HKSAR v. Wong Cho Shing and Others

Press Summary (English)

Press Summary (Chinese)

DCCC 980/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 980 OF 2015

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REASONS FOR VERDICT

1.The defendants plead not guilty to one joint charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance[1] (charge 1). D5 also pleads not guilty to one charge of common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance (charge 2).

Introduction

2.On the night of 14/15 October 2014 the police carried out Operation Solarpeak to clear the protestors of the Occupy Central movement.  Many police officers both uniform and plainclothes officers were involved in the operation.

3.Crime Group A consisted of Quick Response Teams (“QRT”) and video teams.  The defendants were all on duty that night in the area of Lung Wo Road.  D1 led QRT A2-2, which included D2, D3, D5, D6 and D7.  D4 was initially deployed as a member of a video team but later redeployed by D2.   

4.At about 2:45 a.m. on 15 October the clearance operation commenced.  The police moved eastbound along Lung Wo Road.  After clearing the barricades near to the underpass on Lung Wo Road the police passed through the underpass.  On reaching the end of the underpass Tsang Kin Chiu (“Tsang”) was seen on the planter above Lung Wo Road pouring liquid on the police.  This was captured by the police video teams.

Prosecution case

5.The prosecution case is that Tsang was pulled down from the planter to the pavement and subdued by several uniform police officers.  After successfully handcuffing Tsang the uniform police officers handed Tsang over to D1-D6.  D1-D6 escorted Tsang away in the direction of Lung Wo Road westbound.  On the way Tsang was picked up and carried face down.

6.Protestors were to be taken to the escort coaches and cars on Lung Wo Road for transport to the Central Police Station.  Tsang was not carried direct to where the coaches and cars were parked and instead was taken to the north side of the Lung Wui Road Government Building Pump Station East Substation (“the substation”) which was located on Lung Wo Road[2].

7.On reaching the substation D1-D6 were joined by D7, who helped carry Tsang to the north side of the substation.  On reaching the north side of the substation Tsang was dumped on the ground and assaulted by the defendants.

8.Tsang was then frogmarched to Lung Wo Road where he boarded a car.  D5 and D6 sat on either side of Tsang and accompanied him to the Central Police Station.  At the police station Tsang was taken to room 7 where he stayed until he was escorted by coach to the Police College in Wong Chuk Hang again accompanied by D5 and D6.  While in the police station D5, in the presence of D6, slapped Tsang on the face.

Evidence

9.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.  Apart from the police video which shows the clearance operation, including Tsang pouring liquid on the police, the defence objected to the admissibility of the video and photograph evidence. 

10.CCTV of the Central Police Station recorded two police officers taking Tsang into and out of the police station.  The defence objected to the admissibility of the CCTV recordings.

11.A voir dire was held to determine the admissibility of the video evidence, photographs and CCTV recordings.  I ruled all the video evidence, photographs and CCTV recordings admissible in evidence.

12.The prosecution and defence agreed that the evidence given on the voir dire may be taken into consideration on the general issue[3]. Fifteen witnesses were called (six were recalled) and the evidence of a further twenty one witnesses was read pursuant to section 65B of the Criminal Procedure Ordinance[4]. Facts were also admitted pursuant to section 65C of the Criminal Procedure Ordinance. 

Site visit

13.During the voir dire a joint application was made for the court to go on a site visit to view the various locations referred to in the evidence, including where Tsang was apprehended; the route Tsang was taken and the substation.   No agreement could however be reached as to how the site visit was to be conducted. 

14.The court therefore suggested for consideration of the parties that a video be taken of the scene showing all the various locations the parties wanted the court to see.  After due consideration the parties agreed for a video to be made and withdrew their application for a site visit. 

15.SPC 34185 (PW26) made the video, exhibit P20 (c).  The witness statement of SPC 34185 was read, exhibit P20 (a).  SPC 34185 also gave evidence during which the video was played in court.   

Screen captures

16.Annexed to my verdict are a series of screen captures taken from the video footage to assist in identifying which part of the video footage to view.

Issues

17.The main issues on charge 1 were 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.  The main issues on charge 2 were whether Tsang was slapped on his face inside the Central Police Station and, if so, whether D5 was the police officer who assaulted him. 

18.The defendants elected not to give evidence on the voir dire or the general issue. No witnesses were called on their behalf.  No adverse inference is drawn against the defendants for remaining silent.  That is their right.  This proves nothing one way or the other.  This does not establish their guilt.  On the other hand, this means there is no evidence from the defence to undermine, contradict or explain the evidence led by the prosecution.  

19.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of each defendant before I can convict, the case of each defendant to be considered separately and each charge to be considered separately. 

20.I remind myself that when drawing inferences from the evidence the inference must be the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against the defendants as well as one in their favour the adverse inference cannot be drawn.  

21.Admitted in evidence is that the defendants all have a clear record.[5] I direct myself as to good character in accordance with the decision in HKSAR v Tang Siu Man[6].

22.I have carefully considered all the evidence and the submissions of all counsel both oral and written.

Admissibility of video footage, photographs and CCTV recordings

23.I admitted in evidence the video footage from TVB (exhibit P1); Apple Daily (exhibit P2); ATV (exhibit P3); and Now TV (exhibit P4); photographs from Apple Daily (exhibits P12 and P18 (c)) and Oriental Daily (exhibits P13 and P18 (d)) and the CCTV recordings (exhibit P15).

24.The defence objected to the admissibility of the video footage, photographs and CCTV recordings as particularised in the grounds of objection submitted to court[7]. In summary the grounds of objection were 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; and the authenticity and accuracy of the CCTV recordings.  The defence also invited the court to exercise its discretion to exclude the evidence.

25.Notwithstanding witnesses would need to be recalled all counsel agreed that the court should first determine the admissibility of the video footage, photographs and CCTV recordings by way of voir dire and not adopt the alternative procedure. 

26.The prosecution called nineteen of twenty six witnesses from the list of witnesses submitted to court[8]. The evidence of the other witnesses was admitted pursuant to sections 65B and 65C of the Criminal Procedure Ordinance and section 22A of the Evidence Ordinance[9]. Three of these witnesses were tendered for cross-examination.  The defence elected to call no evidence. 

27.The evidence was heard over ten days.  Submissions lasted four days.  Having carefully considered all the evidence and the submissions of counsel I found all the video footage, photographs and CCTV recordings relevant and prima facie authentic. 

28.I considered each video footage, each photograph and the CCTV recordings separately.  I found no grounds to exercise my discretion to exclude from evidence any of the video footage, photographs or CCTV recordings. 

Authenticity

29.In R v Murphy & Another, the Court of Appeal in Northern Ireland held that:

“… 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 …. to decide whether its authenticity is beyond doubt and if its contents prove or add to the proof of guilt beyond reasonable doubt” [10].

30.In HKSAR v Lee Chi Fai & others the Court of Appeal held that the approach in R v Murphy was wholly correct [11].

Relevance

Video footage and photographs

31.The prosecution case is that the video footage, whilst not continuous, shows in sequence (1) Tsang pouring liquid on the police; (2) Tsang being apprehended and subdued; (3) Tsang being escorted by D1-D6; (4) Tsang being carried face down by his arms and legs; (5) Tsang being carried to the substation where D1-D6 are joined by D7; and (6) Tsang being dumped on the ground and assaulted by the defendants; and the photographs show Tsang being escorted and carried face down by his arms and legs.

32.The pouring liquid is shown in the Now TV footage [12] and the TVB footage[13].  This is also shown in the police videos (exhibits P5, 6, 7 & 8)[14], admitted into evidence pursuant to section 65C of the Criminal Procedure Ordinance[15].  The ATV footage shows Tsang being subdued and handcuffed[16].  Tsang being escorted and assaulted is shown in all the video footage whereas only the TVB footage shows Tsang being carried. 

33.At the commencement of the voir dire Mr Leung SC submitted by way of aide-memoire an outline of the evidence in relation to the video footage and a table listing the video footage to be played in court[17]. I relied only on the evidence adduced in court and what I observed from viewing the video footage and not the descriptions in the aide-memoires.

34.The defence submitted that the video footage and the photographs were not relevant, for example Mr Lok SC submitted that the video footage showing Tsang spilling liquid, being subdued and escorted had no bearing at all regarding the criminal allegation against the defendants and were irrelevant to the charge[18].  A similar submission was made by Mr Choy[19].

35.In my view the video footage of Tsang pouring liquid on the police and being apprehended are relevant in seeking to explain why Tsang was handed over and escorted by other police officers. 

36.Similarly Mr Lok SC submitted that the photographs showing Tsang being escorted and carried were not relevant to the charge against the defendants[20].  In my view the photographs are relevant in seeking to showwho escorted and carried Tsang to the substation.

37.Mr Cheng SC submitted that on the face of the evidence adduced the court could not conclude that the video footage captured Tsang being assaulted and therefore the prosecution had failed to adduce sufficient and satisfactory evidence to establish the relevance of the video footage and photographs[21].  This submission largely rested on an attack on the credibility of Tsang.  I address the credibility of Tsang later in my verdict suffice to say that I reject the submission of Mr Cheng SC. 

38.I am satisfied that the video footage and the photographs are relevant to show the events leading up to and including the assault subject of charge 1.  The video footage and the photographs are relevant to the issues of whether an offence was committed and who committed it.  As was said in R v Murphy the video was clearly relevant to the facts because the prosecution alleged that what it showed pointed to the guilty participation of the appellants[22].

CCTV recordings

39.The prosecution case is the CCTV recordings capture Tsang being taken by D5 and D6 to room 7 of the Central Police Station.  Mr Chung and Ms Lam made no submissions on relevance.  In his written submission Mr Chung states D5 does not take issue on the relevance of the CCTV recordings[23].

40.The CCTV recordings, showing Tsang being escorted by two police officers inside the Central Police Station, are clearly relevant to the allegation made by Tsang that inside room 7 of the police station one of the two police officers, in the presence of the other police officer, slapped him. 

Prima facie authentic

41.The prosecution and defence disagreed as to the test to be applied in determining whether the video footage, photographs and CCTV recordings were prima facie authentic.  Mr Leung SC submitted that the evidence of each witness must be taken at its highest in determining whether the video footage, photographs and CCTV recordings were prima facie authentic[24]. The defence on the other hand submitted that the court must be satisfied on a balance of probabilities that the video footage, photographs and CCTV recordings were prima facie authentic[25].

42.Reliance is placed by the defence on R v Robson & Harris[26] where the trial judge heard objections to the admissibility of tape recordings before the case was opened to the jury.  One of the issues before the trial judge was whether the tape recordings were shown to be original.  The trial judge said that all he was required to do was satisfy himself that a prima facie case of originality had been made out on the evidence.  If the evidence appeared to remain intact after cross-examination it was not incumbent on the judge to hear and weigh other evidence which might controvert the prima facie case as this would trespass on the ultimate function of the jury[27].

43.The trial judge said that the real gravamen of the objection was an attack on the authenticity of the tape recordings and that he should decide the question of whether the tape recordings were shown to be authentic on the balance of probabilities[28]. As Mr Leung pointed out that was because the trial judge accepted the proposition of counsel on both sides that the standard of proof in this regard was the balance of probabilities[29].

44.The decision in R v Robson & Harris is cited in both R v Murphy and HKSAR v Lee Chi Fai.  In “Social Networking Material as Criminal Evidence” by Micheal O’Floinn & David Ormerod, the authors state there is considerable ambiguity as to what a prima facie admissibility test is and point out no mention is made in R v Murphy of the balance of probabilities[30].

45.Reference is also made to R v Robson & Harris in Cross & Tapper on Evidence where the authors state[31]:

“Where the judge has merely to be satisfied that there is prima facie evidence – for example, that a confession was made, that a previous consistent statement amounted to a complaint, or that a tape recording was the original – he need hear evidence only from the party tendering the confession, previous consistent statement, or tape recording. In R v Robson, the Court of Appeal regarded this as 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. This involves no usurpation of the function of the jury since the jury is free not to believe the evidence, and may well not do so after taking into account its contravention by the other side. Such a view is in complete harmony with the ordinary rules on the discharge of an evidential burden, the determination of whether or not there is a case to answer, and the proper distribution of functions between judge and jury”.

46.The authors of “Social Networking Material as Criminal Evidence” agree with Cross and Tapper on Evidence and respectfully submit that the trial judge in R v Robson & Harris was wrong to treat authentication as requiring proof on a balance of probabilities[32]. 

47.I am satisfied 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[33]. 

Section 22A of the Evidence Ordinance

48.Before considering proof of authenticity I will first address the submission of Mr Lam, and adopted by other counsel, that the provisions of section 22A of the Evidence Ordinance applied[34].

49.Mr Lam submitted that the video footage having been inputted into computers by the cameramen; presumably edited and processed by computers for broadcasting and publication; and uploaded to and downloaded from open source internet websites, presumably with the use of computers, the provisions of section 22A applied. The prosecution having failed to satisfy the requirements of section 22A Mr Lam submitted the video footage and photographs should be ruled inadmissible[35].  

50.Mr Leung SC submitted that the provisions of section 22A did not apply the video footage, photographs and CCTV recordings being real evidence and not tendered for any hearsay purpose. 

51.Real evidence is defined in Cross & Tapper on Evidenceas an independent species of evidence as their production calls upon the court to reach conclusions on the basis of its own perception, and not on that of a witness[36].  Section 22A provides an exception to the hearsay rule[37].

52.I agree with Mr Leung that the video footage, photographs and CCTV recordings are real evidence.  The representations are made by the video footage, photographs and CCTV recordings and not by a witness.  The video footage, photographs and CCTV recordings are not therefore tendered for any hearsay purpose.  I am satisfied section 22A is not engaged in this case.  Further, I am of the view section 22A does not apply where direct oral evidence of the fact is called, as in this case[38].

Proof of authenticity

53.All the video footage and photographs being copies downloaded from the internet the defence submitted that full particulars of the history and provenance of the copies must be shown[39]. Reliance in this regard was placed on the passage in R v Murphy where the court said that[40]:

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

54.Earlier in the same passage the court said that[41]:

“Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources”.

55.What is required is evidence that the video footage and photographs accurately record the events of that night. 

Circumstantial evidence

56.Circumstantial evidence may include one or more witnesses confirming the accuracy of the events shown in the video footage, photographs and CCTV recordings[42].  In addition to witnesses from TVB and ATV the prosecution relied on the evidence of the police officers who apprehended Tsang[43] and the evidence of Tsang to say the video footage and photographs were consistent with their recollection of the events. 

57.The Northern Ireland case of R v Quinn[44], which concerned video evidence downloaded from YouTube, is an illustration of how authenticity may be proved circumstantially.  The trial judge held that the provenance of the film had to be established by the prosecution by evidence in a way that permitted the defence to investigate and examine the provenance and reliability of the material. 

58.The Court of Appeal held that in ruling the video evidence inadmissible the trial judge appeared to have given no consideration to the inferences which properly could be drawn from statements made in the course of the police interviewing the defendant.  During the interviews the solicitor for the defendant intervened indicating his client was present and that identity was not in issue.  The Court of Appeal said that it would be for the trial judge to determine whether the defendant, by remaining silent in the face of the comments made by his solicitor, was admitting he was present and that the video clips demonstrated his activities.

59.In allowing the appeal the Court of Appeal was satisfied that the prosecution had established a prima facie case for the admission of the video clips. Having noted that said in R v Murphy that authenticity like most facts may be proved circumstantially the court said that authenticity can also be established by admissions[45].

60.In my view, whilst the concerns expressed by the trial judge in R v Quinn are valid concerns in any case where footage is obtained from YouTube or other open source, I am satisfied, reading the passage as a whole, the court in R v Murphy when saying “the 'provenance and history' of the copy will be a necessary requirement to prove authenticity”, was not excluding a copy being proved circumstantially[46].

Comparisons

61.In R v Murphy the court stated that[47]:

“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.In determining whether the video footage, the photographs and the CCTV recordings were prima facie authentic the prosecution invited the court to make comparisons between the video footage; to compare the photographs with the video footage and to compare the CCTV recordings with the video footage and the photographs[48].

63.The defence submitted to make such a comparison the authenticity of the footage compared with must be beyond doubt, placing reliance on the next sentence in R v Murphy:

“Or, as in the instant case of the heli-tele film, by comparing it with a film of the same events that is authentic beyond doubt”.

64.Mr Cheng SC submitted that unlike in R v Murphy the court has no comparative standard from which to conduct such a comparison[49].  In support Mr Cheng SC cited the decision of the trial judge in R v Quinn[50]that it would be quite inappropriate to take two unauthenticated pieces of material and use either of them to authenticate the other.  As noted earlier the prosecution appealed the ruling of the trial judge that the video clips were inadmissible.  Mr Cheng SC submitted that in allowing the appeal the reasoning of the trial judge was not criticised[51].

65.I agree with the submission of Mr Leung SC that the court in R v Murphy, when saying “Or, as in the instant case of the heli-tele film comparing it with a film of the same events that is authentic beyond doubt” (my emphasis), were just giving an example taken from the circumstances of the case before them.  The court was not, in my view, saying for every comparison the authenticity of the footage compared with must be beyond doubt. 

66.Mr Leung did not however simply ask that I compare unauthenticated footage and use either of them to authenticate the other.  Mr Leung submitted that if the court was to find the TVB footage prima facie authentic then that footage could be compared with the other footage and photographs. 

Evidence

67.Before addressing the individual video footage, photographs and CCTV recordings, I will first summarise the evidence given on the voir dire by the police officers who apprehended and subdued Tsang[52] and the evidence of Tsang[53]. 

Police evidence

68.At around 3:20 a.m. on 15 October 2014 Sgt 47574 (PW1) saw a man wearing a black T-shirt standing in a flower bed[54] pouring liquid from a bottle down onto Lung Wo Road.  Sgt 47574 went up to the male and grabbed hold of him.  Sgt 47574 said this can be seen in police video footage (exhibit P8)[55] and the Now TV footage (exhibit P4)[56], which were played to Sgt 47574 in court. 

69.Neither Sgt 47574 nor the other police officers were asked to identify this male. Admitted in evidence is that the police video footage shows Tsang Kin Chiu throwing liquid from a plastic bottle over police officers[57].

70.Tsang struggled at which time Sgt 34200 (PW2) and Senior Inspector Lau (“SIP Lau”) (PW32)[58] assisted Sgt 47574 to subdue Tsang and take him to the pavement.  Sgt 34200 warned Tsang not to move or he would use OC foam (pepper spray).  Tsang still continued to struggle therefore Sgt 34200 removed Tsang’s goggles and mask and sprayed OC foam onto his face.  Tsang struggled even more intensely whereby he was able to separate himself from Sgt 34200.  

71.On seeing this SSgt 52820 (PW4) went forward to assist Sgt 34200 by putting his arm around Tsang.  Tsang continued to resist by swinging his body from side to side causing both of them to fall on the ground and bang their heads against the wall.  Senior Inspector Fu (“SIP Fu”) (PW3) also went up to assist.  Tsang continued to struggle vigorously and tried to kick SIP Fu. 

72.Senior Inspector Wat (“SIP Wat”) (PW5) on hearing SIP Fu warn Tsang not to kick, turned round and saw SIP Fu and Sgt 34200together with two other officers struggling with Tsang on the ground.  SIP Wat went up to assist.  At the second attempt Sgt 34200, SSgt 52820, SIP Wat and SIP Fu succeeded in handcuffing Tsang at his back with a pair of plastic handcuffs carried by SIP Wat.  The first 5 seconds of the video footage from ATV, (exhibit P3 (2)), played in court to SIP Wat, shows SIP Wat holding the larger pair of handcuffs.

73.SSgt 52820 and SIP Fu helped Tsang stand up.  When Tsang said he had been sprayed with pepper spray SIP Fu instructed SSgt 52820 to rinse Tsang’s face with water from his water bottle.  This is seen in the first 18 seconds of the video footage from ATV (exhibit P3 (2)), which was played in court to Sgt 34200, SSgt 52820 and SIP Fu.  The rinsing of the face is also seen between 01:33-01:41 which was played to SIP Fu and SSgt 52820. 

74.Tsang was then handed over to other police officers, described by SSgt 52820 and SIP Fu as crime officers.  SIP Fu said Tsang was handed over to three or four crime officers[59].

75.Sgt 34200; SIP Fu; SSgt 52820 and SIP Wat all confirmed that the video footage played to them in court was consistent with their recollection of the events of that night.   

76.No video footage was played to SIP Lau, who was only called to give evidence on the general issue.  SIP Lau said on 29 September 2015 he had viewed footage of part of the incident.  The court was not however told what footage SIP Lau had viewed.  In cross-examination SIP Lau agreed that the majority of what happened was not captured on the video footage he had viewed and that he did not appear on the footage[60].

Tsang Kin Chiu

77.The following is a summary of the evidence given by Tsang on the voir dire relating to the admissibility of the video footage and the photographs.  Tsang’s evidence relating to the admissibility of the CCTV recordings is summarised later when considering the issue of admissibility of the CCTV recordings. 

Subdued

78.Tsang testified that at around 3:20 a.m. on 15 October 2014 he was demonstrating in the flower bed on the side of Lung Wo Road near to the LegCo Building.  Tsang was wearing a black T-shirt with words on the front and stars on the back[61]. 

79.While demonstrating several men pushed Tsang to the ground, assaulted him and handcuffed him with zip wire.  Tsang did not know who did this but guessed they were police because only police use force in demonstrations[62].  At the same time Tsang was sprayed with pepper spray.  Tsang was then dragged up and after a couple of steps someone washed his face with water. 

Escorted

80.Tsang was then handed over to several other men.  One held his left arm and one his right arm while dragging him along for about 15-20 meters in the direction of Central.  Another one twisted his left thumb and wrist.  Two or three more men were standing next to them, one responsible for driving away the reporters and one for leading the way. 

81.The first 17 secondsof theATV footage (exhibit P3 (2)) were played to Tsang.  Tsang identified himself in the footage as the person in the black T-shirt with stars on the back.  Tsang said thefootageshowed himbeing subdued; handcuffed with zip wire; being taken up and his face washed.  The footage from 1:33-1:54 was also played.  Tsang said the footage from 1:33-1:40 showed the second group and the reporters being driven away; and the footage from 1:40-1:54 showed the second group pushing and dragging him. Tsang said the ATV footage was consistent with his recollection of the events that night and that the events shown were in sequence. 

82.The TVB footage (exhibit P1 (b)) from 5-13 seconds was also played to Tsang.  Tsang identified himself in the footage as the person in the black T-shirt being escorted by the second group.  Tsang said the TVB footage was consistent with his recollection of the events that night.  

83.The Now TV footage (exhibit P4) from 40-44 seconds was also played to Tsang.  Tsang said this also showed him being escorted by the second group and was consistent with his recollection of the events that night.  Tsang identified himself in the photograph (exhibit P12) as the person in the middle in the black T-shirt. Tsang said this was after he was handed over to the second group. 

Carried

84.Tsang heard the group discussing where to take him.  When asked to walk faster Tsang did not comply.  After a short distance Tsang was lifted up by his arms and legs and carried face down to a place next to a substation.  Tsang said this was the dark corner referred to by everyone and the media.  Tsang did not know if the people who lifted his legs were from the same group but believed they were. 

85.The first 9 seconds of the TVB footage (exhibit P1 (c)) was played to Tsang.  Tsang said the footage showed him being carried to the dark corner and was consistent with his recollection of the events that night.  Tsang identified himself in the photograph (exhibit P13) as the person in the black T-shirt, with stars on the back, being carried face down to the dark corner. 

Assault at the substation

86.After being carried a distance of about 500 meters Tsang was dumped on the ground face down.  Tsang estimated this was approximately 1-2 minutes after being lifted up.  Tsang was kicked and punched by more than one person; sensed he was also beaten with a hard object; that someone stepped on his face and someone hit his face. Tsang curled up his body and faced the wall. During the assault Tsang also heard someone say “demonstration”. 

87.Tsang did not at the time know how long the assault lasted.  Later, having viewed TV news footage, Tsang confirmed that the assault lasted about four minutes, which was consistent with his memory. 

88.Tsang said that from the time his face was washed to the time he arrived at the substation no one left the group.  Tsang did not know if during this time anyone else joined the group but later saw from the news footage that someone else did join. 

89.The TVB footage (exhibit P1 (c)) from 10 seconds to the end and (exhibit P1 (h)) from 00:14 – 1:07 were played to Tsang.  Tsang said the footage showed him being carried to the substation; thrown to the ground and assaulted.  Tsang said the TVB footage was consistent with his recollection of the events that night.  The Apple Daily footage (exhibit P2 (d)) and the Now TV footage from 18-29 seconds were played to Tsang.  Tsang said the footage also showed the assault and was consistent with his recollection of the events that night.

Video footage

TVB (exhibit P1)

90.The TVB footage is contained on one disc (exhibit P1) and consists of eight videos (a)-(h).  The footage was downloaded by the police between October 2014 and September 2015 from YouTube and news.tvb.com.  On 17 December 2015 Sgt 46437 duplicated the footage which was then marked WSL1 (a)-(h)[63]. 

91.WSL1 (a)-(h) was the exhibit number given to the footage in the affirmation of WSI Wong Sau Ling in High Court proceedings for a production order against TVB[64].  On 23 May 2016 Sgt 58223 (PW19) burnt a disc containing the footage WSL1 (a)-(h).  The disc was produced to court and marked exhibit P1 with the eight videos referred to as (a)-(h). 

92.In cross-examination Sgt 54850 (PW13), who downloaded some of the footage from YouTube said he was unable to trace who uploaded the footage to YouTube and had no knowledge what was done to the footage before being uploaded[65]. 

93.Three witnesses from TVB gave evidence: Sum Ka Hung (PW9), a senior technician in the news ingestion department; Lam Ka Yu (PW10), a senior librarian and David Wong (PW8), the news production manager. 

94.In summary Mr Sum explained that the news footage filmed by the cameramen would be transmitted real time by fibre optical or TVU and automatically recorded (ingested) onto the server exclusively used by the news department[66].  During the process of automatic recording Mr Sum, with the aid of a signal meter, would ensure the signal was normal and not interfered with.  Mr Sum would find out the location of the transmission and then type in a file name, called a Slug. 

95.Mr Sum was on duty between 22:30 on 14 October 2014 and 08:30 the next morning, checking and monitoring the signals transmitted from the cameramen.  Between 03:20 and 03:43 images from two cameras at Tamar Park (camera A & camera B) were transmitted real time by TVU and automatically ingested and saved in the server.  In cross-examination Mr Sum said the times were roughly when the incident happened[67]. David Wong also confirmed live-footage was automatically ingested onto the server real time[68].

96.Mr Sum found the signals from both cameras to be satisfactory.Mr Sum assigned the following Slug names to the transmissions saved on the server fromcamera A and camera B: lungwo.live (camera A) and lungwo.topshot.live (camera B).  These were the only images received from camera A and camera B between 03:20 and 03:43.  The whole system including the server was operating properly during the time Mr Sum was on duty. 

97.Mr Sum said that only authorised persons can access the server, which was password protected.  In cross-examination Mr Sum said he did not know how many persons had access to the server or whether there was any other measures taken to prevent access to the server[69]. Mr Sum agreed he told the police apart from password protection there was no other measure to prevent unauthorised interference with the server.  David Wong said once the footage was ingested and stored onto the server all colleagues from the news department could access the footage with their own log-in and password. 

98.Mr Sum and his colleagues were unable to make any alteration to the file stored in the server.  David Wong also understood it was not possible to alter, amend or edit news ingested into the server. 

99.After transmission was automatically ingested and saved on the server, staff from the library would burn the footage to blu-ray discs.  This was the responsibility of Mr Lam.  When transferring the footage to blu-ray discs the re-writeable function of the disc would be disabled and Mr Lam would not alter or edit any of the footage. 

100.In the afternoon of 15 October 2014 Mr Lam reported for duty and retrieved the footage: lungwo.live and lungwo.topshot.live, which he burnt onto blu-ray discs labelled Local VC 13451 (camera A) & Local VC 13452 (camera B) respectively.  I will refer to the blu-ray discs as A & B.  In cross-examination Mr Lam said he had no impression what time the raw footage was loaded onto the server because the footage was already there when he went to work[70].

101.When transferring the footage to the blu-ray discs Mr Lam did not alter or edit the footage.  After burning the discs Mr Lam compared the content with the footage saved on the server and found the content to be identical. 

102.In cross-examination[71] Mr Lam said that he believed the content on the server was not altered by anyone because he did not have the right to alter those things on the server.  As far as Mr Lam knew a password was required when alteration was to be made to the footage on the server.  Mr Lam did not have this password and explained that the password used to access the server by members of the news department was “not enough” to alter anything.   Mr Lam did not know what was required to alter anything.

103.The blu-ray discs were then stored in the library.  Colleagues from the news department had access to the library.  On 20 January 2016 David Wong requested the blu-ray discs to compare with the footage WSL1 (a)-(h)[72].  Mr Lam retrieved the discs from the library and handed them over to David Wong.  In cross-examination Mr Lam confirmed David Wong returned the discs, which are now kept in the TVB library.

104.P1 (a) was played in court.  David Wong identified the TVB News App logo, which is automatically added when the footage was uploaded to the TVB News App.  Having compared the footage with blu-ray disc B, David Wong concluded that apart from certain blocked shots which were missing, the video footage on (a) had not been edited.  David Wong also compared the sound recording heard on the footage and found the sound had also not been edited.

105.David Wong explained that exhibit WSL1 (a) was split into first shot and second shot.  The first shot comprised of the first 10 seconds, which showed a man being carried by a group.  In cross-examination[73]David Wong said he did not speak to the cameraman.  When asked if he could say where the man was first picked up David Wong explained 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 or where the man was first picked up. 

106.The second shot is the remainder of the footage showing the assault at the substation. 

107.When David Wong compared the blu-ray discs with the footage WSL1 (a) he saw that the first shot and second shot came from the same camera, camera B.  After the first shot David Wong saw that the group turned into an area where they were blocked by a van[74] (“the blocked shot”).  The second shot is when the group appeared again on camera.  David Wong said the first shot, the blocked shot and the second shot could all be seen on blu-ray disc B as one continuous shot without editing.

108.P1 (c), (e) and (f) were all played in court.  David Wong did not compare these with the blu-ray discs because from what he saw they were all exactly the same as (a).  David Wong was unable to tell when (a), (c), (e) and (f) was made available to the public.  Based on what he was told by a colleague David Wong guessed the time was around 6 a.m. via the TVB News App.

109.The first 1 minute and 8 seconds of P1 (b) was played in court.  David Wong referred to the footage from 5-13 seconds as the “relevant shot”, showing the male being escorted.  This was filmed by camera A.  David Wong compared the footage with blu-ray disc A and concluded this was a continuous single shot without editing.  In cross-examination 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[75].

110.David Wong also compared the sound recording heard on P1 (b) with blu-ray disc A and found they were the same.

111.The footage P1 (b) between 13 and 21 seconds was filmed by camera B, the same camera as (a), (c), (e) and (f) and shows part of the second shot.  At the beginning of this part there is an extra four seconds which are not seen on (a), (c), (e) and (f)[76]. David Wong confirmed these four seconds were contained on blu-ray disc B.  The extra four seconds can also be seen on P1 (d), (g) & (h).

112.The news footage seen in P1 (b) was broadcast by the TVB interactive news channel between 06:04 and 06:05 on 15 October[77]. The time and date as well as the TVB logo can be seen on the footage.  The time and date was real time, automatically input when the footage was broadcast. The voice over was added by the news reporter after filming. 

113.In cross-examination David Wong said apart from the images shot by camera A and camera B WSL1 (b) contained many other images from other cameras, which were not burnt onto blu-ray discs A & B[78]. David Wong explained there were a lot of cameras at the scene but the “relevant shot”, first shot and second shot came from camera A and camera B.  David Wong mainly checked the “relevant shot”, first shot and second shot and did not make a full comparison of all the images.

114.P1 (d) was played in court[79]. David Wong compared (d) with (a) and (b) and concluded the main shots captured were from cameras A & B and were the same as (a) and (b).  P1 (d) shows the relevant shot, the first shot and part of the second shot[80]. 

115.P1 (g) was played in court[81]. David Wong compared (g) with (d) and concluded the beginning of the footage was the same except that the part showing a police spokesman was cut out from (g). A careful comparison also shows that, after the assault at the substation and just prior to the police spokesman, other parts of the footage are also not included in (g).  The broadcaster seen at the beginning and the news reporter seen at the end of the footage are however the same.  

116.David Wong said that (d) should have been broadcast at 07:02 on Good Morning Hong Kong and on the interactive I-news channel[82] but did not know when (d) was made available to the public on the internet.  The time of the broadcast is not however seen on the footage.  The news footage seen in P1 (g) was broadcast between 09:41 and 09:45 on 15 October[83], the time and date as well as the TVB logo being shown on the footage.

117.P1 (h) was played in court[84]. David Wong compared (h) with (b) and concluded they were the same except that the brightness of (h) was enhanced.  The time of the broadcast between 06:04 and 06:05 can also be seen on the footage. 

118.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. 

119.In addition, as summarised earlier the TVB footage P1(b) and P1(c), showing the escort and the assault at the substation was played to Tsang, who confirmed the footage was consistent with his recollection of the events that night.  Tsang also identified himself as the person being carried in the TVB footage P1 (h) [85]. I was satisfied the evidence of Tsang, if believed, was also sufficient to prove the authenticity of the TVB footage beyond reasonable doubt. 

Discussion

120.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[86]. The defence submitted the court cannot be satisfied the first shot, the blocked shot and the second shot is one continuous shot, for example Mr Lok SC, submitted that by reason of there being no continuous recording and the difference in quality between the first shot and the second shot, the second shot could have depicted the activities of a different group[87]. 

121.A similar submission was made by Mr Cheng SC[88] and Mr Lam[89].  Mr Lo submitted that it is unknown whether the first shot and the second shot are in sequence or on different occasions and that in view of the length of the blocked shot the footage cannot be relied upon as an accurate depiction of the events shown therein[90].  Mr Choy submitted that given the abundant uncertainties arising from the blocked shot minimal weight should be attached to the footage[91].

“The blocked shot”

122.David Wong’s evidence that after the first shot he saw the group turned into an area where they were blocked by a van (“the blocked shot”) has been the subject of much criticism.  

123.When asked in cross-examination to estimate the time between the first shot and the second shot Tsang said, “I think more than 5 seconds, but it’s within 10 odd to 20 seconds.”[92]

124.David Wong also gave evidence about the time between the first shot and the second shot.  In examination-in-chief David Wong said the group were blocked by a vehicle for about 20-30 seconds.  In cross-examination[93] David Wong was referred to his affirmation[94] filed in the High Court proceedings in which the time was given and confirmed the gap between the two shots was in fact 49 seconds; he did not know what happened during those 49 seconds and he did not speak to the cameraman. 

125.Mr Cheng SC submitted that David Wong’s evidence as to what was captured in the blocked shot was inadmissible hearsay and that it was not possible for anyone to determine what was in fact captured during the blocked shot[95].   I have no hesitation in rejecting this submission.  The evidence of the blocked shot was adduced to explain why the footage was not continuous.

126.At no time in evidence did Tsang say he was taken behind a vehicle.  Mr Lok SC submitted that no mention having been made by Tsang that he had been carried anywhere near any vehicle raises the question whether he was carried behind a van or this was an incident not involving Tsang[96].  Mr Lo submitted that Tsang’s evidence being inconsistent with David Wong’s evidence that the group turned behind a vehicle, it would be unsafe to rely on David Wong’s evidence[97].

127.In cross-examination on the voir dire Tsang agreed he told the police he was not sure about the route he was carried.  When put by Mr Cheng SC he had no personal memory of the route Tsang disagreed and said “It’s just a straight line”.  In cross-examination on the general issue Tsang disagreed with Mr Cheng SC that the route involved a sharp right turn before entering the substation saying that the route was slightly sloping upwards, but was more or less a straight line.  

128.Mr Cheng SC submitted that Tsang’s evidence the route was a straight line was irreconcilable with the video evidence which showed Tsang was not carried in a straight line.  This Mr Cheng SC submitted cast serious doubt on the overall reliability and credibility of Tsang’s evidence[98].  Mr Lam in making a similar submission pointed out that the route taken by SPC 34185 (PW26), when making the video of the scene (exhibit P20), was different to that of the group seen walking alongside the substation[99]. Mr Lam submitted that the route taken by SPC 34185 was “the straight line route”.

129.I have no hesitation in rejecting these submissions.  In my view it is not at all surprising that Tsang did not mention he was taken behind a vehicle.  Tsang was carried face down and would not therefore have been able to see clearly the route he was taken or what he was taken past.  I do not agree the route taken by SPC 34185 was a “straight line route”.  The route SPC 34185 took was by turning right across the lawn as opposed to continuing on the path and turning right at the substation. 

130.The fact Tsang did not say he was taken behind a vehicle and described the route he was carried as a straight line does not cause me to doubt the evidence of David Wong that after the first shot he saw the group turned into an area where they were blocked by a van.  In addition, in cross-examination Mr Lok SC played to Tsang the first eight seconds of the TVB footage exhibit P1(c), which shows Tsang being carried (the first shot).  After asking Tsang whether he was facing up or down Mr Lok SC asked, “And then it seemed you and the team had turned into a corner.”   Tsang agreed.  

Impossibility for a van to enter the path

131.Mr Lok SC submitted that it was impossible for a van to enter the path where David Wong said the group were blocked by a vehicle[100]. Mr Lok SC, relying on the video of the location (exhibit P20), submitted there was a concrete barrier together with fixed and continuous railing thereby preventing vehicles entering the path from Lung Wo Road[101].

132.I have no hesitation in rejecting this submission.  Police video, exhibit P8 (file 00000), clearly shows that the railings are not continuous.  Railings run parallel with the substation.  On approaching the underpass and before reaching the railings there is a recess or lay-by where cars can pull in and park or drive alongside the substation.  At the end of the railings there is clearly sufficient space for a vehicle to access the path[102]. 

133.Similar submissions were made by Ms Lam and Mr Lo[103]. In support Ms Lam played the police video exhibit P5 (file 00000) to show the road and path were blocked by barricades.  Screen shots for 11:39; 12:20 and 12:45 were submitted by Ms Lam[104]. As pointed out during the submission of Ms Lam this was before Tsang was seen pouring liquid down onto Lung Wo Road.  That is shown in exhibit P5 (file 00001) at 13:48, just over 20 minutes after the screen captures submitted by Ms Lam. 

134.The police video, exhibit P5, (file 00000) at 12:55 shows that the mills barriers were removed.  After about five minutes the police begin to clear the path by moving the demonstrators back up the path (see exhibit P5, file 00000 from 18:00).  The videos do not show the plastic barricades being removed.  One orange plastic barricade is seen with one or more white barricades in police video, exhibit P7 (file M2U00038) at 04:45, which is about two minutes after the police started moving the demonstrators as seen in exhibit P5. 

135.About ten minutes later the path is cleared and the police walk down the path to get ready to go through the underpass (see exhibit P5, file 00001 between 03:15 – 04:30).  This can also be seen on police videos, exhibit P7 (file M2U00038 from 04:40) and exhibit P8 (file 00000 from 11:00).  This is just less than ten minutes before Tsang was seen pouring liquid down onto Lung Wo Road, which is also shown in exhibit P7 (file M2U00038 at 23:00) and exhibit P8 (file 00001 at 06:13). 

136.The cameras do not however show whether by this time the plastic barricades have been removed.  Notwithstanding I am nevertheless satisfied, having viewed the police videos, that by removing the mills barriers there was more than sufficient space for a vehicle to access the path. 

137.Ms Lam relying on the evidence of Superintendent Ng (“SP Ng”) (PW27) submitted that the evidence of David Wong should be rejected[105].  I have no hesitation in rejecting this submission.  In cross-examination Ms Lam showed SP Ng photograph 11, exhibit P24.  After SP Ng agreed the pavement was cleared that night Ms Lam asked SP Ng if he agreed that no car was allowed to drive on the red pavement.  SP Ng replied, “All along no vehicles are supposed to be driven up to this pavement.”  Ms Lam then showed photograph 12 and asked the same question to which SP Ng replied “Right.”

138.Photograph 12 was a close up of photograph 11.  I am satisfied all that SP Ng was saying is no vehicles were supposed to be driven on the red pavement.  This evidence does not cause me to doubt the evidence of David Wong that after the first shot he saw the group turned into an area where they were blocked by a van. 

139.Mr Lok SC and Ms Lam further submitted that even if the path was cleared, with so many people around, it was unlikely a van could have reached the path David Wong said was the location of the blocked shot.  Accepting there were many people around that early morning I am satisfied, having viewed the police videos, there was nothing to prevent a van from driving onto the path.  In addition, as seen from the police videos, the police were by this time at the other side of the underpass where no doubt most of the demonstrators will have been.  This submission does not cause me to doubt the evidence of David Wong that after the first shot he saw the group turned into an area where they were blocked by a van. 

Sequence

140.In cross-examination David Wong said he did not ask the cameramen whether what was seen on (a)-(g) was in natural sequence.  Asked by Mr Cheng SC whether he could say the events were in natural sequence David Wong replied that for parts of (b), (d) & (g) he could not say as these were news stories with voiceovers but for the relevant shot, first shot and second shot these were in sequence according to the times on the blu-ray disc.

141.Mr Cheng SC submitted that there was insufficient evidence to establish whether the events shown in the relevant shot occurred before or after the events shown in the first shot and the second shot[106]. Relying on the Canadian case of R v Penney[107]Mr Cheng SC submitted that the first and second shot being separated by a lengthy gap cannot be relied upon as an accurate depiction[108] and that in absence of the true sequence of events no reliance can be placed on the video footage[109]. 

142.Similarly Ms Lam submitted that all the video footage had been edited whereby the footage was seriously distorted giving a false pictorial presentation of the event[110]. Mr Lam submitted the possibility the TVB footage captured three totally different and unrelated events could not be ruled out[111]and that the editing of the footage may possibly have distorted the nature and sequence of events[112].

143.I have no hesitation in rejecting these submissions.  In Kajala v Noble, the Court of Appeal said where no attack is made on the integrity of the film in the sense that it had, by cutting, distorted the activities of the appellant it was irrelevant that the film might not have shown the events in their true sequence, so long as the film accurately showed the activities of the defendant[113]. 

144.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.

145.The case of R v Penney is clearly distinguishable.  The offence charged was that, “No person shall attempt to kill a marine mammal except in a manner that is designed to kill it quickly.”  In the absence of a continuous video of the killing of the seal the court said that it was impossible to determine whether the manner used was designed to kill the seal quickly[114].  On the evidence I am satisfied that the video footage, albeit not continuous, accurately depicts the events of that night and that a continuous video is not necessary for proof of the charge as in R v Penney.                

Editing

146.In cross-examination David Wong was referred to §§25 & 26 of his affirmation filed in the High Court proceedings which stated there had been some editing to the relevant parts and the second shot with the uneventful parts removed[115].  David Wong explained that the uneventful parts referred to in §25 were the blocked shots.

147.With regard to §26 David Wong explained that due to the duration of news stories certain shots were cut out of P1(d) & P1(g) but having made a comparison of the footage David Wong concluded that the relevant shot in camera A was not edited[116]. For camera B David Wong explained there were several edit points to condense the story.  The parts edited out were retained by TVB.  Although TVB opposed the production of the blu-ray discs to safeguard journalistic independence and safeguard frontline staff, David Wong said that the parts edited out of (d) & (g) were in fact contained in (a), (c), (e) & (f)[117]. 

148.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. 

Enhancement (exhibit P1 (h))

149.In cross-examination David Wong said that it appeared exhibit P1 (h) had been edited by adding digital enhancement of the brightness of the image[118].  This was not done by TVB and David Wong did not know how the brightness had been adjusted.  Mr Cheng SC submitted exhibit P1 (h) had been tampered with and should therefore be ruled inadmissible[119].

150.I have no hesitation in rejecting the submission the video footage had 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 blu-ray disc he did make comparison with exhibit P1 (b) and concluded that apart from the brightness they were the same. 

151.I have also compared P1 (h) with P1 (b), not to establish the authenticity of P1 (h) but to see whether the events depicted are the same.  Like Mr Wong I am satisfied the images depicted are the same and have not been altered or changed. 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).

Real time

152.Mr Cheng SC submitted that from the time the footage was ingested onto the server to the time the footage was burnt onto blu-ray discs eleven hours passed during which time the footage could have been tampered with.  The prosecution having failed to rule out the possibility the footage had been tampered with during this time Mr Cheng SC submitted the blu-ray discs would simply be the “fruit of a poisoned tree” and cannot be relied on as a means to authenticate the footage[120].

153.In cross-examination when asked if there was any evidence showing the precise time the relevant shot was filmed by camera A, David Wong explained that the images recorded by camera A were broadcast live on the interactive channel[121].  As far as David Wong could remember from viewing the live footage the time should be around 03:30[122]. In re-examination David Wong confirmed the relevant shot was broadcast live.

154.Ms Lam submitted in court that David Wong changed his evidence with regard to when the relevant shot was made available to the public[123].  I have no hesitation in rejecting this submission.  When asked by Mr Leung SC what time the footage on P1 (b) between 00:05 and 00:13, showing the relevant shot, was made available to the public David Wong, after clarifying the question was referring to P1 (b), replied 06:04.  David Wong was saying the broadcast exhibit P1(b) was at 06:04 and not that the relevant shot was first made available at 06:04.  I am satisfied David Wong did not change his evidence.

155.When asked in cross-examination where he obtained the information the footage from camera A was taken between 03:20 and 03:43 David Wong explained that he obtained the information from the blu-ray disc[124].  The time was real time and not added to the blu-ray disc.

156.Later in cross-examination when asked about the blocked shot (taken by camera B) David Wong confirmed that in his affirmation he said the first shot was taken between 03:32:08 and 03:32:19 and the second shot between 03:33:08 and 03:37:48.  David Wong said he obtained these times from the blu-ray disc[125]. 

157.In re-examination David Wong was asked to explain how the time was recorded in the blu-ray disc.  David Wong explained that when the news footage was transmitted live and simultaneously recorded onto the blu-ray disc the real time mode was used whereas when the blu-ray disc was burnt later this was not in real time. 

158.David Wong said blu-ray disc B was recorded real time and blu-ray disc A was recorded later and therefore not in real time.  Although David Wong was able to give the time the first shot and the second shot were filmed his evidence blu-ray disc B was recorded simultaneously differs from the evidence of Mr Lam that he burnt both discs later that afternoon.  Mr Lam being the one who burnt the discs I accept his evidence.  I therefore do not rely on the times given by David Wong as being the actual time when the first shot and the second shot were taken. 

159.I accept the evidence of Mr Sum that the footage from camera A and camera B was automatically ingested onto the server roughly between 03:20 and 03:43 and the evidence of David Wong that the relevant shot was broadcast live. 

160.The relevant shot was filmed by camera A and is shown in P1 (b), (d), (g) & (h).  The first shot and second shot were filmed by camera B.  The first shot is shown in P1 (a), (c), (d), (e), (f) & (g).  The second shot is shown in all the TVB footage[126].

161.David Wong said P1 (b) was broadcast at 06:04 and P1 (d) at 07:02.  The footage P1 (g) shows the broadcast was at 09:41.  P1 (h) is the same as P1 (b) and shows the time of broadcast at 06:04.  David Wong could only guess the time P1 (a), (c), (e) & (f) were made available to the public[127].

162.I have no hesitation in rejecting the submission the footage was tampered with. Camera A was broadcast live and within a relatively short time, of less than two and a half hours, the footage from camera B had been broadcast.  Although members of the news department had access to the server I have no hesitation in rejecting the suggestion that in the intervening period from filming to broadcast and from broadcast to the burning of the blu-ray discs someone had accessed the server and tampered with the footage whereby the images and appearance of the people depicted had been altered or changed.

163.In addition, I accept the evidence of Mr Sum that he and his colleagues were unable to make any alterations to the files stored in the server; the evidence of David Wong that it was not possible to alter, amend or edit the news ingested into the server; and the evidence of Mr Lam that he did not alter or edit the footage and after burning the discs compared the content with the footage saved on the server and found the content to be identical.

Conclusion

164.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.

165.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.  I discuss later the credibility of Tsang.

Discretion to exclude

166.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[128].  

167.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.

Apple Daily (exhibit P2)

168.The Apple Daily footage is contained on one disc (exhibit P2) and consists of five videos (a)-(e).  The footage was downloaded by the police from hk.apple.nextmedia.com; hk.dv.nextmedia.com and YouTube. On 17 December 2015 Sgt 46437 duplicated the footage which was then marked WSL2 (a)-(e) [129].  On 23 May 2016 Sgt 58223 burnt a disc containing the footage WSL2 (a)-(e).  The disc was admitted in evidence and marked exhibit P2 with the five videos referred to as (a)-(e)[130]. 

169.All the five videos show part of the assault at the substation. None however capture the beginning of the assault.  The longest is (d), which shows 3 minutes 59 seconds of continuous footage.  The other four videos show various segments of the assault seen in (d). 

170.Videos (a) & (e) are also continuous footage however the footage consists of four separate segments of the assault.  The four segments are the same in both videos.  Video (b) shows three short segments of the assault and video (c) shows the same segment twice, the second time being a little longer. 

171.Nobody from Apple Daily was called to give evidence.  As summarised earlier the Apple Daily footage (d) was played to Tsang, who confirmed the footage was consistent with his recollection of the events that night.

172.I was satisfied, if believed, that the evidence of Tsang was sufficient to prove the authenticity of the Apple Daily footage beyond reasonable doubt.  I therefore ruled the Apple Daily footage of the assault prima facie authentic and admissible in evidence.

173.In addition Mr Leung SC submitted that the content of the TVB footage P1 (a) from 42 seconds was identical with the Apple Daily footage P2 (d), as particularised in the table annexed to the written submission of the prosecution[131].  In court Mr Leung SC submitted that video (d) was filmed by a different camera and was not simply a copy of the TVB footage P1 (a).  Mr Leung SC played to the court part of P1 (a) at 1 minute and 22 seconds, which Mr Leung SC submitted showed a slight tilting of the camera, which is not seen on the Apple Daily footage. 

174.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.

175.The Apple Daily footage P2(c) between 21 and 27 seconds shows what I will refer to as a moving photograph.  In oral submissions Mr Leung SC submitted the clothing and appearance of the persons shownare the same as seenin the TVB footage.

176.I was satisfied, if believed, that the clothing and appearance of the persons were the same as in the TVB footage or the still photographs, this was sufficient evidence to prove the authenticity of the moving photograph beyond reasonable doubt.  I therefore ruled the moving photograph prima facie authentic and admissible in evidence.

Discussion

177.I accept the evidence of Tsang that the Apple Daily footage played to him in court was consistent with his recollection of the events that night.  I discuss later the credibility of Tsang.

178.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 Apple Daily footage.  I find the prosecution have proved the authenticity of the Apple Daily footage of the assault beyond reasonable doubt. 

179.In addition, having carefully viewed the TVB footage and the Apple Daily footage I agree with the submission of Mr Leung SC that the content of the TVB footage P1 (a) from 42 seconds is identical to the Apple Daily footage P2 (d).  Although the Apple Daily footage appears to be a wider angle than the TVB footage, I am not satisfied the “tilting” referred to by Mr Leung necessarily proves that the Apple Daily footage was filmed by a different camera.

180.I am nevertheless satisfied that the TVB footage and the Apple Daily footage were filmed by two different cameras.  The beginning of the Apple Daily footage P2 (a) shows the camera panning across Lung Wo Road to film what was happening at the substation[132]. It is at this point the footage in P2 (d) begins.  This explains why the Apple Daily footage, unlike the TVB footage, does not capture the group arriving at the substation and the beginning of the assault. 

181.On this evidence I find the prosecution have proved the authenticity of the Apple Daily footage beyond reasonable doubt.

182.I am satisfied in determining whether the moving photograph in P2 (c) is authentic I can compare this with the TVB footage and the still photographs to see if the images are consistent.  Notwithstanding Tsang is not seen in the moving photograph, I am satisfied by looking at the clothing and appearance of the persons, the moving photograph shows the time when Tsang was being carried face down. 

183.This is the same time as in the photograph exhibit P13 and shortly after the police officers escorted Tsang as seen in the TVB footage P1 (b), (d) & (h) between 5-15 seconds and (g) between 02:47-02:55 and the photograph exhibit P12.  Having carefully considered the evidence and viewed the footage and photographs, I find the prosecution have proved the authenticity of the moving photograph beyond reasonable doubt.

Discretion to exclude

184.In ruling the Apple Daily footage was prima facie authentic and finding the footage authentic I carefully considered 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[133]. 

185.I found no grounds on which to exclude any of the Apple Daily footage on the grounds of unfairness.  None of these matters cause me to doubt the findings I have made.

ATV (exhibit P3)

186.The ATV footage is contained on one DVD, exhibit P3 and consists of a broadcast version, exhibit P3 (1) and a library copy, exhibit P3 (2)[134].  P3 (1) was downloaded by the police from the website of ATV[135] and shows the beginning of a news broadcast at 18:00 hours on 15 October 2014.  P3 (2) was obtained from ATV[136].

187.The news broadcast and the library copy show Tsang being subdued, escorted and part of the assault at the substation.  Mr Leung SC submitted that the content of the broadcast copy from 41 seconds onwards was identical to the library copy[137].

188.One witness Chim Yat Kin (PW7), a senior video editor in the video editing department of the news department of ATV, gave evidence.  In summary[138] Mr Chim testified that one of his duties was converting video captured by the cameramen onto tape.  Mr Chim explained that when the camera was filming, the footage was transmitted real time to the ATV studio by a link called “LiveU” and recorded onto what Mr Chim called the “raw tape”, which would be kept in the library. 

189.After the filming was finished the cameraman would return to ATV and remove the storage card (called a P2 card) from the camera.  The storage card was required for use every day therefore Mr Chim or one of his colleagues would copy the content of the storage card onto a tape, called the master tape.   Depending on the quality and the content, the raw tape may also be used as a master tape. 

190.Mr Chim explained that the cameraman could only record and not edit therefore the content of the master tape was the same as the footage filmed by the cameraman.  The master tape was then placed in the library and the storage card returned to the cameraman for further use.  

191.Mr Chim also explained how news was edited for broadcasting.  After receiving the narration and the voice over from the reporter Mr Chim would listen to the narration and locate the relevant parts in the master tape.  The relevant parts would be copied for broadcasting.  The footage would be edited for example by inserting photographs of persons mentioned in the narration or inserting the date.  After completing the whole story, the tape would be kept ready for broadcasting.  In cross-examination Mr Chim agreed the length of the broadcast copy would be shorter than the master tape[139].

192.Where photographs edited into the footage were from outside sources such as other news agencies or from members of the public, an acknowledgement, called a “courtesy”, would be given at the time of broadcasting.  When the news was being broadcast the director would key in the relevant courtesy which would then be seen by those watching the broadcast. 

193.Mr Chim demonstrated two examples from exhibit P3(1) where acknowledgement was given.  First at 01:03 acknowledging footage from Apple Daily showing the assault at the substation and second at 01:20 acknowledging a photograph of Tsang from the Occupy Central movement.  In cross-examination Mr Chim said that the footage from Apple Daily was normally obtained direct from Apple Daily and not from Apple Daily’s website[140]. Mr Chim did not however know how the photograph from the Occupy Central movement was obtained. 

194.After the news was broadcast colleagues from the library would take the tape together with the other news stories broadcast and copy all the stories onto one disc called the “clean version”.  As the courtesy was broadcast real time, these would not be seen on the clean version.   The clean version was kept in the library for future use. 

195.Only colleagues from the news department could have access to the library copies.   When a copy was required a request would be made to the library and the librarian would locate the copy.  In March 2015 Mr Chim was asked by his boss to assist the police, who requested copies of footage from various dates.  On 31 March Mr Chim requested the copies from the library which he converted onto a USB to give to the police[141]. In answer to the court Mr Chim said the copies that he made for the police were from the clean version.  

196.In cross-examination Mr Chim said he did not know who the cameramen were who filmed the footage provided to the police; did not know who edited the footage; that no records were kept by ATV showing who edited the footage; and did not know who was responsible for the post-production copy[142].

197.I was satisfied, if believed, that the evidence of Mr Chim was sufficient to prove the authenticity of the ATV footage beyond reasonable doubt.  I therefore ruled the ATV footage prima facie authentic and admissible in evidence.

198.In addition, as summarised earlier the ATV footage P3 (2) showing Tsang being subdued and escorted was played to Tsang, who confirmed the footage was consistent with his recollection of the events that night. I was satisfied this evidence, if believed, was also sufficient to prove the authenticity of this part of the ATV footage beyond reasonable doubt. 

199.The footage was also played to Sgt 34200 (PW2); SIP Fu (PW3); SSgt 52820 (PW4) and SIP Wat (PW5), who all confirmed that the footage was consistent with their recollection of the events of that night[143]. I was satisfied this evidence, if believed, was also sufficient to prove the authenticity of this part of the ATV footage beyond reasonable doubt.

Discussion

200.As noted earlier one of the main criticisms of all the video footage was that there was no continuous recording[144]. In cross-examination Mr Chim agreed that the length of raw footage could be cut; the sequence of events may be edited; that depending on the narration it was possible a subsequent event may become an earlier event; and that he was unable to say whether the footage supplied to the police was the true sequence of events[145].

201.Specifically, complaints were made that the prosecution failed to prove the provenance of the assault footage, the footage having originated from Apple Daily and that the footage of the apprehension is prejudicial to the defendants.

Assault footage originating from Apple Daily

202.Mr Choy submitted that the prosecution failed to adduce any evidence on the provenance and/or authenticity of the ATV footage, in particular the footage which originated from Apple Daily showing the assault at the substation[146].  A similar submission was made by Mr Lo[147].

203.I have no hesitation in rejecting this submission.  Mr Chim clearly explained the making of the broadcast copy and that the footage from Apple Daily was normally obtained direct from Apple Daily.  For the reasons already given I am satisfied the prosecution have proved the authenticity of the Apple Daily footage beyond reasonable doubt. 

Prejudice

204.Mr Cheng SC submitted that the ATV footage of the apprehension of Tsang was extremely prejudicial to the defendants as this created an impression that minimal violence was actually used in subduing him[148].  A similar submission was made by Ms Lam[149].

205.I have no hesitation in rejecting this submission.  The footage, in my view, does not give the impression contended by Mr Cheng SC.  The footage only shows what happened after Tsang had fallen to the ground and was about to be handcuffed with zip wire and not how he fell to the ground. 

206.Six police officers have given evidence of how they subdued Tsang and Tsang has given evidence as to how he says he was subdued. Whether or not in the course of subduing Tsang the police used violence or Tsang himself used violence, is to be determined after consideration of all the evidence and not just what is seen in the footage.  I found nothing prejudicial in the admission of this footage. 

207.I was satisfied that I could compare the footage in P3 (1) with P3 (2) to see whether the footage downloaded by the police from the ATV website in November 2014 was the same as that kept by ATV.  I am satisfied the footage broadcast in P3 (1), from the point where the two presenters had finished their introduction is the same footage seen in P3 (2), save that the courtesy and other captions are not seen. 

208.No evidence was called as to when exhibit P3 (1) was uploaded by ATV onto their website.  According to the footage the broadcast was the same day, 15 October at 18:00 hours.  Further during the broadcast the female news reader refers to the announcement by the Chief Executive that the question and answer session at the Legislative Council the following day will be cancelled[150].  That announcement was made at 3:30 p.m. on 15 October 2014[151].

209.I am satisfied the broadcast was the same day, 15 October 2014.  Mr Leung SC referred the court to the passage in R v Murphy where the court referred to the trial judge’s observations that it seemed highly unlikely that a film clip shown the same day on the BBC news was a fabrication or had been altered or tampered with so that it ceased to be an accurate record of what the cameraman had seen[152].

Conclusion

210.I accept the evidence of Mr Chim.  Although Mr Chim was not responsible for making the library copy supplied to the police, taking into account the evidence of Mr Chim, including that the cameraman could only record and not edit; the content of the master tape was therefore the same as the footage filmed by the cameraman; that P3 (1) was broadcast the same day; the footage broadcast was identical to the footage kept in the library of ATV, I find the prosecution have proved the authenticity of the ATV footage beyond reasonable doubt.  

211.I am satisfied there was no tampering of the footage.  In cross-examination when asked about electronic editing and whether the director and post-production team use different equipment to create images for broadcasting, Mr Chim replied “They would not produce a different footage for broadcasting, they would process it with the equipment and then broadcast it” [153].  I reject the suggestion that the footage is selective and has been tampered with whereby it ceases to be an accurate record of what the cameraman had seen.  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 ATV footage. 

212.In addition, I accept the evidence of Tsang and the police officers that the ATV footage played to them in court was consistent with their recollection of the events that night.  On this evidence I find the prosecution have proved the authenticity of the ATV footage beyond reasonable doubt.  I discuss later the credibility of Tsang and the police officers.

Discretion to exclude  

213.In ruling the ATV footage was prima facie authentic and finding the footage authentic I carefully considered 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[154].

214.I found no grounds on which to exclude the ATV footage on the grounds of unfairness.   None of these matters cause me to doubt the findings I have made.  

Now TV (exhibit P4)

215.The Now TV footage consists of one disc showing Tsang being escorted(between 40-44 seconds) and part of the assault at the substation(between 18-29 seconds).  The Now TV footage was downloaded by the police from the website of Now TV[155].

216.Nobody from Now TV was called to give evidence.  The footage was shown to Tsang, who confirmed the footage was consistent with his recollection of the events that night. 

217.In addition, the footage between 31-40 seconds shows Tsang pouring liquid on the police.  Admitted in evidence is the police video, exhibit P8 which, between 06:13 and 06:57, also shows Tsang pouring liquid on the police[156]. 

218.Both the police footage and the Now TV footage were played to Sgt 47574 (PW1).  Sgt 47574 confirmed the police footage showed him getting hold of the man pouring liquid, part of which he said could also be seen on the Now TV footage[157].  The police footage was also played in cross-examination to Tsang[158], who said he was the one splashing liquid on the police. 

219.I was satisfied, if believed, that the evidence of Tsang and Sgt 47574 together with the police footage, exhibit P8, was sufficient evidence to prove authenticity of the Now TV footage beyond reasonable doubt.  I therefore ruled the Now TV footage prima facie authentic and admissible in evidence.   

220.I accept the evidence of Sgt 47574, whose evidence was not challenged[159].  The evidence of the Sgt was supported by the police video, exhibit P8.  I accept Tsang’s evidence that the Now TV footage was consistent with his recollection of the events that night. 

221.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 Now TV footage.  I find the prosecution have proved the authenticity of the Now TV footage beyond reasonable doubt.   

Discretion to exclude

222.In ruling the Now TV footage was prima facie authentic and finding the footage authentic, I carefully considered 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[160]. 

223.I found no grounds on which to exclude the Now TV footage on the grounds of unfairness.  None of these matters cause me to doubt the findings I have made.

Photographs

Apple Daily (exhibit P12); Oriental Daily (exhibit P13)

224.Both the photographs were downloaded on 24 March 2016 by Sgt 54162 (PW23) from the websites of Next Media and Oriental Daily[161].

225.Nobody from Apple Daily or Oriental Daily was called to give evidence about the photographs. Both photographs were shown to Tsang, who described P12 as showing the time when he was still walking after he had been handed over to the second group of police officers and P13 as showing him being carried face down after he had been lifted off the ground by his arms and legs.   

226.I was satisfied, if believed, that the evidence of Tsang was sufficient evidence to prove the authenticity of the two photographs beyond reasonable doubt.  I therefore ruled the two photographs prima facie authentic and admissible in evidence. 

227.In addition Mr Leung SC submitted that the photographs matched what was captured in the TVB footage[162].

228.In ruling the photographs prima facie authentic I did not rely on the evidence of Sgt 58223 (PW19) that on 4 June 2016 he also located the same two photographs (exhibit P18) from the websites of Apple Daily and Oriental Daily, in the news and past news sections respectively of the two websites.   

229.I accept the evidence of Tsang that he was the person seen in both photographs. I am satisfied so I am sure that the photograph exhibit P12 was taken during the escorting of Tsang as seen in the TVB footage P1 (b), (d) & (h) between 5-15 seconds and (g) between 02:47-02:55[163].

230.Mr Lam submitted that the facial features not being shown on photograph exhibit P13 there was no cogent evidence to suggest the person carried was Tsang and that Tsang’s identification by clothing was unsafe[164].  The fact Tsang was carried face down and therefore his facial features are not seen in the photograph do not cause me to doubt Tsang’s evidence that he was the person in the photograph being carried face down.  Tsang identified himself by reference not only to his black T-shirt with stars on the back but also because he was carried in this way face down.

231.In addition, I agree with Mr Leung SC that the number and appearance of persons shown in the photograph exhibit P13 together with the colour and pattern and type of clothing matches that seen in the news footage, in particular the TVB footage P1 (b), (d) & (h) between 5-15 seconds and (g) between 02:47-02:55 showing Tsang being escorted just prior to being lifted up and carried face down.

232.I am satisfied there are no signs of tampering which cause me to doubt the authenticity, accuracy and integrity of either photograph.  I find the prosecution have proved the authenticity of the two photographs beyond reasonable doubt.   

Discretion to exclude 

233.In ruling the photographs prima facie authentic and finding the photographs authentic, I carefully considered the submissions that 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[165].

234.I found no grounds on which to exclude either of the photographs on the grounds of unfairness.  None of these matters cause me to doubt the findings I have made. 

CCTV recordings (exhibit P15 (a) & (b))

235.As noted earlier the grounds of objection to the admissibility of the CCTV recordings were that there was no or no sufficient evidence to establish the authenticity of the CCTV recordings and the accuracy of the recordings[166].

236.The prosecution intended only to call SPC 16408 (PW21) who burnt the CCTV footage and Tsang to identify himself on the CCTV footage.  In light of the grounds of objection two additional witnesses were called DSgt 47147 (PW22) and DSgt 45918 (PW24).   A further witness DSgt 50037 (PW25) was tendered for cross-examination[167].  All three officers were from the Complaints Against Police Office (“CAPO”)[168].

Evidence

Tsang Kin Chiu

237.The following is a summary of the evidence given by Tsang on the voir dire relating to the admissibility of the CCTV recordings[169]. Tsang testified that after he was assaulted the group took him behind the substation to Lung Wo Road where he boarded a private car.  Two of the group that assaulted Tsang sat on either side of him in the back of the car.  The group together with the driver discussed whether it was necessary to wait for others.  After waiting several minutes the car was driven to the Central Police Station[170].

238.Tsang was taken into the police station and escorted to interview room 7 by the same two police officers who had sat on either side of him in the car.  Tsang guessed he was inside room 7 for about half an hour.  Tsang was then taken by the same two police officers on board a coach and escorted to the Police Training School in Wong Chuk Hang[171].

239.The CCTV recordings, exhibit P15, file 034000, cameras 12 & 14 and file 045000, cameras 1, 2 & 14 were played to Tsang[172]. Tsang identified himself as the person in the black T-shirt, with stars on the back.  Tsang said file 034000, cameras 12 & 14 showed him being escorted by the two police officers to interview room 7 and file 045000, cameras 1, 2 & 14 showed him being escorted inside the police station by the same two police officers.  In answer to the court Tsang said he did not know at the time where he was walking to in file 045000 because he had never been to the police station before.  Tsang said the footage was consistent with his recollection of the events that night.

Police evidence

240.In summary SPC 16408 (PW21) testified that in 2014 he was attached to the Administrative Support Section (“ASS”) at the Central Police Station[173].  His duties involved operating the CCTV system of the police station, which system had been installed by Chubb.  The CCTV system was divided into four areas, each with their own recording machine and which operated separately.  Area 1 (DVR 1) covered the vehicular exit/entrance of the police station.  Area 4 (DVR 4) covered the report room, which as far as SPC 16408 remembered consisted of 16 cameras.   

241.The CCTV system was for both surveillance and video recording.  The video recording was done automatically.  The footage was saved in the hard disc for around 30 days after which the footage would be automatically overwritten.  The real time would be displayed on the recording.

242.All members of the ASS could access the hard disc with the prior approval of the Chief Inspector of ASS.  After approval was given the members needed to key in a password to gain access.  In cross-examination SPC 16408 said there were altogether six members in the team, two of whom could access the CCTV system with a password[174]. In re-examination SPC 16408 clarified that in addition to him there were two others who could access the system with a password and said that with the password the member was not able to alter or edit the content of the hard disc. 

243.On 27 October 2014 SPC 16408 received instruction from his superior to assist officers from CAPO to burn discs of Area 1 and Area 4 for the period 3:35 - 4:55 a.m. on 15 October 2014.  SPC 16408 had received one day’s training around January 2012, mainly on how to burn discs and including an explanation of the functions of the system. 

244.When SPC 16408 checked the machines he found a problem with the operating system of DVR 1.  No images had been recorded.  DVR 4 was normal therefore SPC 16408 burnt the images onto a disc.  This took about 20 minutes to complete.  DVR 4 was in working order during the burning of the disc.  In cross-examination SPC 16408 said he did not view the CCTV footage before burning the disc[175].

245.SPC 16408 explained how he burnt the disc.  The first step was to access the function for burning discs.  A window would then automatically pop up into which SPC 16408 keyed in the date, the start time and the end time of the footage he required.  The machine would then automatically search for the footage.  After searching a window would pop up asking a disc to be inserted. The machine would then automatically save the footage onto the disc.  When the copying was completed the tray would be automatically ejected and the disc removed. 

246.After burning the disc SPC 16408, together with DSgt 47147 (PW22), took the disc to his superior Sgt 14827[176], who asked DSgt 47147 to sign acknowledging receipt.  DSgt 47147 produced the receipt (exhibit P19). 

247.At the beginning of cross-examination when Mr Chung asked how many times he did the disc burning exercise on 27 October 2014, SPC 16408 replied twice.  SPC 16408 went on to explain that at the request of an officer from CAPO he had burnt two discs, one to be produced as an exhibit and one for investigation.  In re-examination SPC 16408 explained that after burning one disc he burnt the second disc.

248.SPC 16408 opened one of the discs to show DSgt 47147 how to view the disc.  The content of the disc was not however viewed at that time.  SPC 16408 told DSgt 47147 the two discs were the same therefore the second disc was not opened.  In cross-examination DSgt 47147 said this was the normal practice otherwise he would not know how to view the disc[177].

249.DSgt 47147 then returned to his office and handed over the discs to DSgt 45918 telling DSgt 45918 how to view the discs.  DSgt 45918 assigned one disc as the exhibit (exhibit P15 (a)) and attached a yellow exhibit label (exhibit P15 (c)).  The second disc (exhibit P15 (b)) was kept as the working copy.      

250.I was satisfied, if believed, that the evidence of SPC 16408, DSgt 47147 and DSgt 45918, was sufficient evidence to prove the authenticity of the CCTV recordings beyond reasonable doubt.  I therefore ruled the CCTV recordings prima facie authentic and admissible in evidence.  In addition, I was satisfied the evidence of Tsang, if believed, was also sufficient evidence to prove the authenticity of the CCTV recordings beyond reasonable doubt. 

Discussion

251.In the first part of his submission, what is called “the chain issue”, Mr Chung submitted the court cannot be satisfied that the disc, exhibit P15 (a) was burnt by SPC 16408 and that DSgt 45918 was given two discs[178].  Ms Lam also submitted the prosecution could not prove the chain of the two discs[179].

Identification of P15 (a)

252.When the CCTV footage was shown to Tsang no disc was produced to court as an exhibit.  The two files shown to Tsang were referred to as PP15 (a) and (b)[180]. 

253.In examination-in-chief SPC 16408 was shown a disc which he identified, as being the copy he burnt, from the writing on the disc.  SPC 16408 wrote on the disc after burning the disc.  The disc was marked as PP15.  The yellow exhibit label (P15(c)) attached to the disc was not marked at this time. 

254.Towards the end of cross-examination Mr Chung showed a second disc to SPC 16408.  SPC 16408 again identified the disc from the writing on the disc, which he also wrote after burning the disc.  At this stage the reference to the files shown to Tsang as PP15 (a) and (b) was no longer used.  The disc shown to SPC 16408 in examination-in-chief was marked PP15 (a) and the disc shown in cross-examination marked PP15 (b).  The yellow exhibit label attached to exhibit PP15 (a) was marked as exhibit PP15 (c) during the evidence of DSgt 45918 (PW24).

255.In cross-examination SPC 16408 said that apart from the words “Recorded by SPC 16408” written on the disc, exhibit PP15 (b), everything else on the two discs was written by him.  SPC 16408 disagreed that the difference in what was written on the two discs was because only one disc was burnt[181].  In re-examination SPC 16408 said the words “Recorded by SPC 16408” were not written in his presence. 

256.The evidence of DSgt 47147 differed from the evidence of SPC 16408[182].  DSgt 47147 testified the writing on the discs in red (RR CDIV/RR CDIST) was written by him after he returned to his office.  In cross-examination DSgt 47147 disagreed that the difference in the red writing between the two discs was because they were not written at the same time and that he only had one disc in his possession[183].

257.DSgt 47147 said when he wrote the words in red the words in black “Recorded by SPC 16408” had already been written on the disc, exhibit PP15 (b).  In cross-examination DSgt 47147 said that after the discs were handed to him by SPC 16408 they never left his possession until after he had written the words in red.

258.Ms Lam submitted that someone else must have written “Recorded by SPC 16408” before the discs were passed to DSgt 47147 and that there was no evidence who wrote those words[184].

259.The discs were burnt in October 2014.  I do not find surprising that nearly 20 months later there is discrepancy in the evidence as to the writing on the discs.  The identification by SPC 16408 clearly comes from the date on the discs (2014-10-15) and the period that was copied (03.35-04.55), which were in the handwriting of SPC 16408 and were the date and time SPC 16408 was requested to copy.  The discrepancy in the evidence as to the red handwriting and when the words “Recorded by SPC 16408” were written does not cause me to doubt the evidence of SPC 16408 that he burnt two discs, exhibits P15 (a) and (b). 

260.In addition, as was acknowledged by Mr Chung in court and in his written submission, the video content of the two discs are the same[185].  This lends support to the evidence of SPC 16408 that he burnt two discs.

261.Mr Leung SC submitted support for the evidence of SPC 16408 that he burnt two discs could also be found from looking at the data on the content page of the two discs, which showed that the discs were recorded one after the other[186].  I am satisfied Mr Chung is correct that before placing any reliance on this data the court requires expert evidence as to the meaning of the data[187]. 

262.I do however agree with the submission of Mr Leung SC that the difference in the content pages of the two discs show that one disc is not a duplicate of the other.  This submission was made in response to the suggestion put by Mr Chung to DSgt 45918 that he had made a copy of the disc given to him[188].  The data in this context is used not to prove the truth of the data but to show the data on the content page of each disc is different and therefore not a duplicate of each other.  

263.Mr Chung further submitted that the evidence of SPC 16408 that he downloaded the footage in “1 file” and that the burning time would not be recorded in the disc created further doubt as to the authenticity of the two discs[189]. I have no hesitation in rejecting this submission.

264.The reference to “1 file” was when Mr Leung SC asked SPC 16408 if he copied the footage in one file or more than one file.  The answer copied on one file must be viewed in context that the CCTV footage was automatically recorded on one disc for the whole period input by SPC 16408. 

265.SPC 16408 did not say affirmatively that the burning time was not recorded on the discs.  What he said was that as far as he remembers this was not recorded. This evidence does not cause me to doubt that SPC 16408 burnt two discs. 

266.I have no hesitation in rejecting the submission that SPC 16408 did not burn the discs, exhibits P15 (a) and (b).

The number of discs handled by DSgt 45918 (PW24)

267.Mr Chung submitted that all records show only one disc was handed over to DSgt 47147[190].

Acknowledgement of Receipt of a Copy of DVD (exhibit P19). 

268.Mr Chung submitted that notwithstanding the nature of the document is said to be 2 DVD, the main content of the receipt refers to a single copy[191].  In cross-examination DSgt 47147 agreed that the main part of the receipt, “I DSgt 47147 acknowledge the receipt of a copy of the above-mentioned DVD” referred to a single copy.  Ms Lam in her submission also refers to this part of the receipt[192]. Similarly, DSgt 47147 agreed that “This copy was issued to me”, also referred to a single copy.

269.DSgt 47147 however disagreed with Mr Chung that he only received one disc.  In understanding DSgt 47147’s apparent agreement that the receipt only refers to a single copy it is to be noted that Mr Chung never drew to the attention of DSgt 47147 “2 DVD” under nature of document. 

270.I do not agree with the interpretation sought by Mr Chung and Ms Lam that the receipt is for a single copy only.  In examination-in-chief DSgt 47147 said the receipt was for acknowledging receipt of the two discs.  Although the main content is written as a copy, this is “receipt of a copy of the above-mentioned DVD”.  The above-mentioned DVD is 2 DVD. 

Computer certificate

271.Before calling SPC 16408 to give evidence the prosecution sought to admit in evidence pursuant to Section 22A of the Evidence Ordinance[193], a computer certificate relating to the making of a copy on 27 October 2014.  The certificate was dated 4 June 2016 and made after the defence indicated on the first day of trial that the admissibility of the CCTV recording was to be challenged.  There being no certified translation of the certificate I ruled the certificate inadmissible[194].

272.Mr Chung submitted that the content of the certificate clearly indicated SPC 16408 had burnt only one disc on 27 October 2014, which disc was handed over to DSgt 47147[195]. Ms Lam also referred to the certificate mentioning only one disc[196].

273.The certificate referred only to the disc intended to be produced in court by the prosecution (i.e. exhibit P15 (a)).  As summarised earlier in examination-in-chief SPC 16408 referred only to one disc and when asked at the beginning of cross-examination how many times he did the disc burning exercise SPC 16408 said he had burnt two copies. 

274.Towards the end of cross-examination SPC 16408 agreed that paragraph 6 of the certificate referred to the making of one copy, which was handed over to DSgt 47147.  SPC 16408 explained that when he read the certificate he thought he had only recorded one disc.  SPC 16408 disagreed with the suggestion put by Mr Chung that he had in fact burnt only one disc. 

275.This was not the first time that SPC 16408 had said he burnt two discs.  In cross-examination Mr Chung asked SPC 16408 whether he was given anything before signing the certificate to assist him remembering what happened on 27 October 2014.  SPC 16408 told the court that he was given his witness statement made on 27 October 2014.  Mr Chung then took SPC 16408 through his witness statement including that he said he burnt a total of two discs.   SPC 16408 confirmed the content of his witness statement was true and accurate. 

276.I accept the explanation given by SPC 16408 that on reading the certificate he thought he had only recorded one disc.  The fact the certificate referred to only one disc did not cause me to doubt the evidence of SPC 16408 that he had burnt two copies, both of which were given to DSgt 47147. 

277.Ms Lam submitted the first time SPC 16408 mentioned he gave a disc to DSgt 47147 was in the certificate, whereas in his witness statement he said he gave the discs to his superior, with no mention being made of any discs handed to DSgt 47147[197].  In cross-examination when asked by Mr Chung why there was no mention in his witness statement of dealing with DSgt 47147, SPC 16408 replied that he took DSgt 47147 to his office and passed the discs to his superior, who asked DSgt 47147 to sign the acknowledgement.  This reply was consistent with the evidence given by SPC 16408 in examination-in-chief[198].

278.I accept the evidence of SPC 16408 that he passed the discs to his superior Sgt 14827, who asked DSgt 47147 to sign the acknowledgement.  Again I do not find surprising that nearly 20 months later there is a discrepancy in the evidence as to whether SPC 16408 personally passed the discs to DSgt 47147 or gave them to his superior who, in his presence, handed them to DSgt 47147.  This discrepancy in the evidence does not cause me to doubt SPC 16408’s evidence that he burnt two discs which were given to DSgt 47147.  Nor does the fact SPC 16408 made no mention in his witness statement of dealing with DSgt 47147 cause me to doubt SPC 16408’s evidence that he burnt two discs which were given to DSgt 47147. 

Yellow exhibit label, exhibit P15 (c)

279.The reverse of the exhibit label clearly refers to one piece of DVD.  In examination-in-chief DSgt 45918 said DSgt 47147 decided which disc was to be the exhibit whereas in cross-examination DSgt 45918 said he decided which disc was to be the exhibit. When the court clarified which answer was correct DSgt 45918 said he decided which disc was to be the exhibit.

280.Ms Lam submitted that this discrepancy could not be reconciled and cast doubt on the credibility and reliability of the evidence of DSgt 45918[199].   I have no hesitation in rejecting this submission.  Whoever decided which disc was to be the exhibit and which was to be the working copy, is in my view not material. This discrepancy in the evidence does not cause me to doubt that DSgt 47147 was given both discs which he handed to DSgt 45918. 

281.The fact the exhibit label refers to only one disc is explained by the fact the disc was the exhibit to be produced in court as opposed to the disc kept as a working copy for which no exhibit label was attached. 

282.In his submission Mr Chung questioned why the exhibit label stated the disc was seized on 29 October 2014 if in fact DSgt 47147 handed the disc to DSgt 45918 on 27 October 2014[200].

283.In cross-examination DSgt 45918 said that he forgot to make a record that he received two discs from DSgt 47147 on 27 October 2014; did not make a record of which disc was assigned as the exhibit and which disc was the working copy; and did not record this information in the investigation report (Pol. 155), which was written by him.

284.DSgt 45918 was not the only one who forgot to make a record of how many discs he received.  In cross-examination DSgt 47147 agreed that there was no record of what he had done at the Central Police Station on 27 October 2014 in either the investigation report (Pol. 155) or his witness statement dated 4 February 2015; and that when he did mention this in his witness statement dated 6 June 2016 he did not specify how many discs he received from SPC 16408[201].

285.I agree with the criticisms made of DSgt 47147 and DSgt 45918 for their failure to keep proper records.  This failure however does not cause me to doubt the evidence that DSgt 47147 was given both discs which he handed to DSgt 45918.  I have no hesitation in rejecting the submission DSgt 45918 was given only one disc. 

286.In making his submission on “the chain issue” Mr Chung also referred to what he described as the confusion over the evidence relating to the sketches (exhibit P16) drawn by DSgt 45918[202]. I will address this next when considering the second part of Mr Chung’s submission, “the content issue”.  

The content issue

287.The second part of Mr Chung’s submission concerned whether the footage had been tampered with after recording whereby the footage might not contain what actually transpired[203]. This submission was largely based on the evidence of DSgt 45918, in particular the sketches he drew of the Central Police Station showing first 12 cameras, then 14 cameras and finally 16 cameras, whereas the CCTV recordings show 16 cameras[204]. A similar submission was made by Ms Lam that the reliability or accuracy of the CCTV footage was in doubt and that the integrity of the exhibits had not been proved[205].

288.In summary on 28 October 2014 DSgt 45918, with the assistance of DSgt 50037 (PW25), drew a sketch showing 12 cameras.  On returning to his office that day DSgt 45918 made a copy of the sketch (exhibit P16 (b1)), which he placed in the file.

289.That evening DSgt 45918 viewed for the first time the working disc given to him the day before by DSgt 47147.  After viewing the CCTV DSgt 45918 realised there were 16 cameras and therefore added cameras 13 & 14 to the original sketch (exhibit P16 (b)).  DSgt 45918 did not add cameras 15 & 16 at that time because he was of the view they faced the outside of the report room and not much was captured on the cameras. 

290.Only on 3 June 2016 did DSgt 45918 draw the sketch with 16 cameras (exhibit P16 (a)), so as to let the court know there were in fact 16 cameras[206].

291.At the time of drawing the original sketch DSgt 45918 realised he wrongly drew the door of Room 7 and the position of camera 12.  DSgt 45918 therefore used tippex to correct these mistakes.  The tippex marks can clearly be seen on the original sketch (exhibit P16 (b)).

292.The evidence of DSgt 45918 was subject to lengthy cross-examination by Mr Chung[207].  DSgt 45918 explained that when he looked at the CCTV system in the police station he saw 12 cameras and that camera 9 was not working.  Although a technician from Chubb was present he did not assist DSgt 45918 to locate the cameras.  Neither did anyone from the Central Police Station assist in locating the cameras.  DSgt 45918 together with DSgt 50037 went round the police station locating the position of the cameras. 

293.In cross-examination DSgt 50037 explained that together with CIP Law; DSgt 45918 and DSgt 47147 he went to the Central Police Station on 28 October 2014 to view the scene where the incident was said to have occurred.  The team were interested in the CCTV system in particular whether anything showed the complainant was in the police station; what happened to him and the recording of the vehicular entrance/exit of the police station.  With the assistance of a technician from Chubb, who was present at the time, the team looked at the CCTV system.

294.DSgt 50037 agreed having found 12 camera images he walked around the police station pointing out the cameras to DSgt 45918, who drew their location on a sketch[208].  DSgt 50037 identified the sketch as (exhibit P16 (b1)).  With regard to camera 9, because this was not working and only a blue screen with no image was shown, DSgt 50037 guessed the location of the camera as being between cameras 8 & 10.  In re-examination DSgt 50037 said he asked the uniform officers in the report room how many cameras there were but they were not clear about the number and could only say how many cameras by looking at the number of camera images. 

295.DSgt 45918 said the copy was placed in the investigation file and the original kept in the drawer of his office.  After amending the original DSgt 45918 put the original sketch back in his drawer.  In answer to the court DSgt 45918 said that he was negligent in not making a copy of the sketch after amending the sketch to include cameras 13 &14.

296.DSgt 45918 explained that the sketch (exhibit P16 (a)) was drawn to show the court there were 16 cameras.  In cross-examination DSgt 45918 said the sketch was drawn at the request of the OC case.  DSgt 45918 did not at that time tell the OC case that he had amended the original sketch from 12 cameras to 14 cameras because he had forgotten about this[209]. DSgt 45918 said he only remembered this when he was shown the sketch (exhibit P16 (b)) in court and explained that he handed the sketch to the exhibit room on 6 January 2015.  The sketch was entered into the property register (Pol. 69A) and a yellow exhibit label (Pol. 195) filled out and attached to the outside of the envelope containing the sketch[210].

297.In answer to the court DSgt 50037 explained that the public entrance to the police station was below camera 7 and that the entrance for police officers, arriving at the car park with arrested persons was near cell 3.  DSgt 50037 said that either camera 1 or camera 3 showed the corridor leading to this entrance.  DSgt 50037 marked in red, on a copy of the sketch (exhibit P16 (b2)), the door of this entrance[211]. In questions arising Mr Leung SC showed DSgt 50037 the 16 cameras as seen on the CCTV recording, exhibit P15 (b).  DSgt 50037 explained that camera 1 showed the corridor leading to the entrance marked in red but no camera captured the entrance.  DSgt 50037 then marked on the copy a green door representing the door kept open by a cone and a green star representing the end of the corridor shown in camera 1.  The copy marked by DSgt 50037 was marked exhibit P16 (b2)).  

Discussion

298.The evidence of DSgt 45918 was extensively criticised by both Mr Chung and Ms Lam[212].  As noted earlier in cross-examination DSgt 45918 agreed that he omitted to record in the investigation report (Pol. 155) that on 27 October 2014 he had received two discs from DSgt 47147[213]. Similarly, DSgt 45918 did not record in the investigation report that he viewed the discs; he realised there was 16 cameras; and that he amended the original sketch drawn in the Central Police Station.

299.Mr Chung submitted the failure of DSgt 45918 to make a record of amending the sketch is difficult to accept, in particular considering the investigation report was detailed enough to include making a photocopy of a document in the Kwun Tong Police Station.  Mr Chung further submitted that the explanation given in cross-examination by DSgt 45918 that he forgot to record this is not believable, Mr Chung pointing to the fact that DSgt 45918 also forgot to make a copy of the sketch after he had added cameras 13 & 14 saying that he was negligent[214].

300.Ms Lam submitted that the failure to make a record of drawing the sketch, exhibit P16 (b), which sketch had not been disclosed to the defence, was a strong indication that DSgt 45918 was not telling the truth about seeing 16 cameras when he viewed the working disc (exhibit P15 (b)) on 28 October 2014[215].  Ms Lam also submitted that the evidence of DSgt 45918 that he forgot to tell his superior about the sketch, exhibit P16 (b), when asked to draw a sketch showing 16 cameras on 3 June 2016 defied logic and should not be believed[216].

301.The evidence as to the drawing of the sketch and the failure by DSgt 45918 to make a record of what he did are again properly criticised.  DSgt 45918 however did make a record of what he saw when viewing the working copy.  This arose in cross-examination when Mr Chung asked DSgt 45918 further questions about the investigation report.  This evidence was also subject of criticism by both Mr Chung and Ms Lam[217].

302.The earlier references made to the investigation report were to a three page extract covering 24–31 October 2014, including entries for 28 October 2014[218].  Later Mr Chung showed DSgt 45918 a one page extract, which had also been written by the sergeant.  This extract consists of only two entries for 28 October 2014[219].  Mr Chung submitted copies to the court for the purpose of showing the court the layout of the investigation report, in particular that there were two separate extracts covering entries for 28 October 2014[220].

303.DSgt 45918 said he should have written the one page extract on 28 October 2014. Asked why this was not included in the three page extract after the entry for 17:00 on 28 October 2014 and before the next entry for 10:45 on 29 October 2014, DSgt 45918 replied that because he executed many things at that time he was confused and did not make the record.  Subsequently DSgt 45918 remembered, so he wrote the one page extract.  DSgt 45918 agreed that when he wrote the entry for 10:45 on 29 October 2014 he had not yet written the one page extract.  On being pointed out the extract could not therefore have been written on 28 October, DSgt 45918 said he could not be sure and could not remember when he wrote the extract. 

304.DSgt 45918 confirmed that the entries on the one page extract recited that between 18:10 and 22:00 hours on 28 October 2014 he inspected the CCTV record seized from the Central Police Station and recorded a written transcript.  DSgt 45918 explained that when viewing the CCTV, he wrote down on a piece of paper a draft of what he had seen on the CCTV.  DSgt 45918 then typed up the draft on his computer and printed out a copy for investigation purpose.  The draft was thrown away.

305.DSgt 45918 said a copy of the print out was kept in a file in his office, in which he put material for his own use.  In answer to the court DSgt 45918 said this was different to the investigation file.  In re-examination Mr Leung SC asked DSgt 45918 to produce this file. 

306.Over the lunch adjournment in the presence of a representative from the police and the defence, DSgt 45918 retrieved the file.  Leave was given to the defence to further cross-examine DSgt 45918 on the content of the file, the defence having first been supplied with copies of all relevant documents in the file and given the opportunity to go through the file. 

307.Mr Chung cross-examined DSgt 45918 on a four page document in the file “Central Police Station Video Images”.  DSgt 45918 said this was the print out of what he had viewed on the CCTV.  Mr Chung submitted a copy to the court for the purpose of showing the court the layout of the document[221].   

308.DSgt 45918 confirmed the document referred to five persons, two suspects, the victim and two female police officers.  DSgt 45918 said he wrote down anything important for example whether the CCTV captured the scene of the incident and if he could see anyone entering or leaving room 7.  DSgt 45918 agreed there was no reference to cameras 13 or 14.  DSgt 45918 disagreed this was because the disc he viewed only had 12 cameras.

309.Mr Chung submitted that if DSgt 45918 viewed the working disc (exhibit P15 (b)) there was no way he would have missed camera 14, which Tsang Kin Chiu testified showed him entering and leaving the police station[222].  Similarly Ms Lam submitted that the assertions of DSgt 45918 that he found 16 cameras when viewing the working disc should not be believed because he made no mention of camera 14 when recording the details of what he viewed from the disc[223].

310.I have no hesitation in rejecting the submission that the disc DSgt 45918 viewed did not contain images from camera 14[224]. Although DSgt 45918 said he was instructed to find out if the victim had entered Central Police Station and whether the camera captured room 7, I accept his evidence in cross-examination that he felt it was enough knowing when the victim had entered room 7 and left room 7.  Whilst the omission to view camera 14 again reflects poorly on the way in which DSgt 45918 conducted the investigation of the complaint made by Tsang, this does not cause me to doubt he was given the two discs, exhibits P15 (a) & (b). 

Conclusion

311.I accept the evidence of SPC 16408 that he burnt two discs, exhibits P15 (a) & (b), which were handed to DSgt 47147, who on returning to his office handed them to DSgt 45918.  Having carefully considered the evidence and viewed the CCTV recordings, I am satisfied there are no signs of tampering or discontinuity which cause me to doubt the authenticity, accuracy and integrity of the CCTV recordings. I find the prosecution have proved the authenticity of the CCTV recordings beyond reasonable doubt.

312.In addition, I accept the evidence of Tsang that the CCTV recordings showed him being escorted to and from room 7 in the Central Police Station.  On this evidence I find the prosecution have proved the authenticity of the CCTV recordings beyond reasonable doubt. 

Discretion to exclude 

313.In ruling the CCTV recordings were prima facie authentic and finding the recordings authentic, I carefully considered the submissions that I should exclude the evidence, including the many criticisms of the evidence of the CAPO officers investigating the complaint made by Tsang, namely DSgt 47147, DSgt 45918; and DSgt 50037, in particular the handling of the CCTV recordings, exhibit P15 (a) & (b) and the drawing of the sketches, exhibit P16 (a), (b) & (b1). 

314.Mr Chung submitted that the estimate of time Tsang said he was in room 7 was about half an hour is large enough to be taken into account when assessing whether the contents of the CCTV recording had been tampered with[225].  On the general issue Tsang guessed he was in room 7 for an hour or within an hour.  This difference in the time estimate Mr Chung submitted showed the unreliability of Tsang’s evidence[226].

315.I have no hesitation in rejecting these submissions.  The times as Mr Chung accepted were only estimates.  The different time estimates as to how long Tsang was in room 7 do not cause me to doubt Tsang’s evidence.   The CCTV recordings show Tsang to have been in room 7 just over an hour.  Having not long before been assaulted it is not surprising he is not precise when first giving a time estimate. 

316.I have no hesitation in rejecting the submission of Ms Lam that the description of the CCTV system by DSgt 50037 was different to that of SPC 16408[227].  In cross-examination DSgt 50037 said he understood there were two machines responsible for recording the CCTV, which he called DVD 1 and DVD 2, as opposed to SPC 16408 who said the system was divided into four areas, each with their own recording machine.  This difference was more apparent than real.  Both SPC 16408 and DSgt 50037 testified that DVR1/DVD 1 was for the entrance/exit of the car park of the police station and was out of order and that DVR 4/DVD 2 was for the report room.  

317.I have also taken into account that no one from Chubb was called to give evidence that the CCTV system was functioning properly [228]; no evidence was called to show those who had access to the CCTV recording had not tampered with the recording[229]; SPC 16408 did not compare what he recorded on the two discs with the CCTV footage[230]; and the location of camera 9 on the sketches was clearly wrong[231]and that none of the police officers were shown the CCTV recordings. 

318.Having carefully considered all the evidence and submissions I found no grounds on which to exclude the CCTV recordings on the grounds of unfairness.  None of the criticisms made of the evidence of the police officers cause me to doubt the findings I have made.  Notwithstanding the justifiable criticisms of the police evidence I remain satisfied on the evidence that the prosecution has proved the authenticity of the CCTV recordings beyond reasonable doubt.

Charge 1 – Causing grievous bodily harm with intent

Credibility of Tsang Kin Chiu

319.Before considering the evidence against each defendant, I will first consider the credibility of Tsang Kin Chiu.  This part addresses the many criticisms made of Tsang’s evidence.  Some aspects of Tsang’s evidence for example the injuries sustained by Tsang; the identification of D5 and D6; and what happened in the Central Police Station are dealt with later in my verdict. 

The apprehension of Tsang for pouring liquid on the police

320.Admitted in evidence is that the police video footage shows Tsang Kin Chiu throwing liquid from a plastic bottle over police officers at approximately 3:25 a.m.[232]

321.As part of the prosecution case on the voir dire, Tsang was not shown and therefore not asked whether he was the person seen pouring liquid on the police in the video footage played to Sgt 47574 (PW1)[233].  Neither was Sgt 47574 asked to identify the male he saw pouring the liquid.  Nor were the police officers asked to identify the male who was subdued by them and handed over to the crime officers.  

322.In cross-examination Mr Lok SC played to Tsang the police video shown to Sgt 47574 and asked Tsang whether he was the one who was pouring the liquid.  After the court gave a warning against self-incrimination[234] Tsang answered that he was the one pouring liquid.  Tsang agreed that he was charged in relation to his conduct that evening[235].

323.Mr Choy submitted that Tsang was not a credible witness by reason of the fact he pleaded not guilty to those charges and at his trial it was put to the witnesses that he may not be the person in black splashing liquid on the police[236].  A similar submission was made by Ms Lam[237]. In cross-examination Tsang disagreed with Ms Lam that he was lying when he said he was the one pouring liquid. 

324.I accept the evidence of Tsang that he was the one pouring liquid on the police. Not only was this an admitted fact, the video footage also clearly shows that the person pouring the liquid was Tsang.  The video footage shows the person pouring liquid was wearing a black T-shirt with stars on the back, the same as worn by Tsang.  This is best seen in the police video, exhibit P8, file 00001 between 06:13 and 06:57 when both the front and back of the T-shirt can be seen. 

325.The defence further submitted that not only was the evidence given by Tsang inconsistent with his plea of not guilty but was also inconsistent with the evidence of the police officers as to what happened when the police subdued him for pouring the liquid[238].

326.The prosecution opened their case on the basis Tsang struggled violently[239].  This is consistent with the evidence of the police officers.  In cross-examination by Mr Choy on the voir dire, Tsang disagreed he used a high degree of violence; and agreed with Mr Choy his evidence was he simply grabbed and did not resist at all.  In cross-examination by Mr Choy on the general issue Tsang disagreed he aggressively tried to arm lock the neck of a police officer; disagreed in trying to resist arrest he struggled with several police officers banging them on the ground; and disagreed only after he violently struggled did the police use pepper spray.

327.Apart from showing Sgt 47574 grabbing hold of Tsang after Tsang was seen pouring liquid on the police[240], the video footage does not show how Tsang was subdued.  The ATV video footage only shows the time when Tsang was finally subdued, handcuffed with zip wire and his face washed[241].

328.Although in cross-examination by Mr Cheng SC on the general issue Tsang said he did not struggle but resisted; resisted strongly but not violently; and struggled violently when the police tried to handcuff him, his evidence was this was because the police assaulted him.  I accept the evidence of the police officers as to how Tsang resisted.  I reject that the police assaulted Tsang.

329.The fact I do not accept the evidence of Tsang as to how he was subdued does not cause me to doubt his evidence that after he was subdued he was escorted by other police officers; carried by his arms and legs face down and taken to the substation where he was dumped on the ground and assaulted. 

330.Nor does the fact that Tsang denied the charges brought against him arising from his conduct that evening cause me to doubt his evidence as to what happened after he was subdued.  Tsang exercised his legal right not to give evidence at his trial and have the prosecution prove the charges against him. 

331.Nevertheless, I approach the evidence of Tsang with caution. 

Does the video footage show Tsang Kin Chiu being subdued, escorted, carried and assaulted?

332.As summarised earlier Tsang identified himself on the video footage and photographs being subdued, escorted, carried by his arms and legs face down and assaulted.  Tsang said the TVB footage, exhibit P1 (c), from 10 seconds showed him being thrown to the ground and assaulted.  When the footage was played again Tsang was asked to stop the video when he could see himself.  The footage was stopped at 26 seconds when Tsang said he did not think he could see himself because the video was very blurred. 

333.Tsang said there was a high definition version in which he could see himself.  The TVB footage with the brightness enhanced, exhibit P1 (h), was then played to Tsang.  When the footage was stopped at 18 seconds Tsang said, “The one being carried is me.”  

334.On the voir dire the defence submitted that it was not possible for Tsang to identify himself by looking at the video footage of the assault at the substation.  Mr Lok SC submitted that Tsang gave no reason as to why he could recognize himself[242].  Similarly Mr Cheng SC submitted Tsang gave no satisfactory explanation how he was able to recognize himself despite the lack of any determining features[243].  Mr Lam also made a similar submission[244]. Ms Lam submitted Tsang fabricated this evidence because he was convicted in the Magistracy[245].

335.In making his submission Mr Cheng stated that in cross-examination[246]Tsang again identified himself as “the body of mass” in the footage[247].  Although Tsang agreed with Mr Choy that he identified himself as, “that body of weight being carried by those men” this phrase was not used by Tsang.  Tsang said, “The one being carried is me”.  After the footage exhibit P1 (h) was played again in cross-examination Tsang disagreed with Mr Choy that he was embellishing his evidence because he could not “possibly see any distinguishing features …in that body of weight being carried by those officers”.  This was a phrase used by Mr Choy[248]. 

336.Mr Cheng SC submitted that by reason of Tsang’s complete inability to recognize himself in the assault footage his evidence is of very limited value, if any[249]; his recollection of events was extremely weak and of dubious value[250] and that on the face of the evidence adduced the court could not conclude that the video footage captured Tsang being assaulted[251]. In closing submissions Mr Lok SC, Mr Lam, Mr Choy and Ms Lam all submitted that the court could not be satisfied that Tsang was the person seen on the video footage being assaulted at the substation [252].

337.I have no hesitation in rejecting this submission.  The evidence of Tsang was that he was carried by his arms and legs face down to the dark corner where he was dumped on the ground face down and assaulted.  In my view Tsang was not saying he could see any particular feature to enable him to recognise he was the person being carried but was identifying “the one being carried is me” because he was carried to the dark corner, dumped on the ground and assaulted.  I accept the evidence of Tsang.

338.From a very careful viewing of the video footage, in particular by looking at the clothing worn by Tsang, I am satisfied that Tsang is the person seen being assaulted at the substation. 

339.Tsang identified himself by reference to his black T-shirt, with stars on the back. As already seen the police video footage exhibit P8, file 00001 between 06:13 and 06:57 shows both the front and back of the T-shirt at the time when Tsang was being apprehended for pouring liquid on the police.  The T-shirt is also seen in the first seventeen seconds of the ATV footage exhibit P3 (2) at the time Tsang was lifted up and his face washed.  Screen captures 2 & 4 attached to the prosecution’s closing submissions are from this footage and clearly show the T-shirt[253].

340.The TVB footage exhibit P1 (b), (d) & (h) between 5-15 seconds and (g) between 02:47-02:55 and the Now TV footage between 40-44 seconds show the front of the T-shirt at the time Tsang was being escorted as seen in screen captures 7, 8, 9 & 11 attached to the prosecution’s closing submissions.  The photograph exhibit P12 also shows the front of the T-shirt at the time Tsang was being escorted.  The photograph exhibit P13 shows the back of the T-shirt at the time Tsang was being carried face down.  

341.Looking at the video footage of the assault at the substation when the person assaulted was lifted up and taken away, the stars on the back of the T-shirt can be seen.  This is best seen on the Apple Daily footage exhibit P2 (a) and (e) between 01:50 and 02:07 and (c) between 03:38 and 03:55[254].  Screen capture T1 taken from P2 (e) is attached herewith, showing the back of the T-shirt.  The TVB footage, exhibit P1 (g) between 03:40 and 03:46; and exhibit P1 (h) between 00:59 and 01:05 also capture part of the back of the T-shirt just after the male was lifted up. 

342.In addition, although Tsang was only asked about his upper clothing, it is clear from the video footage he was wearing a pair of shoes with white soles.  The Short Arrest Form, exhibit P56 lists Tsang’s clothing on arrest as a black short-sleeved shirt, black trousers and black-white shoes.  PC 9765 (PW46) who filled out the Short Arrest Form said he wrote down the clothing worn by Tsang.  The tongue and the laces are the black part of the shoes, which can be seen in the CCTV recording, file 03400, camera 12 between 03:43:40 and 03:43:50, as shown in screen capture 21 attached to the prosecution’s closing submissions.

343.The shoes Tsang was wearing can clearly be seen in the first six seconds of the ATV footage exhibit P3(2).  The shoes can be said to be distinctive in that on the soles there are three black spots.  Screen capture T2 taken from P3 (2) is attached herewith showing the sole of the shoes. 

344.The first nine seconds of the TVB footage P1 (a), (c), (e) & (f) clearly shows the soles of the shoes of the person being carried face down.  This is also seen between 02:55 and 03:00 in the TVB footage P1 (g). 

345.As the person is carried along the side of the substation one of the shoes can be seen in the TVB footage P1 (g) between 03:00 and 03:15 and P1 (h) between 00:14 and 00:26.  Screen capture T3 taken from P1 (h) is attached herewith showing one of the shoes.  When the person is dropped to the ground both shoes can be seen as shown in screen captures T4 and T5 taken from P1 (h)[255].

346.Having carefully considered all the evidence and from a very careful viewing of the video footage, I am satisfied the video footage, whilst not continuous, shows in sequence Tsang being apprehended, escorted and carried to the substation where he was assaulted. 

347.In reaching this finding I carefully considered the oral submissions of Mr Lok SC and Mr Choy that the T-shirt and shoes were not unique to Tsang; the clothing was that normally worn by young persons and that many protestors were dressed in dark clothing to hide their identity; and the oral submission of Ms Lam that without the clothing being produced, Tsang having refused to provide his clothing to the police[256], the court cannot be satisfied what clothing Tsang was actually wearing.  These submissions do not cause me to doubt that the video footage shows in sequence Tsang being apprehended, escorted and carried to the substation where he was assaulted.   

How many people assaulted Tsang Kin Chiu?

348.On the voir dire Tsang said that from the time when he was carried face down, until he arrived at the substation, no one in the group left.  Only after viewing the video footage did Tsang realise someone else joined the group.  On the general issue Tsang said from the time when he was picked up to the time he reached the substation, no one put him down or let go of his limbs.

349.When the group reached the substation the video clearly shows seven persons: one in front leading the way; two in front holding Tsang; two at the back holding Tsang with one walking beside them and one following behind.  This is best seen in the TVB footage P1 (g) between 03:00 and 03:10 and P1 (h) between 00:14 and 00:21. 

350.In the First Information of Complaints Against Police Report, Pol. 964 (exhibit P26), six police officers are complained about.  The evidence of DSPC 50117 (PW49), who completed the report, was read (exhibit P58).  Mr Cheng SC submitted that the video footage clearly depicting seven and not six individuals, as suggested by Tsang when first making his complaint of assault, tended to suggest that the footage did not depict Tsang being assaulted, but rather, captured a wholly different episode[257].

351.Ms Lam also made a similar submission that the evidence of Tsang should be rejected because he never mentioned he was assaulted by seven police officers[258].  Mr Choy also submitted that it would be most unsatisfactory to rely on Tsang’s evidence because he failed to identify the number of persons who assaulted him[259]. 

352.When describing the assault on the voir dire, Tsang was not asked how many people assaulted him.  What Tsang did say was that from the time he was picked up and carried by his arms and legs face down nobody left the group but having seen the video footage someone else joined the group.  The first reference by Tsang to seven people was when he gave evidence that after being assaulted he was taken to a car.  When asked how many males left the substation to go to the car Tsang replied seven.  

353.In cross-examination[260]Tsang agreed that when the First Information of Complaints Against Police Report was completed, he was accompanied by Ms Tanya Chan, a barrister and member of the Civic Party; in a formal complaint to CAPO (exhibit P38), made later the same day, he said he was assaulted by several persons; in his first witness statement made four days later he said he was assaulted by a group of males and did not know how many kicked and punched him[261]; and later when applying for a Judicial Review he said he was attacked by a group of six. 

354.Tsang explained that he told DSPC 50117 that he was assaulted by six or seven persons but DSPC 50117 only wrote six persons in the First Information of Complaint Against Police Report and drew six things below a figure in a diagram.  Tsang was not sure whether he corrected this but explained that when he pointed anything out, for example his injuries, the officer would not amend the complaint.  When put by Mr Cheng SC that he never told anyone he was assaulted by seven persons until the day before he gave evidence, Tsang disagreed and said that he mentioned this before going to the hospital. 

355.Considering Tsang was accompanied by Ms Tanya Chan, a barrister and member of the Civic Party, I have my reservations DSPC 50117 did not write down what Tsang said, in particular if Tsang pointed out the error.  Notwithstanding these reservations, the fact that the initial complaint records Tsang was assaulted by six persons and not six or seven as he says and later he said he was assaulted by a group of persons does not cause me to doubt his evidence he was assaulted, which assault was captured on the video footage.  For the reasons already given I am satisfied that the video footage shows Tsang being assaulted.  Considering Tsang was carried face down and the manner in which he was assaulted, it is not at all surprising he was unable to say exactly how many people assaulted him. 

Change of guard

356.The video evidence is clear that not only was a seventh person seen when the group were walking alongside the substation but the persons holding the arms and the left leg had changed.  In cross-examination Tsang agreed because he was carried face down it was possible that some officers changed, but the people holding him, and as far as he could see, the people on his left and right, had never changed[262].

357.The defence submitted that Tsang’s assertion there was no “change of guard” was incorrect[263]. Mr Cheng SC submitted that this was significant because the prosecution case on identification rested strongly (if not exclusively) on the premise that there was no change of guard[264]. Similar submissions were made by Mr Lam[265].

358.I have no hesitation in rejecting this submission.  I am satisfied that there was only a change in position and not a change in the group.  This is discussed later when considering the case against each defendant.  The fact that Tsang did not realise that there had been a change in some of the persons holding him does not cause me to doubt his evidence. 

Blunt instrument

359.On the voir dire Tsang said he sensed he was beaten with a hard object.  In cross-examination on the voir dire Tsang was referred by Mr Cheng SC to his first witness statement[266] in which he says he believed the police used a blunt instrument to hit him about his body and head.  Asked by Mr Cheng SC if he could see in any video footage a blunt instrument being used Tsang replied no. 

360.Mr Cheng SC submitted because the video footage did not show the assailants using a hard object or blunt instrument, this again tended to suggest that the video footage might not have depicted Tsang being assaulted[267]. 

361.For the reasons already given, I am satisfied that the video footage shows Tsang being assaulted.  Further, in my view, on a careful look at the video footage a person can be seen at the beginning of the assault holding something in his hand and in a downward motion stabbing Tsang twice.  This can be seen on all the TVB footage, for example P1 (g) between 03:11 and 03:13 and P1 (h) between 00:25 and 00:27 as shown in screen capture A1 attached herewith[268].  This part of P1 (h) was played in court during the prosecution’s closing submission.

362.A few seconds later between 03:17 and 03:19 on P1(g) and between 00:31 and 00:33 on P1(h) the same person can again be seen stabbing Tsang twice, on a different part of his body, as shown in screen capture A2 attached herewith[269].  

363.These actions are best seen in slow motion. The fact Tsang agreed with Mr Cheng SC the video footage does not show the assailants using a hard object or blunt instrument does not cause me to doubt his evidence that he was assaulted during which he sensed he was hit by a hard object.    

Pepper spray

364.On the voir dire Tsang said that after being sprayed with pepper spray his vision was not 100% clear but he could still see things and people around him, for example he could see reporters ahead of him taking photographs.  When cross examined by Mr Cheng SC, Tsang agreed his vision was affected by the pepper spray.  Asked if it could be said his vision was blurred Tsang replied, “For one moment, yes”. 

365.Mr Cheng SC submitted that Tsang’s agreement in cross-examination that his vision was blurred was consistent with Tsang having told a news reporter from AM 730, when giving an exclusive interview four days later, that he could not even recognise his own mother.  By reason of his blurred vision Mr Cheng SC submitted that Tsang simply could not have had a clear view of the matters which allegedly occurred when he was escorted and carried towards the substation[270].

366.I have no hesitation in rejecting this submission.  I find inherently improbable Tsang would have no memory of being escorted away by police officers, carried by his arms and legs face down and taken to the substation where he was dumped on the ground and assaulted. 

367.I accept the evidence of Tsang that his vision was blurred for one moment.  In cross-examination by Mr Lok SC, Tsang said he was still conscious after being sprayed with pepper spray and that he could see clearly things within several meters.  The video footage clearly shows Tsang was conscious after his face was washed and when he was escorted[271].

368.Further Tsang did not agree he told the reporter that he could not even recognise his own mother.  In re-examination Tsang explained the reference in the newspaper was to a Chinese idiom which meant because his facial features were so much distorted even his own mother could not recognise him.  I accept the explanation given by Tsang.  The fact that Tsang whilst being subdued was sprayed with pepper spray did not cause me to doubt his evidence about what happened after he was subdued.

Independent memory

Influenced by the video

369.It is clear from cross-examination that Tsang had viewed the video footage many times before giving evidence[272]. The first time was on the coach to Wong Chuk Hang when he saw the police officers, who escorted him, viewing the footage.  Tsang was not however able to see the footage clearly at this time.  The first time Tsang had a clear view of the footage was after he left North Point Police Station on the evening of 15 October[273].

370.Tsang said he gave CAPO the link to a YouTube video, which video he had viewed a few times before giving his statement to CAPO[274]. Tsang said his recollection of the events was entirely his own personal recollection and that the video footage confirmed his recollection.  Asked by Mr Lok SC whether he would accept the proposition that his recollection was partly assisted by what he had seen on the YouTube clip, Tsang replied “Right”[275]. 

371.On the general issue Mr Chung cross-examined Tsang with regard to media photographs and video footage he had viewed prior to attending the Tsuen Wan Police Station on 27 January 2015 for identification procedures by way of direct confrontation.  This evidence is discussed later when considering the admissibility of the direct confrontations[276].  

372.Mr Cheng SC submitted that Tsang was consciously or otherwise affected by his repeated viewing of the video footage whereby he simply assumed he was the person depicted in the video footage[277]. Citing the Australian case of Alexander v The Queen[278] Mr Cheng SC submitted that Tsang’s memory was displaced by what he had seen in the video footage[279]. 

373.The discussion of the “displacement” effect in Alexander v The Queen was said in the context of identification of a stranger from photographs.  This, in my view, is very different to someone being asked whether a video recording is consistent with their recollection of the events.  

374.I accept the evidence of Tsang that the video footage confirmed his recollection of the events.  Nevertheless, the fact that Tsang viewed the video footage many times and agreed that his recollection was partly assisted by the footage I approach his evidence with caution.

Was Tsang Kin Chiu subdued by one group and assaulted by another group?

375.On the voir dire Tsang gave evidence that after he was pushed to the ground, assaulted and handcuffed with zip wire he was handed over to other police officers, who carried him to the substation where they assaulted him. 

376.In cross-examination[280] Tsang was asked about paragraphs 2 & 3 of his witness statement[281] where he refers to being assaulted after being grabbed; assaulted at the substation and assaulted at the Central Police Station and Q16 which asked whether the same group of males assaulted him throughout. 

377.Tsang disagreed that in the statement he clearly stated that the group who assaulted him after he was grabbed was the same group who assaulted him at the substation.  Tsang went on to explain that his reply “I believe they were” in answer to Q16 was referring to the same group who assaulted him at the substation and in the police station. 

378.Ms Lam submitted that Tsang changed his evidence in cross-examination from that in his first witness statement that the same group who grabbed him assaulted him at the substation because he did not have an independent recollection of what had happened[282].

379.I find this difference more apparent than real.  The fact remains Tsang was subdued by police officers; escorted and carried face down by police officers; and assaulted by police officers.  Whether or not Tsang perceived at the time they were all the same group or not, is in my view not material.  This difference between his witness statement and his evidence in court does not cause me to doubt his evidence as to what happened after he was subdued. 

380.I reject the submission that Tsang had no independent memory of what happened.  I find inherently improbable that anyone subdued by being handcuffed at the back with zip ties; escorted; carried by their arms and legs face down and taken to the substation where they were dumped on the ground and assaulted would not know what happened unless they were unconscious.  As noted when discussing the use of pepper spray the video evidence clearly shows that Tsang was conscious when he was being escorted[283].

Refusal to co-operate with the police investigation

381.The defence submitted the credibility of Tsang is in doubt by his refusal to co-operate with the police.  Tsang having refused to answer police questions whether his recollection of the events was based on his own memory or on the video footage, Mr Cheng SC submitted that Tsang’s evidence that his recollection of events was based on his own memory was not credible[284].

382.   After Mr Cheng SC referred Tsang to his affirmation[285], and paragraphs 26 & 27 of the affirmation of Ms Tanya Chan[286], filed in the judicial review proceedings, Tsang agreed that during the giving of his first witness statement[287] he refused on three occasions to answer questions as to whether his recollection was based on his own memory or based on the video footage. 

383.Tsang explained in refusing to answer the questions he was acting on legal advice and not because he did not want to bind himself to evidence he might not be able to change.  Tsang agreed the reason given by his legal advisers for refusing to answer the question was as stated in his affirmation, namely that they considered the question inappropriate and calculated to prejudice a possible prosecution. 

384.Mr Cheng SC submitted that if Tsang did in fact have any personal recollection of what happened there could have been no possible prejudice in answering the question[288].

385.Tsang also confirmed that on 16 October 2015, together with his legal representatives, he attended the offices of CAPO to view video footage.  After being shown twenty videos (including the video footage shown in court) Tsang was asked to identify himself on the videos.  Tsang agreed that he told CAPO he was too tired and refused to give a statement.  Tsang said this was not the only reason for not giving a statement and went on to explain that the legal advice was to further prepare before giving a statement. 

386.Mr Cheng SC submitted that this act of refusal is most questionable and casts serious doubt as to the ability of Tsang to recognize himself in the video footage.  The only plausible explanation Mr Cheng SC submitted was that Tsang was unable to identify himself and feared by providing a statement this would prejudice any subsequent prosecution[289].

387.Similarly Ms Lam submitted the evidence of Tsang should be rejected by reason of his refusal to answer questions and to give a further witness statement after viewing the videos[290]. Ms Lam further submitted Tsang fabricated this evidence because he was convicted in the Magistracy[291].

388.Mr Lok SC questioned the credibility of Tsang by submitting that he was not co-operative to give assistance to the police in the investigation; he provided only very limited information to the police regarding the assault incident despite having made a complaint on the very day of the assault and only gave assistance after he was found guilty[292].

389.I have no hesitation in rejecting these submissions.  I accept Tsang’s evidence he was acting on legal advice.  The legal advice given to refuse to answer questions can clearly be seen in paragraphs 26 & 27 of the affirmation of Ms Chan, the contents of which Tsang confirmed were accurate.

390.Furthermore, having already been arrested by the police it is not at all surprising Tsang declined to answer any further questions.  The fact that Tsang did not answer all questions asked by the police in October 2014 and refused to give a further statement in October 2015, does not cause me to doubt his evidence as to what happened after he was subdued.   

Failure to complain

391.Submissions were made that Tsang did not make a complaint of assault at the first available opportunity and when he did he provided limited information regarding the assault[293]. Mr Choy submitted that the failure by Tsang to make a timely complaint indicates that he did not have an independent memory of his assault[294].  Ms Lam submitted Tsang did not make an early complaint because he was not certain about when, where, who and how the assault had taken place[295].

392.Admitted in evidence is that after arriving at the Police College in Wong Chuk Hang, Tsang was informed of his rights at 6:12 a.m. by Inspector Wu (“IP Wu”) (PW48)[296].  Tsang made no complaint at this time[297]. On the general issue Tsang said there was no particular reason for not making a complaint at that time.  At 7:40 a.m. PC 9765 (PW46) served a Notice to Persons in Police Custody, exhibit D6 (7) on Tsang, who was given the opportunity to read the Notice. 

393.In his application for leave to apply for Judicial Review Tsang made no mention of being informed of his rights by IP Wu and stated, inter alia, that he was only informed of his rights at approximately 7:40 a.m.[298]  Ms Lam submitted Tsang deliberately lied in not telling the court in the Judicial Review proceedings about IP Wu advising him of his rights[299]. 

394.I have no hesitation in rejecting this submission.  I do not accept that in the Judicial Review application Tsang tried to hide the fact he had been advised of his rights by IP Wu.  The application was emphasising Tsang was only advised of his rights after arriving at the Police College.  The omission that he was first told orally by IP Wu is, in my view, not material and does not cause me to doubt Tsang’s evidence about what happened after he was subdued by the uniform police officers.   

395.DSgt 51344 (PW45) testified that at 8:16 a.m. Tsang asked to see a doctor saying he had sustained injury to his head, face, hand and arms when he was arrested by the police.  In oral submissions Mr Choy submitted this contradicted the evidence of Tsang that he was assaulted at the substation after he was arrested. 

396.I have no hesitation in rejecting this submission.  The court was never told when and who arrested Tsang.  WSSgt So (PW47), the Duty Officer at the Central Police Station, said she was informed Tsang had been arrested when two plainclothes police officers passed her desk[300]. The only other reference to an arresting officer is in the Short Arrest Form, exhibit P56 produced by PC 9765 (PW46), which states that D6 is the arresting officer. 

397.In my view there is no contradiction.  The process of arrest clearly covers the time from when Tsang was first apprehended until he was brought to the police station and later to the Police College. 

398.Before going to see a doctor Tsang told DSgt 51344 that he wanted to see his lawyer first.  At about 8:35 a.m. Tsang was allowed to consult with his lawyer Ms Tanya Chan.  Admitted in evidence is that at about 10 a.m. on 15 October 2014 Tsang stated he wanted to lodge a complaint against the police[301].  The First Information of Complaints Against Police Report (Pol. 964), exhibit P26, was then filled out by DSPC 50117 (PW49)[302].

399.DSPC 50117 did not fill out the summary of allegations because Tsang, on the advice of Ms Chan, provided no information.  Tsang, also on the advice of Ms Chan, was not willing to let the police conduct a physical check or take photographs of his injuries.  DSPC 50117 therefore recorded the injuries according to a verbal description given by Tsang[303].

400.On the general issue Tsang testified that from what he saw the police officer did not record what he told him were his injuries.  Tsang therefore refused to allow the police to inspect his injuries.  Tsang said he was told by the officer that he was only making a simple record of what he saw and then he would go to the hospital for examination by a doctor[304]. Tsang did at one stage pull his shirt up to let the officer look at his injuries. 

401.Tsang said he did not provide information of the complaint; consent to a physical examination of his injuries or allow the police to photograph his injuries because he thought it was more appropriate to go to the hospital for examination first and together with Ms Chan they were of the view the police officer had not accurately recorded the injuries, writing only the slightest form of “redness” or 1 cm.  In cross-examination Tsang disagreed that the officer recorded what he said about his injuries and disagreed that he signed the First Information of Complaints Against Police Report because he agreed with what was recorded[305].

402. Admitted in evidence is that at approximately 11:05 a.m. Tsang was examined by Dr Zenith Wu at the Ruttonjee and Tang Shiu Kin Hospital, who also took photographs of the injuries[306].  After medical examination Tsang was taken to North Point Police Station.  At the police station DSPC 50117 again asked for details to fill out the summary of allegations.  Ms Chan said that Tsang would not give any statement at that time.  In evidence Tsang said he needed to rest.

403.Inspector Law (“IP Law”) (PW50) from CAPO was instructed to go to North Point Police station to interview Tsang[307]. IP Law was told by Mr Vidler, solicitor for Tsang, Tsang would only speak with CAPO after he was granted bail.  At 23:13 after Tsang was granted bail IP Law interviewed Tsang.  IP Law explained the procedure to Tsang.  Tsang produced a piece of paper exhibit P38, listing three complaints of assault by police officers.  Tsang refused to elaborate further.

404.In cross-examination, on the general issue, Tsang agreed he did not make a complaint to the driver of the car taking him to the Central Police Station; to the Duty Officer at the Central Police Station; or to the driver of the coach to the Police College[308]. Tsang disagreed this was because he did not have an independent recollection of the events.  Asked by Mr Choy if the reason he did not complain to the Duty Officer was because he thought the Duty Officer was one of the scumbag police he had described in his evidence, Tsang replied he did not think the drivers and the Duty Officer were reliable or appropriate recipients of the complaint.

405.Tsang also agreed he did not complain to fellow detainees at the Police College. Tsang explained this was because while in detention they were not allowed to talk to each other and he did not know the other detainees.  Tsang disagreed he was inventing this excuse to explain away why he did not complain even to his comrade-in-arms.    

406.I have no hesitation in rejecting these submissions.  I accept the explanation of Tsang that no earlier complaint was made because he considered drivers and the Duty Officer not reliable or appropriate persons to receive his complaint. Further at all these times Tsang was accompanied by two of the police officers he says assaulted him.  It is therefore not at all surprising Tsang waited until after he saw his lawyers before making a complaint.  I accept Tsang’s evidence why he did not tell fellow detainees about the assault.  The failure to complain earlier and provide details of the complaint does not cause me to doubt the evidence of Tsang about what happened after he was subdued. 

407.Considering Tsang was accompanied by Ms Chan, a barrister and member of the Civic Party, I do have my reservations about his evidence that DSPC 50117 did not write down what he said about his injuries.  The First Information of Complaints Against Police Report, whilst brief, does record that there were injuries to the head, the face, the left arm and left hand, the neck, the chest and the entire back.

408.The description of the injuries in the First Information of Complaints Against Police Report is only a brief description.  Whether or not that is what Tsang said to DSPC 50117 is in my view not material.  The court relies on the admitted evidence of Dr Zenith Wu, who medically examined Tsang at about 11:05 that morning and found the injuries as particularised in the Medical Examination Form, exhibit P27(a); the medical report, exhibit P27(b) and shown in the photographs taken by Dr Wu, exhibit P28[309]. The injuries were noted by Dr Wu as fresh[310].

409.The reservations I have in Tsang’s evidence that DSPC 50117 did not write down what he said about his injuries do not cause me to doubt Tsang’s evidence that after he was subdued he was carried to the substation where he was assaulted, which assault was captured on the video footage. 

Judicial review/political aspirations

410.In cross-examination on the voir dire Mr Lok SC referred Tsang to an application made by him on 22 October 2014 for leave to apply for a judicial review[311] of the conduct of the police on 15 October 2014[312]. Tsang disagreed that part of the reason for making the application for judicial review was to go for money. 

411.Tsang explained that he did not know the law well and therefore did not know whether a claim for damages needed to be included in the application.  Tsang further explained that the reason for making an urgent application was in the hope the police would disclose the identity of the police officers involved so that they may be interdicted and prosecuted. 

412.Mr Lok SC questioned the credibility of Tsang submitting that his motive was open to many interpretations, including that in asking for exemplary damages he was after money and by running for the 2016 Legislative Council Election in September[313] he was seeking to advance his political career[314]. 

413.Mr Choy also cross-examined Tsang on his political aspirations.  Tsang agreed that by considering standing in the 2016 Legislative Council Election he was an aspiring politician[315]. After playing the ATV footage exhibit P3 (2), which clearly shows Tsang being subdued by police officers, Mr Choy put to Tsang that his evidence he guessed he was subdued by the police because only police use force in demonstrations, was political posturing on his part.  Tsang disagreed with the suggestion made by Mr Choy.

414.I accept the evidence of Tsang that the reason for making an urgent application was in the hope the police would disclose the identity of the police officers involved so that they may be interdicted and prosecuted.  The fact Tsang applied for leave to apply for a judicial review of the conduct of the police on 15 October 2014, including seeking a claim for damages, does not cause me to doubt his evidence as to what happened after he was subdued. 

415.I accept the evidence of Tsang that his evidence was not political posturing. The fact Tsang had political aspirations does not cause me to doubt his evidence as to what happened after he was subdued.

Hatred of the police

416.Mr Choy submitted that Tsang’s dislike of the police (possibly as a result of his political stance) greatly impaired his reliability.  Mr Choy specifically relied on Tsang calling the police scum[316].

417.The reference to the police as scum was in cross-examination by Mr Cheng SC on the general issue.  Tsang agreed that in postings on Facebook he called the police scum.  Tsang explained that this was a conclusion reached after reading many news stories for example where a teenage girl was raped by a police officer in a police station and where a peaceful protestor was hit causing detachment of his retina. 

418.Tsang said this was not a view of the police in general but on their individual behaviour and asked Mr Cheng SC to supply the context in which he said the police were scum.  Mr Cheng SC did not and instead asked Tsang if he regarded the police officers who subdued him at the flower bed as scum.  Tsang replied he was not sure whether they were scum.  

419.I have no hesitation in rejecting this submission.  Whilst Tsang clearly had a high disregard of the police I accept his explanation that his reference to scum was to individual police officers and not the police force in general.   

420.Tsang also agreed with Mr Cheng SC that he posted the following “I’ll lengthen my eyes to see how much longer you people will live a merry life.”  Ms Lam submitted this also showed the spite held by Tsang against the police and that Tsang had fabricated his evidence because he had been convicted in the Kowloon City Magistracy[317].I have no hesitation in rejecting this submission.  I accept Tsang’s explanation that by posting this he meant he was waiting for justice without specifying which police officers he was referring to. 

421.The postings by Tsang in Facebook, whilst giving me cause to approach his evidence with caution, do not cause me to doubt his evidence of what happened after he was subdued. 

Conclusion

422.  In considering Tsang’s evidence I have also considered that in his first witness statement he did not mention the group discussed where to take him; asked him to walk faster; when being assaulted someone mentioned “demonstration” and refused to give details of the building where he says he was assaulted[318].  I do not regard these omissions as material.  They do not cause me to doubt Tsang’s evidence about what happened to him after he was subdued.

423.Having carefully considered all the evidence and submissions of counsel, unless otherwise stated, I find I am satisfied so I am sure that I can safely rely on the evidence of Tsang that after he was subdued for pouring liquid on the police he was handed over to other police officers who escorted him, carried him by his arms and legs face down and took him to the substation (the dark corner) where they dumped him on the ground and assaulted him.  

Identification

424.The prosecution case depending on identification evidence I direct myself in accordance with the principles established in R v Turnbull[319].  I remind myself of the special need for caution before convicting the defendants in reliance on evidence of identification. 

425.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.  I remind myself of the possibility that a mistaken witness can be a convincing witness and that a number of witnesses can all be mistaken.  I remind myself that mistakes in recognition of close relatives and friends are sometimes made.    

426.When the quality of the identifying evidence is poor unless there is evidence which goes to support the correctness of the identification the accused shall be acquitted.  Odd coincidences can, if unexplained, be supporting evidence[320].  The defendants having elected to remain silent there is no evidence from the defence to contradict the prosecution evidence.  As was said in Turnbull[321]:

“An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But he would be entitled to tell them that when assessing the quality of the identification evidence they could take into consideration the fact that it was uncontradicted by any evidence coming from the accused himself.”

427.The guidelines given in Turnbull equally apply to identification made from film and photographs, whether that identification is made by a witness or by the court[322].

428.In Attorney General’s Reference (No 2 of 2002)[323] the court said on the authorities there was at least four circumstances in which, subject to appropriate directions, a jury can be invited to conclude that the defendant committed the offence on the basis of a photographic image from the scene of the crime, including:

(i)                Where the photographic image is sufficiently clear, the jury can compare it with the defendant sitting in the dock;

(ii)              Where a witness knows the defendant sufficiently well to recognise him as the offender depicted in the photographic image, he can give evidence of this; and

(iii)           Where a witness who does not know the defendant spends substantial time viewing and analysing photographic images from the scene, thereby acquiring special knowledge which the jury does not have, he can give evidence of identification based on comparison between those images and a reasonably contemporary photograph of the defendant, provided that the images and photographs are available to the jury.   

429.The fourth circumstance was a suitably qualified expert with facial mapping skills.  No expert evidence has been called. 

430.Whilst the identification of each defendant is to be considered separately, the evidence against each defendant is not to be considered in isolation but in the context that the defendants were all on duty in the area of Lung Wo Road[324]and carried out their duties together. 

431.Superintendent Ng (“SP Ng”) (PW27), who was in charge of Crime Group A which included eight Quick Response Teams, instructed D1 to lead one Quick Response Team.  D2 was the officer-in-charge of QRT A2-2[325]. Including D2 there were seven team members: D3, D5, D6, D7, DPC 8097 (PW28) and DPC 5840 (PW29)[326]. D4 was deployed as a member of a video team under the command of DSgt Ma (PW30) [327].  D2 redeployed D4 to other duties after which DSgt Ma did not see D4 again.[328] 

432.Before the clearance operation started SP Ng briefed the members of the Quick Response Teams of their duties and responsibilities, including the processing of persons who had committed offences such as unlawful assembly or obstructing police in the execution of their duty.  The plan devised before the operation started was that as far as possible protestors who were arrested would be handed over to crime officers for processing. 

433.The crime officers would then take the arrested persons to the escort coaches or cars for transporting to the Central Police Station.  The evidence of the drivers of the coaches and the cars was read and show that the coaches and the cars were parked on Lung Wo Road near to the substation[329]. 

434.SP Ng saw a uniform police officer trying to stop Tsang pouring water.  The uniform police officer pulled Tsang back towards Tamar Park.  From where SP Ng was standing he could not see what happened after Tsang was pulled back.  SP Ng said that according to the operational plan Tsang should have been arrested and then taken by a crime officer to one of the coaches or cars for transport to the Central Police Station.

435.In cross-examination SP Ng said that the actual decision made as to what to do would be made according to the situation at that time[330]. 

436.Before considering the case against each defendant I will first outline the identification evidence relied on by the prosecution.  Senior police officers, under whose command D1, D2, D3, D5 and D6 worked[331], looked at part of the video footage and the photographs[332] and identified the defendants on some of the video footage and photographs.  Save for the evidence of Senior Superintendent Chan (“SSP Chan”) (PW37), who recognised D1, the witness statements of the senior police officers were read.   

437.In respect of all the defendants the prosecution relied on a comparison made by Chief Inspector Chan (“CIP Chan”) (PW42) of the persons seen in the TVB footage P1 (b) and the Apple Daily footage P2 (e) with the warrant card photographs of the defendants.  The witness statements of CIP Chan were read into evidence[333].  

438.The recognition of D1, D2, D3, D5 and D6 was from footage and photographs of the apprehension and escorting of Tsang and not from footage of the assault at the substation.  The comparison by CIP Chan in respect of D4 was also made from footage showing the escorting of Tsang.  Only the comparison by CIP Chan in respect of D7 was made from footage showing the assault at the substation.

439.The prosecution case is that there was no change in the persons escorting Tsang save that there was a change in position and at the substation they were joined by another member of their team, D7.  The defence submitted the prosecution failed to prove that the persons seen escorting Tsang were the same persons seen assaulting him at the substation and failed to prove that the seventh person was D7.

440.The prosecution also relied on the evidence of Tsang that D5 and D6 were two of the persons who assaulted him at the substation.  The identification of D5 and D6 by Tsang was by way of direct confrontations, the admissibility of which was challenged by both D5 and D6.  The prosecution also relied on the CCTV recordings to show that D5 and D6 took Tsang in and out of the Central Police Station.  Tsang did not identify D1, D2, D3, D4 or D7.

441.In respect of charge 2 the prosecution relied on the evidence of Tsang that he was slapped on the face by D5 inside room 7 of the Central Police Station. 

442.In Annex AI-AVII of their closing submissions the prosecution particularised all the footage and the times and the photographs in which they say each of the defendants are seen.  To illustrate submissions which made reference to the video footage, the court requested a screen capture be provided.  At the beginning of the second day of submissions the prosecution provided a bundle of 23 screen captures. 

443.In reaching my verdict 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.  I have viewed the CCTV recordings many times, in both normal speed and frame by frame[334].   

D1

444.SSP Chan testified that between June 2014 and August 2015 he was the superintendent of ‘A’ Division of the Organised Crime and Triad Bureau.  D1 was under SSP Chan’s immediate command from June 2014 until his interdiction in October 2014[335].  After D1’s interdiction SSP Chan interviewed D1 on a monthly basis until August 2015 when SSP Chan left his post. 

445.On 11 March 2016 SSP Chan was invited by Woman Chief Inspector Hung  (“WCIP Hung”) (PW41)[336]to view the TVB footage P1 (a); part of P1 (g) and two parts of the ATV footage P3 (2), to see if he could recognise anyone he knew[337].  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[338].  After viewing the TVB footage P1 (a) twice, SSP Chan was unable to recognise anyone on the footage. 

446.On 26 May 2016 SSP Chan was invited by WCIP Hung to view two photographs, exhibits P12 and P13.  SSP Chan recognised D1 on P13 but was unable to recognise anyone on P12.  On a copy of P13 SSP Chan marked which person was D1[339]. 

447.SSP Chan also identified D1 in court.

448.I accept the identification evidence of SSP Chan, which evidence was not challenged. 

449.The evidence of CIP Chan that he compared the warrant card photograph of D1 with the TVB footage of the escorting is, in my view,no more than the opinion of CIP Chan.  There is no evidence that CIP Chan knew D1 or that he had acquired any special knowledge.  CIP Chan was therefore in no better position than the court to make such comparison.  I place no reliance on the comparison made by CIP Chan.  In any event this evidence adds nothing to the identification of D1 by SSP Chan.

450.The identification of D1 by SSP Chan from the ATV footage shows the stage where Tsang was handed over. Although SSP Chan only identified D1 in the second part of the ATV footage, 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. 

451.The identification of D1 by SSP Chan from the TVB footage shows the stage where Tsang was escorted.  I am satisfied in the Now TV footage (exhibit P4) between 00:40-00:44, which was not shown to SSP Chan, D1 is also seen escorting Tsang as shown in screen capture 14 attached to the prosecution’s closing submissions.  I am satisfied in the ATV footage (exhibit P3 (2)) between 01:40 and 01:50 D1 can also be seen at the back escorting Tsang.   

452.The identification of D1 by SSP Chan from the photograph P13 shows D1 on the right of Tsang at the stage where Tsang was being carried face down.  I am satisfied D1 can also be seen on the right of Tsang in the moving photograph in the Apple Daily footage (exhibit P2(c)), which, for the reasons already given, I am satisfied was taken at the stage Tsang was carried face down[340].  D1 can also be seen in the first nine seconds of the TVB footage (exhibit P1 (a))walking from the right side to the left side of Tsang[341].

453.From the video footage and in particular the photograph, exhibit P13, 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.     

454.There has been no identification of D1 from the footage showing the assault at the substation.  Mr Lok SC submitted that there is no evidence to connect D1 in the still photographs as one of the group shown in the video footage.  In particular Mr Lok SC refers to the evidence of SSP Chan that he could not identify anyone because it was too dark[342].

455.I have no hesitation in rejecting this submission.  This evidence was given in cross-examination when Mr Lok SC asked SSP Chan if the reason why he could not identify anyone on the photograph, exhibit P12, was because it was too dark. This answer must be viewed in the context that the photograph shows the stage where Tsang was escorted.  SSP Chan did identify D1 from the TVB footage showing Tsang being escorted.  The photograph was almost certainly taken about the same time as the footage.  The face of the person on the photograph in the same position as D1 is in the dark.  

456.In considering the evidence, I take into account SSP Chan, who knew D1, was unable to identify D1 from the assault footage shown to him.  A distinction however is to be drawn between being able to recognise a person and comparing whether the clothing is the same. 

457.The TVB footage shows the group arriving at the substation[343].  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.

458.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.

459.Having carefully viewed all the video footage, 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. 

460.I have carefully considered the submission of Mr Lok SC 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; 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[344]. These submissions do not cause me to doubt the findings I have made. 

D2

461.Between June 2013 and June 2015 Chief Inspector Chung (PW38) was the Chief Inspector of Crime, Kwun Tong District.  D2 was under CIP Chung’s command from the beginning of 2014 until his interdiction in October 2014[345].  After D2’s interdiction CIP Chung would meet D2 when D2 returned to the police station to be interviewed on a monthly basis until June 2015 when CIP Chung left his post[346]. 

462.On 14 March 2016 CIP Chung was invited by WCIP Hung to view the TVB footage P1 (a); part of P1 (g) and two parts of the ATV footage P3 (2), to see if he could recognise anyone he knew[347]. CIP Chung recognised D2 on the TVB footage P1 (g) and marked which person was D2 on a screen capture of the shot[348]. After viewing the TVB footage P1 (a) twice CIP Chung was unable to recognise anyone because the video quality was poor and it was too dark.  After viewing the ATV footage P3 (2) CIP Chung was also unable to recognise anyone.

463.On 23 May 2016 CIP Chung was invited by WCIP Hung to view the ATV footage P3 (1); the TVB footage P1 (h) and the Now TV footage P4[349]. CIP Chung recognised D2 on the TVB footage P1 (h) which he said was essentially the same as the TVB footage P1 (g) played to him on 14 March.  CIP Chung did not recognise D2 on either the ATV or Now TV footage[350]. 

464.On 31 May 2016 CIP Chung was invited by WCIP Hung to view the two photographs, exhibits P12 and P13.  CIP Chung was unable to recognise D2 on either photograph[351].

465.In his closing submission Mr Cheng SC stated there was no dispute about the accuracy of CIP Chung’s identification of D2[352]. I accept the identification evidence of CIP Chung.  For the reasons given in the case of D1 no reliance is placed on the comparison made by CIP Chan of the warrant card photograph of D2 with the TVB footage.  In any event this evidence adds nothing to the identification of D2 by CIP Chung.   

466.The identification of D2 by CIP Chung from the TVB footage shows the stage where Tsang was being escorted.  Notwithstanding CIP Chung did not identify anyone on photograph exhibit P12 and from the Now TV footage, both of which were taken during the stage Tsang was being escorted, I am satisfied D2 is also seen in the photograph P12 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.   

467.From the video footage and the photograph, exhibit P12, 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 P12 shows D2 wearing gloves, which appear to be rubber gloves extending beyond D2’s wrist.      

468.Notwithstanding CIP Chung, who knew D2, did not identify D2 on the ATV footage, I am nevertheless satisfied that the prosecution are correct in saying the first time D2 is seen is in the ATV footage, exhibit P3 (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 in screen capture 6 attached to the prosecution’s closing submissions. 

469.The moving photograph in the Apple Daily footage, exhibit P2(c), which I am satisfied was taken at the stage Tsang was carried face down[353], was not shown to CIP Chung.  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. 

470.Notwithstanding CIP Chung, who knew D2, did not identify D2 from the photograph exhibit P13 showing Tsang being carried face down, I am nevertheless satisfied 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.

471.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[354].  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. 

472.There has been no identification of D2 from the footage showing the assault at the substation.  In considering the evidence, I take into account CIP Chung, who knew D2, was unable to identify D2 from the assault footage shown to him. Again a distinction is to be drawn between being able to recognise a person and comparing whether the clothing is the same. 

473.The TVB footage shows the group arriving at the substation[355].  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. 

474.At this stage the clothing can clearly be seen.  I disagree with Mr Cheng SC that the clothing cannot be clearly seen because of the poor lighting conditions[356].  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. 

475.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. 

476.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[357].  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)[358].After returning D2 remains at the substation until Tsang is taken away at which time he is seen walking behind Tsang. 

477.I have carefully considered the submission of Mr Cheng SC as to the quality and/or sufficiency of the identification evidence including that D2’s superior CIP Chung could not identify D2 from the assault footage; that there is no basis for the court to draw the inference D2 was amongst the individuals depicted in the assault footage; no mention was made of D2’s involvement in the short arrest form or Tsang’s complaint; and the court should be slow to draw its own conclusions from the assault footage[359]. These submissions do not cause me to doubt the findings I have made. 

D3

478.CIP Chung also recognised D3.  D3 was under CIP Chung’s command at the beginning of 2013 and June 2013 and again from the beginning of 2014 until his interdiction in October 2014[360]. After D3’s interdiction CIP Chung would meet D3 when D3 returned to the police station to be interviewed on a monthly basis until June 2015 when CIP Chung left his post[361].

479.On 14 March 2016 CIP Chung recognised D3 on the TVB footage P1 (g) and marked which person was D3 on a screen capture of the shot[362].  After viewing the TVB footage P1 (a) and the ATV footage P3 (2) twice CIP Chung was unable to recognise D3.   

480.On 23 May 2016 CIP Chung recognised D3 on the ATV footage P3 (1) and marked which person was D3 on a screen capture of the shot[363].  CIP Chung also recognised D3 on the TVB footage P1 (h) which he said was essentially the same as the TVB footage P1 (g) played to him on 14 March.  CIP Chung did not recognise D3 on the Now TV footage[364].

481.On 31 May 2016 CIP Chung recognised D3 on the photograph exhibit P13 and circled D3 on a copy of the photograph[365].

482.I accept the identification evidence of CIP Chung.  For the reasons given when discussing the case of D1, no reliance is placed on the comparison made by CIP Chan of the warrant card photograph of D3 with the TVB footage.  In any event this evidence adds nothing to the identification of D3 by CIP Chung. 

483.The identification of D3 by CIP Chung from the ATV footage shows the stage where Tsang was handed over and the TVB footage shows the stage where Tsang was escorted.  Notwithstanding CIP Chung, who knew D3, did not identify anyone from the Now TV footage I am nevertheless satisfied D3 can also be seen escorting Tsang at the end of the footage between 00:40-00:44 as shown in screen capture 13 attached to the prosecution’s closing submissions. 

484.Notwithstanding CIP Chung, who knew D3, did not identify D3 in the ATV footage, exhibit P3 (2), I am nevertheless satisfied between 01:40 and 01:50 D3 is seen placing his right hand on the left shoulder of Tsang as seen in screen capture ID5 attached herewith. 

485.The identification of D3 by CIP Chung from the photograph exhibit P13 shows D3 holding the right arm of Tsang at the stage when Tsang was being carried face down.  I am satisfied D3 can also be seen holding the right arm of Tsang in the moving photograph in the Apple Daily footage (exhibit P2(c)), which I am satisfied was taken at the stage Tsang was carried face down[366].  Screen capture ID3 is attached herewith showing the position of D3.

486.From the video footage and the photograph, exhibit P13, the clothing of D3 is clearly seen.  D3 was wearing a grey T-shirt with rows of pink horizontal stripes; a black sleeveless jacket; light blue jeans and brown shoes.  D3 was also wearing gloves, which also appear to be rubber gloves which extended beyond D3’s wrist.      

487.There has been no identification of D3 from the footage showing the assault at the substation.  In considering the evidence, I take into account CIP Chung, who knew D3, was unable to identify D3 from the assault footage shown to him, which he said was of poor quality and too dark.  Again a distinction is to be drawn between being able to recognise a person and comparing whether the clothing is the same. 

488.The left shoulder of D3’s T-shirt can be seen on a careful look at the TVB footage exhibit P1 (g) between 02:55 and 03:00 [367] showing Tsang being carried face down.  D3 was in the same position as in the photograph exhibit P13 and the moving photograph in the Apple Daily footage (exhibit P2(c)). 

489.Having carefully viewed all the video footage I am satisfied so I am sure the T-shirt of D3 can be seen in the TVB and Apple Daily footage.  This is best seen in the Apple Daily footage exhibit P2 (a) between 00:16-00:22 & 01:35-01:41 when D3 is standing in front of the substation.  In addition, D3 can be seen wearing gloves in particular when walking in the few seconds before and after the footage 00:16-00:22.

490.By looking at the TVB footage of the full assault, for example exhibit P1 (a) between 00:09 and 01:00, together with P1 (g)[368] and by following the person leading the group, who was the shortest of the group, this person is seen bending over Tsang just after Tsang is dropped on the ground.  This is followed by active participation in the assault on Tsang by stabbing Tsang[369]; stamping on Tsang and kicking Tsang.  After assaulting Tsang this person walked out and stood in front of the substation in the position seen in the Apple Daily footage.

491.I am satisfied so I am sure that when the group arrived at the substation D3 was the person leading the group.  D3 is seen at various times throughout the assault footage, save for a period when he leaves the substation for about one minute together with D2.  After D2 and D3 return D3 remains at the substation until Tsang is taken away at which time D3 is seen walking behind Tsang.

492.I have carefully considered the submission of Mr Lam that there was no identification of D3 from the first shot or the second shot of the TVB footage; CIP Chung who had known D3 since the beginning of 2013 was unable to identify D3 from this footage, the quality of which he found poor and too dark; and reliance on clothing as a means of identification is unsafe[370]. These submissions do not cause me to doubt the findings I have made. 

D4

493.D4 was deployed as a member of a video team under the command of DSgt Ma (PW30) [371].  Sometime in the middle of the period 02:40 and 03:35 D2 redeployed D4 to other duties after which DSgt Ma did not see D4 again.[372]

494.The only identification of D4 is by CIP Chan who compares the appearance of the persons seen in the video footage from TVB and Apple Daily with the warrant card photographs of the defendants.  CIP Chan concluded that the facial appearance of D4 in the warrant card resembled the facial appearance of one of the persons seen in the TVB footage escorting Tsang[373].  

495.No police officer recognises D4 on any of the video footage or from the photographs.  Mr Choy submitted that the evidence of CIP Chan could not substitute proper identification evidence[374]. For the same reasons given when discussing the case of D1, that CIP Chan did not know the defendants and had not acquired any special knowledge, I am satisfied CIP Chan was in no better position than the court to make such a comparison.  The evidence in my view amounts to no more than the opinion of CIP Chan.   

496.I place no reliance on the comparison made by CIP Chan.  This however does not preclude the court from examining all the video footage; the photographs and the warrant card photograph in determining whether D4 was one of the persons who escorted, carried and assaulted Tsang.

497.The prosecution case is that D4 is first seen standing behind Tsang in the ATV footage exhibit P3 (2) at 00:13 as shown in screen capture 2 attached to the prosecution’s closing submissions.  This is also captured in the ATV footage between 01:33 and 01:40[375]. The prosecution submitted that the back of D4 is also seen in the same footage between 01:44 and 01:50 at the time Tsang was taken away[376].  I am satisfied not only the back but the left side of the face of the person can also be seen as shown in screen capture ID6 attached herewith.

498.The prosecution submitted that D4 is next seen escorting Tsang in the TVB footage exhibit P1 (b) between 00:05 and 00:13 as shown in screen capture 9 attached to the prosecution’s closing submissions[377]; on the immediate right of Tsang in the photograph, exhibit P12 and in the Now TV footage (exhibit P4) between 00:40 and 00:44 as shown in screen capture 10 attached to the prosecution’s closing submissions[378]. 

499.At the stage when Tsang is being carried face down the prosecution submitted that a partial view of D4 is seen in the photograph, exhibit P13.  The prosecution described D4 as being on the right hand side of Tsang near his lower body[379].  In my view this person was carrying the right leg of Tsang.  This is also shown in the moving photograph in the Apple Daily footage, exhibit P2(c), which I am satisfied was taken at the stage Tsang was carried face down[380].  Screen capture ID3 is attached herewith showing the position of D4 on the moving photograph.

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

501.In making this finding I have taken into account that the warrant card was taken on 11 April 2013 just over 18 months prior to 15 October 2014; the hair was longer on 15 October 2014; over two years have now passed; and that in court D4’s hair was also longer and he wore glasses.  None of these matters cause me to doubt that the person seen in the video footage and the photographs was D4.

502.From the video footage and the photographs, the clothing of D4 is clearly seen.  D4 was wearing a grey T-shirt; a black sleeveless jacket which was zipped up; light coloured trousers and blue and red shoes.  In the Now TV footage D4 can also be seen wearing gloves. 

503.The trousers are best seen in the photograph exhibit P12 and the ATV and Now TV footage.  Screen captures ID7 & ID8 taken from the ATV and Now TV footage are attached herewith showing the colour of the trousers. 

504.I acknowledge, depending on the lighting, the light colour of the trousers differs between the photographs and the footage.  However, what is clear is D4’s trousers are significantly lighter than the trousers of all the others. This is best seen in the photograph exhibit P13.  Whilst only part of D4’s trousers can be seen, the right leg is sufficiently visible to show this difference. 

505.As already described D4 is seen in both the photograph exhibit P13 and in the moving photograph in the Apple Daily footage, exhibit P2(c) in the same position, namely carrying the right leg of Tsang.  I am satisfied the first nine seconds of the TVB footage exhibit P1 (a) also shows D4 holding the right leg of Tsang.  The footage shows only the back of D4, however, the light coloured trousers are clearly seen in the footage[381].

506.Having carefully viewed all the video footage, I am satisfied so I am sure when the group arrived at the substation D4 was still carrying the right leg of Tsang. This is seen for example in the TVB footage P1 (g) between 03:00-03:08[382].  Screen capture 16 attached to the prosecution’s closing submissions shows the light coloured trousers of D4 when the group were walking alongside the substation.  The remaining clothing is also consistent with what D4 is seen wearing in the earlier footage and the photographs. 

507.In addition, I find that it is an odd coincidence that D4 who was carrying the right leg of Tsang as seen in photograph P13, the moving photograph and the first nine seconds of the TVB footage exhibit P1 (a), was wearing light coloured trousers and the person seen at the substation carrying the right leg of Tsang was also wearing light coloured trousers.  

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

509.After D2 and D3 return D4 is seen standing next to D1 and D2.  This is best seen in the Apple Daily footage exhibit P2 (d) between 02:40 and 3:00.  D4’s light coloured trousers can be seen in this footage.  When the group take Tsang away D4 is seen on the right of Tsang.  D4’s light coloured trousers can also be seen as shown in screen capture ID10 attached herewith, taken from P1 (g)[383]. 

510.I have carefully considered the submissions of Mr Choy that no one has identified D4 including Tsang; and that even if the court was to find D4 was one of the persons escorting Tsang this only shows D4 may have participated in the escorting of Tsang but not the assault as he may have been redeployed to other duties during the forty-nine second blocked shot[384].  These submissions do not cause me to doubt the findings I have made. 

D5 & D6

511.Tsang testified that after he was assaulted he was taken to the Central Police Station by two of the police officers who assaulted him.  The police officers took Tsang to room 7 where one of the police officers, in the presence of the other police officer, slapped him on the face.  

Direct confrontations

512.On 27 January 2015 Tsang attended the Tsuen Wan Police Station to see whether he could identify the police officer who slapped him.  The identification was by way of direct confrontation.  In the first direct confrontation Tsang identified D5 as the police officer who slapped him.  In the second direct confrontation Tsang identified D6 as the police officer who was present when he was slapped, describing him as one of the escorting officers.  Tsang also identified D5 and D6 in court as the persons he identified in the direct confrontations. 

513.D5 and D6 objected to the admissibility of the identifications as particularised in the grounds of objection submitted by Mr Chung and Ms Lam[385].  In summary the grounds of objection were that the holding of direct confrontations and the procedure adopted during the confrontations were unfair. 

514.These are my reasons for ruling the evidence admissible.          

515.Three witnesses gave evidence relevant to the confrontations; Tsang; Chief Inspector Tse (“CIP Tse”) (PW43), who conducted the two confrontations and Superintendent So[386] (“SP So”) (PW51), who was the officer in charge of the complaint made by Tsang and who made the decision to hold direct confrontations.  The defence elected to call no evidence. 

516.In summary on 14 January 2015 Tsang was invited to take part in identification procedures in connection with the alleged assault at the Central Police Station.  Tsang was told the identifications were to be by way of direct confrontation[387].

517.Tsang attended Tsuen Wan Police Station on 27 January 2015 accompanied by his legal representatives, including Mr Vidler.  D5 and D6 were also accompanied by their legal representatives. The two confrontations were recorded on video (exhibits P31 & P32)[388].

518.The purpose of the confrontations was to see whether Tsang could identify the police officer who slapped him on the face[389]. In each of the confrontations Tsang was told that the person he was asked to look at may or may not have been involved in the case[390].

519.Notwithstanding the defendants closed their eyes during the confrontations Tsang identified D5 in the first confrontation as the one who slapped him on the face inside room 7[391]and identified D6 in the second confrontation as one of the escorting officers[392].  In cross-examination[393] Tsang said escorting meant escorting into room 7 and disagreed he did not identify D6 as being the police officer present when he was assaulted inside room 7. 

Discussion 

520.Both Mr Chung and Ms Lam referred the court to chapter 46-17 of the Force Procedures Manual[394], which concerns visual identification of suspects.  This chapter provides for five types of identification procedures: identification parade; consensual group identification; non-consensual group identification; non-consensual group identification without informing the suspect; and direct confrontation[395]. 

521.The first two options require the consent of the suspect.  All the defendants refused to participate in identification procedures from a very early stage. In cross-examination[396]SP So said that he was first told about the defendants’ unwillingness to attend any identification procedures on 24 October 2014.  On that day SP So gave instructions to ask the defendants, who were being interviewed at the time, whether they were willing to take part in any identification procedures.  The defendants all indicated they were not willing.  A letter was written  on 31 October 2014 to Vidler & Co inviting Tsang to attend a direct confrontation[397]. 

522.On 3 November SP So directed a letter to be written to the legal representatives of the defendants seeking written confirmation as to whether they were willing to take part in identification procedures, including group identifications or direct confrontation[398]. Solicitors for the defendants, save for D1, replied the same day saying their clients would not take part in any formal identification parades including group identification or direct confrontation[399].

523.The consent of the defendants not being forthcoming the holding of identification parades and consensual group identifications were not practicable.  Mr Marash SC submitted that the defendants having refused to participate in conventional identification procedures, a direct non-consensual confrontation was the only form of identification procedure left open to the police[400].  Mr Chung and Ms Lam both submitted that non-consensual group identifications should have been held[401].  In reply Mr Marash SC submitted that the police had the discretion whether to hold non-consensual group identifications or direct confrontations.

Non-consensual group identification

524.In November and December 2014 the police made three attempts to arrange for Tsang to identify the suspects.  The first attempt in early November was cancelled in advance, no reply having been received from Vidler & Co as to whether Tsang would attend.  Arrangements were then made for identification on the 26 November.  The defendants all attended however Tsang did not.  The police next wrote to Vidler & Co on 28 November to invite Tsang to attend identification procedures on 12 December[402]. This was also cancelled as Tsang never agreed to attend. 

525.The main reason that identification procedures were not held was because there was disagreement between the police and Vidler & Co as to the use of police officers as actors.  Tsang told the court that he did in fact attend the police station on 26 November with the intention of attending the identification procedure.  However, having received no satisfactory reply as to why police officers were to be used as actors, Tsang left.  SP So agreed that on 7 January 2015 Vidler & Co wrote to the police saying the use of police officers amounted to favourable treatment[403].

526.The correspondence during this period between the police and Vidler & Co showed that the police in November and December were considering both group identification and direct confrontation[404]. The letter dated 3 December 2014 to Vidler & Co also stated that the police did not rule out the possibility of holding formal identification parades on 12 December[405]. Mr Chung and Ms Lam submitted that the holding of direct confrontations on 27 January 2015 was to overcome the objections made by Vidler & Co[406]. 

527.This submission requires a consideration of the reason why SP So gave the instruction for holding direct confrontations.  Mr Chung asked SP So the reason why he arranged for a direct confrontation.  In reply SP So referred to paragraph 11 of chapter 46-17 and explained that a direct confrontation can only be held where both a normal identification parade and a consensual group identification cannot be conducted.  The defendants having indicated that they would not take part in any kind of identification procedure SP So was satisfied the conditions for holding a direct confrontation had been satisfied.  

528.Mr Chung then asked SP So why a non-consensual group identification was not adopted.  SP So explained that in his view a non-consensual group identification was not to be conducted by prior appointment.  On the contrary SP So said this was an option for the Chief Inspector holding the identification procedure where unforeseen circumstances occurred such as a frightened witness or where a suspect objects to a consensual group identification[407]. SP So disagreed with Mr Chung that the reason he held direct confrontations was to avoid the objections raised by Vidler & Co as to the use of police officers as actors.   

529.In my view once a suspect has indicated his unwillingness to take part in any form of identification procedure, whether at the parade or as in this case confirmed by letter, consideration should be given to whether any other identification procedure can be held in which the suspect’s consent is not required.  The holding of a direct confrontation is the last option to be considered and only where a non-consensual group identification is impractical.  This is made clear by paragraph 8 of chapter 46-17, which commences: “Finally the suspect alone may be confronted by a witness…” (my emphasis). 

530.Paragraph 6 of chapter 46-17 provides that where neither a parade nor a consensual group identification is practicable, arrangements may be made for the viewing of the suspect in a group of persons without his consent.  Although consent is not required and there is no set format for holding non-consensual group identifications, it is clear from paragraphs 6 & 7 of chapter 46-17 that the suspect is to be informed in advance and therefore requires a degree of cooperation from the suspect. 

531.Without that cooperation a conventional non-consensual group identification cannot be held.  The defendants having said they would not take part in any identification procedure including group identifications, I was satisfied that the holding of a conventional non-consensual group identification was impractical.

532.Even if conventional non-consensual group identifications had been held, I was satisfied the defendants would have refused to cooperate by closing their eyes, just as they did in the direct confrontations.  Paragraph 6 of chapter 46-17 specifically gives the covering of the face as an example of a refusal to cooperate.  In the circumstances I was satisfied SP So was not at fault in not arranging a conventional non-consensual group identification. 

533.Paragraph 7 of chapter 46-17 provides that where the holding of a conventional non-consensual group identification is impractical consideration should be given to conducting a non-consensual group identification without informing the suspect.  An example of how to conduct such identification is given for a suspect who is in custody.  No guidance is however given as to a suspect who is on bail.  Where practical the witness could be taken to the suspect’s place of work or to places the suspect is known to frequent. 

534.Clearly the conditions under which a non-consensual group identification without informing the suspect (who is on bail) can be held cannot be controlled to the same degree as identification procedure with the consent of the suspect.  The circumstances in which such identification can be held must therefore necessarily be limited.  Nevertheless, this option must be considered before deciding whether to hold direct confrontations.  

535.I do not agree with SP So’s interpretation of chapter 46-17 that the consideration of holding a non-consensual group identification was only an option for the Chief Inspector holding a conventional identification procedure in the event of unforeseen circumstances occurred during that procedure.  I was not satisfied sufficient consideration had been given by SP So to this option before deciding to hold a direct confrontation.

536.I would add that there may well be justification in the objection made by Vidler & Co as to the use of police officers as actors.  Although paragraph 31 of chapter 46-17 provides for members of a particular group such as the disciplined services being used as participants in a parade when the suspect is himself a member of that particular group, it is open to argument this would only apply where the suspect is alleged to have committed the offence in uniform.  In view of my determination that there had been non-compliance with the Force Procedures Manual on visual identification of suspects by not properly considering whether to hold a non-consensual group identification without informing the suspect, it was not necessary for me to decide this. 

537.In HKSAR v Lo Ho Chung the court held that non-compliance with the Force Procedures Manual on visual identification of suspects was not an automatic basis to exclude evidence of the identification.  The court said what is important is whether the parade was conducted fairly[408]. The court went on to say whether a breach or non-compliance warrants the evidence inadmissible depends on the nature of the breach and what had actually taken place during the identification[409].

Were the direct confrontations conducted fairly?

538.Admitted in evidence is that on 26 November 2014 both defendants were served with a form entitled “Identification Parade Notice to Suspect”[410].  Paragraph 3 of that form reads as follows:

“You are not obliged to attend a parade. If you decline to do so, this fact may be given in evidence at any subsequent Court proceedings at which time a witness may be given the opportunity of identifying you. It will also be open to the Police to make alternative arrangements before any Court proceedings, to test whether the witness does identify you as the person whom he saw on the occasion in question. It should be pointed out to you that neither identification in Court nor identification under whatever other arrangements the Police may make, may be as fair to you as a formal identification parade. You are entitled to request a formal identification parade rather than any other method of identification if you so prefer.”

539.The defendants therefore clearly knew the consequences of refusing to take part in a formal identification procedure.  At the beginning of each confrontation the defendants were referred to this notice and again asked if they agreed to take part in a formal identification parade.  Both defendants refusing to take part in a formal identification parade the police proceeded to conduct the direct confrontations[411].

540.Both defendants were legally represented during the confrontations and were explained the purpose of the confrontation.  Tsang was told that the person he was asked to look at may or may not have been  involved in the case[412]. 

D5

541.Mr Chung submitted that CIP Tse gave up control of the procedure to Mr Vidler[413].  The basis of this submission arises from the refusal of the defendant to open his eyes.  CIP Tse explained to Tsang he could not insist on the defendant opening his eyes because the identification procedure was not held with the consent of the defendant[414]. Between counters 25-38 of the transcript of the confrontation Mr Vidler appeared to object to CIP Tse explaining this to the defendant saying that the defendant had his legal representative present to advise him of his rights[415].   

542.Exactly what Mr Vidler said has not been transcribed.  Having carefully viewed the confrontation in an attempt to listen to what Mr Vidler said, whilst it is clear he said more than transcribed, it is not possible to hear clearly what Mr Vidler did say.  From the transcript it would appear CIP Tse and the defendant’s legal representative also spoke in English.  What they said in English also cannot be heard. 

543.The result of the objection by Mr Vidler was that CIP Tse invited the defendant’s legal representative to explain to the defendant what had happened[416].  I do not agree this gives an impression that the identification procedure was dictated by Mr Vidler and is thereby unfair to D5.  Quite the contrary.  D5 was told he could not be forced to open his eyes.  Nothing could have been fairer. 

544.Notwithstanding there was no proper consideration of whether to hold a non-consensual group identification without informing the suspect, I was satisfied by refusing to take part in a formal identification procedure, the consequences of which the defendant was fully aware, the holding of a direct confrontation was not unfair.  I was satisfied the direct confrontation was conducted fairly.      

D6

545.Ms Lam submitted that there were irregularities in the conduct of the confrontation which taken cumulatively were unfair to D6[417]. Ms Lam submitted that after Tsang had viewed the defendant for nearly two minutes and before telling CIP Tse he could identify the defendant, there was an exchange of hand gestures between Tsang and Mr Vidler.  This Ms Lam submitted was a confirmation or indication by Mr Vidler that Tsang was to identify the defendant. 

546.I had no hesitation in rejecting this submission.  A careful look at the hand gesture of Mr Vidler, in particular in slow motion, it is clear that all Mr Vidler was doing was indicating Tsang Kin Chiu to sit down.  Mr Vidler can be seen to open the palm of his hand and make a gesture towards the table and chair where Tsang had sat when CIP Tse explained the purpose of the identification procedure to him. 

547.The inconsistency referred to by Ms Lam in the evidence of CIP Tse and Tsang as to whether CIP Tse had advised Mr Vidler not to make any hand gesture was in my view not material[418]. This inconsistency did not cause me to doubt that Mr Vidler did anything other than indicate to Tsang to sit down. 

548.Ms Lam also submitted that the failure by CIP Tse to caution the defendant after informing him that he had been identified was a serious breach of the Force Procedures Manual and a serious violation of the rights of D6[419].  I agree with the submission of Mr Marash SC that the fairness of the confrontation was not affected, the defendant having remained silent after being told he had been identified[420].

549.Ms Lam further submitted that CIP Tse should have asked Tsang to see if he could identify the defendant based on appearance only before acceding to requests made by Tsang that the defendant stand up and look straight ahead[421].  In support of this submission Ms Lam relies on paragraph 37 of chapter 46-17.  Paragraph 37 refers to where a request is made to hear the suspect speak; adopt a specified posture or to move.  In those circumstances the witness will first be asked if he can identify on the basis of appearance only.

550.I had no hesitation in rejecting this submission.  The requests made by Tsang asking the defendant to stand up and look straight ahead are very different to asking the suspect to speak; adopt a specified posture or to move.  In a conventional identification parade the suspect would be standing up and should be looking forward. 

551.Notwithstanding CIP Tse agreed with Ms Lam that paragraph 37 applied, in my view paragraph 37 did not apply to the requests made by Tsang.  In addition the defendant did not stand up and remained sitting continuously with his eyes closed[422].  Even if there was non-compliance with paragraph 37 the fairness of the confrontation was not affected.

552.Notwithstanding there was no proper consideration of whether to hold a non-consensual group identification without informing the suspect, I was satisfied by refusing to take part in a formal identification procedure, the consequences of which the defendant was fully aware, the holding of a direct confrontation was not unfair.  I was satisfied that the direct confrontation was conducted fairly.     

Media photographs

553.Both Mr Chung and Ms Lam submitted that unfairness arises from the fact Tsang had seen photographs of the defendants which had been exposed by the media[423].  In cross-examination Tsang agreed that one reason he viewed video footage was to find out the identity of the police officers who assaulted him and that in the few days following the incident he paid special attention to the media coverage which showed the faces of the suspects[424].

554.Mr Chung showed to Tsang photographs of the suspects as appearing in Apple Daily and Ming Pao newspapers on 16 and 17 October 2014 respectively[425].  Tsang said that he had seen the photographs in these newspapers at that time and should have seen the photographs, exhibits P12 & P13 before the confrontation.  Tsang said that he might have viewed the media material after being notified on the 14 January 2015 to attend the confrontation and continued to have access to newspaper reports and media coverage after the confrontation.  Tsang agreed that he had seen the photographs many, many times. 

555.Mr Chung submitted Tsang must have had a deep impression of the facial features of the suspects and therefore the danger that he identified D5 based on this impression was very much alive[426]. Tsang disagreed he identified D5 and D6 because he had seen their photographs in the newspapers and media coverage. 

556.In support of their submission both Mr Chung and Ms Lam referred to the case of R v Kwong Yiu Hung[427]where the trial judge excluded evidence of a direct confrontation where the witness had seen a photograph of the suspect released by the police to the press.  The defendant was nevertheless convicted and on appeal a re-trial was ordered. Again the trial judge excluded the evidence of the confrontation. 

557.The confrontation in Kwong Yiu Hung was held because the other actors were not of the same build and appearance to the defendant and not because the defendant had refused to take part in an identification parade.  Similarly HKSAR v Mui Tak Ming[428], also relied on by Ms Lam, is not a case where the defendant refused to take part in an identification parade. 

558.In considering whether to exclude the evidence of the confrontation, all the circumstances are to be considered including why a confrontation was held and whether the confrontation was conducted fairly. 

559.Mr Chung submitted that D5 was forced to take part in the confrontation and that there was no reason why the other suspects whose photographs had been exposed in the media could not be forced to do the same[429]. 

560.I had no hesitation in rejecting this submission.  In court Mr Chung explained by force he meant that the confrontation was held against the will of D5.  There was no evidence before the court that D5 was forced to go to the police station. D5 was accompanied throughout by his lawyer.  D5 was asked if he agreed to a formal identification parade and was explained his rights. 

561.I accepted the evidence of SP So that only D5 and D6 were asked to attend the identification procedure on 27 January 2015 because it was believed that only two of the defendants took Tsang to the Central Police Station, which belief was based on the findings of their investigation and not from persons exposed in the newspaper.  The CCTV footage shows two police officers escorting Tsang in and out of the police station.  I found nothing unfair in the confrontation being limited to D5 and D6.    

Discretion to exclude

562.Notwithstanding Tsang had viewed the video footage many times and seen photographs of the defendants in the media prior to attending the direct confrontations, I found no grounds to exercise my discretion to exclude the evidence by reason of unfairness. 

Evidence of identification

563.On the voir dire Tsang testified that after he was assaulted the group lifted him up and took him round the corner of the substation to Lung Wo Road where he boarded a private car.  When asked how many males took him to the substation Tsang replied seven.  On the general issue Tsang described this as being frogmarched.  The TVB and Apple Daily footage show Tsang was taken in the opposite direction to which he was carried to the substation[430].  

564.Two of the seven sat on either side of Tsang in the car.  The seven of them discussed with the driver whether it was necessary for the car to wait for others.  After waiting for several minutes, Tsang was driven to the Central Police Station.[431]

565.WDPC 3209 (PW33) and DPC 2235 (PW34) were the drivers of two cars.  Their evidence was read.  DPC 2235 only ferried one suspect Lau Yue Tong [432].  WDPC 3209 made three journeys including one where she ferried two police officers together with one suspect.  Although WDPC 3209 did not name the suspect and described the two police officers as police constables, this may have been the car in which Tsang was taken to the Central Police Station.

566.On the general issue Tsang guessed that he was in the car around 30 minutes before reaching the Central Police Station.  During this time Tsang said he could clearly see the faces of the two police officers who sat on either side of him in the car.

567.On arrival at the Central Police Station Tsang was escorted to room 7 by the same two police officers who had sat on either side of him in the car.  On the voir dire Tsang guessed he was inside room 7 for about half an hour whereas on the general issue he guessed this was an hour or within an hour.  The CCTV recordings show that Tsang was in room 7 for just over an hour.

568.Most of the time at least one of the police officers was in the room with the other one standing at the door of the room, which was open.  Tsang confirmed room 7 was as seen in photographs 18 & 19, exhibit P25[433] and that the lighting was on in the room.  What happened inside room 7 is the subject of charge 2 and will be discussed later.

569.On the voir dire Tsang was shown the CCTV footage, exhibit P15[434].  Tsang identified himself and said file 034000, cameras 12 & 14 showed him being escorted by the two police officers to room 7 and file 045000, cameras 1, 2 & 14 showed him being escorted inside the police station by the same two police officers. 

570.On the general issue Tsang said that the two police officers seen on the CCTV escorting him in the police station were the same two police officers who had sat on either side of him in the car.  Tsang was not however asked to identify the police officers from the CCTV recordings. 

571.The same two police officers escorted Tsang from room 7 to board a coach to go to the Police College in Wong Chuk Hang[435]. On the general issue Tsang said the journey took about 30 minutes.  One of the officers sat on Tsang’s right and the other one behind him.  The lighting on the coach was dim. 

572.Tsang was not asked what opportunities he had of seeing the two police officers after arriving at Wong Chuk Hang.  Tsang did however say that the two officers went into hiding.  This evidence is considered in more detail later when discussing how Tsang obtained D6’s service number 9008.

Discussion

573.I have carefully considered all the evidence and the submissions of Mr Chung and Ms Lam. 

574.Mr Chung submitted that however much Tsang wanted to play down the effect of being sprayed with OC foam/pepper spray on his vision by the cleaning of his face, he must still have been affected by the presence of such chemicals on his face and eyes when he was inside the Central Police Station[436].  Ms Lam also submitted Tsang’s vision must have been impaired by the pepper spray[437].

575.I have no hesitation in rejecting this submission.  Although the defence have no burden to prove anything the fact remains there is no medical evidence of the effect of being sprayed with pepper spray for the court to consider.  The only evidence before the court is from Tsang.

576.I have already addressed the issue of pepper spray when considering the credibility of Tsang’s evidence[438]. I accept Tsang’s evidence that after being sprayed with pepper spray his vision was not 100% clear but he could still see things and people around him; his vision was blurred for one moment; he was still conscious and could clearly see things within several meters. 

577.Mr Chung submitted that there is every possibility that there had been a change in officer(s) handling Tsang at any stage at Lung Wo Road prior to him being taken away to Central Police Station[439].

578.Notwithstanding I have found Tsang to be mistaken there was no change in the persons who carried him to the substation, I have no hesitation in rejecting this submission.  At the end of cross-examination on the general issue Mr Chung put to Tsang that because he had just been assaulted and was very painful and confused he would not have noticed if there was a change of escorting officers whilst waiting in Lung Wo Road.  Tsang disagreed saying that in terms of timing it was immediately afterwards.  I accept the evidence of Tsang.

579.In oral submissions Mr Chung submitted the estimate given by Tsang of being 30 minutes in the car before reaching the Central Police Station must clearly be wrong.  On the available evidence Mr Chung submitted that the assault, which lasted for over four minutes, occurred shortly after 03:30 and that according to the CCTV Tsang arrived at the Central Police Station at 03:43:24.  The time spent in the car would therefore have been around 6 minutes.

580.For the reasons already given I do not accept the evidence of David Wong as to the actual times of the assault footage.  On the evidence of Mr Sum that the footage from cameras A & B was automatically ingested onto the TVB server roughly between 03:20 and 03:43 and the evidence of David Wong that camera A was broadcast live at around 03:30, I agree with Mr Chung that most likely the assault at the substation occurred shortly after 03:30[440]. 

581.As accepted by Mr Chung there is no evidence before the court that the times recorded on the CCTV are the actual times.  The Duty Officer in the Central Police Station at that time WSSgt So (PW47) says that at about 03:45 two plainclothes officers and a male suspect walked past her desk[441].  Although WSSgt So did not give the names, ranks or service numbers of the plainclothes officers or the name of the suspect she does describe telling them to go to room 7, the room where Tsang was taken to. 

582.WSSgt So’s estimate is very close to the times seen on the CCTV.  On the evidence I agree with Mr Chung that the time Tsang spent in the car could not have been 30 minutes.  The time would more likely have been around 5 minutes thereby giving Tsang considerably less time to observe the faces of the two police officers whilst he was in the car.  Further, although Tsang was sat next to the two police officers in the car, this was night time and the lighting would not have been ideal. 

583.The journey to Wong Chuk Hang was estimated to take thirty minutes however again the lighting was not ideal.  Tsang described the lighting as dim. 

584.Ms Lam submitted that the duration of observation made by Tsang was short and made when he was in a state of shock and pain[442]. I have no hesitation in rejecting this submission.  I am satisfied that Tsang had the opportunity of observing the faces of both police officers in the Central Police Station where he was with them for just over an hour in what was clearly very good lighting. 

585.Ms Lam submitted that Tsang was clearly uncertain about the identity of D6 because he refused to participate in group identification; only identified D6 after Mr Vidler assisted him and after identifying D6 he asked Chief Inspector Tse, who was conducting the confrontation, if he could walk forward to identify D6 again[443]. 

586.I reject that Tsang refused to participate in group identification because he was uncertain about the identity of the two police officers in the Central Police Station.  I accept that in refusing to attend a group identification Tsang was acting on the advice of his lawyers who objected to the use of police officers as actors.  For the reasons already given, I reject Mr Vidler in any way assisted Tsang to identify D6[444].

587.The identification of D6 is at counters 25 and 26 of the transcript of the confrontation (exhibit P32C), with the request to walk over there at counter 34.  This is followed at counters 35-38 by objection from the legal representative for D6 that it was not necessary.  Regrettably the full reasons for the objection are not audible.  The video of the confrontation (exhibit P32A) shows that Tsang, apart from looking as he walked out of the room, did not in fact walk over to identify D6 again. 

588.In cross-examination Tsang disagreed that the reason he asked to walk forward to identify D6 again was because he was not sure of the identity.  In re-examination Tsang explained he made the request because when he made the identification D6’s eyes were closed.  Although he could identify D6 with his eyes closed, Tsang wanted to confirm his identity with his eyes open[445]. 

589.I accept the evidence of Tsang.  The request to walk over to identify D6 again does not cause me to doubt the correctness of Tsang’s identification of D6.  

590.I am satisfied so I am sure I can safely rely on the evidence of Tsang that the two police officers who escorted him in the car to the Central Police Station were two of the police officers who assaulted him at the substation. Notwithstanding Tsang had viewed the video footage many times and seen photographs of the defendants in the media prior to attending the direct confrontations, I am satisfied so I am sure I can safely rely on the identification by Tsang that D5 and D6 were these two police officers.

591.The evidence of Tsang does not however stand alone.  Police officers who knew D5 and D6 recognised D5 and D6 from video footage and photographs taken prior to Tsang being assaulted.  The CCTV recordings show two police officers escorting Tsang in and out of the Central Police Station.  I am satisfied this evidence is capable of supporting the identification by Tsang of D5 and D6.

Recognition evidence

D5

592.Between February 2014 and February 2015 Woman Senior Inspector Wu (“WSI Wu”) (PW39) was the Officer-in-Charge of Regional Special Duty Squad of Kowloon East Region. D5 was under WSI Wu’s command from April 2014 until his interdiction in October 2014[446]. After D5’s interdiction WSI Wu would meet D5 when D5 returned to the police station to be interviewed on a monthly basis until February 2015 when WSI Wu left her post[447].

593.On 23 May 2016 WSI Wu was invited by WCIP Hung to view the ATV footage P3 (1); the TVB footage P1 (h) and the Now TV footage, P4[448].  After viewing the video footage twice WSI Wu recognised D5 on the TVB footage P1 (h) and marked which person was D5 on a screen capture of the shot[449].  WSI Wu could not recognise any person on either the ATV or Now TV footage[450]. 

594.On 25 May 2016 WSI Wu was invited by WCIP Hung to view the two photographs, exhibits P12 and P13.  WSI Wu recognised D5 on the photograph exhibit P12 and circled D5 on a copy of the photograph[451]. WSI Wu was unable to recognise D5 on photograph exhibit P13.

595.I accept the identification evidence of WSI Wu.  For the reasons given when discussing the case of D1, no reliance is placed on the comparison made by CIP Chan of the warrant card photograph of D5 with the TVB footage.  In any event this evidence adds nothing to the identification of D5 by WSI Wu.   

596.The identification of D5 by WSI Wu from the TVB footage and the photograph exhibit P12 shows the stage where Tsang was escorted.  The group can also be seen escorting Tsang in the ATV footage, exhibit P3 (2) between 01:44 and 01:50.

597.The prosecution case is that not only did D5 escort Tsang but D5 was also present when Tsang was handed over by the uniform police officers and assisted in carrying Tsang face down. 

598.The prosecution submitted that D5 is first seen in the ATV footage exhibit P3 (2) at 00:16 as shown in screen capture 4 attached to the prosecution’s closing submissions[452]. This is also captured at the end of the ATV footage between 01:33 and 01:40. The side view only can be seen and for a very short time.  This is best seen in slow motion or frame by frame.  At normal speed this is very easy to miss.  The prosecution submitted D5 is also seen in the photograph exhibit P13 appearing to be holding the left leg of Tsang[453].

599.Notwithstanding WSI Wu, who knew D5, did not identify D5 from the ATV footage or the photograph, I am nevertheless satisfied D5 can be seen on the ATV footage and is the person holding the left leg of Tsang in the photograph exhibit P13.  I am satisfied the facial appearance is the same and the clothing consistent with that seen in the TVB footage and the photograph exhibit P12. 

D6

600.Between December 2013 and July 2015 Inspector Wong (“IP Wong”) (PW40) was the Officer-in-Charge of District Investigation Team 8 of Kowloon City District. D6 was under IP Wong’s command from December 2013 until his interdiction in October 2014[454]. After D6’s interdiction IP Wong would meet D6 when D6 returned to the police station to be interviewed on a monthly basis until July 2015 when IP Wong left his post[455].

601.On 11 March 2016 IP Wong was invited by WCIP Hung to view the TVB footage P1 (a); part of P1 (g) and two parts of the ATV footage P3 (2), to see if he could recognise anyone he knew[456]. IP Wong recognised D6 on the second part of the ATV footage and marked which person was D6 on a screen capture of the shot[457].  After viewing the TVB footage twice IP Wong was unable to recognise anyone.

602.On 26 May 2016 IP Wong was invited by WCIP Hung to view the two photographs, exhibits P12 and P13.  IP Wong recognised D6 on the photograph exhibit P12 and circled D6 on a copy of the photograph[458]. IP Wong was unable to recognise D6 on photograph exhibit P13.

603.I accept the identification evidence of IP Wong.  For the reasons given when discussing the case of D1, no reliance is placed on the comparison made by CIP Chan of the warrant card photograph of D6 with the TVB footage.  In any event this evidence adds nothing to the identification of D6 by IP Wong.

604.The identification of D6 by IP Wong from the second part of the ATV footage shows the stage where Tsang was being handed over by the uniform police officers.  I am satisfied that D6 is also seen in the first part of the ATV footage exhibit P3 (2) at 00:14 as shown in screen capture 1 attached to the prosecution’s closing submissions[459].

605.The identification of D6 by IP Wong from the photograph exhibit P12 shows the stage where Tsang was escorted.  D6 is seen holding the left arm of Tsang. Notwithstanding IP Wong, who knew D6, did not identify D6 from the TVB footage I am nevertheless satisfied D6 is also seen in the TVB footage P1 (g), between 02:47 and 02:55, holding the left arm of Tsang[460]. I am satisfied the photograph exhibit P12 was taken at the same time as the TVB footage but from a slightly different angle.

606.I am satisfied D6 is also seen in the Now TV footage (exhibit P4) between 00:40-00:44, which was not shown to IP Wong, holding the left arm of Tsang as shown in screen capture 11 attached to the prosecution’s closing submissions.  The group can also be seen escorting Tsang in the ATV footage, exhibit P3 (2) between 01:44 and 01:50.

607.The prosecution submitted that photograph exhibit P13 shows D6 carrying Tsang’s left arm[461]. The photograph shows only the left side of the face of the person carrying Tsang’s left arm whereas the moving photograph in the Apple Daily footage, exhibit P2(c)[462], which was not shown to IP Wong, shows the full face of the person carrying Tsang’s left arm.  

608.Notwithstanding IP Wong, who knew D6, did not identify D6 from the photograph exhibit P13, I am nevertheless satisfied D6 is the person seen carrying Tsang’s left arm on the photograph exhibit P13 and the moving photograph.  I am satisfied the facial appearance is the same and the clothing consistent with that seen in the ATV footage and the photograph exhibit P12.  Screen capture ID3 is attached herewith showing the position of D6 on the moving photograph. 

CCTV

609.Nobody, neither Tsang nor any police officer who knew D5 or D6, was asked to see if they can identify either of the two police officers seen escorting Tsang on the CCTV recordings, exhibit P15. 

610.The appearance of the two police officers is best seen from camera 12 between 03:43:40 and 03:43:50; camera 2 between 04:51:20 and 04:51:33; and camera 14 between 04:51:48 and 04:51:58.  I am satisfied the CCTV recordings clearly show the same two police officers taking Tsang into the Central Police Station and just over an hour later out of the Central Police Station. 

611.I am satisfied the facial features of the two police officers can be seen on the CCTV recordings as for example shown in screen captures 21, 22 & 23 attached to the prosecution’s closing submissions. 

612.Having carefully viewed the video footage and looked at the photographs showing D5 and D6 and having carefully viewed the CCTV, I am satisfied that D5 and D6 are the two police officers seen escorting Tsang on the CCTV recordings. 

613.I am satisfied the facial appearance is the same in the CCTV recordings as in the video footage and photographs.  The clothing of D5 and D6 is consistent with the clothing seen in the video footage and photographs.  The T-shirt of D6, as seen for example in screen capture 23 attached to the prosecution’s closing submissions, has the same two rows of writing on the front as seen in photograph, exhibit P12.  The clothing is discussed in more detail in the next part of the verdict. 

614.I am satisfied the recognition of D5 by WSI Wu and D6 by IP Wong and the CCTV recordings provide supporting evidence for the identification of D5 and D6 by Tsang.  Furthermore, taking into account that:

(i) D5 and D6 were present when Tsang was handed over by the uniform police officers;

(ii) D5 and D6 escorted and carried Tsang prior to Tsang being assaulted;

(iii) D5 and D6 escorted Tsang to the Central Police Station after Tsang was assaulted; and

(iv) the inherent improbability D5 and D6 would handover Tsang to some other police officers only for them to collect Tsang again and take him to the Central Police Station,

I am satisfied so I am sure the only inference to draw is that D5 and D6 were two of the police officers who assaulted Tsang and then escorted him to the Central Police Station.

Clothing

615.In addition, I am satisfied supporting evidence is found from the clothing worn by D5 and D6.  Unlike the case against D1, D2, D3 and D4 the prosecution do not point to any of the clothing as being distinctive or to any particular part of the assault footage showing the clothing of D5 or D6[463]. 

616.From the video footage and the photographs, the clothing of D5 and D6 can be seen. D5 was wearing a grey T-shirt, a black sleeveless jacket and dark trousers. D6 was wearing a light blue/grey T-shirt with two rows of writing on the front, a black sleeveless jacket and blue trousers.  

617.In my view the most important feature of D5 and D6’s clothing are the shoes.  The shoes of D5 and D6 can be seen in photograph exhibit P13.  D5 and D6 are wearing similar shoes.  I would describe the shoes as black plimsolls with white laces and a white horizontal band that joins the upper shoe to the sole. The shoes can also be clearly seen in the CCTV recordings, exhibit P15, camera 12 between 03:43:40 - 03:43:50 when Tsang is taken to room 7 and camera 2 between 04:51:20 - 04:51:33 when Tsang is taken from room 7.  D6’s shoes can also be seen on the CCTV recording from camera 14 between 04:51:48 - 04:51:58.

618.There has been no identification of D5 or D6 from the footage showing the assault at the substation.  In considering the evidence, I take into account WSI Wu, who knew D5 and IP Wong, who knew D6, were unable to identify D5 and D6 from the assault footage shown to them.  Again a distinction is to be drawn between being able to recognise a person and comparing whether the clothing is the same. 

619.In the photograph, exhibit P13, showing Tsang being carried face down, D5 and D6 are seen holding the left leg and left arm of Tsang.  In the first nine seconds of the TVB footage exhibit P1 (a), also showing Tsang being carried face down[464], the persons holding the left arm and the left leg are wearing shoes with the white horizontal band.  Screen capture ID11 taken from P1 (a) is attached herewith showing the shoes of these two persons.

620.The TVB footage shows the group arriving at the substation[465].  As already discussed, D1 was holding the left leg of Tsang; D2 the left arm; D4 the right leg and as will be seen later, when discussing the case of D7, the seventh person wearing glasses was holding the right arm.  D3 was leading the group. This leaves only two persons, the one walking behind the group and the one walking on the right of D4. 

621.As these two persons walk they are both seen wearing shoes with the white horizontal band.  Screen capture ID12 taken from P1 (h) is attached herewith showing the shoes of these two persons.  Although they have by now changed position and are no longer carrying Tsang they are still together with all their team members with the addition of the seventh person.  By following these two persons as the group carry Tsang, they are seen in the position shown in screen capture 18 attached to the prosecution’s closing submissions, which is about ten seconds after Tsang is dropped on the ground.  The white horizontal bands on the shoes can also be seen. 

622.I find it an odd coincidence that the shoes worn by D5 and D6 are the same as the two persons seen walking with D1, D2, D3, D4 and the seventh person.  I am satisfied this is supporting evidence for Tsang’s identification that D5 and D6 were two of the persons who assaulted him.

623.Having carefully considered all the evidence and viewed the video evidence and photographs, I am satisfied so I am sure D5 and D6 are the persons marked by the prosecution on screen capture 18 attached to the prosecution’s closing submissions.  From the photographs, video footage and CCTV recordings the hairstyles of D5 and D6 are seen to be very different.  The video footage of the assault at the substation is, in my view, sufficiently clear to distinguish between D5 & D6. 

D5

624.I am satisfied so I am sure when the group arrived at the substation D5 was the one walking on the right of D4.  D5 is seen throughout the assault footage and is seen to kick Tsang on a number of occasions, including on one occasion during the time D2 and D3 left the substation.  D5 only left when Tsang was taken away.

625.I have carefully considered the submission of Mr Chung that the situation in Lung Wo Road around the time Tsang was arrested was very chaotic; arrested persons were handed over from one officer or team to another; the poor physical condition of Tsang and the quality of the CCTV recordings[466]. These submissions do not cause me to doubt the findings I have made. 

D6

D6 identified as the arresting officer of Tsang

626.At approximately 5.20 a.m. Tsang together with fifteen other detainees arrived at a temporary detention centre at the Police College in Wong Chuk Hang.[467]  After seeing the duty officer, Inspector Wu Zhen Dong (“IP Wu”) (PW48), Tsang waited in a room until he saw his lawyer Ms Tanya Chan.  At about 10.00 a.m. in the presence of Ms Chan,  Tsang stated he wanted to lodge a complaint of assault against the police[468].

627.The complaint was recorded in the First Information of Complaints Against Police Report (Pol. 964), exhibit P26.  In the report Tsang made complaint against six police officers.  Only one police officer was identified DPC 9008, which is the service number of D6[469].

628.Tsang said he heard the number in the detention room when forms were being filled in.  Tsang explained he was dealt with differently to the other detainees.  The escorting officers of the other detainees remained with them throughout whereas the two officers escorting Tsang went into hiding. 

629.Police officers who were filling out forms, in connection with the handover of detainees, required to know who escorted Tsang.  When a police officer asked who escorted Tsang, Tsang heard the number 9008.  Tsang did not know who said this but as a result believed one of the two police officers escorting him was DPC 9008.

630.Ms Lam submitted that the evidence of Tsang was different to what Tsang said in the Notice of Application for Leave to Apply for Judicial Review[470].  In cross-examination Ms Lam referred Tsang to paragraph 17 of the grounds on which leave for judicial review was sought[471]. Paragraph 17 stated that Tsang gleaned the police identity number 9008 from some paperwork after he had been transferred to detention in Wong Chuk Hang. 

631.Tsang disagreed this was different to his evidence and explained that he heard the number at the same time the police were dealing with the document.  Tsang said he did not see the difference between what he said in court and what was in paragraph 17.  

632.Tsang was not the only witness to give evidence about this. DSgt 51344 (PW45) and PC 9765 (PW46) also gave evidence about what happened when the detainees were taken to the detention room.

DSGT 51344

633.DSgt 51344 was responsible to supervise the detainees brought to the Police College[472].  At 6.10 a.m. sixteen detainees, including Tsang were taken to room 3 where they were each assigned a number.  Tsang was assigned number 41. 

634.DSgt 51344 explained that when the detainees were brought into room 3 the arresting officer would report to him and reveal his identity.  DSgt 51344 ascertained the arresting officer of Tsang was 9008, whose rank he recalled was that of a police constable.  DSgt 51344 did not make a record of who was the arresting officer, which was the responsibility of another police officer. 

635.In cross-examination DSgt 51344 said before going into the room the arresting officers would pass by his desk at which time they would reveal their identity.   

636.In re-examination when asked how he could remember the number of the arresting officer of Tsang was 9008 when so many detainees were processed at the same time, DSgt 51344 replied that the number was uttered and was filled in on the arrest form.  DSgt 51344 identified the Short Arrest Form, exhibit P56, as that form.  

PC 9765

637.PC 9765 was assigned the duty of completing the Short Arrest Forms.  When the detainees were taken into room 3, a triage was conducted by plainclothes police officers who recorded information, including the time and date of arrest, on a white board.  PC 9765 would copy the information onto the Short Arrest Forms.

638.PC 9765 filled in most of the Short Arrest Form in front of the detainee.  On page 1 of the Short Arrest Form exhibit P56, which related to Tsang, PC 9765 wrote down that the AO was DPC 9008.  In cross-examination PC 9765 said DPC 9008 was not written on the white board.

639.PC 9765 explained that he asked the plainclothes officer responsible for room 3 who arrested Tsang.  Several minutes later a plainclothes police officer claimed he was the arresting officer 9008.  PC 9765 therefore wrote this down in the box at the top right of page 1.   

640.On page 1 in the box for Escort Officer PC 9765 wrote QRT.  PC 9765 did not know who wrote DPC 9008 in this box.  PC 9765 also wrote on page 2, under prisoner movement, the entry for 06:10 including that the escorting officer was DPC 9008.  The time was written first from the information on the white board and the escorting officer after processing Tsang. 

641.In cross-examination PC 9765 agreed that after learning DPC 9008 was the arresting officer, he assumed he was also the escorting officer.  PC 9765 therefore wrote DPC 9008 on page 2 but forgot to write this down next to QRT on page 1.  In re-examination PC 9765 explained he forgot because he was not clear whether this was required to be written down in the box.  In answer to the court PC 9765 said he believed DPC 9008 had not been written next to QRT before he handed over the form to other police officers to process.    

Discussion

642.Although paragraph 17 of the grounds for leave do not specifically state Tsang heard the number, the difference in my view, is more apparent than real.  I accept the evidence of DSgt 51344 and PC 9765 that they were told DPC 9008 was the arresting officer of Tsang.  I accept the evidence of Tsang that he heard the number, from which he believed one of the two police officers escorting him was DPC 9008.  

643.Even if it can be said this is a material difference, the fact remains that in the Short Arrest Form DPC 9008, the service number of D6, is named as the arresting officer. 

644.It was an odd coincidence that D6, who was present when the uniform police officers handed Tsang over, who escorted and carried Tsang prior to Tsang being assaulted and later escorted Tsang to the Central Police Station and Wong Chuk Hang, was recorded as the arresting officer in the Short Arrest Form.  I am satisfied this is supporting evidence for the identification of D6 by Tsang.     

645.I am satisfied so I am sure when the group arrived at the substation, D6 was the one walking behind the group.  D6 is seen throughout the assault footage and is seen to kick Tsang on at least two occasions.  D6 only left when Tsang was taken away.

646.I have carefully considered the submission of Ms Lam including that Tsang gave no particulars of DPC 9008 when completing the First Information of Complaints Against Police Report; Tsang was in a state of shock whereby his ability to observe and remember the appearance of various police officers must have been impaired; DSgt 51344 and PC 9765 never checked the warrant card to confirm the identity of DPC 9008; and IP Wong who was very familiar with D6 was unable to identify D6 from the assault footage[473]. Nothing said by Ms Lam causes me to doubt the findings I have made. 

D7

647.The TVB footage clearly shows that when the group carrying Tsang arrived at the substation there was a seventh person.  By following the person holding the right arm of Tsang, this person is seen to turn round after Tsang was dropped on the ground and actively participate in the assault by repeatedly kicking Tsang[474]. This person is seen at various times throughout the assault footage and only leaves when Tsang was taken away when he is seen walking behind Tsang.

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

649.The prosecution case is that this person is D7.  No police officer recognised D7 on any of the video footage or from the photographs.  The only identification of D7 is by CIP Chan who compares the appearance of the seventh person on the TVB and Apple Daily footage of the assault at the substation with the warrant card photograph of D7.  Although CIP Chan was unable to see the face of the seventh person on the footage he concluded that the “seventh males’ general descriptions (e.g. wearing spectacles) resembled D7’s general descriptions.”[475]  

650.For the reasons already given that CIP Chan did not know the defendants and had not acquired any special knowledge, I am satisfied CIP Chan was in no better position than the court to make such a comparison.  The evidence in my view amounts to no more than the opinion of CIP Chan.   

651.I place no reliance on the comparison made by CIP Chan.  The video footage of the assault, whilst showing the face of the seventh person, is not sufficiently clear for the court to say that person is D7.  I therefore turn to consider whether the circumstantial evidence is sufficient from which the court can draw the inference that the seventh person was D7.

652.The circumstantial evidence may be summarised as follows:

The operation

653.As summarised at the beginning of this part SP Ng, who was in charge of Crime Group A, briefed the members of Quick Response Teams of their duties and responsibilities, including the processing of arrested persons. 

654.SP Ng said that according to the operational plan Tsang should have been arrested and taken by a crime officer to one of the coaches or cars, which were parked on Lung Wo Road near to the substation, for transport to the Central Police Station. 

D7 was on duty at Lung Wo Road

655.Admitted in evidence is that on 15 October 2014 D7 was on police duty from about 3 a.m. in the area of Lung Wo Road[476].

D7 was a member of the same team as the other defendants

656.Although some of the defendants were attached to different police districts, on that morning they were all part of the same Quick Response Team, A2-2.   D1 led the team[477]. D3, D5, D6 & D7 were deployed as members of the team with D2 the officer-in-charge of the team [478]. During the morning D4 was deployed by D2 to assist the team[479].

657.There were two other team members of QRT A2-2, DPC 8097 (PW28) and DPC 5840 (PW29), whose evidence was read[480]. At the time of the assault on Tsang DPC 8097 and DPC 5840 were processing arrested persons.

658.At about 03:15 at Tamar Park DPC 5840 took over male Lau Sze Yeung from a uniform police officer.  DPC 5840 declared arrest on male Lau for unlawful assembly and obstructing police in the execution of duties and took him to the generator room for a quick search.  DPC 5840 then escorted male Lau onto coach LZ 4923[481]. 

659.At 03:15 something under the flyover (underpass) of Lung Wo Road DPC 8097 took over male Chan Tse Kin.  DPC 8097 also took male Chan to coach LZ 4923 where he queued up to wait for details of the arrest to be recorded; photographs to be taken and to conduct a quick search[482].

660.DPC 5840 and DPC 8097 escorted the arrested persons to the Police College in Wong Chuk Hang.  The coach was first driven to the Central Police Station and then to the Police College in Wong Chuk Hang[483].

D7 wears glasses[484]

661.The seventh person was wearing glasses.  The warrant card photograph taken in May 2013 shows D7 wearing glasses[485]. DPC 8097 had worked with D7 for about one year prior to 14 October 2014.  DPC 8097 stated that D7 sometimes wears glasses but could not remember whether he was wearing glasses on the day of the operation[486].  DPC 5840 stated he had only worked with D7 for two days and had no idea of his appearance and what he was wearing on the day of the operation[487].

662.Sgt 58332 (PW44) knew D7 since late 2012 when working in different teams of the Kwun Tong Anti-Triad Section.  Sgt 58332 stated that D7 normally wears glasses.  On 14 October 2014 Sgt 58332 saw D7 on duty but did not talk to him. Sgt 58332 further stated that it seems D7 was wearing glasses that day[488]. 

663.DSPC 21077 (PW31) gave evidence that he had also worked with D7 for about one year prior to 14 October 2014.  DSPC 21077 also stated that D7 sometimes wears glasses.  DSPC 21077 saw D7 twice on the day of the operation but did not pay attention as to whether he was wearing glasses.  

Presence at the substation

664.D7 assisted DPC 8097 to take male Chan Tse Kin to coach LZ 4923.  DPC 8097 estimated that it took 20-25 minutes to walk westbound along Lung Wo Road to the coach and queue for arrested person processing[489].

665.Coach LZ 4923 was parked on the same side of Lung Wo Road as the substation[490].  Tsang was taken to the north side of the substation, which was at the opposite end of the substation to where the coach was parked. 

666.After processing D7 left to join other team members[491].  The prosecution submitted that by leaving to join other team members this is exactly what D7 should have done and was about the time the rest of the team were carrying Tsang to the substation[492].

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

668.Mr Lo submitted that it is doubtful D7 was at the substation when Tsang was assaulted[493].

Time of the assault at the substation

669.Mr Lo submitted the times shown on the TVB footage, exhibit P1 (g) are the actual times Tsang was escorted and assaulted, namely between 03:32 and 03:37[494].  No evidence was however given by TVB as to who inserted the times on the footage. 

670.In court Mr Lo submitted that the times on the footage were consistent with the evidence of David Wong.  In cross-examination when asked about the blocked shot David Wong confirmed that in his affirmation he said the assault at the substation was filmed by camera B between 03:33:08 and 03:37:48[495]. 

671.As explained earlier the evidence of David Wong that the times were real time obtained from blu-ray disc B, which was recorded simultaneously with the live transmission, differed from the evidence of Mr Lam that he burnt both blu-ray discs A & B in the afternoon.  Mr Lam being the one who burnt the discs I accept his evidence and do not rely on the times given by David Wong as being the actual times when the assault at the substation was filmed by camera B [496]. 

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

673.After Tsang was assaulted he was taken to the Central Police Station.  The CCTV recordings show Tsang entering the Central Police Station at 03:43:24.  Again as pointed out in court there is no evidence before the court that the times recorded on the CCTV are the actual times[497].

674.The Duty Officer in the Central Police Station at that time WSSgt So says that at about 03:45 two plainclothes officers and a male suspect walked past her desk[498].  Although WSSgt So did not give the names, ranks or service numbers of the plainclothes officers or the name of the suspect she does describe telling them to go to room 7, the room where Tsang was taken. 

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

Inherent improbabilities

676.Tsang was not carried direct to where the coaches and cars were parked for processing.  Instead D1-D6 carried him to the opposite side of the substation, the north side, away from the road.  As seen from the TVB assault footage as soon as Tsang was dropped on the ground the assault immediately started.  The only inference to draw is that D1-D6 took Tsang to the opposite side of the substation, from where the coaches and cars were parked, to assault him.  This is discussed later when considering the issue of joint enterprise. 

677.The assault footage shows that the seventh person was probably the first person to kick Tsang[499]. The only inference to draw is that when the seventh person assisted D1-D6, by holding the right arm of Tsang, he already knew the purpose of taking Tsang to the opposite side of the substation from where the coaches and cars were parked was to assault Tsang.

678.The act of assaulting Tsang was unlawful.  I find inherently improbable that D1-D6 would let a police officer from another team assist them to carry Tsang and witness their assault on him.  

679.I find inherently improbable a police officer who was not a member of QRT A2-2 assisted D1-D6 to carry Tsang to the substation.  By this time Tsang’s hands were handcuffed at the back with plastic zip ties.  There were six police officers taking Tsang to the substation.  There was no need for a police officer from another team to render assistance.  Six police officers were more than sufficient to escort Tsang to one of the coaches or cars for processing. 

Conclusion

680.Taking into account:

(i) D7 was a member of QRT A2-2;

(ii) D7 was by the substation when D1-D6 were carrying Tsang to the substation;

(iii) the inherent improbability that D1-D6 would let a police officer from another team assist them to carry Tsang and witness their assault on Tsang;

(iv) the inherent improbability that a police officer who was not a member of QRT A2-2 assisted D1-D6 to carry Tsang;

(v) the only other members of QRT A2-2 DPC 8097 and DPC 5840 were at the time of the assault engaged in processing arrested persons; and

(vi) D7 normally wears glasses and seems like he was wearing glasses on the day of the operation;

I am satisfied so I am sure the only inference to draw is that:

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

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

681.I have carefully considered the submission of Mr Lo including that no one has identified D7; D7’s deployment to QRTA2-2 cannot be relied on as evidence of D7’s actual involvement in the crime because there were no less than 200 plainclothes police officers on duty and police officers from different teams would lend a helping hand to other teams; there was insufficient basis for the court to say D7 wore spectacles on 15 October 2014; and that the facial features of the assailant in spectacles are exceptionally poor whereby no safe identification can be made. [500]. Nothing said by Mr Lo causes me to doubt the findings I have made.                  

Joint Enterprise

682.The prosecution case is that the defendants were acting in concert pursuant to an express or tacit agreement to cause Tsang serious injury[501].  The prosecution relied on the fact Tsang was carried to the north side of the substation and not to the south side where the waiting coaches and cars were parked along Lung Wo Road[502].

683.As summarised earlier SP Ng (PW27), who was in charge of Crime Group A, briefed the members of Quick Response Teams of their duties and responsibilities, including the processing of arrested persons[503].

684.SP Ng said that according to the operational plan Tsang should have been arrested and then taken by a crime officer to one of the coaches or cars for transport to the Central Police Station.  In cross-examination SP Ng said that the actual decision made as to what to do would be made according to the situation at that time[504].

685.The evidence of the drivers of the coaches and the cars was read and show that the coaches and the cars were parked on Lung Wo Road near to the south side of the substation[505].

686.Mr Cheng SC submitted that it was not uncommon for protestors to be brought to the substation before boarding one of the vehicles parked on Lung Wo Road[506].  In making this submission reliance was placed on the evidence of DPC 5840 (PW29); PC 12232 (PW52) and PC 8382 (PW53)[507].

687.The evidence of these three witnesses was read[508]. In summary DPC 5840 took an arrested person to the substation (generator room) for a search, describing the substation as a suitable place.  PC 12232 arrested a person who had been walking on the rooftop of the substation and searched him at the roadside near the substation.  PC 8382 brought an arrested person somewhere near the substation to sit down.  All three witnesses described that while waiting to board the coaches, other arrested persons were brought near the substation to wait for transportation.

688.Tsang was not carried direct to where the coaches and cars were parked for processing.  Instead Tsang was taken to the north side of the substation.  The video evidence is clear that on arrival at the substation Tsang was dropped on the ground and immediately assaulted.  I am satisfied so I am sure the only inference to draw is that Tsang was carried to the north side of the substation to be assaulted and not for searching or to wait for transportation. 

Participation

689.Mr Cheng SC further submitted that on the basis the prosecution was able to prove D2’s presence they were still unable to prove that D2 had taken part in the assault.  On the contrary, Mr Cheng SC submitted that the highest the prosecution could take their case was that D2 was present and that the person which vaguely or might reasonably resemble D2 made at least two attempts to stop the others from further perpetrating the assault[509].

690.Mr Cheng SC citing from Archbold Hong Kong 2017 that mere presence alone is insufficient submitted that the court cannot rule out D2 was simply present without any intention that Tsang would be assaulted.  

691.I have no hesitation in rejecting this submission.  This was not a case of mere presence.  For the reasons already given, I am satisfied D2 was the one carrying the left arm of Tsang as the group arrived at the substation[510].  The only reason Tsang was carried to the north side of the substation was to assault him. 

692.Mr Cheng SC submitted that the assault footage clearly showed that at least two persons did not take part in the assault and that if the court recognized D2 as one of the persons depicted in the assault footage then D2 was one of the two who did not take part in the assault[511].

693.Of these two persons Mr Cheng SC submitted the only one which vaguely or might reasonably resemble D2 is the person circled in red in Annex B to his closing submissions.  This person Mr Cheng SC submitted appears to make at least two attempts to stop the others from further perpetrating the assault as particularised in Annex C[512].

694.The screen captures in Annex B and Annex C are taken from the TVB footage P1 (h). Annex B is the same as the prosecution screen capture 19.  For the reasons already given I am satisfied this person is D2[513]. 

695.The TVB footage P1 (h) is an edited version of the assault.  I have looked at the full assault as shown in the TVB footage P1 (a) to see what occurred before and after each shot relied on by Mr Cheng SC[514]. Annex C (1) is seen between 26-30 seconds and Annex C (2) between 42-46 seconds on the TVB footage P1(a).    

696.The TVB footage P1 (a) at 14 seconds shows Tsang being dropped on the ground.  Between 14-26 seconds the footage shows Tsang being assaulted by D3, D4, D5 and D7.  At 26 seconds D2 is seen to turn round and quickly look at Tsang on the ground. At this time D7 can be seen kicking Tsang.  Other than looking at Tsang, D2 appears to do nothing else.  I reject that D2 was attempting to stop the assault on Tsang.  

697.The assault continued with D3, D5, D6 and D7 assaulting Tsang.  At 42 seconds D2 turns round again at which time D3 stands up and walks away from Tsang.  The assault on Tsang seems to stop. 

698.Whilst D2 may well have said something or pulled D3 away, I reject the submission of Mr Cheng SC that this negates the existence of a criminal joint enterprise[515].  Tsang was carried to the north side of the substation to be assaulted.  D2 was the one who held Tsang’s left arm.  By the time D3 stands up and walks away from Tsang the assault had lasted for almost thirty seconds during which time D2, the officer-in-charge of the team, had done nothing to stop the assault on Tsang.

699.Every police officer has a duty to intervene to prevent the commission of a crime, even by fellow police officers.  A police officer’s duty is to keep the peace. If a police officer stands by and watches his colleague beat up a suspected person, his failure to intervene is evidence of encouragement to carry out the assault[516].

700.The first thirty seconds of the assault footage shows D3 stabbing Tsang[517]; D3 stamping on Tsang; and D3, D4, D5, D6 & D7 all kicking Tsang.  The actions of each defendant are best seen by following one person at a time and viewing the footage in real time, slow motion and frame by frame.  During the period that D2 and D3 left the substation, D5 and D7 are seen kicking Tsang.  I am satisfied so I am sure D3, D4, D5, D6 and D7 intended to cause Tsang to sustain unlawful personal violence.

701.D1 and D2 are not seen assaulting Tsang.  Taking into account that D1 and D2, the leader and the officer-in-charge of the team, both carried Tsang to the north side of the substation so Tsang could be assaulted, I am satisfied so I am sure D1 and D2 were party to the assault on Tsang.  By their continued presence I am satisfied so I am sure that D1 and D2 intended to and did encourage and support the other defendants to carry out the assault on Tsang intending Tsang to sustain unlawful personal violence.   

Grievous bodily harm

702.Tsang was medically examined at approximately 11:05 a.m. on 15 October 2014 by Dr Zenith Wu at the Accident and Emergency Department of the Ruttonjee and Tang Shiu Kin Hospital.  The medical examination form completed by Dr Wu (exhibit P27 (a)) and a medical report (exhibit P27 (b)) detailing the injuries of Tsang together with photographs of the injuries (exhibit P28) taken by Dr Wu, have been admitted by agreement[518].

703.Dr Wu found the following injuries:

1.                 Swelling and painful reddish bruise on forehead, and bilateral upper face.

2.                 A linear reddish bruise area on left chin, measuring about 1.5 cm.

3.                 Multiple reddish bruises over left neck. Linear reddish bruises over lower central neck. Cervical spine not painful.

4.                 Reddish bruises over left shoulder and clavicle. Range of motion full.

5.                 Circular reddish bruises over anterior chest wall. Diameter measured around 2 cm. Painful on palpation of the sternum.

6.                 Reddish bruises over left flank. Bruise over right flank. Painful on palpation.

7.                 Multiple circular reddish bruise over the back, diameter measured 2 cm. Painful on palpation.

8.                 Left wrist reddish bruise and painful on palpation. Range of motion full.

9.                 Abrasion over right forearm and hand. Reddish bruises over right elbow region.

10.            Abrasion over left knee.

704.All the injuries were fresh[519]. X-ray performed for the whole spine, chest, right ribs, pelvis, sternum, left hip, bilateral hand and wrist, showed no fracture.  CT scan of the brain and orbit showed no intracranial haemorrhage or fracture of the skull and orbit. Tsang was treated and discharged. 

705.Admitted in evidence is the expert opinion of Dr Lai Sai Chak (exhibit P29), Senior Forensic Pathologist, on the causation of the injuries[520].  Dr Lai was provided with the medical examination form completed by Dr Wu; the medical report and the photographs.  Dr Lai gave his opinion in respect of all the injuries found by Dr Wu.  Paragraph 3 of Dr Lai’s report sets out his opinion by reference to fourteen different parts of the body where injuries were found. 

706.The prosecution case is that the injuries being numerous and extensive amount to grievous bodily harm[521]. Submissions were made that Tsang sustained all his injuries when he was apprehended and subdued by the uniform police officers, although in court this was modified to the majority were consistent with Tsang being subdued or most, if not all[522].

Evidence

707.On the voir dire Sgt 47574 (PW1); Sgt 34200 (PW2); SIP Fu (PW3); SSgt 52820 (PW4); and SIP Wat (PW5) gave evidence about how they subdued Tsang.  This evidence together with the evidence of Tsang and the evidence of SIP Lau (PW32), who was called on the general issue only, has been summarised earlier[523]. 

708.On the general issue the prosecution recalled the police officers and Tsang.  The evidence largely concentrated on whether in subduing Tsang the police officers used their batons and whether they were wearing kneecap protection kits.  I will address this evidence when considering the cause of the injuries to the chest and back of Tsang. 

709.The police officers were cross-examined on the degree of violence Tsang used to resist them and how they subdued Tsang[524]. All the police officers said that Tsang struggled violently.  At one stage Tsang fell on the ground and banged his head against a wall[525]. 

710.On the voir dire Tsang said he was pushed to the ground, assaulted, sprayed with pepper spray and handcuffed with zip wire.  In cross-examination on the general issue Tsang described being pushed off the flower bed from behind and pressed down to the ground[526]; that he was struck in the chest and back[527]; and that he believed he was hit on his chest and back with a hard object[528].   

Discussion

711.As stated earlier I accept the evidence of the police officers that Tsang struggled violently[529]. On the evidence of the police officers and Tsang there can be no doubt Tsang sustained injuries when he was apprehended and subdued by the uniform police officers. 

712.On the general issue Tsang said there were slight scratches, perhaps to his face and that he was not aware of any other scratches.  In cross-examination Tsang said he was not seriously injured before arriving at the substation[530]. 

713.In cross-examination Sgt 47574 said he did not know if Tsang sustained any injury[531].  Sgt 34200 gave evidence that he believed Tsang suffered injuries.  In cross-examination when asked about different stages of the apprehension of Tsang, Sgt 34200 variously said he believed Tsang received injuries; it was possible Tsang received injuries; and that he did not know or pay attention to whether Tsang received injuries[532]. In re-examination Sgt 34200 said that when the OC foam was rinsed off Tsang’s face he saw redness on the face and head of Tsang. 

714.In cross-examination SSgt 52820 said after Tsang banged his head against the wall he did not see if Tsang sustained any injuries because he also fell and bumped his head on the wall[533]. SIP Lau, SIP Fu and SIP Wat were not asked whether they saw any injuries on Tsang.

715.Dr Lai’s opinion is that the injuries to the chin and the lower central neck could have been caused when Tsang’s face mask was forcefully removed[534]; the injuries to the left wrist were highly consistent with injuries seen after binding by plastic zip-ties[535]; the injuries to the right arm and elbow and left forearm were probably caused when Tsang was carried by his limbs[536]; and the injury to the right hand[537] was almost certainly caused when someone grabbed his hand[538].

716.I accept the expert opinion of Dr Lai as to the probable cause of these injuries.  I find these injuries were most likely caused when Tsang was being subdued and/or carried and not when he was assaulted at the substation. 

717.In the opinion of Dr Lai the injury to the left knee was highly consistent with the result of a fall with the knee hitting the ground[539].  Tsang having fallen to the ground when apprehended and dropped on the ground at the substation, the injury to the left knee could have been caused at either time.

718.This leaves the injuries to the face; the left side of the neck; the left shoulder and clavicle; the chest; the left flank; the right flank; and the back.  In the opinion of Dr Lai some of the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank and the right flank may have been caused by kicking[540].

719.There can be no doubt Tsang sustained injuries when he was assaulted at the substation.  Viewing the assault footage, in particular the first thirty seconds which show D3 stabbing Tsang; D3 stamping and kicking Tsang and D4, D5, D6 and D7, especially D7, repeatedly kicking Tsang, I have no hesitation in rejecting the suggestion Tsang sustained all or most of his injuries when being subdued by the uniform police officers.  During the period that D2 and D3 left the substation D5 and D7 are again seen kicking Tsang.

720.I am satisfied that whilst some of the injuries may have been caused when Tsang was subdued most of the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank and the right flank were sustained during the assault at the substation. 

Chest and back

721.In the opinion of Dr Lai the circular reddish bruises over the anterior chest wall and back were almost certainly caused by a forceful poking (jabbing) action with a fully retracted PPCT Phoenix Baton or a similar instrument with exactly the same configuration[541] .

PPCT Phoenix Baton

722.Two police batons an ASP Friction Loc Baton, exhibit P22 (a) and a PPCT Phoenix Baton, exhibit P22 (b) were admitted in evidence[542].  Sgt 47574; Sgt 34200[543], SIP Lau, SIP Fu; SSgt 52820, and SIP Wat all gave evidence that on that night they were issued with the Phoenix brand batons. 

723.In cross-examination SSP Chan, who recognised D1 on the video footage, said that a uniform branch baton would not be issued to officers of Organized Crime and Triad Bureau[544]. D1 was a member of the Organized Crime and Triad Bureau[545].

724.The other defendants were crime officers attached to the Anti Triad Section of either Kwun Tong Police District or Kowloon City Police District except for D5 who was attached to Regional SD Squad of Kowloon East[546]. 

725.SP Ng (PW27) gave evidence that during the operation he was in charge of about 150 crime officers called Crime Group A, which consisted of eight Quick Response Teams and fourteen video teams.  D2, D3, D5, D6 and D7 were deployed as members of Quick Response Team A2-2 and D4 as a member of a video team[547].

726.Admitted in evidence is that on 14 October 2014 SPC 22534 issued twelve retractable ASP Friction Loc Batons to D3.  The batons were returned to SPC 22534 after the operation by DPC 8097 (PW28).[548] DPC 8097 and DPC 5840 (PW29) were members of the same Quick Response Team as D3 and had been given a baton by D3 for use in the operation[549]. 

727.The defendants being crime officers and not uniform officers, the defence submitted that it was farfetched to suggest they borrowed a Phoenix baton to assault Tsang[550].  I have no hesitation in rejecting the submissions that because the defendants were not issued with Phoenix batons they could not have caused the injuries found on the chest and back of Tsang.   

728.All the uniform police officers testified that they did not use their police batons in overcoming the resistance put up by Tsang.  Sgt 47574 did not pay attention to whether other police officers used their baton; SIP Fu, SSgt 52820 and SIP Lau did not see any police officer use their baton.  SIP Wat was not asked if he saw any police officer use their baton.  I accept the evidence of the police officers. 

729.Mr Cheng SC submitted that if the uniform police officers did not use their batons the only plausible explanation for the injuries is that Tsang was assaulted not by the defendants (who did not possess the PPCT Phoenix Batons) but by another group of police officers who did possess PPCT Phoenix Batons[551].  A similar submission was also made by Mr Lam[552].

730.I have no hesitation in rejecting this submission. For the reasons already given, I am satisfied the defendants did assault Tsang.   Furthermore, the evidence of the police officers does not stand alone.  A careful viewing of the video footage in slow motion shows Tsang being stabbed on at least two separate occasions[553].

731.The TVB video footage P1(g)between 03:11 and 03:13 and (h) between 00:25 and 00:27[554] show D3 holding something in his hand, the shape of which is consistent with a baton.  D3 is seen stabbing Tsang twice, which action is consistent with what Dr Lai calls a forceful poking (jabbing) action.  Whether D3 stabbed Tsang more than two times cannot be seen.  This part of P1 (h) was played in court during the prosecution’s closing submission.  Screen capture A1 taken from P1 (h) is attached herewith showing the stabbing action.    

732.Six seconds later between 03:17 and 03:19 on P1 (g) and between 00:31 and 00:33 on P1 (h), D3 is seen to move and again stab Tsang twice on a different part of his body, as shown in screen capture A2 attached herewith, taken from P1 (h). Again whether D3 stabbed Tsang more than two times cannot be seen because D1 is standing in front of Tsang and D3.  Although on this occasion it is very difficult to see whether D3 is holding something in his hand the action is also consistent with what Dr Lai calls a forceful poking (jabbing) action and not with someone punching Tsang.      

733.The video footage together with the evidence of the uniform police officers that they did not use or see any police officer use their baton when subduing Tsang provides cogent evidence that D3 used a Phoenix baton to stab Tsang causing some, if not all, of the circular reddish bruises. 

Kneecap

734.Sgt 34200; SIP Lau; SIP Fu and SIP Wat all gave evidence they were wearing kneecap protection kits[555] whereas SSgt 52820 said he was not wearing a kneecap protection kit.  In cross-examination Sgt 47574 said he did not remember whether he wore a kneecap protection kit[556].  

735.A kneecap protection kit, exhibit P40, was produced by Sgt 34200 in re-examination.  In a supplemental report, exhibit P29 (a), Dr Lai examined a police kneecap of the same configuration as exhibit P40 to see if the kneecap could have caused these injuries[557]. Dr Lai was of the opinion that the kneecap did not seem to produce an injury easily, however when the whole body weight was used to exert pressure, especially against resistance, it was conceivable the kneecap could produce braided abrasions at the edge[558].

736.In conclusion Dr Lai was of the opinion that it was doubtful whether the kneecap had caused all the circular reddish bruises; that his original opinion the circular reddish bruises were caused by a fully retracted PPCT Phoenix Baton still stands; and that as the injury to the central chest seemed rather convincingly (sic), he did not completely exclude the kneecap was the only causative instrument that had caused all the circular reddish bruises found on Tsang’s body[559].

737.The opinion of Dr Lai that he could not completely exclude the kneecap was the only causative instrument that had caused all the circular reddish bruises found on Tsang’s body was premised on the basis that the injury to the central chest was caused by a kneecap protection kit.

738.I am satisfied this conclusion is not supported by evidence.  The evidence of the uniform police officers is that when being subdued Tsang fell on the ground face down and that in subduing Tsang they did not use their knees to press on his chest.  Only Sgt 34200 said he used his knee to press on Tsang. 

739.In summary Sgt 47574 grabbed Tsang on the planter by putting his arm around Tsang’s neck.  Sgt 47574 pressed Tsang down causing Tsang to kneel/squat down. As Tsang resisted, Sgt 34200 and SIP Lau assisted Sgt 47574 by pulling Tsang down from the planter to the pavement.  Tsang continued to struggle resulting in Sgt 34200 spraying OC foam in Tsang’s face.  When Tsang struggled even more intensely, SSgt 52820 assisted by putting his arm around Tsang. 

740.Tsang still continued to resist by swinging his body from side to side causing both SSgt 52820 and Tsang to fall on the ground.  Tsang still continued to struggle.  At this stage Sgt 34200 said he used his knee for two to three minutes to press against the upper body of Tsang to stop Tsang struggling so intensely.  After Tsang was handcuffed with his hands behind his back the police officers helped Tsang to stand up. 

741.In cross-examination Sgt 34200 said that when Tsang was on the ground his face and chest were downwards; Tsang faced the ground for more than two to three minutes; and that during this time he used his kneecap protection kit to press against the upper body of Tsang to stop Tsang struggling so intensely[560].

742.SIP Lau gave evidence that when Tsang was pulled to the ground he was face down. SSgt 52820 gave evidence he only saw Tsang face down and in cross-examination said when colleagues were pressing Tsang down Tsang was facing downwards[561].  SIP Wat gave evidence that when he first saw Tsang on the ground he was facing down which he confirmed in cross-examination saying Tsang was still face down as he continued to struggle[562].

743.In cross-examination Sgt 47574 said he did not press on Tsang’s back to subdue him; and did not see any other police officers do that.[563]  SIP Lau gave evidence that he could not be sure whether he put his knee on the back or chest of Tsang to restrain him.  SIP Fu had no recollection of using his kneecap protection kit to press Tsang down or of using his knees to apply force to Tsang.  SSgt 52820 gave evidence he did not use his knees to keep Tsang down. SIP Wat gave evidence that apart from grabbing Tsang’s hand he did not use any other force on Tsang. 

744.Ms Lam submitted there were material discrepancies in the evidence of the police officers[564]. In a fast evolving situation with police officers arriving at different times, it is not surprising there are differences in their evidence. 

745.The differences Ms Lam points to, for example whether Tsang was squatting or had fallen on the ground; whether SIP Lau assisted before or after Tsang was pulled down from the flower bed and how Tsang was subdued, are more apparent than real. 

746.SIP Lau’s evidence that he did not see any colleagues use their knees to press against the back of Tsang was confined to the two officers who he first saw struggling with Tsang and did not refer to Sgt 34200[565]. 

747.Ms Lam further submitted that the two circular reddish marks on the chest could have been caused by an unknown police officer[566]. The basis of this submission was that in their evidence Sgt 34200, SIP Lau, SIP Fu and SSgt 52820 all referred to a police officer who they did not know or identify.  

748.On the voir dire Sgt 34200 referred to two officers assisting him in subduing Tsang, SSgt 52820 and one other who he did not know.  In cross-examination on the general issue Sgt 34200 said he could not be sure if this officer was also a PTU officer as he did not pay attention to his number[567].

749.In his evidence Sgt 34200 made no mention of SIP Wat, who assisted in handcuffing Tsang.  In cross-examination on the general issue Sgt 34200 said SIP Wat assisted in handcuffing Tsang[568]. Ms Lam submitted the other officer could not have been SIP Wat because SIP Wat and Sgt 34200 were both in the same team, PTU Training Team 1. 

750.Whilst there may be some doubt as to the identity of this officer I have no hesitation in rejecting the submission this officer may have caused injuries to Tsang by the use of his baton or a kneecap protection kit.  In cross-examination on the general issue Sgt 34200 said this officer struggled with Tsang during which time the officer tried to grab hold of Tsang with his hands; the officer did not have to use his knees when catching Tsang and that he did not see any officer use their baton[569].

751.On the general issue SIP Lau gave evidence that when he arrived at the pavement with Sgt 34200, he saw Tsang struggling with two police officers in uniform.  In cross-examination SIP Lau said he learnt the identity of one officer after attending court[570]. In re-examination he said this was SSgt 52820.

752.On the voir dire SIP Fu gave evidence that he also saw SSgt 52820 and another officer struggling with Tsang.  SIP Fu said SSgt 52820 and the other officer were from Company E.  SIP Fu did not know the other officer. 

753.In his evidence SIP Lau made no mention of SIP Fu or SIP Wat.  Ms Lam submitted the other officer could not have been SIP Fu or SIP Wat because they were all members of the same team, PTU Training Team 1. 

754.Again whilst there is some doubt as to the identity of this officer I have no hesitation in rejecting the submission this officer may have caused injuries to Tsang by the use of his baton or kneecap protection kit. 

755.I accept the evidence of SIP Fu and SIP Lau that they did not see any officer use their baton when apprehending Tsang.  In cross-examination both SIP Fu and SIP Lau said the two officers were not issued with kneecap protection kits[571].  This evidence is consistent with the evidence of SSgt 52820 who said he was not wearing a kneecap protection kit.  Further in cross-examination SIP Lau specifically said he did not see the two officers who were struggling with Tsang use their batons or their knees to press against the body of Tsang[572]. 

756.On the general issue SSgt 52820 gave evidence that another police officer helped lift Tsang up.  SSgt 52820 did not specify who helped him.  The ATV video, exhibit P3 (2) clearly shows this was SIP Fu.  In explaining this submission in court Ms Lam accepted that the footage shows SIP Fu helping SSgt 52820 to lift Tsang up. 

757.I accept the evidence of the police officers.  I am satisfied there is no evidential basis to support Dr Lai’s opinion that the injury to the central chest was caused by a kneecap protection kit.  

758.I accept Dr Lai’s opinion that it was doubtful whether the kneecap had caused all the circular reddish bruises; and that his original opinion the circular reddish bruises were caused by a fully retracted PPCT Phoenix Baton still stands.  I am satisfied that I can safely exclude the kneecap as the cause of all the circular reddish bruises found on Tsang’s body. 

759.I accept the evidence of Sgt 34200 that he used his kneecap protection kit to press on Tsang.  There is, however, a question mark over whether Sgt 34200 was wearing his kneecap protection kit at that time.  The ATV footage, exhibit P3 (2), shows that when SIP Fu and SSgt 52820 were helping Tsang to stand up after Tsang had been subdued, Sgt 34200 was not wearing a kneecap protection kit.

760.When the court drew this to the attention of Sgt 34200, the Sgt explained that he was wearing his kneecap protection kit that night but could not be sure if he had taken the kit off.  In re-examination Sgt 34200 said he had no recollection of taking the kit off; the kit could easily come off, especially when there was an intense struggle; and that he had a deep impression he was wearing his kit that night because he had problems with his knees and had to wear the kit when working. 

761. Even if Sgt 34200 was wearing his kneecap protection kit when he used his knee for two to three minutes to press against the upper body of Tsang, this does not cause me to doubt that D3 used a PPCT Phoenix Baton to stab Tsang causing some of the circular reddish bruises. 

Conclusion

762.On the evidence I am satisfied so I am sure that D3 used a PPCT Phoenix Baton to stab Tsang causing some, if not all, of the circular reddish bruises.  In making this finding I reject the prosecution submission that it was pertinent to note that during the assault D2 and D3 left for about one minute thereby suggesting the baton may have been obtained at that time[573].  As pointed out in court the video footage shows that when D2 and D3 returned they were not seen carrying anything and there would appear to be no further assault.

763.The fact that D3 was a crime officer and not a uniform officer and had been issued with twelve retractable ASP Friction Loc Batons that day, does not cause me to doubt that D3 used a Phoenix baton to stab Tsang causing some of the circular reddish bruises.  As submitted by most counsel there were many uniform police officers involved in the clearance operation.  D3 could have obtained a PPCT Phoenix Baton at any time that night. 

Grievous bodily harm or assault occasioning actual bodily harm?

764.In R v Bollom[574] a seventeen month old baby had suffered extensive bruising and abrasions over the whole of her body.  The Court of Appeal held in deciding whether injuries are grievous, an assessment has to be made of the effect of the harm on the particular individual.  In determining the gravity of the injuries it was therefore necessary to consider the injuries in their real context.  The court said that injuries on a six foot adult in the fullness of health would be less serious than on an elderly or unwell person, someone who was physically or psychiatrically vulnerable or on a very young child. 

765.Mr Marash SC submitted Tsang being handcuffed at the back and therefore unable to defend himself was a vulnerable person[575]. I disagree.  There is no evidence before the court that Tsang was not a person in the fullness of health.  The Court of Appeal in my view when saying a person was physically vulnerable was not referring to a person who was handcuffed but rather to some physical disability.

766.Having carefully considered the medical evidence and the photographs of the injuries, I am not satisfied the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank and the right flank and the circular reddish bruises on the back and chest, when viewed collectively, albeit extensive, constitute grievous bodily harm.  

767.In Bollom the Court of Appeal held that it was incumbent on the judge to direct the jury that they had to be sure not only that the injuries, viewed collectively, constituted grievous bodily harm, but also that they had been inflicted by the defendant as part of one assault rather than on different occasions as part of a separate assault. 

768.The Court of Appeal found the injuries on the baby constituted grievous bodily harm, however, the judge having failed to give this direction, and considering the lack of direct evidence, quashed the conviction for causing grievous bodily harm.  The court went on to find that the evidence strongly supported the prosecution case that at least some of the injuries were inflicted by the appellant and substituted a conviction for assault occasioning actual bodily harm. 

769.I am satisfied so I am sure that all the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank and the right flank and the circular reddish bruises individually amount to actual bodily harm. Assault occasioning actual bodily harm is an alternative verdict open to the court[576].

770.I am satisfied so I am sure that whilst some of the injuries may have been caused when Tsang was subdued, most of the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank and the right flank and some of the circular reddish bruises were sustained during the assault at the substation. 

771.I am satisfied so I am sure that the defendants by taking Tsang to the north side of the substation intended to assault Tsang causing him unlawful personal violence.

772.I am satisfied so I am sure the prosecution have proved all the elements of the offence of assault occasioning actual bodily harm against each defendant beyond reasonable doubt, the case against each defendant having been considered separately. The defendants are found not guilty of causing grievous bodily harm with intent and guilty of assault occasioning actual bodily harm[577].

Charge 2 – Common assault

773.In summary the prosecution case is that whilst Tsang was waiting inside room 7 of the Central Police Station, before being taken to the Police College in Wong Chuk Hang, he was slapped on the face by D5.  Tsang is the only witness who has given evidence about what happened inside room 7.

774.In summary Tsang testified that after being assaulted at the substation he was frogmarched to Lung Wo Road where he boarded a car.  Two of the police officers who assaulted Tsang sat on either side of him in the car.  Tsang was taken to the Central Police Station where the two police officers escorted him to room 7.  Tsang said that the two police officers seen on the CCTV recordings, escorting him in the police station, were the same two police officers who had sat next to him in the car.  

775.Most of the time one of the police officers remained in the room with the other one standing at the doorway.  One of the police officers told Tsang to put his belongings in a plastic bag.  One of the items Tsang put in his bag was his mobile phone.  Tsang then waited in the room.  In cross-examination Tsang said the only items he put in the bag were his mobile phone and a packet of tissue paper.  After he did this he was searched[578].

776.At one stage the two officers walked out of the room for a discussion.  Tsang took this opportunity to take his mobile phone out of the bag and photograph his face.  Tsang then switched off his mobile phone and put the phone back in the bag.  In cross-examination Tsang said he took three photographs.

777.Tsang believed the police officers may have seen him taking photographs because they asked him to give them his phone and unlock the phone.  Tsang refused.  The police officers believing the phone could be unlocked with fingerprints discussed whether to force Tsang to unlock the phone.  Tsang responded by telling the police officers not to be so stupid because the phone was switched off and the password was needed to turn on the phone. 

778.One of the police officers then used the back of his hand to slap Tsang twice, on the right side of his face.  Tsang still refused to unlock his phone.  In cross-examination Tsang agreed that while he was in the police station he closed his eyes and tried to get some rest.  Tsang disagreed that somebody might have touched his face to wake him up when his eyes were closed, saying if that happened he would have felt that. 

779.Tsang then waited in the room until he was taken to the Police College in Wong Chuk Hang. 

780.Tsang identified D5 as the police officer who slapped him and D6 as the police officer who was present when he was slapped.   The identification of D5 and D6 was by way of direct confrontation.  This evidence has been discussed earlier when considering the case of D5 and D6 on charge 1.  For the reasons already given, I admitted in evidence the direct confrontations[579]. 

781.This leaves for consideration of the court whether Tsang was slapped on his face inside room 7 and if he was, whether D5 was the police officer who slapped him.

Discussion

782.Mr Chung submitted that Tsang’s description of being slapped inside room 7  was inconsistent, contrary to common sense and other evidence available and was unreliable whereby the court cannot be satisfied as to what actually happened inside room 7[580].

The three photographs

783.Much of the criticisms of Tsang’s evidence revolve around his assertion that whilst in room 7 he took three photographs of his face.  Mr Chung submitted that this assertion was unreasonable, the CCTV recordings showing Tsang’s hands were tied at his back when he entered the police station and when he left room 7[581].

784.I accept Tsang’s explanation given in cross-examination when asked by Mr Chung how he managed to take the photographs if his hands were tied.  Tsang explained that he asked the police officers to release the plastic ties because they were too tight and very painful.  After being searched the police officers put new zip ties on him.   

785.The CCTV recordings (camera 2 at 04:51:31) show D6 was holding a plastic bag when the police officers and Tsang left room 7.  D6 is also seen holding the plastic bag in his left hand in camera 14 at 04:51:31 as shown in screen capture 23 attached to the prosecution’s closing submissions. 

786.The CCTV recordings camera 14 between 03:43:20 and 03:43:29 and camera 12 between 03:43:40 and 03:43:50 show that neither D5 or D6 were carrying this bag when they entered the police station with Tsang.  I am satisfied the CCTV recordings support Tsang’s evidence that he was told to put his belongings in a plastic bag.  

The time the photographs were taken

787.In cross-examination Tsang said the three photographs were taken at 4:33 whereas in re-examination when the photographs were shown to the court and the parties, the time shown on the phone was 4:18[582]. Mr Chung submitted that Tsang offered no explanation for this mistake and deliberately avoided the truth about the photographs being revealed[583]. 

788.The time the photographs were taken first arose in cross-examination when Mr Chung played part of the CCTV recordings to Tsang showing two female police officers entering room 7.  The Duty Officer, Woman Station Sergeant So (“WSSgt So) (PW47), whose evidence was read[584], walked past room 7 when the arrestee called to her.  WSSgt So therefore entered the room together with WPC 57215.  On being asked by the arrestee how his case would be handled WSSgt So replied that together with forty odd arrestees he would be escorted to a temporary detention centre for handling.

789.Before playing the CCTV recording Mr Chung referred Tsang to the Notice of Application for leave to apply for Judicial Review (Form 86)[585], in particular part A3 which concerned the allegation of assault in room 7.  After reciting that Tsang had been slapped twice, paragraph 21 reads “The Applicant (Tsang) yelled in Cantonese that he needed someone urgently as he was being attacked.  His request was refused.   The officers declined to provide their identities.”  In cross-examination Tsang agreed this was true. 

790.Asked by Mr Chung if there was any consequence of his yelling, Tsang replied “No.”. Mr Chung then put that two female officers went into room 7 at some stage. Tsang said he remembered that they might have taken a look at the door but did not examine his injuries.  Asked if two female officers went into room 7 as a result of his yelling, Tsang again replied “No.”.   Mr Chung then played the CCTV recording to Tsang[586].

791.Tsang said he had no recollection what the two female officers were doing inside room 7 during that time.  Tsang first said he had no recollection he called them into the room and then agreed he called them into the room to ask what was going on.  Tsang had no recollection he asked how his case was to be handled and that he was told together with forty odd other arrested persons he would be transferred to a temporary detention centre. 

792.Mr Chung then asked Tsang if he had any recollection whether the two female police officers came into room 7 after he was slapped.  Tsang replied “No.”.  Mr Chung next asked Tsang:

Q.  “So you cannot tell whether it’s before or after the slapping?”  

A.   “If you are only asking me whether I have any recollection as to the time, no, I don’t.  But based on the time shown on the CCTV, I believe this period of time was before the occurrence of the slaps.  According to the photos I took of myself, the time was 4.33, and it was afterwards that I was slapped.”

793.In re-examination Tsang said the photographs were still on his phone.  The photographs were then shown to the court and the parties.  After showing the photographs Mr Marash SC asked Tsang if there was a time shown when the photographs were taken.  Tsang replied yes and said the time was 4:18. 

794.Asked by Mr Marash SC if the earlier time of 4:33 was a mistake, Tsang replied that he was mistaken and that he believed the correct time was 4:18.  Tsang explained how to access the time by clicking on the photograph once.

795.I directed copies to be made of the three photographs and further copies to be made showing the time 4:18[587]. There followed a discussion between the court and the parties as to how the copies were to be made.  Mr Tang, the junior to Mr Cheng SC, applied for the soft copy of the files so as to disclose when the file containing the photographs was created.

796.Agreement was reached that after the court adjourned the phone would be taken to the Police Headquarters on Arsenal Street for hard copies of the three photographs to be made together with an exact duplicate of the soft copy of the three photographs.   Tsang agreed to give his phone to the police for this purpose. I further directed that Tsang and a representative of the defence should be present when the copying was done by the police.  

797.PC 8774 (PW56), whose evidence was read[588], was responsible for making the copies.  After PC 8774 convinced Tsang that the data in his phone would not be leaked or accessible to a third party, Tsang agreed for his phone to be examined by using a Mobile Device Forensics tool “ACESO KIOSK”. 

798.The examination was however unsuccessful due to encryption.  Tsang refused to leave his phone for further forensic examination.  WSgt 18819 also suggested a further examination by “ACESO KIOSK” after Tsang first removed the password. Tsang again refused because he did not want to waste more time. 

799.PC 8774 then examined the phone manually and copied the photographs.  Examination of the phone was completed at 20:26 hours.  PC 8774 was therefore unable to confirm the three photographs were the original photographs and that the date and time shown on the photographs were accurate. 

800.I have no hesitation in rejecting the submission that Tsang deliberately avoided the truth about the photographs being revealed.  Tsang was in court when the defence applied for the soft copy/history of the photographs and was fully aware of what the police were going to do when he agreed to hand over his phone to the police for examination.  When Tsang was convinced the data in his phone would not be leaked or accessible to a third party he allowed the police to examine his phone.

801.This in my view is not the action of a person who wants to deliberately avoid the truth about the photographs being revealed.   The fact that Tsang after being in the police station for over two hours refused further examination by “ACESO KIOSK” and refused to leave his phone with the police overnight for other forensic examination does not cause me to doubt his evidence. 

802.I accept the time Tsang gave in cross-examination was a mistake.  Tsang was explaining that he believed he was slapped after the two female police officers entered the room.  Whether the photographs were taken at 4:18 or 4:33, both times are after the two female police officers had been in the room.  This discrepancy in the evidence does not cause me to doubt Tsang’s evidence that he was slapped on the face inside room 7. 

803.In addition, I have compared the background of the three photographs with the photographs of room 7, exhibit P25, photographs 17-19.  In evidence Mr Marash SC showed Tsang photograph 19.  Tsang said he was sat on the black chair in front of the blue wall. Photograph 19 shows that on the blue wall behind Tsang are two notices, most probably informing a suspect of his rights.  The notices are covered by either plastic or glass sheets which are screwed to the wall. 

804.I am satisfied that the three photographs taken by Tsang are consistent with the appearance of room 7 as shown in photograph 19.  A careful look at the three photographs taken by Tsang reveal that to his right is what appears to be the left corner of the plastic/glass sheet showing the top screw, which is nearest to the ceiling and the white coloured wall.   This is best seen on photograph P39 (4), which is the photograph with the time 8:33 PM at the top. 

Failure to disclose the existence of the three photographs

805.Mr Chung submitted that Tsang’s explanations for failing to disclose the existence of the three photographs in the Judicial Review proceedings; to CAPO or to the Department of Justice, were unconvincing and unacceptable and showed that either Tsang was not telling the truth or was very calculated by withholding important evidence to use only when beneficial to him[589].  Ms Lam also made a similar submission[590].

806.In cross-examination Tsang said he never told any police officer about taking the photographs but told his legal representatives when he first saw them in Wong Chuk Hang.  Although Tsang had his phone with him he did not show the photographs to his lawyers at that time because they were busy talking about other things.  Tsang said he should have shown the photographs to the lawyers the next morning. 

807.Tsang did not disclose the existence of the photographs when he applied for judicial review because he believed other photographs were used which were taken by his lawyers, including showing his front and back.  Tsang disagreed it was a deliberate decision not to disclose the three photographs, saying that he was not trying to hide anything. 

808.Tsang further explained he did not tell CAPO because neither he nor his lawyers trusted that CAPO would carry out an investigation independently and fairly. Tsang disagreed he deliberately chose not to disclose the existence of the three photographs to the Department of Justice.

809.I accept Tsang’s explanation for not disclosing the existence of the photographs to CAPO.  The distrust of CAPO by Tsang and his lawyers is made very clear in the affirmation of Ms Tanya Chan, filed in support of the application for leave to apply for judicial review[591].

810.I accept the explanation given by Tsang for not disclosing the three photographs in the judicial review proceedings was because there were other photographs taken by his lawyers showing his front and back.  In the Notice of Application for Leave to Apply for Judicial Review[592] reference is made to an urgent application for leave being filed on 16 October and that later the same day the Department of Justice asked for clearer copies of the photo exhibits showing the injuries to Tsang’s body sustained in the police beating[593].

811.Tsang should however have disclosed the existence of the three photographs to the prosecution once a criminal investigation had been commenced.  The fact Tsang did not disclose the existence of the three photographs does not however cause me to doubt his evidence that he was slapped inside room 7.

Conclusion

812.I have carefully considered all the evidence and the submissions of Mr Chung, including that it is difficult to accept that Tsang had no recollection of why WSSgt So entered room 7 and no recollection other uniform officers entered the room[594]; there was hardly sufficient time for Tsang to take three photographs during the time both officers were out of the room; the duration the police officers were in the room was not enough for all the events described by Tsang to occur, including being slapped on the face; Tsang did not say he yelled after he was slapped until he was confronted with the content of the leave application for Judicial Review; and the discrepancy in Tsang’s evidence on the voir dire and the general issue as to the time he spent in room 7[595].  

813.I have also considered the submissions made by Ms Lam relating to the credibility and reliability of Tsang’s evidence of what happened in room 7, in particular that there were material differences between Tsang’s evidence and the allegations made in the Notice of Application for Leave to Apply for Judicial Review[596].  The differences in how Tsang was asked to unlock his phone are, in my view, more apparent than real.  The essence is the same that because Tsang refused to unlock his phone he was slapped on his face. 

814.I am satisfied so I am sure I can safely rely on the evidence of Tsang that while he was inside room 7 he was slapped on his face twice.  Nothing said by Mr Chung or Ms Lam cause me to doubt that while Tsang was inside room 7 he was slapped on his face twice.

Identification

815.Mr Chung submitted that no weight should be given to Tsang’s identification of D5 as the police officer who assaulted him in room 7[597].  I have already dealt with the submissions as to the time Tsang had to observe D5[598] and the effect of being sprayed with OC foam[599].

816.For the reasons already given, I am satisfied so I am sure I can safely rely on the identification by Tsang that the two police officers who escorted him to room 7 were D5 and D6[600]. I am satisfied so I am sure I can safely rely on Tsang’s identification of D5 as the police officer who slapped him on the face.

817.I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt.  D5 is convicted of common assault.    

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