Read the full judgment text of CACC 38/2017 on BabelCite. This Court of Appeal judgment was delivered on 26 July 2019 before Macrae VP, McWalters JA and Poon JA.
Criminal law – assault occasioning actual bodily harm – police officers – joint enterprise – video evidence – admissibility and authenticity – production order – journalistic material – identification – sentencing – appeal – Court of Appeal. The seven appellants, all serving police officers (a Detective Chief Inspector, a Detective Senior Inspector, a Detective Sergeant, a Police Constable, and three Detective Police Constables), were convicted in the District Court of a joint offence of assault occasioning actual bodily harm against Tsang Kin Chiu, contrary to section 39 of the Offences Against the Person Ordinance, Cap 212, arising out of events on 15 October 2014 during the Occupy Central protests. D5 was additionally convicted of common assault (Charge 2) for slapping Tsang inside Interview Room 7 at Central Police Station. The prosecution relied on open source video recordings downloaded from the Internet (TVB, Apple Daily, ATV, Now TV) and photographs depicting the assault. The Commissioner of Police had earlier failed in an application for a Production Order to obtain the original video recordings and the identity of the makers, with Barnes J refusing the application on 8 March 2016 (no appeal taken). The court determined whether the test for admissibility of video recorded material is 'prima facie authenticity' or 'balance of probabilities', and held that the proper test is whether the evidence is prima facie authentic, following HKSAR v Lee Chi Fai and R v Murphy, with any subsequent attack going to weight; R v Robson, properly understood, does not require proof on the balance of probabilities as a condition for admissibility. The court found no error in the admission of the various video recordings or photographs, holding that authenticity may be proved circumstantially, including by comparison with other video recordings of the same event, and that Tsang's evidence as a central figure in the events was capable of establishing authenticity. On the identification of the appellants, the court allowed D4 and D7's appeals against conviction, holding that the evidence against them was too tenuous: D4 was never identified by any witness at trial from any video footage or photograph, and the case against him derived solely from the judge's own identification without independent corroboration; D7 was not identified in any footage or photograph, and the circumstantial evidence (team membership, presence in the vicinity, spectacles) was insufficient to establish his participation as the seventh assailant beyond reasonable doubt. The court reduced the sentences of D1, D2, D3, D5, and D6, finding the original starting point of 30 months' imprisonment manifestly excessive and not properly distinguishing the culpability of senior officers from that of the junior officers who physically carried out the assault. The court also held that D5's 1-month sentence on Charge 2 should run consecutively, not concurrently, to the Charge 1 sentence, as it was a separate and distinct offence against a suspect in custody refusing to cooperate. The appeals against conviction by D3, D5, and D6 were dismissed.
Legal issues: Test for admissibility of video recorded material in criminal proceedings · Admissibility and authenticity of open source video recordings and photographs · Barnes J's refusal of the Commissioner's Production Order for journalistic material · Safety of D4's conviction based on the judge's own identification · Safety of D7's conviction as the seventh assailant · Whether the starting point of 30 months' imprisonment was manifestly excessive · Whether D5's sentence on Charge 2 should be consecutive or concurrent
Outcome: Appeals against conviction by D4 and D7 allowed; convictions quashed and sentences set aside. Appeals against conviction by D3, D5, and D6 dismissed. Renewed applications for leave to appeal against conviction by D1, D2, and D5 dismissed. Appeals against sentence by D1, D2, D3, D5, and D6 allowed to the extent of varying the sentences as set out below. The pure question of law ground (admissibility test) was dismissed.
Cited by 10 cases · Cites 4 cases