HKSAR v. LAU HING PUI

CACC 38/2017

[2018] HKCA 99

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)

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J U D G M E N T

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1.  The 4^th 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 him on 17 February 2017 in consequence of that conviction.

The trial

2.  The 4^th applicant, a police constable in the Hong Kong Police Force, was jointly charged with six other police officers with causing grievous bodily harm with intent to Tsang (Charge 1).  All seven defendants were acquitted of that charge, but all of them were convicted of the alternative offence of an assault occasioning actual bodily harm to Tsang. 

The prosecution case

3.  On the night of 14/15 October 2014 a significant body of police officers cleared protesters of the Occupy Central Movement.  All the defendants, save for the 4^th defendant were members, of Quick Response Team A 2-2.  During the night the 4^th defendant was re‑assigned to that team by the 2^nd applicant.  As the judge noted “Part of what happened that night was captured on video by TVB, Apple Daily, ATV and Now TV and the police video teams.  Photographs from Apple Daily and Oriental Daily also showed Tsang being escorted and carried facedown.”

4.  It was the prosecution case that Tsang had poured a liquid from a position that he occupied on a planter located above the underpass on Lung Wo Road as police officers passed through the underpass.  Having been intercepted and arrested by uniformed police officers, he was handed over to a party of a total of six police officers of which the 4^th applicant was a member.  Subsequently, they were joined by a seventh police officer.  Rather than being taken to the place at which other detainees were transported from the area by vehicle, the police officers took him to the Lung Wui Road Government Building Pump Station East Substation.  There, the defendants assaulted Tsang.

5.  The judge noted that the defence objected to the admissibility of the video footage and photographs on the grounds that there was “…no or no sufficient evidence as to the origin of the videos and photographs; that the videos and photographs had not been tampered with; the provenance and history of the photographs”. Also, the defence invited the judge to exercise his discretion to exclude the evidence.  Having conducted a voir dire, the judge ruled that material admissible in evidence at the trial.

The defence case

6.  None of the defendants gave or called evidence in the defence case at trial in either the voir dire or the general issue.  It was the 4^th applicant’s case, as advanced in cross‑examination and submissions, that there was insufficient reliable evidence to permit identification of the 4^th applicant as a member of the group of persons depicted in video footage assaulting Tsang at the substation and as a party to that enterprise.  It was contended in the written closing submissions that “…even if this Court finds from its own viewing of P 12 that the facial features are one (sic) of the males do resemble D4” it only went to show that he may have participated in the escort of Tsang at an earlier stage prior to the assault but “cannot be evidence of his later participation… in the subsequent assault.” ^[1]

Grounds of appeal against conviction

7.  By ground 1, Mr Duncan SC submitted that the judge had erred in ruling that the admissibility of the video footage was to be determined on the basis of whether the circumstantial evidence, if believed by the jury, would be sufficient to prove the authenticity of the video footage beyond reasonable doubt.  It was contended that this ground involved a question of law only and that, pursuant to section 82(2)(a) of the Criminal Procedure Ordinance, Cap. 221, the leave of this Court was not required.

8.  By ground 2, it was submitted that the judge had erred in identifying the 4^th applicant as having participated in the assault on Tsang.  First, no prosecution witness had testified that he had seen the 4^th applicant at the scene or was able to identify him, by virtue of his familiarity with the 4^th applicant, in the video footage or photographic material.  Secondly, the judge’s identification of the applicant as participating in the assault on Tsang at the substation was manifestly unsound.  It was based on the judge’s recognition of the 4^th applicant in some of the video footage and photographs from the judge’s view of the 4^th applicant during the trial.

9.  The judge’s finding that the 4^th applicant was one of the group of persons escorting Tsang at earlier stages in the journey to the substation, in particular his finding that the person was wearing light‑coloured trousers and that he appeared to be carrying Tsang’s right leg, was an insufficient basis thereby to identify the 4^th applicant as present in the group of persons assaulting Tsang at the substation.  The video footage was not continuous.  There was a gap in the TVB video footage of 49 seconds between the film of the earlier stages in the journey and the video footage of the arrival of the group of men at the substation where Tsang was deposited on the ground.  Having regard to the chaotic conditions and the poor lighting conditions, it was unsafe for the judge to find that the person wearing light‑coloured trousers at the substation was the person wearing light‑coloured trousers in the earlier stages of the journey, whom he had identified as the 4^th applicant.

Grounds of appeal against sentence

10.  It was submitted that the sentence of 2 years’ imprisonment imposed by the judge on the 4^th applicant following his conviction of assault occasioning actual bodily harm to Tsang was manifestly excessive.

The respondent’s submissions

Conviction

11.  For the respondent, Mr David Leung SC said that, whilst the respondent submitted that “authenticity was not a question of admissibility is a matter of law”, on the basis that this Court had determined in the judgments in respect of the 1^st and 2^nd applicants that the issue of the appropriate standard of proof of primary facing authenticity of the video footage was a matter of law alone, the respondent was content not to oppose the submission that leave of this Court was not required.

12.  Of the submission that the video footage was not a continuous recording of the material events, Mr Leung invited the Court to note that the judge had addressed the same submission at trial:^[2]

“ …the video footage, whilst not continuous, shows the events of that night; but the images depicted have not been altered or changed; and the true sequence of events is that the relevant shot is followed by the first shot and then the second shot.”

Sentence

13.  In respect of the application for leave to appeal against sentence, Mr Leung submitted that the sentence was neither manifestly excessive nor wrong in principle.  However, he said that, in light of the court rulings in respect of the applications for leave to appeal against sentence of the 1^st and 2^nd applicants the respondent did not advance any further submissions.

A consideration of the submissions

14.  At the outset of his consideration of the issue of identification, the judge said:^[3]

“ The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull ^[4]. I remind myself of the special need for caution before convicting the defendants in reliance on evidence of identification.

I remind myself to look at the quality of the identification and all the circumstances in which the identification was made and in so doing look for any specific weaknesses, which have appeared in the identification evidence.”

15.  The judge went on to state that the guidelines articulated in R v Turnbull applied equally “to identification made from film and photographs, whether the identification is made by a witness or by the court.”  Of his consideration of that material the judge said:^[5]

“ I have carefully considered the video footage, the photographs and the CCTV recordings. The quality and clarity of the video footage varies. I have viewed all the video footage many times in normal speed, slow motion and frame by frame. I have carefully considered the photographs which are of good quality.”

16.  The judge acknowledged that no police officer had testified that he recognised the 4^th applicant in any of the video footage or photographs adduced at trial.  The judge said that he placed no reliance on the evidence of Chief Inspector Chan that he recognised the 4^th applicant in video footage depicting the earlier stage of the escorting of Tsang from a comparison of that material with the 4^th applicant’s warrant card.  That was merely his opinion.  However, the judge said that he examined “…all the video footage; the photographs and the warrant card photograph in determining whether D4 was one of the persons who escorted, carried and assaulted Tsang.”[6]

17.  Having described the parts of the video footage and photographs that the prosecution submitted depicted the 4^th applicant and in making his own determination as to whether or not the 4^th applicant was identified in that material, the judge said:[7]

“ I take into account there has been no identification of D4 from any of the footage, including the footage showing the assault at the substation. The video footage and photographs clearly show the face of the person the prosecution say is D4. Having very carefully looked at the photographs and the video footage and had the opportunity to observe D4 during the trial, which lasted 31 days, I am satisfied so I am sure this person is D4.”

18.  In making that finding, the judge said that he took into account that the photograph of the 4^th applicant on the warrant card had been taken on 11 April 2013, whereas the events in question occurred on 15 October 2014 and that over two years had passed before the trial.  Having noted that the 4^th applicant’s hair was longer and that he wore glasses the judge said “none of these matters cause me to doubt that the person seen in the video footage and photographs was D4.”

19.  Of the clothing worn by the 4^th applicant as depicted in the video footage and the photographs, the judge said:^[8]

“ D4 was wearing a grey T-shirt; a black sleeveless jacket which was zipped up; light coloured trousers and blue and red shoes. In the Now TV footage D4 can also be seen wearing gloves.”

20.  At the hearing, Mr Duncan acknowledged that no issue was taken with the judge’s identification of the 4^th applicant at that stage of the journey nor in respect of his findings as to the 4^th applicant’s clothing.  

21.  Of the light coloured trousers worn by the 4^th applicant, the judge said:

“ D4’s trousers are significantly lighter than the trousers of all the others. This is best seen in the photograph exhibit P 13.”

22.  Of the 4^th applicant’s position relative to Tsang’s position in the part of the journey in which the latter was escorted to the substation, the judge said:^[9]

“ D4 is seen in both the photograph exhibit P 13 and in the moving photograph in the Apple Daily footage, exhibit P2(c) in the same position, namely carrying the right leg of Tsang. I am satisfied the first nine seconds of the TVB footage exhibit P1(a) also shows D4 holding the right leg of Tsang. The footage shows only the back of D4, however, the light coloured trousers are clearly seen in the footage.”

23.  In the result, the judge determined:^[10]

“ Having carefully viewed all the video footage, I am satisfied so I am sure when the group arrived at the substation D4 was still carrying the right leg of Tsang. This is seen for example in the TVB footage P1(g) between 03:00-03:08. Screen capture 16 attached to the prosecution’s closing submissions shows the light coloured trousers of D4 when the group were walking alongside the substation. The remaining clothing is also consistent with what D4 is seen wearing in the earlier footage and the photographs.” [Italics added.]

24.  Having made that determination, the judge observed that it was an “odd coincidence” that “a person seen at the substation carrying the right leg of Tsang was also wearing light-coloured trousers.”

25.  Of his findings in respect of the 4^th applicant’s conduct at the substation, the judge said:^[11]

“ As the group turn the corner and just before they drop Tsang on the ground, D4 is seen holding the right leg of Tsang with the light coloured trousers clearly visible as shown in screen capture ID9 attached herewith, taken from P1(h). D4 then walks round the back of his colleagues and stands next to Tsang. Between 27 and 29 seconds D4 appears to kick Tsang at least once, although his foot cannot be seen.

 After D2 and D3 return D4 is seen standing next to D1 and D2.  This is best seen in the Apple Daily footage exhibit P2(d) between 02:40 and 3:00. D4’s light coloured trousers can be seen in this footage.  When the group take Tsang away D4 is seen on the right of Tsang.  D4’s light coloured trousers can also be seen as shown in screen capture ID10 attached herewith, taken from P1(g).”

26.  As noted earlier, the judge found that he was able to identify from the video footage and the photographs of the earlier part of the journey of Tsang to the substation, specific items of clothing of the person identified as being the 4^th applicant; namely, “a grey T-shirt; a black sleeveless jacket which was zipped up; light-coloured trousers and blue and red shoes and gloves.” ^[12]  However, when it came to the issue of identifying that person at the substation, the judge clearly relied heavily on his finding that the person wore light‑coloured trousers and the position he occupied in relation to Tsang, namely carrying his right leg.  Although he said “the remaining clothing is also consistent with what D4 is seen wearing in the earlier footage and the photographs”,^[13]he did not condescend to any specific details as to the other items of clothing let alone their colour.

27.  Mr Leung conceded that from the video footage of the events at the substation it is not possible to discern the blue and red coloured shoes or the grey T‑shirt the judge determined the 4^th applicant was wearing at an earlier stage.  Further, although he submitted that the person identified as the 4^th applicant was wearing a black sleeveless jacket, he accepted that it was not possible to see whether or not it was zipped up.  Also, all that could be discerned of the undergarment worn by that person was that it was short‑sleeved.

28.  In those circumstances, in my judgment it is reasonably arguable that the identification by the judge of the 4^th applicant as being one of the group of men at the substation assaulting Tsang is unsafe.

Conclusion

29.  For the reasons that I gave in the judgments delivered in respect of the 1^st and 2^nd applicants, I am satisfied that ground 1 raises an issue of law only and that the 4^th applicant does not require leave of this Court to appeal on the ground.[14]  I am satisfied that ground 2 is reasonably arguable and I grant leave to appeal on ground 2.

30.  I am satisfied that, in all the circumstances, the grounds of appeal against sentence are reasonably arguable and I grant leave to appeal.

[1] Closing Submissions of the 4^th Defendant, paragraph 22.

[2] Reasons for Verdict, paragraph 148.

[3] Reasons for Verdict, paragraphs 424-425.

[4] R v Turnbull [1976] 3 WLR 445.

[5] Reasons for Verdict, paragraph 443.

[6] Reasons for Verdict, paragraph 496.

[7] Reasons for Verdict, paragraph 550.

[8] Reasons for Verdict, paragraph 502.

[9] Reasons for Verdict, paragraph 505.

[10] Reasons for Verdict, paragraph 506.

[11] Reasons for Verdict, paragraphs 508-509.

[12] Reasons for Verdict, paragraph 502.

[13] Reasons for Verdict, paragraph 506.

[14] HKSAR v Wong Cho Shing (CACC 38/2017; unreported, 15 December 2017) and HKSAR v Lau Cheuk Ngai (CACC 38/2017; unreported, 1 February 2018), [2018] HKCA 59.