HKSAR v. Lam Chi Wa Romley

HCMA 79/2017
[2018] HKCFI 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 79 OF 2017

(ON APPEAL FROM ESS NO 2129 OF 2016)

________________________

________________________

Before: Deputy High Court Judge Anthony Kwok in Court

Dates of Hearing: 29 August 2017

Date of Judgment: 11 January 2018

___________

JUDGMENT

___________

Introduction

1.On 7 December, 2016, the appellant (hereinafter named as “D1”) was convicted after trial of a single charge of “Assault Occasioning Bodily Harm” (Charge 1) by Jason Wan, Esq, (“the Magistrate”) and he was sentenced to perform 120 hours of Community Service.  D1 now appeals against the conviction.

The Prosecution Case

2.The Magistrate has succinctly summarized the evidence of the both sides in his carefully prepared Statement of Findings and I shall adopt his summary in full in this judgment.  There are originally two defendants in this case and each faced with the same charge (Charges 1 & 2) but D2 was acquitted of Charge 2 after trial.  The relevant facts of the prosecution case against D1 are these: sometime in June 2015, PW1 saw an advertisement on the newspaper about a bar hiring public relation officer (“PR”)/beer promotor. She contacted the bar and attended an interview.  During the interview, she met D1 and D2, the manager and manageress of the bar and was given the job.  She understood that the duties of the job involve drinking and talking with customers.  If she is willing to go out with customers, she was free to agree a fee with the customers.  She would be paid $1,500 per 3 hours if she was picked by a customer.  There was no fixed working day and time.  She could work on any time she chose.  Before the incident, she only went to work at the bar once and was not picked by any customer.

3.On 7 December 2015, PW1 got a call from the bar asking her to go to work.  She was told that there was an English-speaking customer and she was the only PR who could speak English.  She agreed and went to the bar.  The bar occupied two floors of the building, ie 16/F and 26/F.  She first went to 26/F to meet with D1.  Then D1 took her together with other PRs to a room on 16/F to meet the customers.  In the end she was not picked.

4.The party returned to 26/F.  D1 appeared to be unhappy about PW1 not being picked by customer.  He started making comments about PW1’s clothes not nice enough.  PW1 talked back and soon they were in heated argument.  In the heat, D1 punched the forehead and face of PW1 many times.  He also kicked her chest and stomach several times.  After the attack, D1 walked away and PW1 intended to make a report to the Police.  However, D2 tried to stop her.  When PW1 tried to make a call to the Police with her mobile phone, D2 attacked her by grabbing her hair and punching her face.

5.Later PW1 went to the lift lobby of the building and made a report to the police.  Police officers came but were unable to locate D1 and D2.  PW1 was taken to the hospital and was found to have sustained the following injuries:

(i) bruising on left knee;

(ii) haematoma on posterior scalp;

(iii) abrasion on face; and

(iv) scratch marks on both wrists.

6.PW2 was one of the officers who first attended the scene.  He met PW1 and saw there were some injuries on her face.  After making some enquires with PW1, PW2 was instructed by superior to contact the staff of the bar to see if there was any CCTV footage that captured the incident.  PW2 met a staff member of the bar and was shown the relevant CCTV footage.  He saw two clips of footage which in his view are relevant to the case.  As he had no authority to seize anything yet, he took out his mobile phone to film the relevant footage on the screen of the CCTV system for further investigation.  He later showed the relevant footage to the officer-in-charge. The two clips of footage were later burned into a disc (P4).

7.PW3 was the officer who took over the investigation on the CCTV footage from PW2.  Within a week after the date of the incident, he made a formal request to the bar to provide the relevant CCTV footage.  A manager of the bar surnamed Cheng repeatedly told PW3 that he was working on it with their technical department.  In March 2016, PW3 visited the bar personally and was told that all of the relevant footage had been erased.

The Defence Case

8.The Magistrate admitted P4 into evidence after holding a voir dire.  D1 elected not to give evidence after the Magistrate ruled that there was a case to answer on the general issue.  D1 however called one witness to testify on his behalf.  DW1 was an employee of the bar.  She worked as a manageress for about 6 years between the years of 2004 and 2010.  She was shown the photo of PW1 and she recognized PW1 as one of the PRs who worked at the bar back in 2004.  All she knew about the woman in the photo was that she called herself Sophia.  She did not know her real name nor any personal information.  As far as she knew, the bar also did not keep any information about Sophia.

The Magistrate’s Findings

9.In respect of the special issue, the Magistrate was satisfied beyond reasonable doubt that the CCTV footage was relevant and authentic.  Further he was satisfied that the footage in P4 had not been tampered with by anyone and that it was handled properly by the police. In conclusion, the Magistrate was satisfied beyond a reasonable doubt that the prosecution has provided sufficient evidence to show the provenance and history of the footage and he was certain that the footage was authentic.

10.As for the general issue, the Magistrate have carefully considered the evidence of PW1.  Although it was his decision that she might not have told the court the whole truth, however, concerning the allegation that she was assaulted by D1, he believed she has told the truth.  Apart from the oral evidence of PW1, the first footage and the medical examination form (P1) produced by the Prosecution both supported the evidence of PW1.  In particular, the Magistrate said the first footage clearly captured D1 assaulted PW1 with fists on her head and upper body.  What was captured on the footage was also consistent with the injuries sustained by PW1 as recorded on P1.  He therefore was sure that D1 did assault PW1 and caused her injuries.

11.However, the Magistrate also made it plain that there was one aspect in PW1’s evidence that he did not totally accept. According to the footage, when PW1 and D1 were quarrelling, it was PW1 who first swung her arm towards D1.  Then D1 responded by punching PW1 repeatedly. In cross-examination, PW1 denied she had swung her arm or fist towards D1.  The Magistrate thus found that PW1 was not telling the whole truth on this point. However, after viewing the first footage, he was still certain that D1 did assault PW1 and the footage was consistent with the majority of PW1’s evidence.  On that basis, the Magistrate was of the view that PW1 has still told the truth to the extent he had indicated and he accepted her evidence to that extent.

12.The evidence of PW2 and PW3 mainly concerned with the special issue.  The Magistrate had specifically found them both to be honest and reliable witnesses and he accepted their evidence.

13.Concerning the evidence of DW1, The Magistrate however did not believe she has told the truth.  He was of the view that if PW1 did work with her before, as the manageress of the bar, DW1 should at least know some personal information of PW1 such as her full name or age.  DW1 however said she knew nothing about PW1 except the name “Sophia”.  The Magistrate also found it was also unbelievable that DW1 said the bar did not keep any record or information about PW1.  If PW1 really worked at the bar for several years, it would be wholly unreasonable that the bar did not have any personal information of PW1 and did not keep any payment record to PW1.  The Magistrate thought it would be against the law if the bar did not keep any payment record relating to PW1 for account and tax purposes.  All in all, he found the evidence of DW1 unbelievable and he rejected her evidence.

14.In conclusion, based on the evidence he accepted, the Magistrate found as a matter of fact that D1 did assault PW1 as captured in the first footage in P4.  He also ruled that although it was PW1 who swung her arm at D1 first, what D1 did in response went far beyond self-defence and D1 was not defending himself.  The Magistrate was sure that D1 assaulted PW1 with the intention to cause her injuries and she did sustain actual injuries as a result.

15.Accordingly, D1 was convicted of Charge 1.

Grounds of Appeal

16.D1 was represented by Mr Edward Tang of counsel in the appeal hearing.  Mr Tang has raised two perfected grounds of appeal on D1’s behalf which could be summarized as follows:

(1) The Magistrate should not have admitted the CCTV footage (P4) due to the lack of any evidence establishing its provenance and history: the evidence of PW2 could not show the provenance and history of the Footage before it was captured by PW2.  The Magistrate concluded by way of conjecture and/or inference that the Footage had not been tampered with by anyone.

(2) The Magistrate should not have accepted PW1’s evidence in relation to Charge 1: the Magistrate had failed to adequately consider the marked discrepancies and inherent improbabilities in the evidence of PW1 and had failed to provide any or adequate reasons for accepting the evidence of PW1 in respect of Charge 1 but not in relation to Charge 2.

Consideration

17.Mr Tang has prefaced his submissions by conceding, and in my views properly, that the second ground was only in furtherance of the first ground.  If the first ground fails, the second ground will become obsolete and untenable.

The First Ground

18.Mr Tang did not argue in this ground that the CCTV footage was irrelevant to the issue of the trial.  He sought to argued instead that PW2’s evidence was wholly insufficient in that:

(1) PW2 was only shown the CCTV footage by a staff member of the bar who was not called as a witness for the prosecution, after which PW2 used his mobile telephone to capture said footage from the screen of the CCTV system.

(2) The original of the CCTV footage was never seized by the police.

(3) There was no evidence from PW2 as to the steps, if any, he took to ensure that the CCTV footage shown to him (and subsequently captured on his mobile telephone) by the aforesaid staff member of the bar was not tempered with.

(4) Similarly, there was no evidence from PW2 as to the steps, if any, he took to ascertain the source of the CCTV footage, including the location of the relevant camera, the time and date of the footage.

(5) The furthest which PW2’s evidence can go is that P4 had not been tempered with after he captured the said CCTV footage on to his mobile phone. As to matters preceding this, PW2’s evidence was of no evidential value.

19.Mr Tang contended that despite the complete lack of evidence, the Magistrate concluded by way of conjecture and/or inference that P4 had not been tampered with by anyone.  The Magistrate erroneously found, in the absence of any evidence or proper basis, that:

(1) he could not think of any reason why someone would try to interfere with the CCTV system within hours after the incident; and

(2) he did not believe tamper with the CCTV system within the short period of time.

20.In the circumstances, Mr Tang argued that the Magistrate erroneously found, in the absence of any (or any sufficient) evidence, that P4 was prima facie authentic and thus admissible.

21.Before me, both parties agreed that the approach to tape recorded evidence is the one laid down in HKSAR v Lee Chi Fai[2003] 3 HKLRD 751, namely, the judge must first ask whether the evidence was relevant:

“ If so, then the question was whether it was prima facie authentic, made out by evidence which defined and described the provenance and history of the recordings up to the moment of production in court. If it was prima facie authentic, then it was admissible. Any attack thereafter could only go to weight, which might embrace further inquiries into its authenticity, its provenance and history, whether it was an original, and if not, how it came to be copied. It was then for the jury to decide whether its authenticity was beyond doubt and if its contents proved or added to the proof of guilty beyond reasonable doubt.”

22.In reply to Mr Tang’s argument that the prosecution did not call any employee of the bar to testify on the provenance and history of P4 and PW2’s evidence was of limited evidential value, Mr Franco Kuan, Senior Public Prosecutor (“SPP”) argued on behalf of the Respondent and cited R v Murphy & another [1990] NI 306:

“ 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.”

23.In Murphy, the Northern Ireland Court of Appeal further cited the English case of Kajala v Noble (1982) 74 Cr App R 149 to support its view that the court does not confine itself to the “best evidence” only:

“ The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that, if an original document is available in one's hands, one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility: Garton v Hunter [1969] 1 All ER 451, per Lord Denning MR at p 1001. In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes of films.”

24.Based on the above authorities, I am satisfied that the Magistrate was perfectly entitled to rely on the CCTV footage captured by PW2 on his mobile phone when the management of the bar refused or could not supply to the police with the original of the CCTV footage.  Mr Tang’s argument was weak when he criticized the police for not seizing the original CCTV footage.

25.In admitting P4, of course the prosecution must satisfy the Magistrate that there is a prima facie case that it is authentic and original and it has not been tempered with.  It is clear from the decision of Murphy (supra.) and Lee Chi-fai (supra.) that authenticity may be proved in a number of ways and circumstantially.  Mr Kuan SPP further cited the Supreme Court of Victoria’s decision in R v Chen (1993) 2 VR 139 by holding that admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.  This principle has already been approved by the Court of Final Appeal in HKSAR v Yeung Ka Ho (2013) 16 HKCFAR.  In my judgment, the Magistrate’s approach to the question of admissibility of P4 in this case was therefore entirely proper and could not be faulted.

26.Mr Tang’s main criticism of the Magistrate’s finding was there was no evidence or proper bases for the Magistrate to infer that the CCTV footage has not been tampered with prior to PW2 ’s viewing of the footage directly from the CCTV system and that anyone could temper with the CCTV system within the short period of time.

27.Firstly, as rightly submitted by Mr Kuan SPP, the CCTV footage was not captured from any unknown open source.  On the contrary, it was captured from the CCTV system of the same establishment where the alleged offence has taken place that the source of the CCTV footage had its origin from the same bar strongly supports its provenance.

28.Secondly, as also cited by Mr Kuan SPP, the Supreme Court of South Australia has held in Police v M,M [2012] SASC 83 that inferences can be drawn from the tape itself as to its authenticity, accuracy and integrity.  It may also show signs of tampering or discontinuities:

“ In most cases, a viewing of the video tape will be a natural place to commence a consideration of whether a video tape shows signs of tampering or discontinuities which may raise questions about its authenticity, accuracy and integrity.” (at para 28)

29.In his submissions, Mr Kuan SPP emphasized the fact that in the CCTV footage D1 and PW1’s movements were clearly and fluidly recorded.  The time counter on the CCTV footage ran steadily second by second.  It could be seen that no tempering was shown in the CCTV footage itself.

30.Mr Kuan also contended that even though no expert evidence was called on both sides, as a matter of common sense, any tampering of the video image would be an extremely complicated process that would require a matter of weeks (as illustrated in the LEE Chi-fai case on “seamless editing”).  The relatively short period of time between the occurrence of the incident and when the police arrived points to the inherent improbability of any tampering with the footage.  Such possibility is extremely farfetched.

31.Furthermore, the injuries sustained by PW1 were not disputed in the trial.  The Magistrate has noted that the injuries sustained by PW1 were consistent to what was depicted on the assault by D1 on her in the CCTV footage.

32.Lastly, as the Magistrate has already accepted PW1’s evidence in the trial in relation to her being assaulted by D1, one must remember that PW1 was able to recognize herself and D1 and spoke of the assault which had taken place in the location as depicted in the CCTV footage.

33.I totally agree with the able submissions from the respondent on this ground. Based on the above, there was indeed ample circumstantial evidence for the Magistrate to infer and thus conclude as he did that the CCTV footage has not been tempered with even before PW2 captured the same with his mobile phone.

34.There is therefore nothing in the first ground.

The Second Ground

35.As said, Mr Tang has made it clear in the beginning of the appeal hearing that his second ground would become obsolete once the first ground fails. For the sake of completeness, I would still comment that this ground by itself was also untenable as the discrepancies of PW1’s evidence has in my judgment been sufficiently dealt with by the Magistrate in his statement of findings.  As has properly pointed out by Mr Kuan SPP, the Magistrate has seen and heard PW1 in the trial. It is trite law that an appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if satisfied that it is “plainly wrong”.  (See HKSAR v Fok James Alistair [2015] 4 HKC 247paras 5 – 6) In this case, I am satisfied that the Magistrate was fully entitled to make the findings that he did. In fact, the Magistrate did not just accept PW1’s evidence without any proper and serious consideration. He also rejected PW1’s evidence in so far as it was found to be in contradiction with the actions as depicted in P1 but he was still satisfied that, after viewing P4, that D1 had assaulted PW1 as what D1 had retaliated went far beyond than self-defence.

Conclusion

36.For these reasons, I am satisfied that the Magistrate had fairly and properly considered the issues in relation to the admissibility of P4 and was not plainly wrong in his findings as to the credibility of the witnesses.  The submissions by Mr Tang on behalf of D1 were no more than an attempt to have a “second bite at the cherry” and repeat the arguments which have already been made to the Magistrate which he has fully considered and rejected.

37.I find no basis to interfere with the Magistrate’s finding of facts and the conclusion that he has reached.

38.The appeal is accordingly dismissed.

Mr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr Edward Tang of Counsel, instructed by Hoosenally & Neo, for the appellant