HKSAR v Wong Cho Shing (黃祖成) [2019] 4 HKC 401

Selwyn Yu SC (leading Edward Tang) and Fiona Chong (led by Charlotte Draycott SC) appeared for two of the appellants in the Court of Appeal in HKSAR v Wong Cho Shing (黃祖成) [2019] 4 HKC 401.

In the early hours of 15 October 2014, police officers carried out an operation at Lung Wo Road in Admiralty to clear protestors then participating in a street protest known as the Occupy Central movement. During the operation, a person known as Tsang was restrained and then handed over into the custody of a team of police officers. Tsang was then frogmarched away before being lifted up and carried face down to an area behind a pump substation, where he was thrown onto the ground and subjected to an unlawful assault. After the assault at the pump substation, Tsang was taken on board a police vehicle and transported to Central Police Station. At Central Police Station, Tsang was removed from the vehicle and taken an interview room. Whilst Tsang was in the interview room, a police officer slapped him on the face twice when he refused to unlock his mobile telephone. The appellants (D1 to D7), all serving police officers consisting of one Chief Inspector of Police (D1), one Senior Inspector of Police (D2), one Sergeant (D3), and four police constables (D4 to D7), were all prosecuted of one offence of assault occasioning actual bodily harm, alleging that they were party to a joint enterprise to assault Tsang at the area behind the pump substation, with D1 and D2 as senior officers keeping watch while their subordinates carried out the assault (Charge 1). D5 was also prosecuted of one offence of common assault alleging that he slapped the face of Tsang twice in the interview room at Central Police Station (Charge 2).

As the prosecution had sought to rely on certain video recordings capturing the events, which had been downloaded from the Internet, the Commissioner of Police applied prior to trial for an order for the production of the full and unedited video and sound recordings made of Tsang and other persons present at the relevant times of 15 October 2014 at the relevant locations, together with the full identity and personal particulars of the maker(s) of the recordings but a judge of the Court of First Instance dismissed the application and there was no appeal from that decision of the judge. In the District Court, the appellants pleaded not guilty to the charges and challenged the admissibility of two photographs and various video recordings broadcast by six media organisations, which tended to depict Tsang being carried to the pump substation, thrown onto the ground and assaulted by the appellants. They objected that there was no or no sufficient evidence as to the origin of the video recordings and photographs; that there was nothing to show that the video recordings and photographs had not been tampered with; and that the provenance and history of the photographs and the authenticity and accuracy of the video recordings were in doubt. The prosecution did not call the photographers or the cameramen to give evidence and witnesses from two of the six media organisations were called to testify on the transmission and broadcast of the video footage or on the comparison between the original footage and a master copy. The trial judge admitted the photographs and video recordings into evidence and refused to exercise his discretion to exclude any of the evidence after a voir dire on the issue of admissibility. The trial judge also found that the prosecution had proved the authenticity of the photographs and of the video recordings beyond reasonable doubt and refused to exclude any of them on the ground of unfairness. The trial judge identified Tsang and the appellants based on the evidence of witnesses and/or his own observations in examining the photographs and/or the video recordings. In respect of the identification of D4 and D7, there was no identification by any witness of either of them in any video recording or photograph and the trial judge made his own identification of each of them. The trial judge convicted all the appellants of Charge 1. The trial judge, having accepted the evidence of Tsang in that regard, also convicted D5 of Charge 2. Having heard mitigation, the trial judge sentenced each appellant to 2 years’ imprisonment in respect of Charge 1 and D5 to 1 month’s imprisonment in respect of Charge 2, ordering that it should run concurrently with the sentence on Charge 1. The appellants appealed against conviction and sentence, including on the question of law on the test in determining the admissibility of the photographs and the video recordings. D7 also applied for leave to adduce fresh evidence to update his personal circumstances.

Held, unanimously, dismissing the appeal against conviction by D1, D2, D3, D5 and D6 and allowing the appeal against conviction by D4 and D7, and allowing the appeal against sentence by D1, D2, D3, D5 and D6 :
Per Macrae VP

Conviction

(1) On the issue of admissibility of video recorded material, the first step is to determine whether the material shown on the video would, if authentic, be relevant. The correct test, which the trial judge had adopted in the present case, was to consider whether, if authentic on a prima facie basis, the video recording was relevant. HKSAR v Lee Chi Fai [2003] 3 HKC 486 ; [2003] 3 HKLRD 751 and R v Quinn [2011] NICA 19 considered. R v Robson [1972] 2 All ER 699 ; [1972] 1 WLR 651 explained. Choi Kit Kau v R [1980] HKLR 433 ; [1980] HKCU 38 ; (CACC 333/1980, 20 June 1980, Roberts CJ, unreported) disapproved (paras 80, 89).

(2) The trial judge was right to find the video recordings of the media organisations produced both relevant and authentic and thereby admissible. The trial judge was also right to find the photographs of the media organisations produced both relevant and authentic and thereby admissible. The trial judge was also right to find the police CCTV recordings authentic, accurate and of integrity. While all the video recordings were ‘open source material’, lifted from various websites on the Internet, their accuracy and contents were in fact spoken to by Tsang himself, who testified to the sequence of events in the night in question from his initial approach by uniformed police officers to his being assaulted on the ground in the area next to the pump substation, and to his being removed from the scene to a vehicle for conveyance to Central Police Station, to identify himself from the video recordings and to say that the video recordings and the photographs were consistent with his recollection of events. The establishing of the sequence of events was important. Because of the interruption in continuity and the possibility of editing of the video recordings, there was arguably the possibility that the depiction of the man being assaulted at the pump substation might have involved some other actors in some other event altogether, having nothing to do with Tsang. This possibility was rendered somewhat fanciful and unrealistic by Tsang’s evidence as to identity and the sequence of events. Tsang’s evidence, standing alone, would have been capable, if believed, of establishing a prima facie basis of authenticity for the photographs and video recordings. Tsang’s evidence did not stand alone. Prosecution witnesses from the media organisations gave evidence which was more than sufficient to ground a prima facie case of the relevance and authenticity of the footage broadcast by the relevant media organisation. The close proximity of the event depicted and its broadcast on television news made it highly unlikely that the footage broadcast was a fabrication or had been altered or tampered with so that it ceased to be an accurate record of what the cameraman who took the film had seen through the view finder of the camera. R v Murphy [1990] NI 306 considered (paras 91-93, 96, 102-103, 106, 124, 126, 127-128).

(3) The failure on the part of the prosecution to obtain production of the original video recordings at trial or on the part of the trial judge to order production of the same on his own motion did not lead to an unfair trial of the appellants. None of the counsel defending the appellants ever urged the trial judge to revisit the matter of production of the original video material or identify the cameramen concerned, and the fact that they did not do so was a tactical decision to take advantage of what they considered a lacuna in the evidence. As indicated in (2) above, the failure to produce the originals did not render the trial unfair, provided that the court was satisfied as to the relevance and authenticity of the copies. The best evidence rule had no relevance to tapes or films. Kajala v Noble (1982) 75 Cr App R 149 followed (paras 121-123).

(4) The trial judge was entitled to conclude and did not err in concluding that each of D1, D2, D3, D5 and D6 was one of those involved in the incident at the pump substation. Given that the prosecution were inviting the trial judge to conclude, in the context of a case which was all about identification, that a particular appellant was shown in various video recordings and photographs, whether or not he had been identified by a witness, the defence would have been alive to the possibility that the judge might find a particular appellant was identified in that material. The evidence of identification in the present case should not be examined in isolation detached from the reality of the police operation and the officers’ presence at the scene on the night in question, including the fact that the appellants were all on duty on 15 October 2014 from 3 am in the area of Lung Wo Road; that there was a designated team comprising D2 (as officer-in-charge of the team), D3, D5, D6 and D7 (as well as two other police officers) under the immediate supervision of D1 and that Tsang testified from the moment he was lifted up until he arrived at the pump substation, no one left the group that was escorting him but Tsang was not able to say whether anybody joined the group. D1 was identified by a prosecution witness from the police force and he was clearly identifiable from distinctive clothing features. D2 was identified by a prosecution witness from the police force, distinctive clothing features and facial features that could consistently be observed. Once Tsang’s evidence that no one had left the group of police officers from the time he was carried face down by the group until they reached the pump substation, and given the continuity and relatively short period of time in which the events unfolded, the compelling inference was that D2 was continually present as part of the group up to and including the events at the pump substation. A further examination of the video recordings of the group’s arrival at the pump substation also identified D2 as appearing to be keeping watch there. D3 was identified by a prosecution witness from the police force, distinctive clothing pattern and face; he could be seen assaulting Tsang at the pump substation by both stamping on and kicking him. D5 was identified by a prosecution witness from the police force and by Tsang at a confrontation, and those identifications in events shortly before and shortly after the assault provided a rather devastating context in which to judge his involvement in the events at the pump substation. D5’s distinctive shoes also provided support for is continued presence at the scene. D6 was identified by a prosecution witness from the police force and the circumstances of the identification of D5 applied to him as well. The appeals against conviction by D1, D2, D3, D5 and D6 for assault occasioning actual bodily harm must be dismissed (paras 129-130, 132, 143, 147, 155, 160).

(5) The convictions of D4 and D7 were unsafe and unsatisfactory. D4 was not a member of the team of police officers with D2 being in charge under the supervision of D1; he was deployed separately as a member of a video team. D4 was never identified by any witness in any of the video footage or photographs. By contrast, D7 was a member of the said team but he likewise was not identified by any witness in any of the video recordings or the photographs. The absence of any identification of either D4 or D7 by any witness from the video recordings or photographs placed them in a very different position from the other appellants, particularly when one of them was not even a member of the said team and neither was witnessed to have been involved in the early stages before the events at the pump substation. The trial judge’s purported identification of D4 from some of the footage and one of the photographs had no sure basis in the absence of an earlier identification by a witness, which could have allowed the trial judge to trace particular features of D4’s clothing or appearance through to the pump substation and determine that the person so identified continued on to the pump substation and appeared to have assaulted Tsang. While a judge was entitled to make his own identification of a defendant from sufficiently cogent material, in the particular case, the trial judge’s identification could not stand alone as the primary source of identification from which all other depictions were then derived. The trial judge’s ultimate conclusion was built upon identifications which only he was prepared to make, without a single authenticating identification of D4 at the scene from any witness by which to compare and test them. In the case of D7, the conviction suffered from the same flaw as that against D4. There was no identification by any witness of either appellant from any of the video recordings or the photographs to stand as a sure yardstick or foundation for his presence in the group either immediately before or after the assault on Tsang. In these circumstances, the appeals against conviction by D4 and D7 must be allowed and their convictions quashed (paras 169-174, 175).

(6) The trial judge’s conviction of D5 for common assault in the interview room of Central Police Station was neither unsafe nor unsatisfactory. Whilst the trial judge rejected Tsang’s claim that he was assaulted when he was being subdued, that did not mean that his subsequent claim of being assaulted in the interview room must require supporting evidence. The circumstances and occasion of his arrest in the tumult and confusion of a demonstration and his later sitting inside the interview room were very different events (para 164).

Sentencing

(7) Police officers must be deterred from breaking the very laws they were empowered and entrusted to uphold. Not only did the assault on Tsang dishonour the reputation of the Hong Kong police force in the eyes of the general public, it would have damaged Hong Kong’s reputation in the international community which was also witness to these events. Leaving aside any issue of the identity of the officers concerned, it was incontrovertible that Tsang was assaulted by serving police officers at a time when he was already under restraint in police custody. Moreover, Tsang was badly assaulted by several police officers who kicked, stamped on and beat him for a sustained period while he was lying defenceless on the ground with his hands tied behind his back, causing obvious and serious injuries to his face, neck, shoulder, chest and back. And while they did so, senior officers looked on and allowed their subordinates to break the law. These actions would have shaken everyone’s faith not only in the Hong Kong police force but in the rule of law itself (para 179).

(8) An offence such as the present, in which the public had witnessed police officers, who were entrusted to uphold the law, broke that law in such a deliberate and shocking way, must be visited with an immediate sentence of imprisonment. Whatever the pressure and stress the appellants were under, and however great the insult and provocation they perceived from participants in the events in that evening, there was no excuse for what they did to Tsang. However, the starting point for D3, D5 and D6 in respect of Charge 1 should be 21 months’ imprisonment, and for D1 and D2, as the senior officers who lent their approval and authority to their subordinates to commit the offence, which it lay within their powers to stop, should be 24 months’ imprisonment. The sentence of 1 month’s imprisonment on Charge 2 in respect of D5 should have been ordered to run consecutively to the sentence on the main charge of Charge 1. The trial judge’s reduction of 6 months for the appellants’ records of service and for their inevitable fall from grace would be honoured. Accordingly, the appellants should serve the following sentences: D1 – 18 months’ imprisonment; D2 – 18 months’ imprisonment; D3 – 15 months’ imprisonment; D5 – 16 months’ imprisonment; and D6 – 15 months’ imprisonment. HKSAR v Chu Frankly (2019) 22 HKCFAR 1 ; [2019] HKCFA 5 ; [2019] HKCU 3221 followed (paras 180-184).

Obiter

(9) The refusal of the application of an order for production of the full and unedited video and sound recordings made of Tsang and other persons present at the relevant times of 15 October 2014 at the relevant locations was readily appealable. The judge of the Court of First Instance’s finding that she was not satisfied that there were reasonable grounds for believing that the material was likely to be of substantial value to the investigation of the arrestable offence or relevant evidence in proceedings for the arrestable offence was untenable. The evidence, including the video recordings, produced at trial and seen by the Court of Appeal had made that manifestly clear. Any examination of the actual material in the case would have instantly demonstrated how relevant and important it was. Also, the chain of evidence amounted to relevant evidence in proceedings for the arrestable offence. The argument that the freedom and integrity of news agencies might be compromised when those agencies had themselves deliberately placed the materials in question in the public domain did not appear to be a logical one. Kajala v Noble (above) considered (paras 115-120).

(The above is taken from the headnote in HKC.)

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