HKSAR v. LAW WAI KIN

HCMA594/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.594 OF 2000

(ON APPEAL FROM TWCC 3788 OF 1999)

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J U D G M E N T

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The particulars of the appeal

1. The appellant was charged with one count of assaulting a Customs and Excise officer, and one count of possessing infringing copies of copyright for the purpose of trade or business. The appellant denied the charges and was convicted after trial. The defendant was sentenced to a term of nine months for the offences. He sought to appeal against the conviction.

The prosecution's case

2. At the trial, the prosecution had called a total of five witnesses. The appellant gave evidence himself and called no defence witness.

3. PW1 was the main witness for the prosecution. He went to the vicinity of the shop in question and conducted observation there. He said he saw the appellant sitting on the left hand side of the shop in front of a small table, upon which there were some VCDs and plastic advertising covers. PW1 said that he saw the appellant packaging the VCDs, which were infringing copies. He then approached the appellant and showed him the warrant card. He held the appellant by his left elbow to prevent him from leaving the shop, but the appellant assaulted him. The appellant was finally subdued. He said that only himself and PW2, his colleague, were involved in subduing the appellant. When he was observing the appellant, PW1 said that he also saw another male who was sitting on the right hand side in the shop.

4. PW2 gave evidence and said that he had entered the shop also. He was there for about one minute when he heard someone say that he was a customs officer. He saw the appellant assaulting PW1 in the corridor. He went up to assist PW1 to subdue the appellant. He confirmed that only two officers helped to subdue the appellant although other officers did come to the scene.

5. PW3 was mainly responsible for arresting Yeung who was the other person being present inside the shop. He testified that when he saw PW1 and PW2 trying to subdue the appellant, he went up to offer help. He was the one who gave the handcuffs to PW2. He agreed that Yeung stated in his record of interview that he was inside the shop because he had an appointment to meet the appellant. PW3 could not explain why Yeung was not charged.

6. PW4 was the exhibit officer. He seized the VCDs but not the folding table nor the packaging plastic bags. He did provide assistance to his colleagues.

7. As to PW5, he was the inspector-in-charge. He visited the scene after the arrest of the appellant and Yeung. He was the one to collect the video tape which was taken by the CCTV cameras. He found that the tape was not very clear, and as he considered that there was no evidence against Yeung, he had decided to release him. At the trial, he had produced the original copy of the video tape. He admitted having made a copy from this master tape and gave it to the appellant before the trial. He denied in the cross-examination that he had tempered with the copy given to the appellant.

The defence case

8. The appellant also gave evidence. He said that at the material time, he was employed in the funeral services business. On the day in question, he went to the shop after work in order to meet his friend Yeung. He said he also wanted to purchase some VCDs. At the time, he was about to eat a bowl of noodles. When PW1 approached him, he thought PW1 was going to steal his gold bracelet and gold ring. He said he was hit on the head by the officer, then he lost his balance and fell down.

The two copies of the video tape

9. Depending on the contents and quality of the image, a video recording by CCTV cameras could be useful and reliable evidence of what had truly taken place at the scene. In the present case, the master tape was seized by PW5 and a copy was made from it which was then given to the appellant. As the learned magistrate had noted, it was used extensively by the defence in the cross-examination of the prosecution witnesses. The appellant also referred to it during his evidence-in-chief. Originally the defence copy was being used but the picture quality was not good. However, by using the master tape and the video player provided by the prosecution, the quality of the images improved.

10. The learned magistrate acknowledged that there was a material discrepancy between the contents of the two copies. She had made the following observations in her Statement of Findings :

"... The original CCTV also showed a person accepted to be the Appellant with his leg raised up to the top of the thigh of PW1. This could not be seen on the Appellant's copy. No expert explanation was given for this anomaly. It is suggested by the prosecution that this was due to the quality of the CCTV and the manner in which it records namely by intermittent photographs.

The CCTV was not particularly clear. There were 4 separate frames shown on the screen at any one time, and 2 separate cameras were used on each frame. A photo was taken every few seconds, I was not told how frequently, and two cameras were used for each frame, and the view on the frame changed intermittently between the two cameras. Again I was not told how frequently. Camera 8 showed the corridor at the side of the shop, camera 4 showed the corridor at the front of the shop." (see pages 27 and 28 of the transcript)

11. What seemed to be difficult to understand was that whatever the angles of the cameras and the intermittent nature of the recording, there should not be any difference between the two copies. The defence copy was supposed to be, as I understood it, a duplicate of the master copy. The contents should therefore be the same. Despite this anomaly, the learned magistrate considered that the video recording was still very useful evidence. She said :

"The CCTV was not very clear as each camera only takes a photo every few seconds, and the views from two cameras are interchanged intermittently. However it was still very useful evidence."

The evaluation of evidence

12. There were no details given in the Statement of Findings regarding how the appellant had assaulted PW1. Obviously the learned magistrate had relied on the contents of the video evidence, which showed that the appellant had raised his leg against PW1's upper thigh. But this was only shown on the master tape, not on the defence copy.

13. The learned magistrate had further relied on what she saw on the video tape to reject the appellant's main defence that he was merely a visitor there. She stated that :

"... There is no video footage of the Appellant talking or chatting to this person, or of this person moving or being approached by any purchasers. There is no video footage of the Appellant spending any time looking at the VCDs in the shop he had gone to visit nor any other shop. He places himself sitting for relatively long periods of time at the table with his arm by his knee, getting up and visiting other premises for relatively short periods of time, and talking to another person for a relatively long period of time. His conduct on video was more consistent with a person who was working at the shop than a person who was visiting. ..."

14. In a way, whether Yeung was charged was irrelevant to the appellant's case, however, the learned magistrate found that :

"Mr Yeung was not charged because he was not seen doing anything apart from sitting next to the plastic cash box."

15. As to the discrepancies between PW1 and PW2's evidence about how many officers were involved in subduing the appellant, the learned magistrate again referred to the video and made a finding. She stated :

"... However PW1 and PW2 would have been primarily involved and it would not be surprising if PW1 in particular was unaware of the officers who came along to assist. It is not clear from the CCTV exactly what the other officers did. It is not surprising that other officers did come by as there were in the region of 50 Customs Officers in the shopping centre at that time. Such discrepancies, in my judgment, in no way affected the required standard of proof. ..."

16. At the end, the learned magistrate said that she was satisfied that PW1 saw the appellant had packed the VCDs at the table and that the appellant had assaulted PW1 when he was intercepted. She found that the appellant was working at the shop selling infringing copy VCDs.

17. Apparently, the learned magistrate had relied on the prosecution copy of the tape to support her finding that the appellant had assaulted PW1; she also relied on the contents of the tapes to reject the appellant's defence.

The basis of the magistrate's decision

18. Regarding the acts of assault as shown in the tape, the learned magistrate recognized that no expert explanation was given for the anomaly as to why it could be seen in one but not the other tape. At the trial, the defence submitted that they were given a copy which had been tempered with. At the appeal hearing, the respondent argued that the defence could have tempered with it themselves. However, the learned magistrate did not state very clearly how she had resolved the matter.

19. If the learned magistrate had rejected the reliability of the contents of the video tapes, due to their poor quality and the intermittent nature and/or other reasons, she would be fully entitled to consider the case on the basis of the oral evidence alone. However, as she had relied on one copy to conclude that the appellant had assaulted PW1, then one would have thought there should be a clarification about the situation. On the other hand, if the other contents of the tape could be used to discount the appellant's evidence, it was not clear from the Statement of Findings whether the learned magistrate had considered the point raised by defence counsel in his final submission at the trial that the contents of the video seemed to contradict PW1's evidence about his observation of the appellant's conduct at the scene.

20. I also found it questionable whether the appellant's conduct as shown in the video could really give rise to no other inference except that he was working there. As the appellant argued in his letter to the court, if he was really working there, he should not be walking about to the other shops and spoke to other people as the learned magistrate had referred to. He pointed out that as Yeung was sitting there throughout next to the cash box, such conduct would be consistent with him being a worker there instead.

21. In any case, the appellant claimed that he was being assaulted instead of him assaulting the officer. His medical report did disclose some injury in the form of multiple red marks. I did not know how the learned magistrate view this piece of evidence as she had not referred to them in her judgment or the Statement of Findings.

The clear record of the appellant

22. When I was reading the supplied transcript in this case, I noted one point that required mentioning. When the learned magistrate began to give her oral judgment, she said she had taken into account the appellant's clear record in considering the evidence. At that juncture, the prosecutor interrupted the magistrate and, in effect, challenged the basis of the magistrate's comment. Obviously, there was some misunderstanding on the part of the learned magistrate as to the appellant's record situation.

23. However, even if the learned magistrate had made an error about this in her judgment, I believe the prosecutor should not interfere in such a way. Apart from the question of courtesy to the court, the manner of the challenge would imply that the appellant was not a person with clear record. The learned magistrate then made the remarks "Well, it does not matter", "Leave it, all right ..." and she continued to give her judgment. The transcript of the remainder of the proceedings were not provided and I did not know whether counsel had taken up this matter subsequently. But it was not dealt with by the learned magistrate again in the judgment or the Statement of Findings. It would have been desirable if the learned magistrate had indicated that her decision was not in any way prejudiced by what had taken place.

The conclusion

24. I was keenly aware that the learned magistrate's findings of facts and determination of credibility of witnesses should be respected as she had seen and heard the witnesses, not me. Although the appellant's conduct was extremely suspicious at the scene, in the present case, with the questionable contents of the video tapes and other matters not being resolved, I had to conclude, albeit with some reluctance, that the conviction was unsafe.

25. In the circumstances, I would allow the appeal. I would quash the conviction and set aside the sentence.