when compared with the time the incident took place, and the fact that the footages were for the purpose of broadcasting “News”, it is difficult to see why the footages seen in the public domain would have been edited so as to alter what was captured. 

113. As I have mentioned earlier, there was nothing to indicate that Tsang would take issue of any open source footage capturing him.  Even if the defence in Tsang’s case decides to take issue regarding footages of periods (b) or (c), (as in the case of the defence in the District Court regarding all footages), as Mr Leung has already conceded: the prosecution can adduce these open source footages by alternative method when the maker(s) cannot be called to give evidence in any event.  The prosecution could also adduce evidence from the police officers involved. 

114. I am not satisfied that the production of these footages satisfied the condition in section 84(3)(a)(iii).  They are not of substantial value to the investigation of the arrestable offences as investigation had, in my view, already completed before charges were laid one year after the incident.  They also do not amount to relevant evidence in proceedings for the arrerstable offences when these footages are already in the public domain.  

115. As for condition (3)(c), Wong exhibited two letters written to ATV in November and December 2014.  Again they were of general nature, asking ATV to provide information and in the December letter, the cameraman to assist the police as witness.  According to Wong, a Ms Lo called Wong and acknowledged receipt of the November letter. However, Ms Lo informed Wong that the Respondent had not deployed any reporters at Tamar Park on 15 October 2014.  After being told that the Respondent’s news channel had broadcasted a relevant news footage, Ms Lo said she would check and revert.  Apart from the conversation with Ms Lo, no reply was received from ATV.  As the letters were of a general nature and there was no indication that the Applicant has asked ATV for the original unedited recording, I cannot see how the condition in section 84(3)(c) has been met.

116. Further, I am not satisfied, even if the access conditions were met, that it is in the public interest for me to order the Respondent to produce the unedited recording, after balancing the importance of the freedom, integrity and impartiality of the press against the need to combat crime and to bring those guilty to justice, particularly when the recordings were in the public domain.

117. As to the identity and personal particulars of the maker(s) of the recordings, the same reasons I have given in the application against TVB and all other Respondents apply.  There is no power for me to grant such an order.

118. The application against ATV by the Applicant is dismissed.