HKSAR v. LAU CHEUK NGAI

CACC 38/2017

[2018] HKCA 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 38OF 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 2^nd 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 2^nd applicant, a Senior 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 5^th 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 4^th defendant, were members, of Quick Response Team A 2-2.  During the night the 4^th defendant, was re‑assigned to that team by the 2^nd applicant.  As the judge noted “Part of what happened that night was captured on video by TVB, Apple Daily, ATV and Now TV and the police video teams.  Photographs from Apple Daily and Oriental Daily also showed Tsang being escorted and carried face down.” ^[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 Wui 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 2^nd applicant was a member. Subsequently, they were joined by a seventh police officer.  Rather than being taken to the place at which other detainees were transported from the area by vehicle, the police officers took him to the Lung Wui Road Government Building Pump Station East Substation.  There, the defendants assaulted Tsang.

5.  The judge noted that the defence objected to the admissibility of the video footage and photographs on the grounds that there was “…no or no sufficient evidence as to the origin of the videos and photographs; that the videos and photographs had not been tampered with; the provenance and history of the photographs”. Also, the defence invited the judge to exercise his discretion to exclude the evidence.^[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]  It was the 2^nd applicant’s case, as advanced in submissions, that there was no evidence from any witness that he was a party to the assault on Tsang.  In those circumstances, the Court should be slow to draw its own conclusions from the video footage.[5]  Further, because of the poor lighting conditions, the clothing of those depicted in the video footage as being present at the assault on Tsang could not be seen clearly.[6]

Grounds of appeal against conviction

7.  By ground 1, of the grounds of appeal against conviction advanced on behalf of the 2^nd applicant, Mr Selwyn Yu SC submitted that the judge erred in relying on the clothing and accessories worn by the 2^nd applicant in identifying him as a party to the group of police officers who had assaulted Tsang.

8.  By the 1^st limb of ground 2, Mr Yu submitted that the judge had erred in law in determining that the standard of proof by which prima facie authenticity of the video footage was to be determined was whether the evidence, if believed by the jury, would be sufficient to prove the matter beyond reasonable doubt.  By the 2^nd limb of ground 2, it was submitted that the judge had erred in law in admitting into evidence the video footage obtained from ‘open sources’ in that in doing so he failed to apply the ‘best evidence’ rule.  In his oral submissions, Mr Yu readily accepted that the submissions had not been advanced at trial on behalf of the 2^nd applicant or any of the defendants at trial.

9.  By ground 3, it was submitted that the judge had erred in admitting the video footage into evidence given that there was no or no sufficient evidence adduced to prove the provenance and history of the video footage.  Next, it was contended that the judge had erred in relying on the evidence of the prosecution witness David Wong Kwong Hoi of his comparison of the TVB video footage adduced at trial with the purported master copy contained on the Blu-ray disc at TVB.  Then, it was submitted that the judge had erred in admitting into evidence and relying upon exhibit P1 (h), some of the TVB video footage, in the absence of evidence of the circumstances in which it had been edited to enhance brightness.  In his oral submissions, Mr Yu invited the Court to note that it was not known how the enhancement had been done.  There was no evidence if it had any effect on the “colour scheme or tone”.

10.  By ground 4, it was submitted that the judge had erred in finding that proof of the prima facie authenticity of video footage[7] was established by comparison of that other video footage with TVB video footage, in respect of which he had received the evidence of David Wong.

11.  Mr Yu submitted that the grounds advanced in respect of both limbs of ground 2 concerned matters of law only, so that the leave of this Court was not required.  He accepted that the other grounds of appeal were of mixed fact and law, for which the leave of this Court was required.

Grounds of appeal against sentence

12.  In the grounds of appeal against sentence advanced on behalf of the 2^nd applicant it was submitted that the judge had erred in stipulating a starting point for sentence of 30 months’ imprisonment.  Further, that in stipulating that starting point it was contended that the judge had given undue consideration to the purported dishonour to the Hong Kong police force and the damage to Hong Kong’s reputation in the international community.  Next, it was contended that the judge had erred in failing to differentiate the role and culpability of the 2^nd applicant from that of his co-accused, in particular having regard to the fact that he did not physically assault Tsang, that he had pulled the 3^rd applicant away from the assault and, having intervened in the assault, it was resumed only after he had temporarily left the scene of the assault.

The respondent’s submissions

13.  Mr David Leung SC, for the respondent, conceded, for current purposes, that the first limb of ground 2, namely the appropriate standard of proof of prima facie authenticity of the video footage, was a matter of law only.  He did so on the basis of the earlier determination of that issue by this Court in the application for leave to appeal of the 1^st applicant.[8]  However, he opposed the submission that the second limb of ground 2, namely the alleged failure of the judge to apply the best evidence rule, gave rise to an issue of law only.  Rather, he contended it was a matter of mixed law and fact for which leave to appeal of this Court was required.

14.  Mr Leung submitted that the other grounds of appeal, including the second limb of ground 2, were not reasonably arguable so that leave to appeal should not be granted.

15.  In response to the submissions made in respect of ground 1, namely the identification of the 2^nd applicant as a participant in the group of persons who attacked Tsang, Mr Leung submitted that the judge had made it abundantly clear that he was aware of the “special need for caution”[9] required in such circumstances in making a finding of identification.  The judge accepted the identification of the 2^nd applicant by Chief Inspector Chung as being depicted in TVB footage, together with a group of police officers with Tsang, shortly before the assault at the substation, noting that the identification was not challenged by leading counsel representing the 2^nd applicant at trial.[10]  It was submitted that in making identification of the 2^nd applicant in other video footage and photographs, albeit that Chief Inspector Chung had not done so in respect of some of that material, the judge had done so with considerable care.  The judge acknowledged that the 2^nd applicant had not been identified from video footage depicting the assault on Tsang at the substation.

16.  Of the best evidence ground of appeal, Mr Leung submitted that it was clear from the judgments of the Divisional Court of England and Wales in Kajala v Noble[11] and the Appeal Committee of the Court of Final Appeal in Tang Yiu Hong v HKSAR[12] that the best evidence rule, insofar as it survived at all, has “no relevance to tapes or films”[13], but is limited to documents in the hands of the party or at least where he could have them in court without any difficulty.  Further, the judgment in Kajala v Noble had been cited with approval in the judgment of the Court of Appeal of Northern Ireland in R v Murphy & Another, which itself had been cited with approval by this Court in HKSAR v Lee Chi Fai and described as being “wholly correct”.[14]

17.  In respect of ground 3, Mr Leung invited the Court to note that the submission that the judge had erred in relying on the evidence of Mr David Wong’s comparison of the TVB footage with the original, but undisclosed, material contained on the Blu-ray disc was an argument advanced in the application for leave to appeal against conviction of the 1^st applicant, but found by this Court to be not reasonably arguable.  For those reasons, it was submitted that it was likewise not reasonably arguable.

18.  Of the issue raised in the ground of appeal in respect of the enhanced brightness of the video footage, Mr Leung invited the Court to note that the issue now raised by Mr Yu, namely that it was not known what effect the enhancement had on the “colour scheme or tone”, was not a matter canvassed at all at trial on behalf of the 2^nd applicant or, indeed, by any counsel.

19.  Further, Mr Leung invited the Court to note that the judge had referred the parties at trial to the judgment of a single judge in the Ontario Superior Court of Justice in R v Jamieson[15].  In that case the judge compared the original videotape with one of enhanced brightness determining that “both videotapes are an accurate presentation of events as they occurred.”  In the present case the judge had compared the enhanced brightness of the TVB video footage, exhibit P1 (h), with other TVB video footage, exhibit P1 (b), and was satisfied that they depicted the same events, albeit that the brightness of the former exhibit had been enhanced.[16]  It was submitted that the absence of the person who had enhanced the brightness of the video was not a bar to admissibility when there was abundant evidence of prima facie authenticity.

Ground 4

20.  In respect of ground 4, namely the submission that the judge had erred in having regard to the TVB footage in determining the authenticity of the other video footage, Mr Leung invited the Court to note that the same argument had been raised on behalf of the 1^st applicant and determined by this Court not to be reasonably arguable.  For those reasons, it was submitted that it was likewise not reasonably arguable.

Grounds of appeal against sentence

21.  Mr Leung indicated in his written submissions that whilst it remained the submission of the respondent that the sentence imposed on the 2^nd applicant was neither manifestly excessive nor wrong in principle nevertheless, having regard to the fact that leave had been granted to the 1^st applicant to argue that ground of appeal against sentence, no submissions were made at this stage in respect of the 2^nd applicant’s grounds.

A consideration of the submissions

Ground 2

22.  For the reasons given in the judgment in respect of the 1^st applicant’s application for leave to appeal against conviction I am satisfied that the first limb of ground 2 raises a matter of law only.[17]  Accordingly, the applicant may appeal to the Full Court without the leave of the single judge.

The best evidence rule 

23.  In Kajala v Noble the Divisional Court considered the existence of the common law best evidence rule in the context of video film footage.  In that case the Court was seized of an appeal by way of case stated from the conviction of a defendant by justices sitting at Brentford, in the County of Middlesex, for using threatening behaviour whereby a breach of the peace was likely to be occasioned.  The prosecution arose out of a disturbance in Southall involving a large group of predominantly Asian youths who threw missiles at police officers, who took up positions behind riot shields.  The incident was filmed and shown on BBC television news programmes.  An assistant editor of BBC television news department produced and identified as a true copy a video cassette recording made from the original video film which had been broadcast on BBC television news.  He said that the original video film had been brought by the film crew to the BBC news department on the evening of the day before it was broadcast, but that film crew were now on overseas assignment.  Further, that BBC policy did not allow the original video film to leave their premises.

24.  A witness who viewed the video recording identified the defendant as a member of the group of youths and as having participated in the violent behaviour directed against the police.  It was contended for the defendants at trial that, for the video film to be admissible, it was required that the prosecution produce the person who had made the video film.  The justices admitted the copy of the video recording into evidence.  The opinion of the Court was sought, inter-alia, as to whether the evidence of the video recording was admissible.

25.  In the judgment of the Court, Ackner LJ said:[18]

“ The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hand, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility: Garton v Hunter [1969] 1 All ER 451, per Lord Denning M.R. at 453 e;… In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes of films.” [Italics added.]

26.  In R v Murphy [19]the admissibility of a copy of a video film made by a commercial European cameraman (the “European film”) of the circumstances of the killing of two soldiers in Northern Ireland was contested at the trial of the two appellants for their murders.  The prosecution was not in possession of the original video film.  Rather, they sought to adduce into evidence a copy of the video film obtained by a French police officer pursuant to the order of a French judge.  They were not in a position to call the cameraman.  In determining that the judge was correct to rule the video film admissible in the trial, Kelly LJ in the judgment of the Court of Appeal of Northern Ireland:[20]

“ He came to his ruling by a route which has much in common in principle and which equally commends itself to this Court. It was that the defence objection to admissibility was based on the best evidence rule which in almost all cases of evidential proof is petered out and undoubtedly has done so in the proof of video recordings since the decision in Kajala v Noble.”

27.  In HKSAR v Lee Chi Fai [21] this Court dismissed applications for leave to appeal against conviction in which issue was taken on the basis of authenticity with the judge’s determination to admit a video film taken from a security camera which depicted, inter-alia, an assault by one of the defendants on a victim.  In the judgment of the Court, Stuart Moore‑VP cited passages from the judgment of Kelly LJ in R v Murphy, including the passage cited above.[22]  In the result, he said:[23]

“ We consider that the approach adopted by the Northern Ireland Court of Appeal was, with respect, wholly correct.”

28.  In Tang Yiu Hong v HKSAR the Appeal Committee of the Court of Final Appeal dismissed an application for leave to appeal against conviction in which it was argued that the judge had erred in admitting into evidence copies, not an original, of a document.  It was contended that was in contravention of the best evidence rule.  In the judgment of the Appeal Committee, Ribeiro PJ said of the best evidence rule, “the very existence of that rule is much in doubt.” [24]  He went on to say:[25]

“ Modern authority is strongly inclined against the survival of the rule. Thus, in Garton v Hunter [1969] 2 QB 37 at 44, Lord Denning stated: “That old rule has gone by the board long ago ...... nowadays we do not confine ourselves to the best evidence.” And in Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563, referring to the rule, Jonathan Parker LJ stated: “...... the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired.”

At the highest, it might be argued that the best evidence rule survives only in one instance. This was formulated in 1982 by Ackner LJ in Kajala v Noble (1982) 75 Cr App R 149 at 152, as follows:

“The only remaining instance of [the rule] is that, if an original document is available in one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy.”

Having noted that the court “...... would be more than happy to say goodbye to the best evidence rule”, Lloyd LJ in R v Governor of Pentonville, Ex p Osman (DC) [1990] 1 WLR 277, stressed the narrowness of Ackner LJ’s proposition stating:

“What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court, or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy should be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule, we are content.” (at 308)”

29.  With respect, I reject Mr Yu’s submission that in this context video film footage falls within the description ‘documents’.  I am satisfied that the law is clear that the best evidence rule, if it applies at all, certainly does not apply in respect of video film footage.  That much was determined authoritatively by the Divisional Court in Kajala v Noble, cited with approval by this Court and the Appeal Committee of the Court of Final Appeal.  It is to be noted that Ackner LJ said “…the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.”  [Italics added.]

Conclusion

30.  No issue of “law only” arises.  Accordingly, the 2^nd applicant is not entitled to appeal against his conviction without the leave of the Court.  Further, I am satisfied that no reasonably arguable grounds of appeal of mixed law and fact have been advanced.  Even if the 2^nd applicant’s contention was correct that, for the purposes of the best evidence rule, documents include video film footage, contrary to the specific finding of the Divisional Court in Kajala v Noble, it is clear that the prosecution did not have the original of that video film footage “in court, or could have it in court without any difficulty.”  The prosecution’s application for a production order, inter-alia, in respect of that material had failed and had been dismissed by Barnes J.[26]

Ground 3

31.  The submissions advanced in support of ground 3, save for the discrete argument in respect of the enhanced video footage, exhibit P1 (h) are all arguments that were advanced in support of the application for leave to appeal of the 1^st applicant, which submissions were rejected in the Court’s judgment.[27]  For the reasons identified in the judgment I am satisfied that no reasonably arguable grounds of appeal are advanced in that respect on behalf of the 2^nd applicant.

Enhancement of exhibit P1 (h)

32.  Having watched the TVB video footage, exhibits P1 (b) and P1 (h), repeatedly during the hearing it is clear that the latter presents a much brighter and therefore more visible scene of the action than does the former, as Tsang and a group of men are seen proceeding alongside the substation before they turned to their left behind the substation where Tsang was dropped to the ground.  The judge noted that David Wang had compared exhibit P1 (b) with the Blu-ray disc A and concluded that it was a single shot and that the sound recording was the same.[28]  Also, the judge noted that having compared exhibit P1 (b) and P1 (h) David Wong “concluded they were the same except the brightness of (h) was enhanced.” [29]  David Wong did not compare P1 (h) with the Blu-ray disc.

33.  The judge noted that David Wong had testified that:[30]

“ …it appeared exhibit P1 (h) had been edited by adding digital enhancement of the brightness of the image. This was not done by TVB and David Wong did not know how the brightness had been adjusted.”

34.  Of the suggestion made on behalf of the 2^nd applicant that P1 (h) had been tampered with, the judge said:[31]

“ I have no hesitation in rejecting the submission the video footage has been tampered with, in the sense that the events shown have been altered or changed. Although David Wong did not compare exhibit P1 (h) with the blue-ray disc he did make compares with exhibit P1 (b) and concluded that apart from the brightness they were the same.”

35.  Of his own comparison of exhibits P1 (b) and P (h), the judge said:[32]

“ I am satisfied the images depicted are the same and have not been altered or change. P1 (h) is the same news broadcast as that shown in P1 (b) at 06:04. I am satisfied that the only enhancement is the brightness. The fact the court has not been told who or how the brightness of the image was enhanced does not cause me to doubt the authenticity of P1 (h).”

36.  As Mr Leung submitted to this Court, the issue of enhancement of exhibit P1 (h) affecting the colour scheme or tone was not a matter raised on behalf of the 2^nd applicant with Mr Wong or otherwise at trial. 　It was a matter raised for the first time in this Court. 　The fact that the issue was not raised at trial is perhaps not surprising. 　The issue of a determination in respect of colours, other than black‑and‑white, was of limited relevance in the identification made by the judge of the 2^nd applicant in the immediate vicinity of the assault on Tsang at the substation. 　Having determined that “clothing can clearly be seen” the judge made specific findings[33]:

“…the blue T-shirt, the gloves and a black sleeveless jacket with a warrant card on the left side can be seen as shown in screen capture 19.”

37.  Then, the judge went on to find of the 2^nd applicant that “he appears to be talking on the earpiece and at one stage puts the earpiece in his right ear.” [34] 　So, the only finding in respect of the 2^nd applicant of the colour of his clothing or accessories was in respect of the blue T‑shirt, but he did not go on to make any finding as to the “tone” or shade of blue.

38.  By contrast, it is to be noted that in earlier video footage and photographs of Tsang on the footpath and of what was undisputedly the 2^nd applicant the judge made a more particularised and detailed description of the blue T‑shirt worn by him, namely that it was “azure blue or royal azure blue”. 　Also, he made the obviously justified finding that the earpiece was “white”.[35]

39.  In the result, I am satisfied that it is not reasonably arguable that the judge erred in admitting into evidence and relying on the enhanced video footage exhibit P1 (h).

Ground 4

40.  The submissions advanced on behalf of the 2^nd applicant in support of ground 4 are all arguments that were advanced in support of the application for leave to appeal of the 1^st applicant, which submissions were rejected in the Court’s judgment.[36]

41.  In this application, although he acknowledged the Court’s judgment in respect of this argument in the case of the 1^st applicant, Mr Yu placed emphasis on the ruling of a Crown Court judge sitting at Belfast in Northern Ireland in R v Quinn [37].  In that case, the prosecution sought to adduce into evidence, in the trial of a defendant for the offence of managing a meeting in support of a proscribed organisation, video footage of what the judge said was two separate video films that a police officer had downloaded from YouTube.  The video footage depicted a meeting at which rounds from a firearm had been discharged, apparently as a salute.  In determining not to admit the video footage into evidence the judge said:[38]

“ The evidence before me does not include any evidence as to the provenance of the material other than it was posted on the “YouTube” site.  The mere posting of such materials such a site does not invest it with any authenticity…”

42.  Having noted that in the judgment in R v Murphy the Court of Appeal of Northern Ireland had said that the judge was correct to admit into evidence the “European film” having compared it with the heli-tele film, given that the latter was “authentic beyond doubt”, the judge said:[39]

“ In this case I consider that it is a matter of real concern that there is no comparative standard, no authenticated piece of film with which to compare either of the two pieces which the prosecution seek to admit in evidence before the court.  Unlike the Murphy case I do not have the “heli-tele” authenticated film against which this Court could compare either of the two pieces of film.”

43.  In the result, the judge concluded:[40]

“ In my view it would be quite inappropriate to take two unauthenticated pieces of material and use either of them to authenticate the other.”

44.  In allowing the prosecution’s appeal and determining that the evidence was admissible, having regard to the fact that the judge had not referred in his ruling to statements made by the defendant’s solicitors in the course of an interview of the defendant by police officers, the Court of Appeal of Northern Ireland noted that “The prosecution accept that they are not in a position to establish the provenance and history of the video clips and indeed accept that one at least of the video clips has been subject to considerable editing.”  The Court went on to say :[41]

“ It is, however, of note that in Murphy the Court of Appeal stated that authenticity like most facts may be proved circumstantially and that seems to us to follow the authenticity can also be established by admission.”

45.  As was made clear in the reasons for verdict, the judge approached his determination of the prima facie authenticity of the TVB footage by having regard to a range of evidence.[42]  That approach was entirely consistent with the observation of the Court of Appeal of Northern Ireland in R v Murphy:

“ If the original tape is not available, then the “provenance and history” of the copy will be a necessary requirement to prove authenticity.”

46.  Then, having determined by that analysis that it was prima facie authentic, the judge used it as a comparator with other video footage and photographs.  The judge was not confronted with the same dilemma faced by the Crown Court judge in R v Quinn.   He was not using one of two unauthenticated pieces of material to authenticate the other.  Rather, by recourse to other evidence, he had determined that the “prosecution have proved the authenticity of the TVB video footage beyond reasonable doubt”.[43]  Then, having made that determination, he had regard, inter‑alia, to the TVB footage in determining whether or not there was proof of prima facie authenticity of other material.  Having ruled that the material was “prima facie authentic and admissible in evidence” the judge found that the prosecution “have proved the authenticity” of the respective items “beyond reasonable doubt.”  He did so in respect of the Apple Daily video footage [44], the Apple Daily moving photograph [45] and the two photographs, exhibits P 12 and P 13.[46]  Clearly, he was entitled to do so.

47.  For these reasons and the reasons given in the judgment in respect of the 1^st applicant’s application, I am satisfied that these grounds advanced on behalf of the 2^nd applicant are not reasonably arguable.

Ground 1: identification of the 2^nd applicant at the substation

48.  At the outset of his consideration of the issue of identification, the judge said:[47]

“ The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull [48]. 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.”

49.  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 made by witness or by the court.”  Of his consideration of that material the judge said:[49]

“ 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.” [Italics added.]

50.  The judge noted that “There has been no identification of D2 from the footage showing the assault at the substation.” [50]  As noted earlier, there was no dispute that the 2^nd applicant had been identified together with other police officers in the company of Tsang shortly before the latter was assaulted at the substation.  As the judge observed, Chief Inspector Chung had identified the 2^nd applicant as being depicted in TVB video footage, but not in video footage from ATV or Now TV.[51] Similarly, the judge noted that he made no identification of the 2^nd applicant in the photographs exhibits P 12 and P 13.

51.  For his part, the judge said:[52]

“ I am satisfied D2 is also seen in the photograph P 12 on the far right of Tsang and in the Now TV footage between 00:40-00:44 as shown in screen capture 10 attached to the prosecution’s closing submissions.”

52.  From that material, the judge said:[53]

“ …the clothing of D2 is clearly seen. D2 was wearing a blue T‑shirt. The blue colour is quite distinct, which I would describe as azure blue or royal azure blue. D2 was also wearing a black sleeveless jacket with an identification card on the left side of the jacket, most likely his warrant card. The TVB footage shows D2 using a white earpiece as seen in screen capture 7 attached to the prosecution’s closing submissions. The photograph exhibit P 12 shows D2 wearing gloves, which appear to be rubber gloves extending beyond D2’s wrist.”

53.  The judge went on to determine:[54]

“ I am nevertheless satisfied that the prosecution are correct in saying the first time D2 is seen is in the ATV footage, exhibit P 3(2) at 01:38 which shows the stage where Tsang was being handed over. This is very easy to miss. The blue T-shirt is clearly visible. The position of D2 is shown on screen capture 6 attached to the prosecution’s closing submissions.”

54.  Next, of the Apple Daily video footage, exhibit P 2 (c), which he noted had been taken when Tsang was being carried face down, the judge said:[55]

“ I am satisfied D2 is the person seen on the left of Tsang. The blue T‑shirt, the white earpiece and the warrant card are clearly seen. Screen capture ID3 is attached herewith showing the position of D2.”

55.  Then, in respect of photograph exhibit P 13, which depicted Tsang being carried face down, the judge said:[56]

“ I am nevertheless satisfied that the prosecution are also correct that D2 is the person in the photograph on the far left of Tsang. Although very little of the T‑shirt can be seen the rubber gloves can be seen. D2 is in the same position as in the moving photograph in the Apple Daily footage exhibit P2 (c), as are all the other persons. I am satisfied the facial appearance is the same as in the TVB footage.”

56.  Of the TVB footage, the judge said:[57]

“ I am satisfied D2 can also be seen in the first nine seconds of the TVB footage exhibit P1 (a) showing Tsang being carried face down [58]. Although only the back of D2 can be seen, D2 is on the left of Tsang the same position as shown in the photograph exhibit P13 and the moving photograph. The blue T‑shirt and the gloves are clearly visible. Screen capture ID4 taken from P1 (a) is attached herewith showing the position of D2.”

57.  Of the video footage of the persons accompanying Tsang on the final part of their approach to the substation and their movements thereafter, the judge said:[59]

“ The TVB footage shows the group arriving at the substation[60]. By following the person carrying the left arm of Tsang, after the group turn left at the substation and drop Tsang on the ground this person turns round and walks out to the side of the substation next to D1.

At this stage the clothing can clearly be seen. ….  The blue T‑shirt, the gloves and the black sleeveless jacket with the warrant card on the left side can be seen as shown in screen capture 19 attached to the prosecution’s closing submissions.”

58.  In the result, the judge said:[61]

“ Having carefully viewed all the video footage I am satisfied so I am sure that when the group arrived at the substation D2 was the person carrying the left arm of Tsang.”

59.  Of the 2^nd applicant’s conduct following the arrival of the party together with Tsang at the substation, the judge said:[62]

“ D2 is seen at various times throughout the assault footage mostly keeping watch and sometimes looking at Tsang, save for a period when he leaves the substation for about one minute together with one other person[63]. At the time D2 leaves he appears to be talking on the earpiece and at one stage puts the earpiece in his right ear. This is best seen between 00:25-00:42 on the Apple Daily footage P2 (d)[64].After returning D2 remains at the substation until Tsang is taken away at which time he is seen walking behind Tsang.”

60.  It is to be noted that, no issue was taken with the judge’s acceptance of Chief Inspector Chung’s identification of the 2^nd applicant in the TVB video footage exhibit P1 (g) and (h).  The judge’s identification of the 2^nd applicant in photographs exhibits P 12 and P 13 and the Now TV, ATV and Apple Daily video footage in different places in the course of Tsang’s journey to the substation was not the subject of specific criticism nor was there specific criticism of the detailed findings of the clothing worn by the 2^nd applicant in those photographs and video footage prior to the arrival of the party at the substation.  Rather, the thrust of the criticism was of the judge’s identification of the 2^nd applicant as being present with Tsang and the others at the substation.

61.  The undisputed images of the 2^nd applicant as identified by Chief Inspector Chung in the TVB footage, provided clear views of his face, body and clothing.  That material provided a clear evidential foundation on which the judge identified the applicant in the two photographs, exhibits P 12 and P 13.  Of the latter photograph the judge said that he was “satisfied the facial appearance is the same as in the TVB footage.”  Then, the judge identified the 2^nd applicant in the moving photograph in the Apple Daily video footage.  Again, the view of the head, including the face and the upper torso of the 2^nd applicant was clear.  In my judgment it is not reasonably arguable that the judge erred in making those findings.

62.  In ruling that the Now TVB footage was prima facie authentic and then finding that it was proved to be authentic beyond reasonable doubt the judge did not refer to the TVB footage.  Rather, he said that he accepted the evidence of Tsang and Sergeant 47574.[65]  From the Now TV footage and exhibit P 12 the judge described the 2^nd applicant’s clothing.  In particular, he said that the blue coloured T‑shirt “quite distinct”.  He said that it was “azure blue or Royal azure blue”.  Certainly, the T‑shirt worn by the 2^nd applicant in the undisputed video footage was a distinct blue colour.  Also, he said that the 2^nd applicant was wearing a black sleeveless jacket with what was most likely a warrant card on the left side, what appeared to be rubber gloves extending beyond his wrist and a white earpiece.  No issue has been taken with those detailed findings.  In my judgment, it is not reasonably arguable that the judge erred in making those findings, all of which features are readily identifiable in the material from which the judge discerned those items.

63.  The nub of the issue taken with the judge’s findings is in reality the finding that the applicant was carrying the left arm of Tsang as the group arrived at the substation and Tsang was dropped to the ground.

64.  No specific issue was taken with what the judge said he discerned from the TVB and Apple Daily video footage of the clothing and accessories of the person at the substation that he identified as being the 2^nd applicant.  It is clear from the numerous occasions in which the person is clearly visible that that person was wearing a blue T‑shirt.  Further, the warrant card displayed on the left side of the black sleeveless jacket is also clearly visible.  Finally, the person is seen clearly to insert an earpiece into his right ear.  In my judgment, it is not reasonably arguable that the judge erred in making those findings in respect of the clothing and accessories.

65.  In those circumstances, having regard to all the evidence, in my judgment it is not reasonably arguable that the judge erred in identifying the 2^nd applicant as the person clad in that clothing and wearing that accessory and that he was a party to the assault on Tsang.[66]

Conclusion

66.  Given that the ground of appeal against conviction advanced in the first limb of ground 2 raises a matter of law only, the 2^nd applicant may appeal to the Full Court without the leave of the single judge.  For the reasons that I have given, I am satisfied that the other grounds of appeal againstconvictionaremattersofmixedlawandfactinrespectof which no reasonably arguable grounds of appeal have been advanced.  Accordingly, I refuse the application for leave to appeal on those grounds.

Grounds of appeal against sentence

67.  In my judgment the grounds of appeal against sentence are reasonably arguable.  Accordingly, I grant the 2^nd applicant leave to appeal against sentence.

68.  The 2^nd 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 2^ndapplicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.

[1] Reasons for Verdict, paragraph 9.

[2] Reasons for Verdict, paragraph 24.

[3] Reasons for Verdict, paragraph 11.

[4] Reasons for Verdict, paragraph 18.

[5] Reasons for Verdict, paragraph 477.

[6] Reasons for Verdict, paragraph 474.

[7] Reasons for Verdict, paragraphs 174, 179, 180 and 182 (Apple Daily video footage).

[8] HKSAR v Wong Cho Shing (CACC 38/2017; unreported, 15 December 2017).

[9] Reasons for Verdict, paragraph 424.

[10] Reasons for Verdict, paragraph 465

[11] Kajala v Noble (1982) 75 Cr App R 149.

[12] Tang Yiu Hong v HKSAR (2006) 9 HKCFAR 58.

[13] Kajala v Noble, page 152.

[14] HKSAR v Lee Chi Fai [2003] 3 HKLRD 751, at paragraph 34.

[15] R v Jamieson (Ontario Superior Court of Justice; 2004 CanLll 34412; unreported, 30 April 2004).

[16] Reasons for Verdict, paragraph 151.

[17] HKSAR v Wong Cho Shing, paragraphs 20-30.

[18] Kajala v Noble, page 152.

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

[20] R v Murphy,page 343 E-F.

[21] HKSAR v Lee Chi Fai [2003] 3 HKLRD 751.

[22] Ibid, paragraph 33.

[23] Ibid, paragraph 34.

[24] Tang Yiu Hong v HKSAR, paragraph 4.

[25] Ibid,paragraphs 6-8.

[26] Commissioner of Police v TVB & Others (HCMPs 114/2016; 115/2016; 118/2016; 119/2016 and 120/2016: unreported, 8 March 2016).

[27] HKSAR v Wong Cho Shing, paragraphs 46-60.

[28] Reasons for Verdict, paragraphs 109-110.

[29] Reasons for Verdict paragraph 117.

[30] Reasons for Verdict, paragraph 149.

[31] Reasons for Verdict, paragraph 150.

[32] Reasons for Verdict, paragraph 151.

[33] Reasons for Verdict, paragraph 474.

[34] Reasons for Verdict, paragraph 476.

[35] Reasons for Verdict, paragraph 467.

[36] HKSAR v Wong Cho Shing, paragraphs 61-77.

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

[38] Ibid, page 8.

[39] Ibid, pages 7-8.

[40] Ibid, page 8.

[41] R v Quinn [2010] NICA 19.

[42] Reasons for Verdict, paragraphs 164-165.

[43] Reasons for Verdict, paragraph 164.

[44] Reasons for Verdict, paragraphs 176 and 181.

[45] Reasons for Verdict, paragraph 183.

[46] Reasons for Verdict, paragraphs 229 and 232.

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

[48] R v Turnbull [1976] 3 WLR 445.

[49] Reasons for Verdict, paragraph 443.

[50] Reasons for Verdict, paragraph 472.

[51] Reasons for Verdict, paragraph 463.

[52] Reasons for Verdict, paragraph 466.

[53] Reasons for Verdict, paragraph 467.

[54] Reasons for Verdict, paragraph 468.

[55] Reasons for Verdict, paragraph 469.

[56] Reasons for Verdict, paragraph 470.

[57] Reasons for Verdict, paragraph 471.

[58] This is also seen in the TVB footage P1(c), (d), (e), (f) & (g), however, the quality of (d) is not good.     

[59] Reasons for Verdict, paragraphs 473-474.

[60] See P1 (g) between 03:00 - 03:19.  All the TVB footage shows the group arriving at the substation.

[61] Reasons for Verdict, paragraph 475.

[62] Reasons for Verdict, paragraph 476.

[63] The other person is D3 see §491.

[64] This is also seen in the TVB footage P1 (a), (c) & (f) between 01:15 ‑ 01:32.

[65] Reasons for Verdict, paragraphs 219 and 221.

[66] Reasons for verdict, paragraph 701.