HKSAR v. PAK WING BUN

CACC 38/2017

[2018] HKCA 150

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

______________

1.  The 3^rd applicant seeks leave to appeal against his conviction 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.

The 3^rd applicant’s grounds of appeal against conviction

2.  By ground 1 of the grounds of appeal against conviction, Mr M K Wong SC submitted that the judge erred in law in ruling that the appropriate test to determine whether the 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.” [1] That being a matter of law only, the leave of this Court was not required.

3.  Mr Wong acknowledged on behalf of the 3^rd applicant that grounds 2, 3 and 6 were grounds that had been argued by the 1^st, 2^nd, 4^th and 7^th applicants and determined by this Court not to be reasonably arguable.  In those circumstances, whilst adopting the submissions advanced in support of those grounds, Mr Wong advanced no further submissions to the Court.

4.  In respect of ground 4, Mr Wong said that much of the argument that he sought to advance had been advanced on behalf of the 1^st, 2^nd, 4^th and 7^th applicants and determined by this Court not to be reasonably arguable.  However, he sought to advance a separate, discrete submission in support of that ground.

5.  By ground 5, it was submitted that the judge had erred in not exercising his discretion to exclude evidence of the video footage and the photographs, in particular having regard to the failure of the prosecution to produce the originals and to lead evidence as to the provenance and history of the exhibits adduced into evidence.

6.  By ground 7, it was contended that the judge had erred in himself identifying the 3^rd applicant from the TVB and Apple Daily video footage of the assault at the substation by reference to the T‑shirt and gloves worn by one of the assailants.  The judge erred in so identifying the 3^rd applicant by comparing that material with the clothing worn by the person identified, as the 3^rd defendant, by Chief Inspector Chung in other video footage and photograph, exhibit P 13, together with his own identification of that person in other video footage and the moving photograph in the Apple Daily video footage.

7.  By ground 8, it was submitted that the judge erred in accepting Tsang’s evidence identifying himself in the video footage and photographs, exhibits P 12 and P 13.  Further, it was contended that the judge erred in identifying Tsang himself by reference to his clothing as the person being assaulted at the substation.

8.  By ground 9, it was submitted that the judge erred in accepting Tsang as a credible and reliable witness.

9.  In his written submissions Mr Wong said that the 3^rd applicant abandoned grounds 8 and 9, by which issue was taken with the judge’s determination to accept the evidence of Tsang and grounds 6.3 and 7.4, in which issue was also taken with the evidence of Tsang.

10.  In his oral submissions, Mr Wong confirmed that no issue was now taken with acceptance by the judge of the evidence of Tsang.  Mr Wong advanced oral submissions in respect of grounds 4 and 7 only.  He confirmed that in respect of the latter ground issue was taken only with the judge’s finding that the 3^rd applicant participated in the assault on Tsang at the substation.  He said that no issue was taken in respect of the judge’s findings that the 3^rd applicant was depicted in the video footage in addition to the video footage in which he had been identified Chief Inspector Chung and his finding that he was identified in the moving photograph in the Apple Daily video footage.

11.  Acknowledging that the points had not been canvassed with the judge at trial, Mr Wong suggested that the error of the judge in identifying the 3^rd applicant in the video footage of the assault at the substation, in part by reference to his striped T‑shirt, was evidenced by noting that the gap between the sets of pink stripes on the grey T‑shirt of the man identified as the 3^rd applicant in the video footage of the assault was wider than that discerned on the T‑shirt worn by the 3^rd applicant in the moving photograph of Apple Daily and in photograph, exhibit P 13.  Also, he contended that a red stripe was discernible between the pink stripes in that material, whereas it was not discernible on the person identified by the judge as the 3^rd applicant in the video footage of the assault.

12.  In respect of ground 4, Mr Wong submitted that the judge erred in relying on his determination that the TVB video footage was prima facie authentic in determining that the Apple Daily video footage and the photographs, exhibits P 12 and P 13 were prima facie authentic.  He submitted that in doing so the judge failed to direct himself in accordance with the judgment of the Court of Appeal of Northern Ireland in R v Murphy [2] and the ruling of a judge of the Crown Court in Northern Ireland in R v Quinn.[3] Mr Wong relied on a passage in the judgment of Kelly LJ in R v Murphy in which, having observed that authenticity may be proved circumstantially, Kelly LJ said of video films:[4]

“ The film may be proved authentic by comparing it with films taken by others 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 event that is authentic beyond doubt.”

13.  Also, he relied on the statement by the Crown Court judge in R v Quinn that “…it would be quite inappropriate to take two unauthenticated pieces of material and use either of them to authenticate the other.” [5]

Grounds of appeal against sentence

14.  In his grounds of appeal against sentence, Mr Wong submitted that the starting point for sentence identified by the judge of 30 months’ imprisonment was manifestly excessive and not supported by reference to any authorities.  Further, it was contended that in sentencing the applicant to 2 years’ imprisonment the judge had failed to have regard sufficiently to the multiple factors of mitigation available to the 3^rd applicant.

The respondent’s submissions

15.  For the respondent, in his submissions in respect of ground 4, Mr Leung SC invited the Court to note that the judge had addressed the same submission advanced in this court in his reasons for verdict.[6] The judge said that the observation of Kelly LJ in in his judgment in R v Murphy in context was qualified, namely by the statement “as in the instant case”, in stating that comparison was permissible “with a film of the same events that is authentic beyond doubt”, was an example only.  Mr Leung pointed out that the judge had gone on to find that “…the court was not, in my view saying for every comparison the authenticity of the footage compared with must be beyond doubt.”  Further, the judge had observed that he had not been invited to “compare unauthenticated footage and use either of them to authenticate the other.”  Rather, the judge noted that he had been asked by the prosecution “to find the TVB footage prima facie authentic then that footage could be compared with the other footage and photographs.” [7]

16.  In respect of the judge’s identification of the 3^rd applicant from the video footage of the assault at the substation, Mr Leung invited the Court to note that the judge had stated that he had approached identification of any of the applicants having directed himself of the “special need for caution”.[8]

17.  He pointed out that the issue now taken in respect of the details discernible on the T‑shirt worn by the 3^rd applicant had not been raised at all before the judge.  He invited the Court to note that the judge had identified the 3^rd applicant not only by reference to the T‑shirt, but also to his finding that the 3^rd applicant was wearing gloves, which finding was consistent with what was discernible of the 3^rd applicant in the video footage and photographs of the earlier stage of events,[9] together with the fact that he was the shortest of the group of assailants.

Sentence

18.  Mr Leung said that whilst the respondent submitted that the sentence of imprisonment imposed on the 3^rd applicant was neither manifestly excessive nor wrong in principle, but having regard to the fact that this Court had granted the 1^st, 2^nd, 4^th and 7^th applicants leave to appeal against their sentences, no further submissions were advanced at this stage in respect of the 3^rd applicant.

A consideration of the submissions

19.  For the reasons that I gave in the judgment in respect of the applications for leave to appeal against conviction of the 1^st and 2^nd applicants, adopted and repeated in the judgments in respect of the applications of the 4^th and 7^th applicants, I am satisfied that ground 1 of the grounds of appeal of the 3^rd applicant concerns an issue of law only, for which the leave of this Court is not required.

20.  For the reasons that I gave in the judgment in respect of the 1^st and 2^nd applicants I am satisfied that grounds 2, 3 and the remaining grounds of ground 6, which replicate the nub of grounds advanced in the earlier applications which I determined not to be reasonably arguable, are likewise not reasonably arguable.

Ground 4

21.  By ground 4 it was submitted that the judge erred in using the TVB video footage as a standard by which he made a comparison with video footage from Apple Daily and the photographs, exhibits P 12 and P 13 as a result of which comparison the judge determined that material to be prima facie authentic.

22.  In his written submissions, Mr Wong submitted that the judge did not find first the authenticity of the TVB footage proved beyond reasonable doubt and then use that determination to establish the prima facie authenticity of the Apple Daily footage, including the moving photograph, and photographs, exhibits P 12 and P 13.  This Court was wrong to have determined in the judgment in respect of the 2^nd applicant that the judge had determined the authenticity of the TVB video footage beyond reasonable doubt before determining whether or not there was proof of prima facie authenticity of other material.[10] Mr Wong invited the Court to note that the judge had conducted a voir dire to determine the admissibility of, inter‑alia, the video footage and the photographs and had given a ruling on 28 June 2016.

23.  Mr Wong submitted that at that stage the judge had not ruled that the TVB footage had proved to be authentic beyond reasonable doubt.  It was impossible for him to do so since evidence on the general issue had not been heard.  It was the gravamen of Mr Wong’s submission that the judge then fell into the error of using the TVB footage, in respect of which he had determined there to be prima facie evidence of authenticity, to establish the prima facie authenticity of the Apple Daily video footage, the moving photograph and the photographs, exhibits P 12 and P 13.

The judge’s analysis

24.  In his ruling in the voir dire, the judge said:[11]

“ I have carefully considered all the evidence and submissions of counsel. I find all the video footage, the photographs and CCTV recordings relevant and prima facie authentic. I rule all the video footage, the photographs and the CCTV recordings admissible in evidence, each video footage, each photograph and CCTV recordings considered separately.

I find no grounds to exercise my discretion to exclude from evidence any of the video footage, photographs or CCTV.”

25.  In the reasons for verdict, having adverted to the fact that he had held a voir dire and received evidence to determine the admissibility of the video footage and photograph, the judge said:[12]

“ I ruled all the video evidence, photographs and CCTV recordings admissible in evidence.”

26.  Of the evidence led in the voir dire, his analysis and findings the judge said: [13]

“ The prosecution called nineteen of twenty six witnesses from the list of witnesses submitted to court. The evidence of the other witnesses was admitted pursuant to sections 65B and 65C of the Criminal Procedure Ordinance and section 22A of the Evidence Ordinance. Three of these witnesses were tendered for cross‑examination. The defence elected to call no evidence.

The evidence was heard over ten days. Submissions lasted four days. Having carefully considered all the evidence and the submissions of counsel I found all the video footage, photographs and CCTV recordings relevant and prima facie authentic.

I considered each video footage, each photograph and the CCTV recordings separately.  I found no grounds to exercise my discretion to exclude from evidence any of the video footage, photographs or CCTV recordings.”

27.  The judge said of the TVB video footage that it was “contained on one disc (exhibit P1) and consists of eight videos (a)‑(h).  The footage was downloaded by the police between October 2014 and September 2015 from YouTube and news.tvb.com”.[14]

28.  Of the three witnesses from TVB called by the prosecution, the judge noted that Sum Ka Hung was “a senior technician in the news ingestion Department”, that Lam Ka Yu “was a senior librarian” and that David Wong was “the news production manager”.  The effect of their evidence was that transmission from cameramen in the field was transmitted to TVB were it was “…automatically recorded (ingested) onto the server exclusively used by the news department.”[15] Then, staff members of the library, of whom Mr Lam was one, “would burn the footage to Blu-ray discs” and in doing so “the rewritable function of the disc would be disabled”.[16]   On 15 October 2014, Mr Lam “burnt onto Blu-ray discs” transmission which had been received from cameramen entitled “lungwo.live” and “lungwo.topshot.live.”  Then, those disc was stored in the library.

29.  On 20 January 2016, David Wong retrieved those discs and compared the footage with that downloaded by the police officers as described earlier.  David Wong identified the TVB logo, “which is automatically added when the footage was uploaded to the TVB News App”, on exhibit P1 (a).  The judge said that David Wong testified that “…apart from certain blocked shots which were missing, the video footage on (a) had not been edited.”  The “blocked shot” was the description used by David Wong of the fact that video footage of Tsang and the group of men accompanying him was interrupted for 49 seconds as the video film of their progress was “blocked” by the intervening presence of a van.  David Wong testified that the other videos were the same or parts of the same video footage as P1 (a).

30.  In the result, the judge said: [17]

“ I was satisfied, if believed, that the evidence of Mr Sum; Mr Lam and David Wong was sufficient to prove the authenticity of the TVB footage beyond reasonable doubt. I therefore ruled the TVB footage prima facie authentic and admissible in evidence.”

31.  In addition, having noted that Tsang had said that the TVB video footage P1 (b) and P1 (c) was “consistent with his recollection of the events that night” and that Tsang had identified himself as the person being carried in TVB video footage P1 (h), the judge said “I was satisfied that the evidence of Tsang, if believed, was also sufficient to prove the authenticity of the TVB footage beyond reasonable doubt.”[18]

Apple Daily video footage

32.  Of his reasons for determining in his ruling at the conclusion of the voir dire that the Apple Daily video footage was prima facie admissible in evidence, the judge said that when it was played to Tsang he “…confirmed the footage was consistent with his recollection of the events that night.”

33.  Then, the judge said:[19]

“ I was satisfied, if believed, that the evidence of Tsang was sufficient to prove the authenticity of the Apple Daily footage beyond reasonable doubt. I therefore ruled the Apple Daily footage of the assault prima facie authentic and admissible in evidence.”

34.  Next, accepting the submission of Mr Leung, the judge said:[20]

“ I was satisfied, if believed, that the Apple Daily footage of the assault at the substation was identical to the TVB footage and was filmed by a different camera, this was also sufficient to prove the authenticity of the Apple Daily footage beyond reasonable doubt.”

35.  Of what he described as the ‘moving photograph’ taken from the Apple Daily video footage, the judge said:[21]

“ I was satisfied, if believed, that the clothing and appearance of the persons were the same as in the TVB footage or the still photographs, this was sufficient evidence to prove the authenticity of the moving photograph beyond reasonable doubt. I therefore ruled the moving photograph prima facie authentic and admissible in evidence.”

36.  Having noted that Tsang testified that photograph, exhibit P 12 depicted him as he was walking with the group of police officers and photograph, exhibit P 13 depicted him as he was being carried facedown by them, the judge said:[22]

“ I was satisfied, if believed, that the evidence of Tsang was sufficient evidence to prove the authenticity of the two photographs beyond reasonable doubt. I therefore ruled the two photographs prima facie authentic and admissible in evidence.”

37.  Although the judge noted that it had been submitted by the prosecution that “…the photographs matched what was captured in the TVB footage” [23], the judge made no such finding in his determination that the two photographs were prima facie authentic.

The judge’s determination that authenticity was established beyond reasonable doubt

38.  Then, the judge addressed the submissions that went to the issue of whether or not the judge was satisfied that the authenticity of the TVB video footage was established beyond reasonable doubt.  Having addressed those submissions at length, the judge concluded:[24]

“ I accept the evidence of Mr Sum; Mr Lam; and David Wong. Having carefully considered the evidence and viewed the footage I am satisfied there are no signs of tampering or discontinuity which cause me to doubt the authenticity, accuracy and integrity of the TVB footage. I find the prosecution have proved the authenticity of the TVB video footage beyond reasonable doubt.”

39.  Also, the judge said that he was satisfied from Tsang’s evidence that the TVB video footage “was consistent with his recollection of the events that night” was the evidence upon which he was satisfied that the authenticity of the TVB video footage was proved beyond reasonable doubt.[25]

40.  Then, having said that he agreed with the submission of the prosecution “…that the content of the TVB footage P1 (a) and 42 seconds is identical to the Apple Daily footage P2 (d)” the judge said:[26]

“ On this evidence I find the prosecution proved the authenticity of the Apple Daily footage beyond reasonable doubt.”

41.  Finally, the judge said:[27]

“ I am satisfied in determining whether the moving photograph in P2 (c) is authentic I can compare this with the TVB footage and the still photographs to see if the images are consistent. Notwithstanding Tsang is not seen in the moving photograph, I am satisfied by looking at the clothing and appearance of the persons, the moving photograph shows the time when Tsang was being carried face down.

This is the same time as in the photograph exhibit P13 and shortly after the police officers escorted Tsang as seen in the TVB footage P1 (b), (d) & (h) between 5-15 seconds and (g) between 02:47-02:55 and the photograph exhibit P12.  Having carefully considered the evidence and viewed the footage and photographs, I find the prosecution have proved the authenticity of the moving photograph beyond reasonable doubt.”

Discussion

42.  Clearly, the judge determined the TVB video footage and the Apple Daily video footage to be prima facie authentic in the voir dire.  He did so in sequence.  First, for the two separate and distinct reasons he gave, he made that determination in respect of the TVB video footage.  Then, for the two separate and distinct reasons he gave, he made that determination in respect of the Apple Daily video footage.  The second of those reasons was a reliance on the fact that video footage was identical to that of the TVB video footage, albeit taken by a different camera.

43.  The judge’s determination that he was satisfied beyond reasonable doubt of the authenticity of the TVB and Apple Daily video footage was made in his subsequent consideration of the general issue.  The statement in my earlier judgment that the judge had determined beyond reasonable doubt that the TVB video footage was authentic before determining that the Apple Daily video footage was prima facie authentic was incorrect.[28] On the other hand, he had made that determination before determining beyond reasonable doubt that the Apple Daily video footage was authentic.

44.  In his consideration of the Crown Court judge’s ruling in R v Quinn the judge said “the concerns expressed by the trial judge… are valid concerns in any case where footage is obtained from YouTube or other open source.”[29] The context in which the judge made that observation was the fact that the material had been downloaded by a police officer from YouTube and nothing more was known of its provenance.  Having noted that the video footage was “… two quite separate and distinct pieces of film” the judge said:[30]

“ In my view it is of significance that neither cameramen nor any of the sources of this material has been identified, despite the fact that there were quite clearly two cameramen.”

Also, the judge noted that no enquiries whatsoever have been made “to identify the source of the material.”

45.  That, as the judge clearly understood, was the particular and peculiar context in which the Crown Court judge said “…it would be quite inappropriate to take two unauthenticated pieces of material and use either of them to authenticate the other.”[31]

46.  Those circumstances were wholly different from those which obtained in this case.  Here, there was a substantial body of evidence of the provenance and history of the TVB video footage.  The judge had received evidence from no fewer than three TVB witnesses as to the provenance of the video footage contained on the Blu-ray discs.  Further, having compared the material downloaded by the police officer from YouTube and News.tvb.com with that on the Blu‑ray discs David Wong determined it to be the same, with his reservations about the ‘blocked’ shot.

47.  In my judgment, it is not reasonably arguable that the judge erred in rejecting the submission that the statement by Kelly LJ in R v Murphy was to be understood as requiring proof beyond reasonable doubt of the authenticity of one video film before regard could be had to it in the context of whether or not another video film was prima facie authentic.  Clearly, Kelly LJ’s reference to “as in the instant case” was to the fact that in that case, as he went on to state, the authenticity of the Heli‑tele film, which was taken by British military photographers, was established beyond reasonable doubt.

48.  But, as noted earlier, in any event the primary reason that the judge gave for determining that there was evidence that the Apple Daily video footage was prima facie authentic was the evidence of Tsang that the video footage was consistent with his recollection of events that night.

Conclusion

49.  I am not satisfied that it is reasonably arguable that the judge erred in relying on the substantial evidence that the TVB footage was prima facie authentic, it being identical to the Apple Daily video footage, as one basis for determining that the Apple Daily video footage was prima facie authentic.

Judge’s identification of the 3^rd applicant in the video footage of the assault

50.  There is force in Mr Leung’s objection that the submissions as to the details of the 3^rd applicant’s T‑shirt are not properly made for the first time to this Court.  They ought to have been made, if at all, to the judge, as the fact finder.   Then, the judge could have dealt with the matter and this Court would have the benefit of his findings.  This Court does not perform a fact‑finding role.

51.  On the other hand, it is clear that the judge’s identification of the 3^rd applicant as a participant in the assault at the substation relies significantly on his identification of two items of clothing only, namely the T‑shirt and a pair of gloves, together with an observation as to the relative height of that person as compared with others in the group.  Although the judge made no observation as to the relative height of the 3^rd applicant amongst the group of men depicted in earlier parts of the events, it appears that the significance of the last observation is that the 3^rd applicant is clearly the shortest of the group of men, for example in photograph, exhibit P 12.  On the other hand, there is no dispute that a number of police officers were wearing gloves as they perform their duties that night.

Conclusion

52.  In all the circumstances I am satisfied that it is reasonably arguable that the judge erred in identifying the 3^rd applicant is a participant in the assault on Tsang.

Sentence

53.  I am satisfied that there are reasonably arguable grounds of appeal that the sentence of 2 years’ imprisonment imposed on the 3^rd applicant is manifestly excessive.

Conclusion

54.  For the reasons set out earlier, the 3^rd applicant may appeal to the Full Court on ground 1 without the leave of this Court.  I grant the 3^rd applicant leave to appeal on ground 7, but refuse his application for leave to appeal on all the other grounds of appeal against conviction.  I grant the 3^rd applicant leave to appeal against sentence.

55.  The 3^rd applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Full Court on the grounds on which leave has been refused, but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

[1] Reasons for verdict, paragraph 47.

[2] R v Murphy [1990] NI 306.

[3] R v Quinn [2010] NICC 27.

[4] R v Murphy, page 342 F-G.

[5] R v Quinn, page 10.

[6] Reasons for verdict, paragraphs 65 and 66.

[7] Reasons for verdict, paragraph 66.

[8] Reasons for verdict, paragraph 424.

[9] Reasons for verdict, paragraphs 489-490.

[10] HKSAR v Lau Cheuk Ngai (CACC 38/2017; unreported, 1 February 2018) at paragraph 46.

[11] Appeal Bundle, pages 1060-1061.

[12] Reasons for verdict, paragraph 11.

[13] Reasons for verdict, paragraphs 26-28.

[14] Reasons for verdict, paragraph 90.

[15] Reasons for verdict, paragraph 94.

[16] Reasons for verdict, paragraph 99.

[17] Reasons for verdict, paragraph 118.

[18] Reasons for verdict, paragraph 119.

[19] Reasons for verdict, paragraph 172.

[20] Reasons for verdict, paragraph 174.

[21] Reasons for verdict, paragraph 176.

[22] Reasons for verdict, paragraph 226.

[23] Reasons for verdict, paragraph 227.

[24] Reasons for verdict, paragraph 164.

[25] Reasons for verdict, paragraph 165.

[26] Reasons for verdict, paragraph 181.

[27] Reasons for verdict, paragraphs 182-183.

[28] HKSAR v Lau Cheuk Ngai, paragraph 46.

[29] Reasons for verdict, paragraph 60.

[30] R v Quinn, page 8.

[31] R v Quinn, page 10.