HKSAR v. WONG WAI HO

CACC 38/2017

[2018] HKCA 101

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 7^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 7^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 applicants, save for the 4^th applicant were original members, of Quick Response Team (“QRT”) A 2-2, which was constituted on 15 October 2014.[1]  During the night the 4^th applicant was re-assigned to that team by the 2^nd applicant.  It was an admitted fact that the 7^th applicant, together with the 2^nd, 3^rd and 4^th applicants were members of different teams of the Anti-Triad Section of Kwun Tong Police District; whereas, the 6^th applicant was a member of the Anti-Triad Section of the Kowloon City Police District, the 5^th applicant a member of the Regional Special Duty Squad of Kowloon East Region and the 1^st applicant a member of the Organized Crime and Triad Bureau at Police Headquarters.[2]

4.  Superintendent Ng testified that, on the evening of 14 and morning of 15 October 2014, he was in charge of about 150 crime officers at the scene of the events leading to the charges against the applicants.[3]  They provided the manpower for the eight QRTs and fourteen video teams.

5.  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]

6.  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.^[5]

7.  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. 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.  At some stage, after the part of the journey in which Tsang had been escorted by six of the applicant but before they reach the substation, they were joined by a seventh police officer.  Having reached the substation, Tsang was dropped to the ground and assaulted by the applicants.  The prosecution alleged that the 7^th applicant was one of the assailants and the only one of whom was wearing glasses and a white T-shirt.

The defence case

8.  None of the applicants availed themselves of their right to give evidence at trial. It was the 7^th applicant’s case, as advanced in submissions, that there was insufficient evidence on which it could be inferred that the 7^th applicant was one of the assailants of Tsang at the substation.  No prosecution witness gave evidence of having recognised the 7^th applicant in the video footage or photographs.  Although one of the assailants of Tsang at the substation could be seen to be wearing spectacles, it was submitted that there was insufficient evidence that the 7^th applicant was wearing spectacles that evening.

Grounds of appeal against conviction

9.  By ground 1, of the grounds of appeal against conviction, Mr Joseph Tse SC submitted that the judge erred in law in determining the video footage to be prima facie authentic and admissible on the basis that there was evidence, if believed by the jury, that would be sufficient to prove the authenticity of the video footage.

10.  By ground 2, Mr Tse submitted that the judge erred in drawing the inference that the 7^th applicant was present at the substation at the time that Tsang was assaulted by the group of seven persons and that he participated in that assault.[6]  In was contended that the judge erred in drawing that inference having regard to the matters to which he referred: namely, noting that the 7^th applicant, in common with all the other applicants save for the 4^th applicant, was a member of QRT A 2-A, that it was inherently improbable that a police officer not a member of the team would have assisted in carrying Tsang and that the members of the team would have permitted a non-member to witness the assault; that, in the context of the evidence that the seventh person at the substation together with Tsang was wearing glasses, that there was evidence that the 7^th applicant normally wears glasses and that it “seems like” he was wearing glasses on the day of the police operation.[7]

11.  Mr Tse submitted that the judge had failed to consider sufficiently that the various QRT teams, including QRT A 2-2, were constituted from police officers drawn from different squads and districts who were not familiar with each other and did not have any long time working relationship with one another.

12.  In his oral submissions, Mr Tse said that it was unfair of the judge to select the evidence of only one of the police officers about whether or not the 7^th applicant was wearing glasses on the day of the operation.  He fell into error in doing so.

Grounds of appeal against sentence

13.  In the grounds of appeal against sentence it was submitted that the sentence of 2 years’ imprisonment was manifestly execessive.

The respondent’s submissions

14.  In the respondent’s written submissions, Mr David Leung SC said that the respondent did not oppose the submission that ground 1 of the grounds of appeal against conviction was an issue of law only such that the 7^th applicant did not require the leave of this Court to appeal. He said that he did so without accepting the correctness of the contentions made on behalf of the 7^th applicant, but having regard to the judgments of this Court [8] in respect of the applications of the 1^st and 2^nd applicants that the appropriate standard of proof of prima facie authenticity of the video footage is a matter of law only.

15.  Mr Leung submitted that the judge was entitled to have regard to the circumstantial evidence he identified and to its cumulative effect in determining that the 7^th applicant was present at the substation and a party to the assault on Tsang. He contended that it was not reasonably arguable that the judge had erred in drawing the inference that the 7^th applicant was not only present at the substation but a party to the assault.

16.  Although it was submitted on behalf of the respondent that the sentence imposed on the 7^th applicant was neither manifestly excessive nor wrong in principle, given the Court’s judgments granting the 1^st and 2^nd applicants leave to appeal against their sentence, Mr Leung said he advanced no submissions.

A consideration of the submissions

17.  At the outset of his consideration of the issue of identification, the judge said:[9]

“The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull [10]. 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.”

18.  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 witness or by the court.” [11]

19.  Of his application of those guidelines to a consideration of that material the judge said:[12]

“ … 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.”

20.  Of his findings from that exercise relevant to the 7^th applicant, the judge said:[13]

“The TVB footage clearly shows that when the group carrying Tsang arrived at the substation there was a seventh person. By following the person holding the right arm of Tsang, this person is seen to turn round after Tsang was dropped on the ground and actively participate in the assault by repeatedly kicking Tsang. This person is seen at various times throughout the assault footage and only leaves when Tsang was taken away when he is seen walking behind Tsang.

The clothing of the seventh person can clearly be seen, in particular that he is wearing glasses and a white T-shirt with a distinct pattern as shown in screen captures 17 & 18 attached to the prosecution’s closing submissions.  As seen on the video footage and photographs, D1-D6 were neither wearing glasses nor the white T-shirt.  I am satisfied so I am sure that when the group arrived at the substation the person holding the right arm of Tsang was the seventh person.”

21.  Of the evidence relevant to whether or not the 7^th applicant wore glasses, the judge noted that DPC 8097, who had worked with the 7^th applicant for about a year prior to 14 October 2014, said that the 7^th applicant “sometimes wears glasses”.  However, he said that he could not remember if he was wearing them on the material day.  Next, the judge noted that Sergeant 58332, who had known the 7^th applicant since late 2012 whilst working in different teams of the Kwun Tong Anti-Triad Section, said that the 7^th applicant “normally wears glasses”.  Of the material day, the witness said “it seems” that the 7^th applicant was wearing glasses. Finally, he noted that DSPC 21077, who had worked with the 7^th applicant for about a year prior to the material day, said that the 7^th applicant “sometimes wears glasses” but added that he did not pay attention to whether or not he was wearing them on the material day.[14]

22.  The judge acknowledged that no prosecution witness had identified the 7^th applicant in any of the video footage or from the photographs.[15]  He placed no reliance on the evidence of Chief Inspector Chan based on a comparison of the photograph of the 7^th applicant on his warrant card with the video footage and photographs.[16]  Having said that the video footage of the assault depicted the face of the seventh person, the judge said nevertheless that it was not “sufficiently clear for the court to say that the person is D7.” [17]

Circumstantial evidence of identification

23.  In those circumstances, the judge turned to a consideration of the circumstantial evidence.  The judge noted that it was an admitted fact that the 7^th applicant was on duty at about 3 a.m. on 15 October 2014 in the area of Lung Wo Road.  The judge went on to say:[18]

“Although some of the defendants were attached to different police districts, on that morning they were all part of the same quick response team, A2-2.”

24.  Further, the judge noted that the two other members of the team, namely the DPC 8097 and DPC 5840 were “processing arrested persons”, at the time of the assault on Tsang.[19]  Their evidence had been received by their witness statements being read at trial. He noted that DPC 8097 said that he had taken over the custody of an arrested person at the underpass of the flyover at Lung Wo Road at about “03:15 something” and that he took him to a coach to be processed.[20]  The 7^th applicant had assisted DPC 8097 in escorting the arrested person to the coach which was parked on the opposite side of Lung Wo Road from the substation. The judge noted that DPC 8097 estimated that the journey, the queueing and the processing had taken 20-25 minutes.[21]  Further, the judge observed that DPC 8097 said that after processing the 7^th applicant “left to join other team members”.[22]  For his part, DPC 8097 escorted the arrested person to the Police College in Wong Chuk Hang.

25.  Of the significance, of that evidence, the judge said:[23]

“ The estimates given by DPC 8097 would place D7 near the substation between 03:35 and 03:40. To join his team members D7 would need to walk back along Lung Wo Road eastbound. This would take D7 past the substation.”

26.  Of the evidence relevant to the time that the assault on Tsang at the substation had taken place, the judge said in respect of the TVB video footage:[24]

“What the court can rely on is the evidence of Mr Sum that the footage from cameras A & B was automatically ingested onto the server roughly between 03:20 and 03:43 and the evidence of David Wong that camera A was broadcast live at around 03:30.”

27.  Having noted that the CCTV recordings showed Tsang entering the Central Police Station at 03:43:24 and having adverted to other evidence relevant to Tsang’s arrival at that police station, the judge said:[25]

“ Allowing for time to travel to the Central Police Station the assault most likely took place shortly after 03:30. Even if the times given by David Wong are the actual times of the assault at the substation, the times given by DPC 8097 remain only estimates. I am satisfied so I am sure on the evidence that D7 was present by the substation at the same time D1-D6 would have been carrying Tsang to the substation.”

28.  Having said that Tsang was not carried directly to the location of the coaches, but rather he was taken to the opposite side of the substation away from the road, where he was dropped on the ground and immediately assaulted, the judge said that the only inference to be drawn was that he had been taken there for the purpose of being assaulted. Then, the judge said:[26]

“ The assault footage shows that the seventh person was probably the first person to kick Tsang. The only inference to draw is that when the seventh person assisted D1-D6, by holding the right arm of Tsang, he already knew the purpose of taking Tsang to the opposite side of the substation from where the coaches and cars were parked was to assault Tsang.”

29.  Having observed that the act of assaulting Tsang was obviously unlawful, the judge stipulated what he said he found to be “inherently improbable”, namely that:[27]

“ … D1-D6 would let a police officer from another team assist them to carry Tsang and witness their assault on him….

 a police officer who was not a member of QRT A2-2 assisted D1-D6 to carry Tsang to the substation.”

30.  As relevant to the latter finding, the judge noted that at that time Tsang’s hands were handcuffed behind his back with plastic zip ties and that he was being escorted by no fewer than six police officers who, clearly, needed no assistance.

31.  Then, having regard to those two improbabilities, to the fact that the 7^th applicant was a member of QRT A 2-2, together with his finding that the 7^th applicant was “by the substation” when the other applicants were carrying Tsang to the substation, whereas the other two members of the team, DPC 8097 and DPC 5840 were processing arrested persons, and finally his finding “D7 normally wears glasses and seems like he was wearing glasses on the day of the operation” the judge concluded:[28]

“ … I am sure the only inference to draw is that:

(a) while D7 was walking to join his team members he saw D1-D6 carrying Tsang to the substation; and

(b)     he assisted his team members to carry Tsang and participated in the assault on Tsang.”

32.  In reaching that conclusion, the judge stated that he had regard to the submissions made on behalf of the 7^th applicant, including having been reminded that there were “no less than 200 plainclothes police officers on duty” and that it had been submitted that there was “insufficient basis for the court to say D7 wore spectacles on 15 October 2014.” [29]

33.  The judge’s reference to the evidence that the 7^th applicant “normally wears glasses and seems like he was wearing glasses on the day of the operation”, as part of the circumstantial evidence which he took into account, was clearly a reference to the evidence given by way of a witness statement of Sergeant 58332 [30], which contained both of the passages quoted above.[31]  The context of his evidence is that he said that he had known the 7^th applicant as a fellow member of the Kwun Tong District Anti-Triad section, albeit as one attached to another team. Further, as the judge noted, the sergeant said that he had seen, but not talked to, the 7^th applicant on 14 October 2014.  It was in that context that he said that it “seems” that he wore spectacles that day.  Earlier in his reasons for verdict, the judge had noted that other police officers had said that they either could not remember or had not paid attention to whether or not the 7^th applicant was wearing glasses on the day of the operation. Clearly, the judge was aware of the range of evidence on the subject of whether or not the 7^th applicant was wearing glasses was entitled to advert to the evidence of Sergeant 58332 in his enumeration of the circumstantial evidence to which he had regard.

34.  The judge’s determination that it was “inherently improbable” first, that a police officer from another team would have assisted the members of QRT A 2-2 to carry Tsang and, secondly that the members of that team would have allowed such a police officer to do so and witness their assault on Tsang is to be viewed in the context of the time at and the manner in which those teams were constituted.

35.  QRT A 2-2 was constituted on 15 October 2014.  It was an admitted fact that that the 2^nd, 3^rd, 5^th, 6^th and 7^th applicants were deployed as members of QRT A 2-2 on 15 October 2014.  The 4^th applicant, who was initially deployed as a member of a “Video Team”, was deployed to QRT A 2-2 in the early hours of the morning of 15 October 2014.  Two other members of the team were DPC 8097 and DPC 5840.  Whilst the 2^nd, 3^rd, 4^th and 7^th applicants, together with DPC 8097, were all stationed at Kwun Tong Anti-Triad Section, the 5^th applicant was a member of the Regional Special Duty Squad of Kowloon East Region, the 6^th applicant was a member of the Anti-Triad Section of Kowloon City Police District and DPC 5840 was a member of a Mongkok District Investigation team.

36.  Clearly, QRT 2 A-2 was comprised of a disparate group of police officers, who had been constituted as a team for a very short period of time.  In my judgment, that is highly relevant to the submissions made on behalf of the 7^th applicant that the judge placed too great a weight on membership of QRT 2 A-2 in making his determinations as to inherent probabilities.  Also, it is to be remembered that the 4^th applicant had been redeployed from a Video Team to QRT 2 A-2 during the course of the early morning of 15 October 2014.

Conclusion

37.  For the reasons that I have given, in my judgment it is reasonably arguable that the judge erred in determining that the 7^th applicant was present at the substation and participated in the assault on Tsang.

38.  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 7^th applicant does not require leave of this Court to appeal on the ground.[32]  Accordingly, the 7^th applicant may appeal without the leave of the Court on ground 1 and I grant leave to appeal against conviction on ground 2.

Sentence

39.  I am satisfied that reasonably arguable grounds of appeal have been advanced on behalf the 7^thapplicant in support of his application for leave to appeal against sentence.  Accordingly, I grant leave.

[1] Appeal Bundle; page 28, paragraph 3.

[2] Appeal Bundle; pages 27 and 28, paragraphs 2 and 3.

[3] Reasons for Verdict, paragraph 725.

[4] Reasons for Verdict, paragraph 9.

[5] Reasons for Verdict, paragraph 11.

[6] Reasons for Verdict, paragraph 680.

[7] Reasons for Verdict, paragraph 680.

[8] 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).

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

[10] R v Turnbull [1976] 3 WLR 445.

[11] Reasons for Verdict, paragraph 427.

[12] Reasons for Verdict, paragraph 443.

[13] Reasons for Verdict, paragraphs 647-648.

[14] Reasons for Verdict, paragraphs 661-663.

[15] Reasons for Verdict, paragraph 649.

[16] Reasons for Verdict, paragraph 651.

[17] Reasons for Verdict, paragraph 651.

[18] Reasons for Verdict, paragraph 656.

[19] Reasons for Verdict, paragraph 657.

[20] Reasons for Verdict, paragraph 659.

[21] Reasons for Verdict, paragraph 664.

[22] Reasons for Verdict, paragraph 666.

[23] Reasons for Verdict, paragraph 667.

[24] Reasons for Verdict, paragraph 672

[25] Reasons for Verdict, paragraph 675.

[26] Reasons for Verdict, paragraph 677.

[27] Reasons for Verdict, paragraphs 678 and 679.

[28] Reasons for Verdict, paragraph 680.

[29] Reasons for Verdict, paragraph 681.

[30] Exhibit P 47 (a). Reasons for Verdict, paragraph 662.

[31] Reasons for Verdict, paragraph 662.

[32] HKSAR v Wong Cho Shing and HKSAR v Lau Cheuk Ngai.