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CACC 38/2017
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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BETWEEN
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HKSAR
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Respondent
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and
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WONG CHO SHING (黃祖成) |
1st Applicant/
1st Defendant
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Before : Hon Lunn VP in Court
Date of Hearing : 23 November 2017
Date of Judgment : 15 December 2017
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J U D G M E N T
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1. The 1st 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 Wui 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 1st applicant, a Chief Inspector 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 an assault occasioning actual bodily harm to Tsang. In addition, the 5th defendant was convicted of common assault on Tsang at Central Police Station later in the morning of 15 October 2014 (Charge 2).
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 4th defendant were members of Quick Response Team A 2-2. During the night the 4th defendant was re-assigned to that team by the 2nd defendant. 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.”[1]
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 commanded by the 1st applicant. 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.[2] Having conducted a voir dire, the judge ruled that material admissible in evidence at the trial.[3]
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.[4]
The issues
7. Of the main issues arising in the trial in respect of Charge 1, the judge said that they were:[5]
“ …whether Tsang was the person seen assaulted on the video footage; whether the defendants were the assailants; whether the defendants were part of a joint enterprise and whether Tsang suffered grievous bodily harm.”
Ground of appeal against conviction
8. In the grounds of appeal against conviction advanced on behalf of the 1st applicant, Mr Tim Owen QC submitted that the judge had erred in ruling admissible at trial the video footage downloaded from the Internet by the police which allegedly was relevant to the assault of Tsang. In particular, it was submitted that the judge had applied the “wrong legal threshold” in determining that the footage was prima facie authentic, namely that the evidence adduced by the prosecution taken at its highest, if believed by the jury, could prove that the various video footage was authentic beyond reasonable doubt. On the contrary, it was required that the judge be satisfied on the balance of probabilities that the footage was authentic to satisfy the test of prima facie authenticity.[6]
9. Next, Mr Owen submitted that the judge had erred in failing to consider or exercise his powers to compel relevant witnesses to testify and produce the full unedited original video footage.[7] Then, Mr Owen submitted that the judge had erred in allowing Mr David Wong, the manager of TVB News Production to give opinion evidence of his comparison of the video footage obtained by the prosecution from the TVB website with allegedly original video footage in TVB’s possession, but not disclosed to the Court or the parties.[8] Further, Mr Owen submitted that the judge had erred in using the video footage downloaded by the prosecution from the TVB website as a control sample to make comparisons with other video footage, downloaded by the prosecution, to determine the authenticity of the other video footage. Also, it was contended that the judge had erred in holding that it was not required in law that the authenticity of the video footage, used in making comparisons with other video footage, must be established beyond reasonable doubt.[9]
10. Next, Mr Owen submitted that the judge had erred in finding that:
(a) the authenticity of the video footage sought to be adduced by the prosecution was proved beyond reasonable doubt;
(b) the video footage had not been tampered with; and
(c) the provenance and history of the video footage, together with their accuracy and integrity, had been established beyond reasonable doubt.
Mr Owen submitted that there was insufficient evidence to make those findings.[10]
11. Then, Mr Owen submitted that the judge erred in not exercising his discretion to exclude the video footage, but instead relying on it.[11] Finally, Mr Owen submitted that the judge had erred in finding that the 1st applicant was present at the place outside the Government pump station, given that there was no identification of the 1st applicant from the video footage or by any witness.[12]
12. By ground 2, Mr Owen submitted that the judge erred in finding that was a party, together with his co-accused, to a joint enterprise to assault Tsang. In the late afternoon of the day before the hearing of the application, the Court was informed that the 1st applicant did not intend to rely on ground 2.
Questions of law
13. Mr Owen submitted that grounds 1.1 to 1.5 of the grounds of appeal against conviction involved questions of law only. Accordingly, he submitted that, pursuant to section 82 of the Criminal Procedure Ordinance, Cap. 221, the 1st applicant did not require the leave of this Court to appeal to the Full Court.[13]
Grounds of appeal against sentence
14. In the grounds of appeal against sentence, Mr Owen submitted that the judge had failed to take into account or to give sufficient weight to a range of factors relevant to the sentencing of the 1st applicant, namely: the circumstances of the commission of the offence, in which police officers had been under constant, unparalleled pressure in which they faced provocation and violence; that the applicant had a distinguished record of service of over 30 years as a police officer; that the 1st applicant did not assault Tsang and that his culpability lay in failing to intervene in the spontaneous assault visited on him by other police officers; and the lengthy period of delay, from the 1st applicant’s arrest on 26 November 2014 and the commencement of his trial on 1 June 2016.
The respondent’s submissions
15. In the respondent’s written submissions, Mr Caplan QC submitted that there was no settled authority for the legal threshold for determining prima facie authenticity. He submitted that authenticity was not a question of admissibility. The issue was whether the evidence was relevant to a triable issue and, if so, it was for the judge to decide whether there was some evidence, a prima facie case, of provenance and integrity. The standard of proof applied to the ultimate issue, but not to prior sub‑issues such as prima facie authenticity.
Compelling disclosure of the identity of witnesses relevant to the compiling of the video footage and production of the video footage
16. Mr Caplan invited the Court to note that, although the issues had been touched upon in cross-examination of David Wong, no application had been made by the 1st applicant or any of the defendants at trial that David Wong be compelled to produce original authentic video footage or identity of the cameramen of that video footage. He submitted that orders by the judge to compel disclosure and production in respect of those issues would render nugatory the system of production orders in respect of journalistic material established by section 84(1) and (2) of the Interpretation and General Clauses Ordinance, Cap. 1.[14] Journalistic material fell into a special category and was treated differently from other forms of evidence or information the production of which a trial judge may compel.
17. Mr Caplan submitted that it was clear from the judgment of Barnes J [15], in which she had refused to grant the Commissioner of Police production orders against TVB, Apple Daily, ATV, i‑Cable and PCCW in respect of “full and unedited video and sound recordings” made at the time and vicinity at which Tsang had been assaulted, “together with full identity and personal particulars of the makers” of those recordings, that she had regard to the interests of the defendants at their prospective trial in performing the balancing exercise required of her.[16] He submitted that the same considerations applied during the trial itself, which required the judge to apply a balancing exercise between the competing public interests of the protection of journalistic material and the effective prosecution of crime.[17]
18. In his oral submissions, Mr Caplan acknowledged that the respondent could have sought a summons to compel a witness, such as David Wong, to attend the trial and to produce the original video footage and disclose the names of the cameramen who had made that footage. He acknowledged that, having regard to the assessment of the prosecution that such an application would be extremely unlikely to succeed, it was a considered decision by the prosecution not to seek the production of the original material at trial.
19. In his oral submissions, Mr Caplan confirmed, in an answer to a question of the Court, that issue was taken with Mr Owen’s submission that some of the grounds of appeal gave rise to points of law alone. No point of law alone arose. In particular, he submitted that the law in Hong Kong was “well settled” as to the approach in respect of the admissibility of video footage: Was it relevant? Was there some evidence that it was authentic? If so, the issue of weight to be attached to the evidence was a matter for the jury. Recourse was permitted to circumstantial evidence to establish authenticity.
A consideration of the submissions
The evidential test to determine the prima facie authenticity of otherwise relevant and admissible video footage
20. As noted earlier, having conducted a voir dire to determine the admissibility, inter-alia, of video footage and photographs, the judge ruled all of that material admissible in evidence. The video footage had been obtained by the prosecution from the Internet from TVB, Apple Daily, ATV and Now TV.[18] The judge said that he was satisfied that the video footage and the photographs were “relevant to show the events leading up to and including the assault subject of charge 1”, in particular they were “… relevant to the issues of whether an offence was committed and who committed it.” [19]
21. The judge noted that issue was taken between the parties as to the test to be applied in determining whether the video footage was prima facie authentic. The prosecution submitted that the evidence adduced by the prosecution must be taken at its highest in determining whether the video footage was prima facie authentic, whereas the defence submitted that the Court had to be satisfied on the balance of probabilities that the video footage was prima facie authentic.[20]
22. In addressing that issue, the judge said that in R v Robson & Harris,[21] Shaw J said, in face of objections by the defence to the admissibility of tape recordings sought to be produced by the prosecution, that “…all he was required to do was to satisfy himself that a prima facie case of originality had been made out on the evidence.” Further, he noted that Shaw J had accepted the submissions of both parties that the question of whether the tape recordings were shown to be authentic was to be resolved on the balance of probabilities.[22]
23. The judge noted that the judgment in R v Robson had been cited in the judgments of the Court of Appeal of Northern Ireland in R v Murphy & Another [23] and the Court of Appeal in HKSAR v Lee Chi Fai.[24] On the other hand, he said that the authors of “Social Networking Material as Criminal Evidence” [25] contended that “there is considerable ambiguity as to what a prima facie admissibility test is.” [26] Further, he said that the authors observed that there was no mention in the judgment in R v Murphy of the “balance of probabilities” test. Also, the judge noted that the authors contended that Shaw J “was wrong to treat authentication as requiring proof on a balance of probabilities.” [27]
24. Finally, the judge quoted the authors of Cross & Tapper on Evidence [28] on the approach required of a judge to being satisfied that there was prima facie evidence that, inter-alia, a tape recording was the original:[29]
“ In R v Robson, the Court of Appeal [30] regarded this is equivalent to a requirement that such evidence need reach only the standard of the balance of probabilities for fear of usurping the function of the jury.
It is submitted that the better view is that the requirement is no different from that applying to the satisfaction of an evidential burden, namely whether the evidence, if believed by the jury, would be sufficient to prove the matter asserted to the standard required to satisfy the legal burden, namely beyond reasonable doubt, when borne by the prosecution in a criminal case.”
Also, the judge noted “This is also the view in Phipson on evidence, 18th edition, P1414, fn 80.”
25. In the result, the judge concluded:[31]
“ I am satisfied that the test is as articulated in Cross &Tapper on Evidence, namely that the requirement is whether the evidence, if believed by the jury, would be sufficient to prove the matter beyond reasonable doubt.”
Question of law
26. As Mr Owen pointed out in his oral submissions, it had been accepted in the respondent’s written submissions that “There is no settled authority for the legal threshold for determining “prima facie authenticity”.[32] However, it was acknowledged that in R v Robson, the judge had proceeded on the basis that the standard of proof was on a balance of probabilities. Further, it was accepted that no “definitive standard had been adopted in other common law jurisdictions.” [33]
27. In Choi Kit Kau v The Queen, Roberts CJ, sitting as a single judge in a magisterial appeal, having adverted to the judgment in R v Robson, said:[34]
“ Shaw J. was of the view that it was necessary for the court to be satisfied, on the balance of probabilities, that the recording was authentic, by evidence of the history of the recording up to its production in court.”
28. In the judgment of this Court in HKSAR v Lee Chi Fai, Stuart‑Moore VP adverted to the judgment of Roberts CJ in Choi Kit Kau v The Queen, citing the passage quoted above, without dissent. On the other hand, the Court went on to endorse the analysis of the Court of Appeal of Northern Ireland in R v Murphy, quoting at length from the judgment of Kelly LJ. In doing so, reference was made to the following passage:[35]
“ So, in our opinion, in the case of video recordings, the issue for the judge is, is it relevant? If it is, is it prima facie authentic? If it is, then it is admissible and it is left then to the jury or the Diplock judge to decide whether its authenticity is beyond doubt and if its contents prove or add to the proof of guilt beyond reasonable doubt.”
29. In the result, Stuart-Moore VP concluded:[36]
“ We consider that the approach adopted by the Northern Ireland Court of Appeal was, with respect, wholly correct.” [37]
Conclusion
30. I am satisfied that the test to be applied by the judge in determining whether or not the video footage was prima facie authentic is a matter of law alone. Clearly, there is a difference of substance between the test applied by the judge and that which is advanced on behalf of the 1st applicant, namely on the balance of probabilities. Accordingly, the 1st applicant may appeal to the Full Court without the leave of the single judge.
Compelling production of the original video footage and disclosure of the identity of witnesses who compiled or stored that video footage
The application for production orders
31. In her judgment in the Commissioner of Police v TVB & Others [38] Barnes J refused to grant the Commissioner of Police production orders in respect of journalistic material, namely video footage, and to require disclosure of the identity of the persons involved in the making of that material.
32. Of the video footage in respect of which the applicant sought a production order, the judge noted that some of it was relevant to circumstances in which it was alleged that Tsang had been assaulted at the Lung Wui Road Government Building Pump Station, which incident she called the “First Assault Incident”. She noted the evidence before her was that “…the police found and downloaded 1,193 open source video footages apparently covering the First Assault Incident, contents of many appeared to be overlapping.”[39] Of the significance contended for that evidence, the judge noted:[40]
“ … the identification of the seven officers in relation to any part of the allegation is mainly based on the open source footages. Video recording filmed by the police and CCTV cameras installed in the Tamar Park or the Substation did not capture the First Assault Incident.”
33. Further, the judge noted that the 1st applicant and his six co‑defendants at trial, whom she described as D1‑D7, having been charged jointly on 15 October 2015 with an offence of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, had been transferred to the District Court and the hearing of the trial had been fixed to commence on 1 June 2016. Finally, the judge noted that in evidence put before her by the Commissioner of Police it had been deposed:[41]
“ …that counsel acting for D1-D7 had indicated that the admissibility of the open source footages, which the prosecution intends to use as evidence, would be an issue during the trial of the seven officers in the District Court.”
34. Barnes J went on to consider the legislative scheme set out in sections 83 and 84 of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”). Section 83 of IGCO provides for a general restriction on powers of entry, search and seizure provided for in other Ordinances:
“ A provision in any Ordinance which confers on, or authorizes the issue of a warrant conferring on, any person the power to enter any premises and to search the premises or any person found on the premises or to seize any material (whether of a general or particular kind and whether or not the word ‘material’ is used in that provision) shall not, in the absence of an express provision to the contrary, be construed as conferring, or authorizing the issue of a warrant conferring, a power to enter premises where such entry is for the purpose of searching for or seizing material which is known or suspected to be journalistic material.”
35. Section 84(1) provides that any person to whom such a power has been conferred may apply to a judge of the Court of First Instance or the District Court for an order in relation to material which is known or suspected to be journalistic material. Section 82(1) and (2) provide that ‘journalistic material’ “means any material acquired created for the purposes of journalism” if it is in the possession of a person who acquired or created it for the purposes of journalism. Section 84(2) provides that, if satisfied of the conditions set out in section 84(3), a judge may make an order that the person, who appears to be in possession of the material, produce it to the applicant to take away or give the applicant access to the material.
36. Section 84 (3) provides:
“ The conditions to be fulfilled for the purposes of subsection (2) are that-
(a) there are reasonable grounds for believing-
(i) that an arrestable offence has been committed;
(ii) that there is material which consists of or includes material known or suspected to be journalistic material on premises specified in the application;
(iii) that the material is likely to be-
(A) of substantial value to the investigation of the arrestable offence; or
(B) relevant evidence in proceedings for the arrestable offence;
(b) but for section 83 the applicant would be or could have been authorized under the provision mentioned in subsection (1) to enter onto the premises specified in the application and to search the premises or a person found on the premises or to seize the material specified in the application;
(c) other methods of obtaining the material-
(i) have been tried and failed; or
(ii) have not been tried because they were unlikely to succeed or would be likely to seriously prejudice the investigation; and
(d) there are reasonable grounds for believing that it is in the public interest that an order should be granted, having regard to-
(i) the benefit likely to accrue to the investigation; and
(ii) the circumstances under which a person in possession of the material holds it.” [Italics added.]
37. Finally, section 89 of the Ordinance provides:
“ (2) For the avoidance of doubt, it is declared that nothing in this Part shall be construed as requiring a judge to make an order under this Part where he considers that, in all the circumstances of the case, it would not be in the public interest to make that order.” [Italics added.]
38. Barnes J noted [42] that in the judgment of this Court in So Wing Keung v Sing Tao Limited & Another reference was made to the phrase “public interest” in those provisions:[43]
“ Of note also is the public interest the Court must take into account not only under section 84 (3) (d) (which is somewhat limited) but also under section 89 (2). These provisions require a court have a broad view of the public interest in considering whether such orders should be made.”
The position at trial
39. There is no dispute that the judge was fully aware of the judgment of Barnes J rejecting the prosecution’s application for a production order in respect of various video footage from various media companies. Indeed, he received evidence from David Wong of TVB, who testified to the fact that he had filed an affirmation in support of TVB’s opposition to the grant of a production order against TVB and that the judge had dismissed the application.[44] Further, he testified that the effect of the judge’s judgment was that TVB was not required to provide “full and unedited version of footage” or to disclose the identity of the cameramen who had made that footage.[45] In cross-examination on behalf of the 1st applicant, when asked if those representing the 1st applicant could view the material that had been blocked out in transmission, David Wong confirmed that the opposition by TVB to the application was because “…there was a need to safeguard our journalistic independence and to save the frontline staff.” He confirmed that he had not spoken to the cameramen involved.[46]
40. Clearly, the judge would have understood that the material missing from the video footage made available to the Court was still available but in the hands of the media company concerned. Equally, it would have been readily apparent to the judge that the parties were aware of that situation, but nevertheless no application had been made by any of the parties at the trial to seek the production of that material. No submission was made to the judge by any of the parties to the effect that the judge had power, of his own motion, to compel the production of the original video footage or the identification of the makers of that material.
The submissions to this court
41. It is in that context, Mr Owen advanced the submission that it was a reasonably arguable ground of appeal that the judge failed to realise not only that he had a power to order the production of the material in the trial but also that it was in the interests of justice that he exercise that power. Mr Owen accepted that it was very unusual for a trial judge to require of his own motion that evidence be adduced in a trial. I am satisfied that Mr Owen was correct to make that concession. The leading authority on the point in Hong Kong, the judgment of this Court in The Queen v Jimmy Johnson [47], concerned the very special circumstances of diminished responsibility in a trial where, although there was evidence available to the defence to support the defence of diminished responsibility, the applicant had given instructions that no such evidence was to be adduced in the defence case. Moreover, Mr Owen readily acknowledged that he was unable to assist the Court by reference to any relevant authorities in which there were circumstances in any way analogous to those obtaining at this trial. That is not surprising in the least.
42. Mr Owen was candid in responding to the Court’s question as to why no application was made by those representing the 1st applicant at trial that the judge compel the production of the video footage and disclosure of the identity of the cameramen: it was for the prosecution to prove the case, not the defence. If there was a lacuna in the evidence, the defence was entitled to take advantage of the lacuna. Clearly, the decision made on behalf of the 1st applicant was considered and deliberate.
43. No doubt, those representing the 1st applicant were entitled to take that tactical decision on his behalf. But, it ill behoves those representing the 1st applicant, having made a considered and deliberate tactical decision at trial, to submit now in this Court that it is reasonably arguable that the judge failed to second‑guess that tactical decision and to have required, on his own motion, that the evidence be adduced at trial. It is to be remembered that the 1st applicant was represented at trial by Mr Lawrence Lok SC, a very experienced leading counsel. No submission was made that trial counsel was incompetent.
44. In his judgment in the Court of Final Appeal in Chong Ching Yuen v HKSAR [48] Sir Thomas Eichelbaum, with whom all the other judges agreed said, in the context of a consideration of error committed by counsel for a defendant at trial:[49]
“ … it is necessary to understand the authority of counsel in regard to the conduct of the trial. This was well described by Gleeson CJ in R v. Birks (1990) 48 A Crim R 385, a decision of the Court of Appeal of New South Wales:
“In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. For example, in Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest quoted with approval the following statement of the Lord President in the Scottish case of Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914, concerning the role of an advocate:
‘… His legal right is to conduct the cause without any regard to the wishes of his client, so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done, even if the client’s interests are thereby prejudiced.’
In Halsbury’s Laws of England (4th ed), Vol 3(1), para. 518 at 420, it is stated that:
‘… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.’ ” (390 – 391)
It follows, almost inevitably, that ordinarily, a tactical decision by counsel which, in hindsight, ought to have been made differently, will not provide any ground for appeal, any more than if such decision had been made by the defendant personally. Nor will other forms of mere error of judgment.”
Conclusion
45. I am satisfied that this ground of appeal is one of mixed law and fact and that it is not a reasonably arguable ground of appeal.
The evidence of David Wong as to the contents of the original video footage
46. Of the issue taken in respect of proof of authenticity of the video footage, the judge noted that the defence submitted that, given that the video footage had been downloaded from the Internet, “…full particulars of the history and provenance of the copies must be shown.” [50] Having cited [51] a passage from the judgment in R v Murphy, namely that “authenticity… may be proved circumstantially”, the judge said “What is required is evidence that the video footage and photographs accurately record the events of that night.” [52] Of the prosecution case, the judge said:[53]
“ In addition to witnesses from TVB and ATV the prosecution relied on the evidence of police officers who apprehended Tsang and the evidence of Tsang to say the video footage and photographs were consistent with their recollection of the events.”
47. Three witnesses from TVB gave evidence for the prosecution at the trial, namely Sum Ka Hung, a senior technician in the News Ingestion Department, Lam Ka Yu, a senior librarian, and David Wong, the News production manager.[54] There was no dispute that the effect of their evidence was that video footage filmed by cameramen at the scene was transmitted to and recorded by the server used by the News Department of TVB. Then, Mr Lam was responsible for burning that footage to Blu-ray discs, which were stored in the library of TVB.
48. For his part, subsequently David Wong had obtained the Blu‑ray discs and conducted a comparison with the video footage broadcast by TVB downloaded by the police from the Internet. At trial, he testified of the results of his comparison. It is apparent from the transcript of his evidence that no objection was taken by any of the defendants to him giving that evidence. It appears that no submission was made that David Wong’s evidence was inadmissible because the best evidence, namely the Blu‑ray discs, was available. Consistent with the position he took on behalf of TVB in the production order proceedings presided over by Barnes J prior to trial, in cross‑examination David Wong confirmed that he declined to produce the Blu‑ray discs at trial.[55]
49. Of David Wong’s comparison between the contents of the Blu‑ray discs and the footage of the eight videos (exhibit P1 (a)-(h)) downloaded by the police the judge said that “David Wong concluded that apart from certain blocked shots which were missing, the video footage (a) had not been edited.” [56] The judge went on to note that David Wong said that prior to the footage “…there was another 4 seconds on the Blu‑ray disc. This four second shot however was very shaky and therefore David Wong could not see clearly what was depicted…” [57] The judge noted that David Wong said that the blocked shot, visible on the Blu‑ray discs but not on exhibit P1 (a), depicted the group turning into an area where they were blocked by a van.[58] By contrast, in respect of exhibit P1 (b) the judge noted that David Wong said that “he was able to say this was a single shot without editing because he had viewed the original Blu‑ray disc.” [59] Also, David Wong said that the sound recording was the same on exhibit P1 (b) and the Blu‑ray disc.[60]
50. Of the blocked footage not contained on the video footage downloaded by the police from the Internet, but found on the Blu‑ray discs, the judge noted that, having been referred to the affirmation that he had filed in the production order proceedings, David Wong said that the total time gap was 49 seconds.[61]
51. In the result, the judge concluded:[62]
“ I am satisfied on the evidence of Sum Ka Hung, Lam Ka Yu, David Wong and Tsang that the video footage, whilst not continuous, shows the events of that night. I am satisfied the images have not been altered or changed. I am satisfied that the true sequence of events is that the relevant shot is followed by the first shot and then the second shot. The fact that there is a blocked shot in-between the first shot and the second shot does not cause me to doubt this is the true sequence of events.”
52. Of that finding, the judge went on to say:[63]
“ I accept the evidence of David Wong. The fact some of the footage had been edited in the way David Wong described does not cause me to doubt the findings I have made that the video footage, whilst not continuous, shows the events of that night; that the images depicted have not been altered or changed; and that the true sequence of events is that the relevant shot is followed by the first shot and then the second shot.”
53. In conclusion, the judge said:[64]
“ 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.
In addition, I accept the evidence of Tsang that the TVB footage played to him in court was consistent with his recollection of the events that night. On this evidence I find the prosecution have proved the authenticity of the TVB footage beyond reasonable doubt.”
54. Earlier, the judge had noted Tsang’s testimony that events depicted on parts of the TVB video footage were “consistent with his recollection of the events that night”. First, as he was escorted by the second group of police officers;[65] secondly, as he was carried to a dark corner;[66] and thirdly, as he was carried to the substation, thrown to the ground and assaulted.[67]
55. Of the exercise of his discretion to exclude otherwise admissible evidence, the judge said:[68]
“ In ruling the TVB footage was prima facie authentic and finding the footage authentic I carefully considered the submissions that I should exclude the evidence, including that the defence did not have access to the blu-ray discs referred to by David Wong and from which David Wong made his comparisons; the absence of the cameramen; and the intelligibility and/or quality of the footage.
I found no grounds on which to exclude any of the TVB footage on the grounds of unfairness. None of these matters cause me to doubt the findings I have made.” [Italics added]
56. As noted earlier, although it is advanced as a ground of appeal that the judge erred in allowing David Wong to give evidence of the comparison of what he had seen on the Blu‑ray discs and what was depicted on the video footage downloaded by the police from the Internet, no objection was taken at trial by the 1st applicant to that evidence being led. Insofar as the matter was addressed at trial, the issue was touched on in the written submissions filed on behalf of the 1st applicant in the voir dire. There, in submissions under the rubric ‘TVB’s account’, it was submitted:[69]
“ There is a regrettable feature in the TVB footages, in that the 2 Blu‑ray discs are not before the court; and the court is therefore deprived of the opportunity of comparing Exhs PP 1(a)-(h) with the Blu‑ray discs. The court is therefore presented with 2 conflicting principles- i.e. freedom of the press vs. liberty of the subject. The comparison conducted by Wong is vulnerable to mistakes as Wong himself admitted the original 20-30 seconds of the blocked shot was indeed 49 seconds.
We invite the court to redress the balance by excluding the TVB footage.”
57. Clearly, the submission was predicated on the underlying acceptance that, although it was the unambiguous evidence of David Wong that the original footage existed on the Blu‑ray discs, it was not available to the Court. It appears from the reference to “…2 conflicting principles‑i.e. freedom of the press vs liberty of the subject” that it was accepted that the effect of the ruling of Barnes J was that the original video footage on the Blu‑ray discs was not available at trial. Certainly, as noted earlier, no application was made for the evidence to be adduced at trial or any suggestion made that the judge himself might call for the evidence.
58. In those circumstances, the Blu-ray discs not being available at trial, not because they did not exist but because of what appears to have been the acceptance of all the parties that they were not available at the trial because of the effect of the order of Barnes J, it is readily understandable why there was no objection to David Wong testifying of his comparison of what he had seen on the Blu‑ray discs compared with the video footage downloaded by the police from the Internet.
59. As is equally apparent, the argument sought to be advanced on behalf of the 1st applicant is fundamentally in conflict with the way in which the 1st applicant’s case was conducted at trial. The issue was not touched upon at all at trial. It was known from the written ‘Opening Address for the Prosecution’ that the prosecution intended calling evidence of a comparison between the Blu‑ray discs and the video footage obtained by the police.[70] Clearly, the position taken on behalf of the 1st applicant was both informed and considered.
Conclusion
60. In my judgment, this ground of appeal is one of mixed law and fact. In all the circumstances, I am satisfied it is not reasonably arguable the judge erred in allowing David Wong to testify of his comparison between the Blu‑ray discs and the video footage downloaded by the police from the Internet.
The judge’s use of the TVB video footage to determine the authenticity of the video footage of other media outlets
61. Under the rubric ‘Comparisons’ the judge cited a passage from the judgment in R v Murphy in which Kelly LJ addressed the issue of proof of authenticity and said:[71]
“ 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.”
62. The judge noted that the defence suggested that the comparator had to be proved to be authentic beyond doubt and pointed to the following sentence in that judgment, namely:
“ Or, as in the instant case of the heli-tele film, by comparing with a film of the same events that is authentic beyond doubt.”
63. However, the judge said that the sentence was merely an example taken from the particular circumstances of that case and that the Court was not to be taken as having said “for every comparison the authenticity of the footage compared with must be beyond doubt.”
64. The heli-tele film was a continuous colour film taken from an army helicopter. The ‘European’ film was a commercial film, which showed part only of the events as the abducted soldiers were taken away in a taxi to a place where they were murdered. The relevance or authenticity of the heli-tele film was not challenged at the appeal. The Court noted that the judge had said that he had viewed both films:[72]
“ I have seen both films shown side-by-side at the same time on two screens in the court. Each film showed exactly the same part of the journey of the taxi along the Andersonstown Road (including a part where the taxi mounts the pavement), one film being taken from above from the helicopter and the other film being taken by the European cameramen on the ground. Having seen both films shown side-by-side it is clear beyond any doubt that the European film is authentic and has not been altered or tampered with and gives a true and accurate picture of what the European cameramen saw through his viewfinder when he filmed the taxi as it drove along the Andersonstown Road…”
65. Of that finding, the Court of Appeal said:[73]
“ We consider the reception of the European film into evidence by the trial judge in the instant case was correct.”
66. In his analysis of the evidence adduced in respect of the video footage the judge addressed the video footage obtained from the different media outlets in sequence. First, he considered the evidence relevant to the TVB footage. Then, he addressed the issue of whether there was evidence that it was prima facie authentic:[74]
“ 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.”
67. In addition, noting that, having viewed parts of that video footage, Tsang had said that it was “consistent with his recollection of the events that night” the judge concluded that Tsang’s evidence “if believed, was also sufficient to prove the authenticity of the TVB footage beyond reasonable doubt.”
68. Subsequently, the judge said:[75]
“ I accept the evidence of Mr Sum; Mr Lam; and David Wong. Having carefully considered the evidence and viewed the footage I am satisfied that 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 footage beyond reasonable doubt.”
The judge went on to make a similar finding in respect of the evidence of Tsang.[76]
The authenticity of the video footage of other media outlets
69. Having made those findings in respect of the TVB video footage, the judge went on to determine the authenticity of the video footage obtained by the police from the Internet from other media outlets.
Apple Daily
70. Having noted that no witness had been called from Apple Daily to give evidence, the judge said that Tsang had confirmed that part of that video footage was “consistent with his recollection of the events that night.”[77] Then, the judge determined that evidence to be sufficient “if believed… to prove the authenticity of the Apple Daily footage beyond reasonable doubt.” Next, the judge said:[78]
“ 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.”
71. The judge made a similar finding in respect of what he described as the “moving photograph” of another passage of the Apple Daily video footage.[79]
72. Then, having accepted the evidence of Tsang that the Apple Daily footage played to him in court was “…consistent with his recollection of the events that night” the judge found that the prosecution had proved “the authenticity of the Apple Daily footage of the assault beyond reasonable doubt.” [80]
73. Next, having found that part of the TVB video footage was identical to part of the Apple Daily footage, the judge said:[81]
“ On this evidence I find the prosecution have proved the authenticity of the Apple Daily footage beyond reasonable doubt.”
74. Finally, of what he had described as the “moving photograph” in the Apple Daily video footage, the judge said that, having compared it with the TVB footage and the still photographs, he was satisfied “by looking at the clothing and appearance of the persons, the moving photograph shows the time when Tsang Kin Chiu has been carried facedown.” [82] In the result, the judge said that he found that the prosecution had proved “the authenticity of the moving photograph beyond reasonable doubt.” [83]
Photographs
75. In determining that two photographs downloaded from the Internet, one from Next Media and the other Oriental Daily, were proved beyond reasonable doubt to be authentic the judge had regard not only to the evidence of Tsang that he was depicted in the photographs, the one in which he was seen walking with the second group of police officers and the second where he was being carried facedown, but also to the fact that the two photographs depicted scenes captured in the TVB video footage.[84]
76. As noted earlier, before he moved on to consider the authenticity of the video footage obtained from the other media outlets, the judge had determined beyond reasonable doubt that the TVB video footage was authentic. He did so on two bases. First, on the evidence of the three TVB employees and, secondly on the evidence of Tsang that part of the TVB footage was consistent with his recollection of the events that night. Accordingly, when the judge had regard to the TVB video footage in determining the authenticity of the video footage of the other media outlets he was having regard to material that he had determined beyond reasonable doubt to be authentic.
Conclusion
77. In my judgment this ground of appeal is one of mixed law and fact. I am satisfied that it is not reasonably arguable.
The judge’s determination that authenticity of the video footage and photographs was proved beyond reasonable doubt
78. In support of the submission that the judge had erred in determining that the video footage and photographs were authentic complaint was made that the judge had failed to recognise that those who made the films, loaded them to the Internet, edited them and stored them had not been called to give evidence.
79. As the judge made clear in his careful analysis of the evidence, he was acutely aware of the shortfalls in the evidence adduced by the prosecution in respect of the video recordings and photographs. The judge said:[85]
“ The main criticism levelled at all the video evidence, and not just the TVB footage, is that there was no continuous recording, the footage having clearly been edited.”
80. In respect of the TVB video footage, the judge said that he was satisfied “that the video footage, whilst not continuous, shows the events of that night… (and) the images have not been altered or changed.” [86] In addressing the issue of the “blocked” or edited part of exhibit P1(a), having repeated those findings, the judge went on to conclude “…the true sequence of events is that the relevant shot is followed by the first shot and then the second shot.” [87]
81. In rejecting the submission that he should exclude the TVB video footage evidence the judge said:[88]
“ I carefully considered the submissions that I should exclude the evidence, including that the defence did not have access to the Blu‑ray discs referred to by David Wong and from which David Wong made his comparisons; the absence of the cameramen; and the and eligibility and/or quality of the footage.”
82. In the context of a consideration of the same or similar issues in respect of the video footage of the other media outlets the judge stated in terms the matters to which he had regard. In respect of video footage from Apple Daily, he said that he had carefully considered:[89]
“ …the defence submissions that I should exclude the evidence, including nobody was called from Apple Daily to confirm when the footage was filmed; the absence of the cameramen; how the footage was edited for broadcasting; and the quality of the footage.”
83. In respect of the video footage of ATV, the judge said that he had carefully considered:[90]
“ …the submissions that I should exclude the evidence, including that Mr Chim had no personal dealings with the video footage; did not know the cameraman who filmed the footage; did not know who edited the footage for broadcasting; nobody was called from ATV to confirm or verify when the footage was uploaded to the ATV website; and the quality of the footage.”
84. In respect of the video footage of Now TV, the judge said that he had carefully considered:[91]
“ …the submissions that I should exclude the evidence, including the absence of the cameramen; nobody was called from Now TV to confirm when the footage was filmed; and the quality of the footage.”
85. In respect of the two photographs, the one from Next Media and the other from the Oriental Daily, the judge said that he had carefully considered:[92]
“ …the submissions I should exclude the photographs, including that nobody was called from Apple Daily or Oriental Daily to testify when, where and by whom the photographs were taken; when the photographs were uploaded onto the websites; and whether the photographs had been edited.”
Conclusion
86. I am not satisfied that this ground of appeal is reasonably arguable.
The judge’s identification of the 1st applicant as a party to the assault on Tsang
87. Having regard to the evidence that the 1st applicant had not been identified as his assailant by Tsang or by any other witness for the prosecution, it was submitted on behalf of the 1st applicant that the judge erred in identifying the 1st applicant as being present throughout the assault on Tsang and having done so by reference to his clothing.
88. The judge noted that Tsang did not identify the 1st applicant, or for that matter four of the other defendants at trial.[93] Also, he said “There has been no identification of D1 from the footage showing the assault at the substation.” [94]
89. The judge said that he accepted the evidence of Senior Superintendent Chan, under whose immediate command the 1st applicant had been from June 2014 until his interdiction in October 2014, of the identification of the 1st applicant in video footage and photographs, which evidence he noted was not challenged[95]. That video footage and photographs had been taken of events prior to the assault on Tsang at the substation. The judge noted that, on 11 March 2016:[96]
“ SSP Chan recognised D1 on the ATV footage P3 (2) and on the TVB footage P1 (g). SSP Chan marked which person was D1 on screen captures of the shots where he recognised D1 [97].”
90. In addition, the judge noted that, on 26 May 2016, Senior Superintendent Chan had identified the 1st applicant in photograph P13 and “marked which person was D1 [98].” Photograph P13 is a well illuminated, sharply focused photograph of four men carrying Tsang, who is face down. The 1st applicant was identified by Senior Superintendent Chan as being the person in the lead and to the right of those carrying Tsang. A sixth man is seen alongside and to the left of those carrying Tsang.
91. Of the significance of that evidence, the judge said:[99]
“ The identification of D1 by SSP Chan from the ATV footage shows the stage where Tsang was handed over.”
92. However, noting that identification was in the second part of the ATV footage, the judge went on to find:[100]
“ I am satisfied D1 can be seen in the first part of the ATV footage when Tsang was handed over as shown in screen capture 3 attached to the prosecution’s closing submissions.”
93. Then, the judge noted that the identification of the 1st applicant by Senior Superintendent Chan in the TVB footage “shows the stage where Tsang was escorted.” The judge went on to say that he was satisfied that the 1st applicant was depicted escorting Tsang in both Now TV and ATV video footage. Of the latter, he said that the 1st applicant could be seen “at the back escorting Tsang.” [101]
94. Having noted that the 1st applicant had been identified by Senior Superintendent Chan in photograph P13 on the right‑hand side of Tsang as he was being carried face down, the judge said that he was satisfied that the 1st applicant was depicted in that position in “the moving photograph in the Apple Daily footage” and in the “first nine seconds of the TVB footage (exhibit P1 (a)) walking from the right side to the left side of Tsang.” [102]
95. Of the clothing worn by the 1st applicant, the judge said:[103]
“ From the video footage and in particular the photograph, exhibit P 13, the clothing of D1 is clearly seen. D1 was wearing a white shirt with the sleeves rolled up. The shirt was open neck and not tucked in. D1 was also wearing a black OCTB sleeveless jacket; a watch on his left wrist; blue trousers and brown shoes.”
96. There is no dispute that that is an entirely accurate description of the clothing worn by the 1st applicant as depicted in exhibit P13. Also, that clothing can be discerned in the video footage. The importance of those findings is made clear by the judge’s description of events that unfolded after the arrival of Tsang and the group of men at the substation, namely:[104]
“ The TVB footage shows the group arriving at the substation [105]. By following the person carrying the left leg of Tsang, the back of this person is seen as the group turn left at the substation and drop Tsang on the ground. Screen capture ID1 taken from P1 (h) is attached herewith showing the person carrying the left leg of Tsang. This is best seen in slow motion or frame by frame.
When this person turns round, his clothing can clearly be seen, in particular a white shirt with the sleeves rolled up. The shirt is the same as seen in the photograph exhibit P13, with an open neck and not tucked in. A watch on the left wrist can also be seen. The colour of the trousers cannot be determined with certainty however the thighs show a faded look on both legs which is consistent with that seen in the photograph exhibit P13. Screen capture ID2 taken from P1 (h) is attached herewith showing the clothing of this person and highlighting the tail of the shirt and the faded look on both thighs. The video needs to be viewed to see the watch.”
97. The judge’s description of the clothing worn by the man who turned around after Tsang had been dropped to the ground is made good by an examination of the TVB video footage. As the judge noted, the watch is discernible in the video footage.
98. In the result, the judge determined:[106]
“ I am satisfied so I am sure that when the group arrived at the substation D1 was the person carrying the left leg of Tsang. D1 is seen throughout the assault footage keeping watch and occasionally going up to look at Tsang. D1 was the last person to leave when Tsang was taken away.”
99. In doing so, the judge said that he had considered carefully submissions made on behalf of the 1st applicant that “…there is a possibility that the persons, including the person being carried, might have changed because there was a change in the number of persons carrying a person to the substation”. The judge said that he had regard to the fact that there were “more than two hundred plainclothes officers involved in the clearance operation; and at least forty‑two arrested persons were searched or processed near to the substation.” In the result, the judge said that the submissions did not cause him to doubt his findings.[107]
100. It is clear that the judge approached his determination of whether or not the 1st applicant was a party to the assault on Tsang at the substation with considerable care. Earlier, he had directed himself of the “special need for caution” before convicting the defendant on evidence of identification.[108] He acknowledged that there was no identification of the 1st applicant from the “footage showing the assault”. Having stated that he accepted the evidence of Senior Superintendent Chan, in which he identified the 1st applicant as having been present at the time that Tsang was handed over and subsequently when he was escorted away, the judge identified the 1st applicant in other video footage in which Tsang was being carried face down as he was escorted away. From that evidence, the judge enumerated distinctive features of the 1st applicant’s clothing. He said that he observed almost all of the distinctive features of that clothing subsequently in the clothing of one of the men who had dropped Tsang to the ground at the substation, turned away and kept watch: namely, a white shirt with the sleeves rolled up; the neck of the shirt was open and the shirt was not tucked in; the thighs of the trousers had a faded look and a wristwatch was worn on the left wrist of the person. All of those distinctive features are readily observable in photograph P13 in which the 1st applicant was identified by Senior Superintendent Chan.
101. It was in those circumstances, that the judge determined that the 1st applicant was one of the men carrying Tsang to the substation, where he was dropped onto the ground, and that the 1st applicant remained nearby keeping watch. In context, that identification was made following the undisputed identification of the 1st applicant in photograph P13, escorting Tsang as he was carried face down, the evidence that Tsang was carried for no more than several minutes and several hundred metres prior to being dropped onto the ground at the substation.
Conclusion
102. In my judgment, no reasonably arguable grounds of appeal have been advanced to support the assertion that the judge erred in his identification of the 1st applicant as present at the substation and a party to the assault.
103. As I determined earlier, the applicant does not require leave to appeal against conviction in respect of ground 1.1, which concerns a point of law alone. On the other hand, I am satisfied that there are no reasonably arguable grounds of appeal advanced on behalf of the 1st applicant in the other grounds of appeal. Accordingly, I refuse leave to appeal against conviction on all the other grounds of appeal against conviction.
Sentence
104. In sentencing the defendants following their conviction after trial, the judge said:[109]
“ The defendants have not only brought dishonour to the Hong Kong Police Force they have also damaged Hong Kong’s reputation in the international community, the assault having been widely viewed around the world and reported as front‑page news in a number of countries.
Although Tsang had broken the law for which he was subsequently sentenced to imprisonment and the defendants were at the time acting under immense stress, there was no justification for taking Tsang to the substation and assaulting him.
The defendants, serving police officers who in the execution of their duty took Tsang to the substation to assault him; the multiplicity of the injuries sustained by Tsang as a result of the assault; and the damage to Hong Kong’s reputation make this, in my view, a very serious case.
I am satisfied a term of imprisonment is appropriate. Tsang was defenceless, his hands handcuffed behind his back with plastic ties. The assault was a vicious assault, in particular the first thirty seconds when Tsang was dumped on the ground, stabbed, stamped on and repeatedly kicked. Most fortunately Tsang did not suffer more serious injuries.”
105. Having stipulated a starting point for sentence of 2½ years’ imprisonment, the judge said that, having regard to all the circumstances, he reduced the sentence to one of 2 years’ imprisonment. He said that he had regard to:[110]
“ …the circumstances prevailing at the time of the great stress the police were under in handling the Occupy Central movement; that the defendants, all of clear record, have served the community as police officers; that the conviction will result in all the defendants being dismissed from the police force and the likely loss of any pensions; and the stress caused while waiting for trial.”
106. In the result, the judge sentenced the 1st applicant to 2 years’ imprisonment.
107. On 6 July 2017, I granted the 1st applicant bail pending appeal. I did so after Yeung VP had granted bail pending appeal on 28 June 2017 to three other defendants at trial. In doing so, Yeung VP observed that, given the maximum sentence for the offence of occasionally actual bodily harm is 3 years’ imprisonment, “…it is, in my view, highly arguable that the 2½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.” [111] In addition, Yeung VP went on to observe that there was “…a risk that the applicants would have served a sentence longer than they need to serve even if their convictions are maintained.” [112]
Conclusion
108. In my judgment the grounds of appeal against sentence are reasonably arguable. Accordingly, I grant the 1st applicant leave to appeal against sentence.
109. The 1st applicant is advised that he has the right to renew his application for leave to appeal against conviction to the Full Court, 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 1st applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.
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(Michael Lunn)
Vice-President |
Mr Jonathan Caplan, QC, Counsel on fiat, Mr David Leung, SC, DPP (Ag.) and Ms Clara Ma, SPP, of the Department of Justice, for the Respondent
Mr Tim Owen, QC, Mr Clive Grossman, SC and Mr Benson Tsoi, instructed by Kwok, Ng & Chan, for the 1st Applicant
[1] Reasons for Verdict, paragraph 9.
[2] Reasons for Verdict, paragraph 24.
[3] Reasons for Verdict, paragraph 11.
[4] Reasons for Verdict, paragraph 18.
[5] Reasons for Verdict, paragraph 17.
[6] Ground 1.1.
[7] Ground 1.1(2).
[8] Ground 1.2.
[9] Grounds 1.4 and 1.5.
[10] Ground 1.6.
[11] Grounds 1.7-1.8.
[12] Ground 1.10.
[13] “ (1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.
(2) The appeal may be-
(a) on any ground which involves a question of law alone; and
(b) with the leave of the Court of Appeal, on any ground which involves question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court of Appeal to be a sufficient ground of appeal;”
[14] Respondent’s written submissions, paragraph 50.
[15] Commissioner of Police v Television Broadcast Limited; Commissioner of Police v Apple Daily Limited; Commissioner of Police v Asia Television Limited; Commissioner of Police v i-Cable Communications Limited; and Commissioner of Police v PCCW Media Limited (HCMPs 114, 115, 118, 119 and 120/2016; unreported, 8 March 2016).
[16] Respondent’s written submissions, paragraph 54.
[17] R (on the application of British Sky Broadcasting Ltd) v Metropolitan Police Commissioner [2014] 2 All ER 705 (Supreme Court). At paragraph 29, Lord Toulson said:
“ Compulsory disclosure of journalistic material is a highly sensitive and potentially difficult area. It is likely to involve questions of the journalist’s substantive rights. Parliament has recognised this by establishing the special, indeed unique procedure under s 9 and Sch 1 for resolving such questions.”
[18] Exhibits P1-P4.
[19] Reasons for Verdict, paragraph 38.
[20] Reasons for Verdict, paragraph 41.
[21] R v Robson & Harris [1972] 1 WLR 651.
[22] Reasons for Verdict, paragraph 43.
[23] R v Murphy & Another [1990] NI 306.
[24] HKSAR v Lee Chi Fai [2003] 3 HKLRD 751..
[25] Social Networking Material as Criminal Evidence, Crim LR 2012; Micheal O’Floinn and David Ormerod.
[26] Reasons for Verdict, paragraph 44.
[27] Reasons for Verdict, paragraph 46.
[28] Cross & Tapper on Evidence, 12th edition, page 184.
[29] Reasons for Verdict, paragraph 45.
[30] In fact, R v Robson was the reasons for a ruling on admissibility by Shaw J sitting as a single judge in the Central Criminal Court.
[31] Reasons for Verdict, paragraph 47.
[32] Respondent’s written submissions, paragraph 2(1).
[33] Respondent’s written submissions, paragraph 24.
[34] Choi Kit Kau v The Queen (CACC 333/1980 (Magisterial Appeal); unreported, 20 June 1980).
[35] HKSAR v Lee Chi Fai,paragraph 33, page 763 D-E.
[36] HKSAR v Lee Chi Fai,paragraph 34.
[37] HKSAR v Lee Chi Fai,paragraph 34.
[38] Commissioner of Police v TVB & Others (HCMPs 114/2016; 115/2016; 118/2016; 119/2016 and 120/2016: unreported, 8 March 2016).
[39] Commissioner of Police v TVB & Others, paragraph 18.
[40] Commissioner of Police v TVB & Others, paragraph 19.
[41] Commissioner of Police v TVB & Others, paragraph 23.
[42] Commissioner of Police v TVB & Others, paragraph 29.
[43] So Wing Keung v Sing Tao Limited & Another [2005] 2 HKLRD 11,at paragraph 36(5)(c).
[44] Appeal Bundle, page 363 J-R.
[45] Appeal Bundle, page 363 P-S.
[46] Appeal Bundle, page 381 A-L.
[47] The Queen v Jimmy Johnson [1983] HKLR 344.
[48] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126.
[49] Chong Ching Yuen v HKSAR, paragraphs 47-8.
[50] Reasons for Verdict, paragraph 53
[51] Reasons for Verdict, paragraph 54.
[52] Reasons for Verdict, paragraphs 54-5.
[53] Reasons for Verdict, paragraph 56.
[54] Reasons for Verdict, paragraph 93.
[55] Appeal Bundle, page 381 A-C.
[56] Reasons for Verdict, paragraph 104.
[57] Reasons for Verdict, paragraph 105.
[58] Reasons for Verdict, paragraph 107.
[59] Reasons for Verdict, paragraph 109.
[60] Reasons for Verdict, paragraph 110.
[61] Reasons for Verdict, paragraph 124
[62] Reasons for Verdict, paragraph 144.
[63] Reasons for Verdict, paragraph 148.
[64] Reasons for Verdict, paragraphs 164-5.
[65] Reasons for Verdict, paragraph 82.
[66] Reasons for Verdict, paragraph 85.
[67] Reasons for Verdict, paragraph 89.
[68] Reasons for Verdict, paragraphs 166-7.
[69] 1st Defendant’s Submissions on Voir Dire, page 11. (MFI-2.)
[70] Appeal Bundle, page 14.
“ ...the content of the stored TVB footage (except 49 seconds of block shots) has the same content as a footage downloaded from the Internet by Sergeant WONG Man-tik and Sergeant YIP Chi-wang.”
[71] Reasons for Verdict, paragraph 61.
[72] R v Murphy, page 339 D-F.
[73] R v Murphy, page 342 B-C.
[74] Reasons for Verdict, paragraph 118.
[75] Reasons for Verdict, paragraph 164.
[76] Reasons for Verdict, paragraph 165.
[77] Reasons for Verdict, paragraph 171.
[78] Reasons for Verdict, paragraph 174.
[79] Reasons for Verdict, paragraph 176.
[80] Reasons for Verdict, paragraphs 177-8.
[81] Reasons for Verdict, paragraph 181.
[82] Reasons for Verdict, paragraph 182.
[83] Reasons for Verdict, paragraph 183.
[84] Reasons for Verdict, paragraphs 229 and 231-2.
[85] Reasons for Verdict, paragraph 120.
[86] Reasons for Verdict, paragraph 144.
[87] Reasons for Verdict, paragraph 148.
[88] Reasons for Verdict, paragraph 166.
[89] Reasons for Verdict, paragraph 184.
[90] Reasons for Verdict, paragraph 213.
[91] Reasons for Verdict, paragraph 222.
[92] Reasons for Verdict, paragraph 233.
[93] Reasons for Verdict, paragraph 440.
[94] Reasons for Verdict, paragraph 454.
[95] Reasons for Verdict, paragraph 448.
[96] Reasons for Verdict, paragraph 445.
[97] Exhibits P42 (a) & (b). Exhibit P42 (a) shows the time as 00:24. This is seen in the second part of the ATV footage P3 (2) between 01:33 and 01:48. Exhibit P42 (b) shows the time as 00:05. This is seen in the TVB footage P1 (g) between 02:47 and 02:56. The same footage is also seen in TVB footage P1 (b), (d) and (h).
[98] Exhibit P42 (c).
[99] Reasons for Verdict, paragraph 450.
[100] Reasons for Verdict, paragraph 450.
[101] Reasons for Verdict, paragraph 451.
[102] Reasons for Verdict, paragraph 452.
[103] Reasons for Verdict, paragraph 453.
[104] Reasons for Verdict, paragraphs 457-8.
[105] See for example P1 (g) between 03:00 - 03:15. All the TVB footage shows the group arriving at the substation.
[106] Reasons for Verdict, paragraph 459.
[107] Reasons for Verdict, paragraph 460.
[108] Reasons for Verdict, paragraph 424.
[109] Reasons for Sentence, paragraphs 12-16.
[110] Reasons for Sentence, paragraph 18.
[111]
HKSAR v Lau Cheuk Ngai & Others (CACC 38/2017; unreported, 30 June 2017) at paragraph 45.
[112]
HKSAR v Lau Cheuk Ngai & Others,at paragraph 48.
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