HKSAR v. GUERRERO, ADRIEN FRANCISCO

HCMA 187/2024

[2026] HKCFI 4548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 187 OF 2024

(ON APPEAL FROM ESCC 1426 OF 2023)

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J U D G M E N T

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1.  The Applicant was convicted after trial by the Magistrate with one count of “assault occasioning actual bodily harm” (“AOABH”), contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.

2.  The Applicant was sentenced to 12 months’ probation order. The Applicant appealed against conviction and sentence, which was dismissed, details of which can be referred to my judgment dated 27 August 2025.

3.  The facts of the case were simply that there was an argument arising between PW1 and the Applicant. When PW1 used her phone to film the Applicant, the Applicant grabbed her phone, threw it away, and pushed PW1 onto the ground. The Applicant also used a plastic bag to hit at PW1. The Applicant testified that he only “brushed” away PW1’s phone and PW1 also pushed and punched the Applicant’s chest. And he did not attack PW1 at all material times.

4.  The Magistrate accepted PW1’s evidence, particularly comparing her evidence with the CCTV, and rejected the Applicant’s evidence.

5.  On appeal, I also agreed with the Magistrate’s ruling after viewing the CCTV and the slow-motion footages several times and also the screenshots submitted.

6.  The Applicant now applies under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate certifying the following points of law of great and general importance: 

(1)  Question 1: Whether it is lawful and fair for the Rehearing Judge to treat his own private viewing of determinative CCTV Evidence in chambers as an adequate substitute for counsel’s request to play the determinative CCTV Evidence in court and take the Rehearing Judge through the footage orally with contemporaneous explanations and identified timestamps, alongside the right to discuss and engage in exchange of views with the Rehearing Judge? 

(2)  Question 2: On an appeal by way of rehearing under section 113 Magistrates Ordinance (“MO”), read with the statutory right to be heard and reply under section 118 MO and common law fairness, does an Appellant have a right to an oral hearing on the determinative evidential issues - such that, where the outcome turns materially on CCTV / video evidence and rival interpretations, the Rehearing Judge must permit counsel to play the relevant footage in court and to take the Rehearing Judge through it orally with contemporaneous explanations and exchange of views with the Rehearing Judge, subject to reasonable case-management limits? 

(3)  Question 3: Is it a misconstruction of the statutory rehearing and / or a denial of procedural fairness for the Rehearing Judge to treat the judge’s own private viewing of CCTV in chambers as an adequate substitute for the foregoing oral process, and then to resolve contested factual issues by adopting the Rehearing Judge’s own interpretation of the footage? 

7.  In gist, Mr Khattak for the Applicant essentially submits that for rehearing purpose on appeal, whether the Appellant has a right or is allowed to play the CCTV in court so that contemporaneous explanations can be made to the court instantly instead of Judge’s private viewing in chambers as a substitute for oral process in court. Mr Khattak further submits that in a case turning on CCTV, an oral walkthrough of the footage is the best method by which counsel can present the case effectively and allow the court to understand precisely what is being submitted.

8.  The Applicant also relies on the UK Supreme Court in Osborn v Parole Board [2013] UKSC 61 affirmed an oral hearing, in which counsel can take the decision-maker through the footage and can materially reduce the risk of factual misapprehension.

9.  For rehearing purpose, Mr Khattak submits that how CCTV is viewed and presented is part of the adversarial process and should not be dealt with unilaterally, “hearing the parties” necessarily includes hearing their oral submissions on what the footage does or does not show, in the medium in which that evidence exists.

10.  The Applicant also refers to a Bermuda Court of Appeal case, which stated that CCTV evidence can be “extremely full” and that it was for the jury to determine whether the prosecution’s account of the footage was well founded. In Kiari Tucker v The Queen (Criminal Appeal No 6 of 2019), the replaying of CCTV exhibits in open court was the preferred approach, and where determinative issues depend on contested inferences drawn from dynamic footage, an oral, adversarial walkthrough is often essential to the practical enjoyment of the statutory right to be heard.

11.  The Applicant finally says and recognizes that CCTV may be of poor quality and that findings drawn from it can be unsafe if the footage is not carefully evaluated in an adversarial setting.

Respondent’s Reply

12.  On question 1, the Respondent submits that well before the appeal hearing, the Applicant had already filed full written submissions with reply totaling 73 pages together with 114 pages of screenshots. The transcript of the appeal hearing shows that the Judge was well aware of the arguments advanced and that there was no misunderstanding or ambiguity requiring further submissions. Importantly, the Judge was not obliged to engage in further discussion with counsel about every aspect of his consideration of the matter, nor, in discharging the duty of rehearing, to invite further submissions on each point of disagreement before reaching a final decision. In the present case, the Applicant had already made known his arguments in extreme detail in the submissions.

13.  In HKSAR v Modern Terminals Limited HCMA 680/2016, the Court held that a Judge may view CCTV footage independently and reach his or her own conclusion on it, without requiring further submission from counsels on every point of disagreement before a final decision can be made:

“47. In my view, the CCTV footage was a formal exhibit in the trial and was there for everyone to view and comment. The fact that a magistrate disagrees with a particular opinion of an expert witness and comes to his or her own conclusion in his final analysis based on an open evidence such as an expert report or CCTV recording is just a common occurrence in any trial process and it certainly does not call for further submission from counsels on every point of disagreement before a final decision can be made. The complaint by the appellant for lacking of opportunity to address the court on the matter is therefore not justified.”

14.  On question 2, the Applicant argues that the Rehearing Judge must permit counsel to play the CCTV evidence in court, take the Rehearing Judge through it orally with contemporaneous explanations and exchange views with the Rehearing Judge. However, as extreme detail about the CCTV evidence had already been submitted and the Applicant also did not raise any complaint of the Judge’s understanding of the Applicant’s submissions, and in fact the Judge already gave detailed descriptions of what he understood from all the materials submitted. Therefore, the Respondent submits that the Applicant has misplaced reliance on the authorities cited in support.

15.  On question 3, it is again on whether the Rehearing Judge must permit counsel to play the CCTV evidence in court. In this particular case, it was lawful and fair for the Judge to rely on his own private viewing of the CCTV footage. Neither section 113 nor section 118 of the MO, nor common law fairness, confers any absolute right on the Applicant to an oral adversarial walkthrough of the footage in open court. Given the detailed written submissions and screenshots filed and the Judge’s clear appreciation of the Applicant’s case, the Applicant has been fully heard on the issues. The Judge’s adoption of his own assessment of the CCTV when resolving contested issues did not amount to any misconstruction of the statutory rehearing or denial of procedural fairness.

16.  To conclude, the questions do not involve any point of law of great and general importance and are not reasonably arguable. The Applicant’s application should be refused.

Applicant’s Reply

17.  In reply, the Applicant further relies on R v Parole Board ex parte West [2005] 1 WLR 350 where the Court stated that:

“Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important ... Therefore, a recipient must be allowed to state his position orally...”

18.  The Applicant emphasizes that oral hearing is critical for the Rehearing Judge to know the points which were troubling the Rehearing Judge so that he could mold his argument to the issues the Rehearing Judge appeared to regard as important.

19.  Further, it is submitted that written submissions and screenshots were not an equivalent substitute, and that a short, counsel-led playback during the hearing is critical.

20.  Lastly, the Applicant submits that the proposed point is not academic as the Rehearing Judge’s own observations became central to the result. And that the law points raised is of great and general importance as CCTV, mobile-phone recordings now feature routinely in criminal trials and appeals. The point is thus not fact-specific.

Consideration

21.  Section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, provides: 

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that a substantial and grave injustice has been done.”

22.  Further, the point of law raised shall be reasonably arguable (see HKSAR v Fong Kwok Shan Christine FAMC 29/2016).

23.  Firstly, on question 1, it essentially concerns whether the Appellant is allowed to take the Court through the footages orally with contemporaneous explanations. Obviously, what was raised was simply a practice rather than law, this is clearly not a case where the Court is unclear or unfamiliar with the Applicant’s case. Instead, the Applicant had already made know his case and arguments in his very comprehensive and lengthy written submissions with more than 100 pages of screenshots. From which, substantial submissions had been made on different timestamp with detail descriptions already, there is simply no point to repeat the same exercise in Court. The question raised is clearly not reasonably arguable.

24.  On question 2, it concerns the rehearing exercise whether the Appellant has a right to make oral submission on determinative evidential issues. However, at the appeal hearing, it can be readily seen from the transcripts that the Court had already taken steps in detail to confirm and clarify the Appellant’s submission, it was not a case where the Appellant was not allowed to make any submissions, it was only on playing CCTV again in Court that was not necessary as the Court had already viewed numerous times in chambers before the hearing. The point raised is just on case management exercise and that is clearly not reasonably arguable.

25.  On question 3, it is simply a repetition on questions 1 and 2. The question raised is just fact sensitive and only concerns case management exercise, which is again not reasonably arguable nor of any great and general importance.

26.  As all the questions raised by the Applicant are not reasonably arguable nor of great and general importance, the application shall be dismissed accordingly.