HKSAR v. Chan Ho Ming

FAMC No. 15 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 145 OF 2015)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal after hearing counsel for the applicant and indicated that we would give our reasons in due course.  We now hand down the reasons for our decision.

The charges and convictions

2.The applicant was convicted of two counts of indecent assault.[1] The charges were based on events which occurred on 19 May 2014 and 5 August 2014 respectively.  The first incident took place in a Light Rail Transit (“LRT”) train carriage and the second incident took place at Tuen Mun MTR Station.

3.The primary prosecution evidence was that of the female victim, who gave evidence at trial as PW1.  She testified that she had been on an LRT train at around 7.45am on 19 May 2014 when she felt something soft rubbing against her left and right buttocks.  Turning around, she saw a man’s abdomen just two inches away from her buttocks.  She believed the man had rubbed his abdomen against her buttocks and continued to observe the man, noticing that he wore spectacles with thick black rims, had a mole on his left cheek and not much hair on his head.  After she alighted from the train, she did not accost the man but texted her boyfriend to complain she had been indecently assaulted but added that, were she not in a hurry to get to work, she would have pursued her complaint.

4.As to the second incident, PW1 testified that at around 7.42am on 5 August 2014 she was at Tuen Mun MTR Station and was about to change onto the West Rail Line.  She had reached the foot of escalator E7 which led up to the West Rail platform.  Before stepping onto the escalator, she sensed her left buttock being touched.  She noticed out of the corner of her eye a man’s hand being retracted from near her left buttock.  She noticed that the man wore spectacles with thick black rims, had a mole on his left cheek and not much hair on his head.  She also noticed he had a rucksack on his back.  Stepping aside to let the man precede her onto the escalator, PW1 followed him up the escalator one step behind.  Whilst on the escalator, she recognised the man as the same man from the incident on 19 May 2014.  She kept an eye on him and, on reaching the top of the escalator, approached an MTR staff member to make a complaint.  She led the staff member to the man and said that he had indecently assaulted her.  This led to a report being made to the police and the applicant was arrested at the scene.

5.The applicant did not testify or call any witnesses.  The magistrate found PW1 to be an honest and reliable witness.  He considered the second charge first and was sure that PW1’s identification of the applicant as the man who touched her buttocks to be correct.  He was also sure PW1 did not mistake the applicant’s rucksack for a hand, that having been suggested by the applicant in his interview with the police under caution.  As for the first charge, the magistrate was sure that PW1’s identification of the applicant was correct and reliable and that the applicant had used his abdomen to rub against her buttocks.  The magistrate therefore found the applicant guilty of both charges and sentenced him to 14 days’ imprisonment on the first charge and two months’ imprisonment on the second.

The appeal to the Court of First Instance

6.On his appeal against conviction,[2] the judge considered and rejected each of the grounds of appeal raised by the applicant.  One of the contentions, advanced before the judge below as Ground (1) of the appeal, was that the prosecution failed properly to comply with its duty of disclosure in that it failed to disclose to the applicant the CCTV footage taken at the time and place of the incident forming the subject of the second charge.  The applicant contended that this failure deprived him of the right to a fair trial and rendered his convictions unsafe and unsatisfactory.

7.There were in fact CCTV recordings captured by four cameras at Tuen Mun MTR Station and these had been provided by the MTR to the police.  A policeman (DPC 9916) had viewed these recordings and concluded that it was not necessary for the police to seize these recordings as evidence since they did not capture the location of the offence, namely the foot of escalator E7.  Consequently, the recordings were not retained and the tapes had been overwritten by new recordings.

8.Having considered various authorities on the prosecution’s duty of disclosure, the judge rejected this ground of appeal.  He applied the test of “whether owing to the absence of the CCTV recordings, the defence would suffer serious prejudice to the extent that a fair trial could not take place.”[3] He was satisfied that there was no bad faith on the part of the police in not seizing the CCTV recordings.  The prosecution filed further evidence including recordings from the same four CCTV cameras.  Each of the four cameras was fixed and not movable during daily operation.  The judge found that only one of the cameras (identified as TA3-Unpaid) covered a small part of escalator E7 but its foot was obstructed by a pillar on the concourse[4] and that none of the CCTV recordings would have been able to film the location of the offence at the foot of escalator E7.[5] 

9.The judge considered each of the arguments advanced by the applicant as to why the missing CCTV recordings might have been relevant to core issues in the trial but concluded that their relevance was “minimal and at its best marginal”, that the possibility they would have assisted the defence case was “remote and speculative” and that he was left in no doubt that the applicant’s trial was not prejudiced by the missing recordings to the extent that a fair trial was not possible.[6]

This application

10.On this application, Mr Edward Tang, counsel for the applicant, did not contend that the judge applied the wrong test in law in determining whether the prosecution had failed to comply with its duty to disclose the CCTV recordings.  He submitted, however, that the judge materially erred in fact in finding that the foot of escalator E7 was not captured in the relevant CCTV footage and that this fundamental misconception of the facts constituted a substantial and grave injustice to the applicant.

11.Still images from each of the four cameras were relied on in support of this application, as they were before the judge below.  It was submitted that, contrary to the judge’s finding, camera E7 does in fact capture the entire escalator E7 from the top to the bottom and therefore includes the foot of that escalator.  Similarly, it was submitted that camera TA3-Unpaid captures the entry to escalator E7 and a portion of its foot.  Hence, it was submitted that the judge was incorrect in finding that the foot of escalator E7 is not captured by any of the CCTV cameras.

12.Whilst it is correct, as Mr Tang submitted, that the bottom of escalator E7 can be seen from camera E7, the portion of that area visible, albeit at some distance, is directly facing the camera so that the image recorded would only show the front of a person stepping onto the bottom of the escalator.  Furthermore, that person’s image would be wholly or partially obscured by any people also on the escalator at the time.  The people behind the persons at the foot of the escalator would not be visible.  So far as camera TA3-Unpaid is concerned, the bottom of escalator E7 is shown leading upwards to the platform but the area at the foot of the escalator is, as the judge correctly observed, blocked from view by a pillar on the station concourse.  The bottom of the escalator is, moreover, relatively dark and images of people there would be difficult to make out clearly.

13.In short, although the judge’s description of the CCTV recordings not capturing the foot of escalator E7 at all may be susceptible to the quibble that it is not strictly accurate, the fact remains that the applicant’s physical contact with PW1 would not have been shown and the judge was correct that the recordings would not have assisted him in evaluating the evidence in that PW1 and the applicant would not have been sufficiently clearly visible in any of the recordings to shed any light on the accuracy of PW1’s evidence or on the suggested defence that it was the applicant’s rucksack, worn on his front, that touched her buttocks rather than his hand. In his thorough judgment, the judge set out the applicant’s various arguments as to why the missing CCTV footage might have been relevant to the issues at trial[7] and carefully explained why he did not accept that a fair trial of the applicant was not possible without that CCTV footage.[8]

14.In the circumstances, we were satisfied that the judge was right to reject the applicant’s Ground (1) of appeal and that he had not misconceived the facts of the case so that his analysis and subsequent dismissal of that ground cannot stand, as was submitted on behalf of the applicant.  Therefore, despite the able submissions of Mr Tang in support of the application, we did not consider that it was reasonably arguable that there has been a substantial and grave injustice and accordingly dismissed the application.

Mr Edward H.M. Tang, instructed by SSW & Associates, for the Applicant

Mr David Chan ADPP and Mr Ivan Cheung PP, of the Department of Justice, for the Respondent