HKSAR v. Wong Cho Shing and Others

CACC 38/2017

[2019] HKCA 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 38 OF 2017

(ON APPEAL FROM DCCC NO 980 OF 2015)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

A. Introduction

A.1    The background to the present applications

1.On 14 February 2017, the appellants, all of whom were serving police officers[1] in the Hong Kong Police Force, were convicted in the District Court following a trial before HH Judge Dufton (“the judge”) of a joint offence of assault occasioning actual bodily harm[2] against Tsang Kin Chiu (“Tsang”), on 15 October 2014, outside Lung Wo Road Government Building Pump Station East Substation (“the Substation”) in Admiralty, Hong Kong, contrary to section 39 of the Offences Against the Person Ordinance, Cap 212 (Charge 1).  The 5^th appellant alone was also convicted of a charge of common assault against Tsang, at a later time of the same day, inside Interview Room Number 7 (“interview room 7”) of Central Police Station in Central, Hong Kong, contrary to section 40 of the same Ordinance (Charge 2).  On 17 February 2017, each of the appellants was sentenced to 2 years’ imprisonment.

2.Since all of the defendants have appealed against both their convictions, in respect of which D3 to D7 have been granted limited leave to appeal on certain grounds by the Single Judge[3], and their sentences, in respect of which all have been granted leave to appeal, it will be convenient if we refer to them collectively as the appellants and, individually, where necessary, by their trial designations throughout this judgment.

3.Each of the appellants have at different times been granted bail pending their appeals to this Court[4].

4.There are four categories of application which require this Court’s determination:

(i)     A common ground of appeal, raised by all of the appellants, raising a pure question of law, which accordingly has not required leave to appeal to this Court;

(ii)     D3 to D7’s appeals against conviction on the grounds for which limited leave to appeal has been granted[5]; and all of the appellants’ appeals against sentence;

(iii)    D1, D2 and D5’s renewed applications for leave to appeal against conviction in respect of some of the grounds upon which leave has been refused;

(iv)    D7’s application to adduce fresh evidence on appeal, pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221.

5.On 21 November 2018, this Court, having heard arguments from the parties in respect of the appeals against both conviction and sentence, reserved judgment and indicated that it would hand down its decision and the reasons therefor in due course.  This is the Court’s judgment.

A.2    The prosecution case

6.On 15 October 2014, at about 2:45 am, officers of the Hong Kong police force carried out an operation at Lung Wo Road in Admiralty to clear protestors then participating in a street protest known as the Occupy Central movement^[6]. The police operation was codenamed “Operation Solarpeak”.

7.At about 3:20 am, Tsang was seen standing on a planter (or concrete flower bed, but hereinafter referred to as “planter”) above Lung Wo Road splashing liquid from a plastic bottle onto those on the underpass below.  Consequently, several uniformed police officers approached in order to stop him.  There then followed a struggle, during which some OC foam (or pepper spray) was sprayed at Tsang’s face.  At about 3:25 am, having placed Tsang under restraint[7], the officers used water to rinse his face[8].

8.At about 3:30 am, Tsang was handed over into the custody of D1 to D6.  It was the prosecution case that by this time D4 had joined the team of officers, which was later also joined by D7[9].  Rather than being conveyed directly to police transport, Tsang was initially frogmarched away before being lifted up and carried face down to an area behind the Substation, where he was thrown onto the ground and subjected to an unlawful assault by D3 to D7.  It was the prosecution case that all of the appellants were party to a joint enterprise to assault Tsang, with D1 and D2 as senior officers keeping watch while their subordinates carried out the assault.  These facts constituted Charge 1.

9.After the assault at the Substation, Tsang was taken to, and placed inside, a police vehicle which had earlier been parked on Lung Wo Road.  D5 and D6 sat on either side of him in the vehicle on the initial journey to Central Police Station.  At Central Police Station, Tsang was removed from the vehicle and taken to interview room 7, where he remained until he was escorted by coach to the Police Training College in Wong Chuk Hang.  Whilst in interview room 7, D5 slapped Tsang on the face twice in the presence of D6, when Tsang refused D5’s request to unlock his mobile telephone.  These facts constituted Charge 2.

A.3    The application before Barnes J for a Production Order

10.Since the prosecution had sought to rely on certain video recordings capturing the events in question, which had been downloaded from the Internet, the Commissioner of Police (“the Commissioner”) applied prior to trial for a Production Order in respect of:

“The full and unedited video and sound recordings made between 3:20 a.m. and 3:43 a.m. on 15^th October 2014 of Tamar Park, Lung Wo Road, Admiralty, Hong Kong, or, of Male TSANG Kin Chiu and other person or persons present with or around the said TSANG Kin Chiu in the said Tamar Park, together with the full identity and personal particulars of the maker(s) of the aforesaid recordings.”

11.The hearing of the application for the Production Order was held before Barnes J on 8 January and 19 February 2016.  On 8 March 2016, Barnes J refused the Commissioner’s application with full reasons being given in her judgment[10]. The judgment of Barnes J was not the subject of appeal by the Commissioner.  We shall return to this matter in due course.

A.4    The critical issue regarding the admissibility of open source material

12.Having failed in its application for a Production Order, the prosecution sought at trial to admit into evidence, inter alia, two photographs – one from Apple Daily (or Next Media)[11] and one from Oriental Daily[12] (collectively “the photographs”) – and various video recordings broadcast by TVB, Apple Daily, ATV and Now TV respectively[13].  The prosecution alleged that some parts of the video recordings depicted Tsang being carried to the Substation, where he was thrown onto the ground and assaulted by the appellants.  That event was best depicted in Exhibit P1(h), in which the brightness of the recording had been enhanced.

13.Accordingly, a 14‑day voir dire was held, in which 10 prosecution witnesses[14] were called, to determine the admissibility of, inter alia, the photographs and the video recordings[15].

14.At the trial (including the voir dire), the prosecution did not call the photographers or the cameramen to give evidence.  Nevertheless, three witnesses from TVB, David Wong (“PW8”), Sum Ka Hung (“PW9”) and Lam Ka Yu (“PW10”) and one witness from ATV, Chim Yat Kin (“PW7”), but none from Apple Daily, Oriental Daily and Now TV, were called to testify.  We shall deal in greater detail with their evidence in due course. However, in short:

(i)     PW8, the news production manager of TVB, said that the TVB video footage (Exhibit P1[16]) was transmitted back to TVB simultaneously and then burnt onto Blu‑ray discs[17].  He said he had viewed the Blu‑ray discs to compare them with the TVB footage[18].  As regards the missing “blocked shots” in Exhibit P1(a)[19], which he said were related to the group of assailants turning into an area where they were blocked by a van, PW8 said that having watched the full and continuous video recording containing the missing “blocked shots”, Exhibit P1 had not been edited[20]. As for Exhibit P1(b) (time 00:05 - 00:13)[21], he said “there was no editing in‑between, it was a continuous shot, a single shot”[22].

(ii)     According to the evidence of PW8, PW9, a senior technician in TVB’s news ingestion department, and PW10, a senior librarian from TVB, the TVB footage was broadcast live or within hours following the events in question.

(iii)    PW7, a senior video editor in ATV’s news department, said that when he played the original footage he copied it to a master copy at the same time; the contents of the master copy were the same as those of the original footage[23].

A.5    The defence case

15.None of the appellants elected to give evidence or call any witnesses on their behalf on either the special issue of admissibility or the general issue.

16.The basis on which the defence objected to the admissibility of the photographs and video evidence may be summarised as follows[24]:

(i)     there was no or no sufficient evidence as to the origin of the video recordings and photographs;

(ii)     there was nothing to show that the video recordings and photographs had not been tampered with; and

(iii)    the provenance and history of the photographs and the authenticity and accuracy of the video recordings were in doubt.

17.It was also the defence position that, in determining whether the photographs and video recordings were authentic, the standard of proof applicable was the balance of probabilities; as opposed to the prosecution contention that the appropriate standard was a prima facie basis[25].

B.     Reasons for Verdict

B.1    The admissibility issue

18.At the conclusion of the voir dire, the judge gave an oral ruling admitting, inter alia, the photographs and video recordings into evidence and refusing to exercise his discretion to exclude any of the evidence[26]. He gave written reasons for his ruling in his Reasons for Verdict.

19.On the question of admissibility, having referred to R v Robson[27], R v Murphy[28], HKSAR v Lee Chi Fai[29], an article entitled “Social Networking Material as Criminal Evidence” by Micheal O’Floinn & David Ormerod[30] and Cross & Tapper on Evidence (12^th ed), the judge held:[31]

“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.”

B.2    The authenticity issue

20.In respect of the issue of authenticity, the judge said that “[w]hat is required is evidence that the video footage and photographs accurately record the events of that night”[32].  He held that, as a matter of law, the authenticity of a video recording might be proved circumstantially[33]. He went on to remind himself that it was not a requirement of law that the authenticity of a video recording, used in order to make comparisons with other video recordings, must be established beyond reasonable doubt[34].  Having noted that “[i]n addition to witnesses from TVB and ATV the prosecution relied on the evidence of the police officers who apprehended Tsang and the evidence of Tsang to say the video footage and photographs were consistent with their recollection of the events”[35], the judge went on to consider the relevant evidence in the case.  In the result, he held:

(i)     “I was satisfied, if believed, that the evidence of Mr Sum (PW9); Mr Lam (PW10) and David Wong (PW8) was sufficient to prove the authenticity of the TVB footage beyond reasonable doubt”[36];

(ii)     “I was satisfied the evidence of Tsang, if believed, was also sufficient to prove the authenticity of the TVB footage beyond reasonable doubt”[37];

(iii)     “I accept the evidence of Mr Sum (PW9); Mr Lam (PW10); and David Wong (PW8).  Having carefully considered the evidence and viewed the footage I am satisfied that 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 footage beyond reasonable doubt”[38];

(iv)     “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”[39].

21.Ultimately, the judge found that the prosecution had proved the authenticity of the TVB video recordings to the highest criminal standard of beyond reasonable doubt.  Whilst the judge was alive to the non-production of the Blu‑ray discs, the absence of photographers/cameramen testifying and the intelligibility/quality of the footage, he found no basis of unfairness which would cause him to exclude any of the TVB video recordings[40].

22.Adopting a similar approach, the judge went on to consider separately the authenticity of the photographs and the remainder of the video recordings, after considering and accepting the evidence of PW1 (in respect of the Now TV footage), PW2, PW3, PW4, PW5 and PW7 (in respect of the ATV footage), and Tsang (in respect of the photographs and all other video recordings).  In the result, the judge found that the prosecution had proved the authenticity of the photographs and the Apple Daily, ATV and Now TV footage beyond reasonable doubt.  He also refused to exclude any of them on the ground of unfairness.

B.3    The credibility of Tsang

23.The judge dealt separately with Tsang’s credibility at considerable length.  In relation to that part of Tsang’s account concerning the alleged assault upon him at the planter, which evidence he rejected, the judge said:

“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”[41].

24.In respect of Tsang’s evidence concerning events leading up to and including the assault at the Substation, the judge said:

“‘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’ [42] [; and] ‘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’”[43].

25.Concerning the suggestion of ‘a change of guard’, and the possibility that the officers who assaulted Tsang at the Substation may have been officers other than the appellants, the judge said:

“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.

…..

… I am satisfied that there was only a change in position and not a change in the group”[44].

B.4    Identification

26.The judge identified Tsang and the appellants based on the evidence of witnesses and/or his own observations in examining the photographs and/or the video recordings.  In respect of his identification of Tsang, who was shown wearing a distinctive black T‑shirt with white stars on the back, the judge said[45]:

“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.”

27.As for the identification of the appellants, the judge accepted the identifications in evidence of D1, D2, D3, D5 and D6 by senior police officers who knew them well from the video recordings and/or the photographs taken at the scene.  Having established their presence at the scene through that material, and identified the physical attributes and/or the clothing of each appellant, he then followed the movements and actions of the particular appellant in question through to the assault at the Substation.  The judge also made his own identification of a particular appellant from material which either was not shown to the witness or from which the witness was not himself prepared to make an identification.  Nevertheless, in the case of D1, D2, D3, D5 and D6, there was an identification of the particular appellant in either a video recording or a photograph or both, so as to provide the grounding or foundation for the judge’s further identification.

28.In the case of D4 and D7, however, there was no identification by any witness of either appellant in any video recording or photograph.  Nevertheless, the judge purported to make his own identification of D4 and, from the overall circumstances, including D7’s attachment to QRT A2 - 2, to find that D7 joined in the assault as the seventh officer.

B.5    Charge 2

29.As for Charge 2, having noted that “Tsang is the only witness who had given evidence about what happened inside [interview] room 7”[46], the judge analysed the matters disputed by the defence, including Tsang’s failure to disclose the three photographs[47] which he claimed he had taken of himself at Central Police Station, and the quality of Tsang’s identification given that OC foam had earlier been sprayed on his face.  In the result, the judge said that he was “satisfied so I am sure I can safely rely on the evidence of Tsang that while he was inside [interview] room 7 he was slapped on his face twice.”[48]  The judge similarly held that he could safely rely on Tsang’s identification of D5 as the police officer who slapped him on the face[49].

C.     Mitigation and reasons for sentence

30.The judge noted that each appellant not only had a clear record but a long and distinguished career in the Hong Kong police force[50]. He acknowledged that all of the appellants had been under stress whilst awaiting trial; and noted that they would be dismissed and likely lose their pensions as a result of their convictions[51].

31.The court was invited to note the unique circumstances of the Occupy Central movement, in which police officers were required to work very long hours and to be subjected to confrontation, insulting remarks and other violent behaviour from the protestors.  It was said that some 130 police officers had been injured in the protests[52].

32.Nevertheless, the judge considered that each appellant had brought dishonour on the Hong Kong Police Force and damaged Hong Kong’s reputation in the international community.  Characterising it as a “very serious case”, he said that there had been no justification for such an assault on Tsang[53].

33.The judge made particular reference to the case of HKSAR v Hui Man Tai[54], where this Court had said:

“Police officers in whom the public place trust to uphold the law, but who themselves break the very laws they are empowered and entrusted to uphold, have to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained”[55].

34.In the result, in respect of Charge 1, the judge stipulated a starting point of 2 years and 6 months’ imprisonment, which he reduced by 6 months, resulting in a sentence of 2 years’ imprisonment for each appellant.   In respect of Charge 2 against D5 only, the judge imposed a sentence of 1 month’s imprisonment, ordering that it should run concurrently with the sentence on Charge 1.

D.     Grounds of appeal against conviction; and the respondent’s submissions

D.1    The question of law ground

35.All of the appellants have argued[56] that the judge wrongly applied the “if believed” test in determining the admissibility of the photographs and the video recordings leading to his determination that the intended evidence was “prima facie authentic”. It was submitted on behalf of all appellants that the correct test should have been “on the balance of probabilities”.

36.Mr Jonathan Caplan QC, with him Mr David Leung SC, Ms Clara Ma and Ms June Wong, on behalf of the respondent, submitted that there was no settled authority for the legal threshold of determining prima facie authenticity[57]. He submitted that authenticity is not a question of admissibility as a matter of law; rather, the issue is whether, in the judge’s determination, the evidence is relevant to a triable issue and there is some evidence, on a prima facie basis, of provenance and integrity so that the questions of weight and value can properly be left for a fact‑finder to decide[58].  Mr Caplan submitted that even if a higher standard of proof, namely “on a balance of probabilities”, was appropriate, the evidence in this case was capable of meeting such higher threshold[59].

D.2    D1’s renewed grounds of appeal

37.Mr Tim Owen QC, with him Mr Clive Grossman SC and Mr Benson Tsoi, on behalf of D1, sought to renew[60] Grounds 1.2 to 1.6 and 1.10 of his Perfected Grounds of Appeal, dated 20 June 2017.

38.In summary, Grounds 1.2 and 1.3 complained that the judge erred in allowing David Wong to give evidence, or opinion evidence, as to what he had seen from the Blu‑ray discs, which were neither produced at trial nor given to the defence to view; as such, the defence was deprived of any meaningful cross-examination of David Wong on what was depicted in them.  It was argued that David Wong himself had acquired no personal knowledge of the events in question and was merely giving evidence by way of bare assertion.  It was also submitted that, given that the original video recordings were still in existence, their production was compellable at trial, regardless of Barnes J’s ruling in respect of the Production Order.

39.However, Mr Caplan, in response, pointed out that no objection had been taken at trial by any counsel to David Wong testifying as to the results of his comparison of the Blu‑ray discs and the TVB video recordings[61]. Accordingly, the judge could hardly be criticised for relying on David Wong’s evidence in finding that the relevant images had not been altered or changed, or that the blocked shot had not changed the true sequence of events depicted in those images[62].

40.Grounds 1.4 and 1.5 contended that the judge was wrong to use the TVB footage as a control sample to find the other video recordings authentic.

41.The respondent, however, argued that the judge had correctly accepted, as had the Court in Murphy, that video evidence could be shown to be authentic by comparing it with other video evidence taken of the same event, and at the same time or a different time.  Moreover, the reference in Murphy to a comparison with “a film of the same events that is authentic beyond doubt”, was simply an example given by the Court of how a video recording may be authenticated.  It was argued that the TVB footage was proved to be authentic through circumstantial evidence and the judge was correct to accept that if he was to find the TVB footage authentic then that footage could be compared with the photographs and other video recordings in order to authenticate the latter[63].

42.Ground 1.6 complained that, assuming that it was correctly held that the footage was prima facie authentic, the judge still erred in finding that (a) authenticity could be proved beyond reasonable doubt; (b) the video footage had not been tampered with; and (c) the provenance and history of the video recordings had been established beyond reasonable doubt.

43.In reply, the respondent pointed out that the judge was acutely aware of the pitfalls and shortfalls in the evidence adduced by the prosecution in respect of the photographs and the video recordings, resulting in careful consideration being given by the judge to each piece of evidence to determine its authenticity[64]. The judge had been correct to hold that authenticity could be proved circumstantially and could not be criticised for finding that authenticity had been proved beyond reasonable doubt, following a careful analysis of that circumstantial evidence[65].

44.Ground 1.10 averred that the judge’s identification of D1 from the video recording of the assault was unsafe because D1 was not identified on the basis of his facial appearance but of his clothing.  It was particularly unsafe to do so when no witnesses could identify D1 from the assault footage as the person involved in the assault.

45.Mr Caplan submitted that the judge had carefully viewed all the photographs and the video recordings, in some of which D1 had been identified, and correctly concluded that almost all of the distinctive features of D1’s clothing could also be clearly seen in the clothing in one of the men who had dropped Tsang on the ground at the Substation and then turned away and kept watch while others assaulted him[66].

D.3    D2’s renewed grounds of appeal

46.Mr Selwyn Yu SC, with him Mr Edward Tang, on behalf of D2, sought to renew[67] Grounds 1, 3 and 4 of his Amended Perfected Grounds of Appeal, dated 5 January 2018.  The first limb of his Ground 2 was related to the question of law (supra).

47.By Ground 1, it was submitted that it was unsafe to identify D2 from the video footage of the assault, the quality of which was so unsatisfactory that CIP Chung, who knew D2, was unable to identify him[68].  Also, where there was a lack of evidence of D2’s facial features[69], it was wrong for the judge to identify him on the basis of his clothing, which might have been commonly worn by many other police officers at the scene[70].

48.The respondent countered that the judge had carefully viewed all of the photographs and the video recordings and correctly concluded that the distinctive features of D2’s clothing and accessories could be clearly seen in the clothing of the person identified as D2 at the Substation[71].

49.By Ground 3, it was submitted that it was incumbent on the prosecution to establish the provenance and history of the open source video footage[72]. It was submitted that the judge was wrong to admit the TVB recordings by relying on the evidence of David Wong, who was not an expert[73], and whose evidence was based on his viewing and comparison of the Blu‑ray discs with Exhibit P1[74], where the Blu‑ray discs were neither produced at trial[75], nor made available for examination by the defence[76].  Further, Exhibit P1(h) was wrongly admitted into evidence[77] since the circumstances and manner in which, and the extent to which, it was edited (if that was indeed the case) remained unknown[78].

50.By Ground 4, it was submitted that the judge erred in making his own comparison of the video recordings as between each other.

51.The respondent’s replies to these two grounds of appeal have essentially been set out already in response to D1’s grounds of appeal at paragraphs 39, 41 and 43 (supra).

D.4    D3’s ground of appeal with leave

52.D3 was granted leave to appeal on Ground 7 only of his Perfected Grounds of Appeal, dated 27 October 2017.  By that ground, Mr Wong Man Kit SC, with him Ms Amanda W M Li, on behalf of D3, complained that the judge erred in identifying the appellant as one of the assailants in the video recording of the assault, which did not capture a continuous recording of the events, given that there was a 49-second blocked shot[79]. Furthermore, the quality of the video recording was poor and the facial features of the assailants indiscernible[80]. Consequently, CIP Chung was unable to identify him[81].  The judge also erred in identifying D3 by reference to the shirt and gloves apparently worn by him[82].

53.Regarding the shirt which the judge found was worn by D3, and which he described as a “grey T‑shirt with rows of pink horizontal stripes”, Mr Wong argued that “upon a closer look at the T‑shirt shown in P13 …each pink horizontal stripe … (as depicted in the moving photograph in P2(c) and Exhibit P13) has a distinctive relatively narrower horizontal stripe in red (or dark colour) in the middle dividing each pink stripe evenly; further, the ratio of the width of each grey stripe to each pink stripe (including the narrow red stripe in the middle) was about 3.5 to 1”[83].  It was contended that the judge was wrong to find the shirt had been worn by D3, when similar shirts were worn by many others present at the scene that night[84].

54.To these arguments, which we have summarised, the respondent submitted that the details discernible on the shirt worn by D3 had never been raised at trial[85]. In any event, the ratio, colour and width of the pattern of clothing shown on a still photograph or video recording had to be considered in the context of such variable factors as the degree of that person’s motion at the time, the angle, distance and lens of the camera and the lighting at the scene[86].

55.CIP Chung had identified D3 on the photograph, Exhibit P13, the TVB video recordings, Exhibit P1(g) and P1(h) and the ATV video recording, Exhibit P3(1).  Although CIP Chung was unable to identify D3 in the ATV video recording, Exhibit P3(2), or the Now TV video recording, Exhibit P4, the judge was satisfied with his own identification of D3 in the same video recordings.  Furthermore, he was of the view that D3 was depicted in the Apple Daily “moving photograph”, Exhibit P2(c), holding Tsang’s right arm[87].  The judge therefore came to the conclusion that D3 was a party to the assault at the Substation only as a result of his careful viewing of the relevant photographs and video footage, in which D3’s clothing, in particular his distinctive shirt and gloves, had been identified[88].

D.5    D4’s ground of appeal with leave

56.D4 was granted leave to appeal against conviction in respect of Ground 2 of his Perfected Grounds of Appeal, dated 24 May 2017.  By Ground 2, Mr Peter Duncan SC, with him Ms Mavis Lam, on behalf of D4, argued that, given the substandard quality of the video footage, the judge was wrong to make his own identification of D4 as one of the assailants carrying Tsang to the Substation and then at the Substation.

57.In response, the respondent contended that the judge had correctly applied the Court’s decision in AG’s Reference (No.2 of 2002) [2003] 1 Cr App R 21 when making his own comparison of the appellant and his clothing with the photographs and video recordings, thus concluding that D4 was one of the men assaulting Tsang at the Substation[89].

D.6    D5’s grounds of appeal with leave, and renewed ground of appeal

58.D5 was granted leave to appeal against conviction by Grounds 4.1, 4.4 and 4.5 and 9 (save and except 9.4) of his Perfected Grounds of Appeal, dated 21 February 2018.  The sole ground on which D5 sought to renew his application[90] was Ground 8. 

59.By Grounds 4.1, 4.4 and 4.5, Ms Draycott SC, with her Mr Job Mak and Mr Gavin Wan, on behalf of D5, in summary submitted that, since the video footage was so blurred that any identification of facial features was not possible[91], the judge had wrongly relied upon his own recognition of “black plimsolls with white laces and a white horizontal band that joins the upper shoe to the sole” to identify D5 as one of the assailants[92]. The judge failed to consider that other people wearing shoes with a white horizontal band could also be found at the scene[93].

60.In reply, the respondent submitted that the judge had carefully considered the evidence prior to the assault at the Substation and rightly observed that D5 and D6 could be distinguished from the assault footage by their hairstyles[94]. It was submitted that the judge had properly regarded D5’s footwear as supporting evidence[95].

61.By Ground 9 (except 9.4), Ms Draycott complained that whilst the prosecution had not pointed to any significant features of D5’s clothing, the judge had failed to canvass his method of identification with the defence prior to conviction, as a result of which D5 had no opportunity to challenge his line of reasoning[96]. In this connection, the way that the judge identified D5 in the video footage, which was said to be unfair, was to make a visual match of the shoes before and after the so-called blocked shot[97]. Furthermore, whilst Tsang’s evidence that there was no change in the men carrying him was contradicted by what was depicted in the video footage, the judge unfairly treated this aspect of Tsang’s evidence as a genuine mistake[98].  It was submitted that “to a large extent Tsang was relying on the videos to describe what had happened, when at the same time the judge was relying on Tsang to authenticate the videos themselves.  Further the judge rejected Tsang’s evidence where it appeared not in accordance with the videos, but accepted it over matters which were not depicted”[99].

62.In response, Mr Caplan submitted that whilst the prosecution had not invited the judge to identify D5 based on any significant features of his clothing, given the totality of the evidence against D5, the judge’s identification could not be said to be unsafe[100].  Mr Caplan also submitted that Tsang’s evidence in relation to him being escorted and assaulted had to be considered in the light of the fact that he was being carried facedown[101]. In any event, the judge had the advantage of hearing and seeing Tsang testify, an advantage which this Court does not have[102].

63.Ground 8 was related to Charge 2 only.  By that ground, Ms Draycott argued that the judge had failed to explain why, albeit having disbelieved Tsang’s evidence of a purported assault by the police upon his arrest, he was able to be satisfied of Tsang’s evidence so as to convict D5 of Charge 2.

64.The respondent’s answer to this complaint was that the judge did not find that Tsang had “lied”.  In any event, he was entitled to accept part of Tsang’s evidence and reject part of it[103].  There was nothing to show that the judge’s evaluation of Tsang’s evidence was flawed[104].

D.7    D6’s ground of appeal with leave

65.D6, who was also represented by Ms Draycott, with her Ms Priscilia Lam and Ms Fiona Chong, was granted leave to appeal against conviction on Ground 7 (other than Ground 7.4).  That sole ground of appeal was identical to Ground 9 (except Ground 9.4), which she advanced on behalf of D5.  The respondent’s identical submissions in reply are not repeated here.

D.8    D7’s ground of appeal with leave

66.D7 was granted leave to appeal against conviction on Ground 2 of his Amended Perfected Grounds of Appeal, dated 8 February 2018.

67.By this ground, Mr Joseph Tse SC, with him Ms Doris Ho, on behalf of D7, argued that the judge erred in finding the appellant to be the seventh assailant who had assaulted Tsang at the Substation.  First, he failed to consider the fact that QRT A2 ‑ 2 comprised members from different squads and districts; hence the individual members of the QRT A2 ‑ 2 team might not necessarily be familiar with each other.  Secondly, the findings which the judge made against D7 at most proved that D7 had the opportunity to join the other six officers in the assault on Tsang but not that he had in fact taken part.  In any event, there was insufficient identification evidence to show that D7 was one of the assailants.  Thirdly, the judge failed to understand DPC 8097’s witness statement (Exhibit P48(c)) in its proper context.  Mr Tse argued that the effect of DPC 8097’s evidence was that D7 had left the place to return to the detention centre, not that D7 had left to join his team members D1 to D6[105].

68.In reply, Mr Caplan argued that the inherent improbability that a police officer from other team would be allowed to assist in the arrest of Tsang was, as the judge noted, part of the circumstantial evidence supporting the judge’s finding that D7 was one of the seven assailants[106].  Similarly, the fact that the seventh assailant in the assault footage, and D7, were both seen to be wearing spectacles that night was a relevant circumstance.  Such circumstances may not on their own have been sufficient to allow the drawing of an irresistible inference that D7 was one of the assailants; however, these and the other circumstances referred to by the judge did not stand alone and the judge was entitled to consider their cumulative effect[107].  In respect of DPC 8097, the defence had never sought to cross-examine the officer as to the suggested interpretation of his witness statement[108]; nor did D7 elect to give evidence at trial[109].

E.     Grounds of appeal against sentence and the respondent’s submissions

69.It was submitted by all of the appellants that the sentence of 2 years’ imprisonment passed upon each of them was both wrong in principle and/or manifestly excessive.  D1 and D2 in particular argued that they were less culpable, inasmuch as they had only failed to intervene in the assault on Tsang, which was actually carried out by the other officers[110].  It was further argued on behalf of D1 that there had been a delay in the trial of the defendants, during which they had been subjected to serious (and sometimes abusive) condemnation by various sections of the public[111].

70.Mr Caplan, on behalf of the respondent, submitted that the appeals against sentence should be dismissed.  In respect of sentences passed on law enforcement officers, the Court in HKSAR v Lau Kwok & others[112]had refused an application for leave to appeal against sentence imposed on the three applicants, of which the first and second were police officers, on a charge of conspiracy for public servants to accept advantages, holding that, at paragraph 50:

“Integrity of law enforcement officers is the linchpin of the proper administration of justice and the corner stone of a just and fair society. Law enforcement officers who abuse their positions and conspire to defeat the end of justice must be punished severely or else the confidence of the public cannot be maintained.”

71.It was the respondent’s submission that all participants in this joint enterprise were of equal culpability and should receive the same sentence[113]. As for the allegation of delay, the appellants had been charged on 15 October 2015 and, given the complexity of the case, there could be no complaint of inordinate delay in their prosecution[114].

F.     Application to adduce fresh evidence

72.D7 applied to adduce, by way of fresh evidence, the 2^nd Affirmation of Wong Wai Ho, affirmed on 5 October 2018, and the exhibits attached thereto.  By that affirmation, D7 provided his updated personal circumstances, which were that he had obtained a Bachelor of Science degree in Crime and Investigation in June 2017, after which he had studied for a Professional Diploma in Property Management at the Open University of Hong Kong.  Since September 2018, he had been pursuing a Master’s degree of Social Science in Criminology.  Exhibited to the affirmation was his relevant academic proof.

73.The respondent submitted that the intended fresh evidence, which we looked at on a de bene esse basis, would not afford D7 any grounds of appeal and objected to its production[115].

G.     Discussion on conviction

G.1    Video recorded evidence and photographs

G.1.1 The test for admissibility of the video recorded material

74.There can be no doubt that advances in technology over the past two or three decades have led to a huge expansion in the role of video recorded evidence in criminal cases.  Closed circuit television cameras operate in most commercial buildings and in many public places.  Mobile telephones, with the ability to capture events immediately and dramatically, are within the reach and capability of almost everyone.  The Internet enables anybody to upload and download videos and photographs instantly and, via social networking sites, to disseminate, discuss and doctor such material at will.

75.Clearly, video recorded evidence, when it is placed before a jury, can be both powerful and graphic.  The advantages of such evidence over eye‑witness accounts were colourfully described in 1996 by Cory J, on behalf of the majority of the Supreme Court of Canada in R v Nikolovski[116], in these terms:

“It cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim and witnesses. Not every witness can have the fictional James Bond’s cool and unflinching ability to act and observe in the face of flying bullets and flashing knives. Even Bond might have difficulty accurately describing his would be assassin. He certainly might earnestly desire his attacker’s conviction and be biased in that direction.

The video camera on the other hand is never subject to stress.  Through tumultuous events it continues to record accurately and dispassionately all that comes before it.  Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed.  The trier of fact may review the evidence of this silent witness as often as desired.  The tape may be stopped and studied at a critical juncture.”

76.Defence lawyers, however, were not so enthusiastic about the advantages of such evidence.  In 1998, for example, an article in the Criminal Law Review, entitled “Video Tape Evidence: The Risk of Over‑Persuasion”[117], voiced practitioners’ concerns about the dangers of juries being more readily persuaded by video recorded evidence simply because of the form in which it is presented and less ready to give sufficient weight to contradictory evidence in its more traditional form; dangers which were exacerbated by the playing of a tape several times.  The author, having described the rapid spread of surveillance cameras in public and private places, noted the enthusiasm of the courts to make full use of such evidence, yet their refusal to allow its novelty to count as an objection to it[118].

77.However, by 2012, in another article in the Criminal Law Review entitled “Social Networking Material as Criminal Evidence”[119], the authors, having noted that “[w]ith the advent of new technology often come suggestions of the need for a re‑writing of the evidence rulebook”, maintained that the creation of social networking material had “not raised any new analytical issues for the law of evidence”: rather, what it and other electronic evidence had done was “to exacerbate certain pre‑existing evidential problems”.  For example, the ease of manipulation of documents has increased since the times of ink and paper, making authentication a “more persistently pressing issue for the courts”[120].

78.In reality, the courts have responded to the perceived dangers arising from technological advances in such evidence by investing in the trial judge what has been termed a “screening”[121] or “gatekeeper”[122] role in respect of its authenticity.  Although commentators continue to argue as to whether or not authentication is an aspect of relevance[123], it seems to us that while the two issues may be conceptually different, their practical resolutions must to a large extent overlap.  For, if a video recording or tape is not authentic, it cannot be relevant.  As the authors of Phipson on Evidence[124] put it:

“Authentication is the process of convincing a court that a “thing” (which may be a document) matches the claims made about it. A document that cannot be authenticated lacks relevance (unless adduced as bogus). That authentication and relevance are intertwined was acknowledged in R v Quinn[125].”

79.The leading authority in this jurisdiction on the Court’s approach to the question of admissibility of video recorded evidence is HKSAR v Lee Chi Fai[126], which approved and applied the decision of the Northern Ireland Court of Appeal in Murphy.  The first holding in Lee Chi Fai adequately sets out for present purposes the ratio decidendi of the case:

“The proper approach to be adopted for admitting evidence in the form of tape recordings, was for the judge to ask first, whether it 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 guilt beyond reasonable doubt. …”

80.However, we would respectfully suggest that the better and more logical way of putting the approach to admissibility so as to avoid the perception of circularity, since relevance depends on authenticity which depends on relevance, is summed up in R v Quinn[127], a later decision of the Court of Appeal of Northern Ireland which applied Murphy[128], namely:

“The first step is to determine whether the material shown on the video would, if authentic, be relevant.”

81.It is argued before us, however, notwithstanding the binding authority on this Court of Lee Chi Fai, that the test for admissibility of video recorded material is not whether there is prima facie evidence of authenticity, but whether the prosecution has demonstrated on the balance of probabilities that the material is authentic. Accordingly, the judge in the present case misdirected himself as to the test he applied in admitting the video recordings.

82.The fons et origo of this submission appears to be the first instance decision in England and Wales of Shaw J (as he then was) in R v Robson in 1972[129], which was applied in this jurisdiction by Roberts CJ in the 1980 magistracy appeal of Choi Kit Kau v R[130]. However, it is necessary to read the ruling of such an experienced criminal judge, later the distinguished Sebag Shaw LJ, with some care.

83.Shaw J had evidently been presented with a joint position from eminent leading and junior counsel on both sides of the case “that it was for the prosecution as the party seeking to put forward the recordings to prove them to be originals and that the standard of proof in this regard was the balance of probabilities”[131]. However, Shaw J made it clear that:

“… when the question is solely that of admissibility - i.e. whether the evidence is competent to be considered by the jury at all - the judge, it seems to me, would be usurping their functions if he purported to deal with not merely the primary issue of admissibility but what is the ultimate issue of cogency. My own view is that in considering that limited question the judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in court. If that evidence appears to remain intact after cross-examination it is not incumbent on him to hear and weigh other evidence which might controvert the prima facie case. To embark on such an inquiry seems to me to trespass on the ultimate function of the jury.

…..

Although in the present case the objection was taken on the question of originality of the tape recordings, the real gravamen of the objection was an attack on their authenticity. This larger issue is manifestly one for the jury in the same way as is the credibility of any witness although, of course, the jury’s consideration must be confined to evidence which is in the first place admissible. However, for the purposes of this case I accepted the proposition that I ought to conduct a comprehensive inquiry into not only the history of the tapes but also their nature and condition and that for this purpose I should hear evidence on both sides and decide the question on the balance of probabilities in the light of all the material before me. … At the conclusion of that evidence there was a strong prima facie case for the originality of the recordings. As I have already ventured to suggest, that was, as I see it, the apt and proper stage at which to rule on the fundamental question of admissibility. If I had then been called upon to make a decision on the evidence adduced by the Crown I would have had no hesitation in overruling the objections, whether as a matter of strict law or as a matter of discretion.”[132]

84.It thus becomes evident that, while Shaw J was being invited by both parties to decide whether the tapes were authentic on the balance of probabilities, his own view was that such a test was going too far on a matter that was properly one for the jury: all that was necessary for the judge to determine was whether the prosecution had established a prima facie case of authenticity.  He later explained[133]:

“It may be difficult if not impossible to draw the philosophical or theoretical boundary between matters going to admissibility and matters going properly to weight and cogency; but, as I have already said, it is simple enough to make a practical demarcation and set practical limits to an inquiry as to admissibility if the correct principle is that the prosecution are required to do no more than set up a prima facie case in favour of it. If they should do so, the questioned evidence remains subject to the more stringent test the jury must apply in the context of the whole case, namely, that they must be sure of the authenticity of that evidence before they take any account of its content. There is, so it seems to me, no danger of injustice to an accused in such a procedure, for nothing could be more damaging to, if not destructive of, a prosecution case than to have part of the evidence on which it relies exposed in the face of the jury as fabricated and contrived.”

85.It was in that context, and against that background, that Shaw J ultimately concluded[134]:

“In the present case, having heard evidence in great detail on both sides and having considered it in its totality, I arrived at the clear view that, on the balance of probabilities, the tape recordings in question were originals and authentic.”

86.Properly understood, therefore, Robson is not authority for an obligation on the prosecution to prove on the balance of probabilities the authenticity of a tape or video recordings as a condition for its admissibility.  To the extent that Roberts CJ in Choi Kit Kau, when dealing with the question of admissibility of a tape recording, said of the ruling in Robson that “Shaw J was of the view that it was necessary for the court to be satisfied, on the balance of probabilities, that the recording was authentic, by evidence of the history of the recording up to its production in court”, this aspect of his judgment must be considered to be incorrect. That was not, with respect, what Robson established, as the headnote to the report in the Weekly Law Reports made clear.

87.We are not dissuaded from our view on the basis that Robson has been cited in other common law jurisdictions with apparent approval, albeit in some of those cases on different aspects of Shaw J’s ruling[135]; or that Canada has developed its own test for admissibility of proof by the prosecution on a balance of probabilities of the “substantial accuracy” of the video recording sought to be adduced[136]. Certainly, academic writers have not agreed with the test for admissibility supposedly attributed to Shaw J: O’Floinn and Ormerod considering that it was “wrong to treat authentication as requiring proof on the balance of probabilities in Robson”[137]; and Cross and Tapper on Evidence saying, of the purported test in Robson, 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”[138].  It was this latter passage with which the judge in the present case specifically agreed, at paragraphs 45 and 47 of his Reasons for Verdict.

88.It is to be noted that the authors of Phipson on Evidence cite both Murphy and Lee Chi Fai for the proposition that “there must be some – some courts say “prima facie” – evidence capable of authenticating the document for it to get past the trial judge into evidence”[139]. Robson is not referred to at all in this section of Phipson on Evidence, which deals with ‘Authentication of documents’.  Furthermore, in Murphy, although various passages in Robson were referred to, the Court concluded in respect of one of them[140]:

“We would not dissent from the point of this passage if it is that the prosecution must establish a prima facie case of admissibility by proving to the satisfaction of the judge a prima facie case of authenticity.”

89.In our judgment, the judge in the present case adopted the correct test for the admissibility of the video recordings, by considering whether, if authentic on a prima facie basis, the video recordings were relevant.  In any event, interesting as this jurisprudential discourse may be, it is somewhat academic because the judge ultimately found, after a careful and very detailed examination of the evidence, that the prosecution had proved the authenticity of all the video recordings adduced beyond a reasonable doubt.  And if they were authentic, it could hardly be contended given their content that they were not relevant.

90.It is to the finding of authenticity of the video recordings and photographs, and the evidence which was said to have established their authenticity, that we must now, therefore, turn.  We shall deal, as did the judge, with the video recordings, the photographs and the CCTV recordings in turn; namely, the footage from TVB (Exhibit P1), Apple Daily (Exhibit P2), ATV (Exhibit P3) and Now TV (Exhibit P4), followed by the photographs from Apple Daily (Exhibit P12) and Oriental Daily (Exhibit P13), and finally the CCTV footage (Exhibits 15(a) and (b)).

G.1.2 The significance of Tsang’s evidence

91.It is important to understand that, while all of the video recordings in issue were what may be described as ‘open source material’, lifted from various websites on the Internet, their accuracy and contents were in fact spoken to by one of the central players depicted in them, namely Tsang himself.  He was able to say, having been shown Exhibit P1(h), for example, that “the one being carried is me”[141]. He was careful to say that he was only able to identify himself in the enhanced version of the video recording, namely Exhibit P1(h), but not, for example, in Exhibit P1(c), which was not of high enough definition[142].  As the judge recorded, Tsang was cross-examined about his claim to identify himself from the video recordings, and was subsequently criticised by a number of counsel at trial for purporting to recognise himself as the one being assaulted[143].  However, the judge accepted Tsang’s evidence that it was in fact him being carried to the Substation and found “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 being assaulted at the substation”[144]. It may be noted that Tsang was never challenged as to his identification of himself in the two photographs, Exhibit P12 and P13.

92.Tsang also said repeatedly throughout his examination‑in‑chief that the video recordings (and, for that matter, the photographs) were consistent with his recollection of events.  But more significant than that, Tsang was able to testify to the sequence of events that night from his initial approach by uniformed police officers at the planter, to his being physically restrained and having his face washed before being handed to another group of officers, to his being frogmarched away from the scene by this second group of officers, to his then being lifted up and carried to the Substation, to his being assaulted on the ground and, finally, to his being removed from the scene to a vehicle for conveyance to Central Police Station.  This sequence of events did not depend on the photographs and video recordings but on the oral testimony of Tsang himself.  The photographs and video recordings were consistent with that testimony.  It may be noted that Tsang gave his evidence of what took place that night before he was shown the video recordings in court; although it is clear that he must have been shown Exhibit P1(h) at some stage during the investigation[145].

93.The establishing of this sequence of events is important because of the interruption in continuity and the possibility of editing of the video recordings, such that the depiction of the man being assaulted at the Substation might have involved some other actors in some other event altogether, perhaps even on another night during some other incident, with nothing to do with the earlier events captured by photograph and video, and nothing to do with Tsang.  Tsang’s evidence as to identity and the sequence of events rendered this possibility somewhat fanciful and unrealistic.

94.We make this point because in Murphy, the court was presented with two films taken from different positions (one known as “the heli‑tele” film, the other “the European film”), taken by different cameramen, neither of whom (as with the present case) was called to give evidence to produce the respective film in question.  The trial judge found that the heli‑tele film was “not distinct enough for an observer to see the precise shape and size of certain facial features of the persons filmed”[146], while the European film was “not sufficiently clear to enable him to be ‘definitely identified as Murphy’”[147]; although it was sufficient to enable him to identify the other appellant, Maguire.  However, by reference to other video recordings made by the BBC, ITV and RTE networks, as well as a number of photographs (collectively referred to as “the commercial material”), showing the appellants clearly taking part in the funeral which preceded the murders of the two British soldiers, the judge was sure that both the heli‑tele film and the European film revealed the appellants as the murderers.

95.The Court of Appeal in Murphy was satisfied that both the heli‑tele film and the European film were relevant and authentic pieces of evidence.  It held[148]:

“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. 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. 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.”

96.In the case before us, there was a live witness who was able to say that what was shown in the photographs and video recordings was consistent with what took place that night because he was himself a central figure in the very drama that was unfolding on camera.  Moreover, he was able to vouch for the sequence of events recorded, which took place over a matter of several minutes.  It seems to us, therefore, that Tsang’s evidence, standing alone, would have been capable, if believed, of establishing a prima facie basis of authenticity for the photographs and video recordings.  However, Tsang’s evidence did not stand alone.

G.1.3 The TVB footage (Exhibit P1)

97.Evidence was given by PW9, a technician with TVB responsible for checking and monitoring the signals of live footage being transmitted from cameras to the server of the news department of TVB, that the images from two TVB cameras (A and B) positioned in Tamar Park on 15 October 2014 were automatically transmitted to the server between 3:20 and 3:43 am that day.  At the time, he was responsible for monitoring the signal from both camera feeds, and found both to be functioning satisfactorily, while the server was also operating properly.  He testified that the images received by the server would subsequently be burned un‑edited by colleagues in the library section of TVB onto Blu‑ray discs, which would then be stored in the TVB library.

98.PW10, a senior librarian with TVB, was the person responsible for retrieving the camera footage from the server and burning it onto two Blu‑ray discs (in respect of each camera) on the afternoon of 15 October 2014.  He testified that in the process of transferring the images to the Blu‑ray discs, he made no alteration to, or editing of, the original files.  Furthermore, he had compared the contents of the files in the server with those on the Blu‑ray discs and found them to be identical.  He retrieved the two discs in question from the TVB library on 20 January 2016 and handed them to PW8, the news production manager.  PW8 subsequently returned the discs to PW10.

99.PW8, the news production manager of TVB at the relevant time, testified that Exhibit P1(a) was shot by the same camera and was a continuous shot, identical to the footage stored on the Blu‑ray disc in TVB’s possession, save that the Blu‑ray disc incorporated an extra 49-second “blocked shot” when the group of men being filmed entered an area that was blocked from the camera’s view.  This “blocked shot” had been removed from Exhibit P1(a).

100.He was also able to say that the first part of Exhibit P1(b) was a single, continuous shot without editing of a man initially being escorted by others.  Having compared the film and the sound with the Blu‑ray disc, he was able to say that the two were identical.  Exhibit P1(b) also contained part of the “second shot”, with an extra four seconds at the beginning of this section, which was also depicted in the Blu‑ray disc. Exhibit P1(b) had been broadcast on the TVB interactive news channel between 6:04 and 6:05 am on 15 October 2014.

101.Exhibit P1(h) was an enhanced version of Exhibit P1(b), the former being brighter, but otherwise the same.  PW8 said that the brightness had not been enhanced by anyone at TVB.

102.Some of the TVB footage had been broadcast live; indeed, PW8 had himself seen the live broadcast at about 3:30 am on the day in question.  Some of it had been broadcast a few hours later.  Given the time frame of these broadcasts, from immediately to less than 3 hours later, the judge said that he had[149]:

“… 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.

In addition, I accept the evidence of [PW9] that he and his colleagues were unable to make any alterations to the files stored in the server; the evidence of [PW8] that it was not possible to alter, amend or edit the news ingested into the server; and the evidence of [PW10] 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.”

103.It is interesting to note that the trial judge in Murphy had made a similar remark that “from the viewpoint of common sense and practical reality”, the close proximity of the event depicted and its broadcast on the national news made it “highly unlikely that the clip of film was a fabrication or had been altered or tampered with so that it ceased to be an accurate record of what the cameraman who took the film had seen through the view finder of his camera…”[150].

104.The judge was further satisfied, on the basis of the evidence of PW8, that whilst irrelevant scenes may have been removed for the purposes of broadcasting, the various pieces of footage from TVB established not only the correct sequence of events on the night in question but that the images had not been altered or changed.  The judge found as follows[151]:

“I accept the evidence of [PW8]. The fact some of the footage had been edited in the way [PW8] 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.”

105.Complaint is made that PW8 was not entitled to give evidence as to what he had seen of, and compared with, the Blu-ray discs kept by TVB.  Yet, no objection was made of PW8’s evidence in this regard at trial by any of seven experienced defence counsel involved, including two leading counsel.  Whatever the reason for the defence position, in our view the evidence of PW8 did not ultimately matter.  Had he never testified, the evidence of different video recordings and photographs taken by different cameras of the same unfolding events, in conjunction with Tsang’s evidence of the very drama of which he was a central element was capable of establishing the authenticity of the evidence.

106.As it was, the evidence of the TVB witnesses, in conjunction with Tsang’s own account, was more than sufficient to ground a prima facie case of the relevance and authenticity of the TVB footage. Ultimately, the judge went on to find that[152]:

“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.

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.”

We can see no error in law in the judge admitting the TVB recordings, nor in his evaluation of the evidence in relation to the TVB recordings nor in his ultimate finding.

G.1.4 The Apple Daily footage (Exhibit P2)

107.There were five video recordings downloaded by the police from the websites of Apple Daily, Next Media and YouTube.  They were subsequently burnt onto a single disc (Exhibit P2), containing the five individual video recordings (a‑e).  All showed part of the assault at the Substation; however, none captured the group arriving at the Substation.  Although no one from Apple Daily was called to give evidence, Tsang again confirmed that the footage was consistent with his recollection of events on the night in question[153].

108.Furthermore, the judge found that the Apple Daily footage and the TVB footage were filmed by different cameras, with the Apple Daily footage showing part of the same scene with the same people carrying Tsang face down.  This was the same episode caught by the photograph, Exhibit P13.  Moreover, there were no signs of tampering or discontinuity undermining the authenticity, accuracy and integrity of the Apple Daily footage.  Accordingly, the judge found Exhibit P2 to be authentic on a prima facie basis and thereby admissible.

109.It will be recalled that the Court in Murphy had held that, amongst other ways of authentication, a 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.  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”[154].  We are satisfied that the judge was entitled for the reasons he gave, after a careful and detailed examination of the video recording and its comparison with other video recordings of the same event, to find that Exhibit P2 was authentic beyond reasonable doubt.

G.1.5 The ATV footage (Exhibit P3)

110.The ATV footage comprised two video recordings burnt onto the same disc (Exhibit P3) by the police.  It was admitted by the parties that Exhibit P3(1) was a video recording downloaded by the police from the website of ATV, while Exhibit P3(2) was the library version of the video recording retrieved by a member of ATV staff and handed to the police[155].  PW7 was the member of staff who had retrieved the library version.  Part of Exhibit P3(1) showed the beginning of a news broadcast at 6 pm on 15 October 2015, while part of the broadcast footage and the library version were identical.

111.Tsang was able positively to identify himself in Exhibit P3(2) being subdued, having zip wire attached to his hands, having his face washed with water, being handed over to a second group of police officers and being frogmarched away by the second group of police officers[156].  He said the events depicted were consistent with his recollection of events that night and were recorded in sequence[157]. Moreover, four police officers, PW2, PW3, PW4 and PW5 also confirmed that the video footage was consistent with their recollection of events that night.

112.The judge was further satisfied, having examined the footage, that there had been no tampering with the footage so as to undermine its authenticity, accuracy and integrity.  In our judgment, neither the judge’s admission of this evidence nor his finding that it was proved to be authentic beyond reasonable doubt can be faulted.

G.1.6 The Now TV footage (Exhibit P4)

113.The Now TV footage was downloaded by the police from the website of Now TV.  Tsang was able to say that the video recording was consistent with his recollection of events that night[158].  Part of the footage showed Tsang pouring liquid onto the police.  A police video (Exhibit P8) showed the same event.  Both Exhibits P4 and P8 were played to Sgt 47574 (PW1) who confirmed that the police footage, Exhibit P8, showed the officer getting hold of a man pouring liquid, part of which event could also be seen in the Now TV video recording, Exhibit P4.  The police footage was also played to Tsang in cross-examination and he confirmed that it was he who was splashing the liquid on the police.

114.The judge was satisfied that the evidence of Tsang, PW8 and Exhibit P8 was sufficient evidence of authenticity to warrant the admission of Exhibit P4.  Having carefully examined Exhibit P4 and found no signs of tampering or discontinuity causing him to doubt its authenticity, accuracy and integrity, he found the authenticity of Exhibit P4 to have been proved beyond reasonable doubt.  Such finding, again, cannot be faulted.

G.1.7 The application for a Production Order

115.It is here that we should say something of the ruling by Barnes J[159] in respect of the application by the Commissioner for a Production Order to produce certain video recordings together with the full identity and personal particulars of the maker(s) of those recordings; particularly since it is a specific ground of appeal advanced by Mr Owen on behalf of D1 that the trial judge failed to consider the issue of compellability, and to order, in the interests of securing a fair trial for the appellants, the production of material which was clearly available, before ruling the video recordings to be admissible.

116.Barnes J was not satisfied that section 84(3)(a)(iii) of Part XII of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”), concerning applications for Production Orders in respect of journalistic material, had been met.  In particular, she was not prepared to accept that:

“(a) there are reasonable grounds for believing –

…..

(iii) that the material is likely to be –

(A) of substantial value to the investigation of the arrestable offence; or

(B) relevant evidence in proceedings for the arrestable offence.”

117.With all due respect to Barnes J, this finding was untenable, as the evidence produced at trial and seen by this Court was to make manifestly clear.  Moreover, she appears to have acceded to a rather extraordinary claim that “an order for the production of the journalistic materials already in the public domain could potentially undermine the freedom and integrity of the press”[160]. The logic of the argument that the freedom and integrity of news agencies might be compromised when those agencies had themselves deliberately placed the materials in question in the public domain does not commend itself to us.

118.Barnes J also found that the purpose of section 84(3)(a)(iii)(B) of the IGCO was not “to assist the prosecution to prove the chain of evidence”.  We cannot agree.  The chain of evidence still amounts to “relevant evidence in proceedings for the arrestable offence”.  Unfortunately, as it turned out, this finding was to bedevil the case and make the task of the prosecution, the trial judge and this Court significantly more difficult as a result.  And, according at least to Mr Owen, its ramifications have potentially led to an unfair trial.

119.The evidence called on behalf of TVB at the hearing of the application for a Production Order had made clear that it was company policy not to release any video recordings unless a court order was properly made.  This is, in the experience of this Court, a position often adopted by news agencies in such circumstances.  As early as Kajala v Noble[161], for example, reference was made to the policy of the BBC in refusing to allow an original video recording to leave its premises.  However, this does not mean that a court cannot and should not make an order under section 84 of the IGCO, where the prescribed conditions apply, as we think they clearly did in this case.

120.Barnes J’s apparent failure to fully appreciate the significance of the video material and how it would affect the issues at trial, may have been due to her inability to view it.  Any examination of the actual material in this case would have instantly demonstrated how relevant and important it was.  Unfortunately, it seems that the video recordings were not played to the court at the hearing, although, having listened to the exchanges between Barnes J and counsel, we note that Barnes J did say that she had attempted to view the material on her own computer in chambers but without success.  We cannot understand why counsel for the Commissioner did not then seek to play the video recordings to Barnes J in open court so as to enable her to have a complete grasp of their relevance and importance to the case.

121.However the matter was handled in the Production Order application, we nevertheless find it astonishing that the Commissioner never sought to appeal the decision of Barnes J.  Mr Owen realistically accepted that the judgment of Barnes J was readily susceptible of appeal but argued that the failure of the prosecution to overturn it, or for the judge to revisit the matter himself and order production of the original video recordings of his own motion, led to an unfair trial of the appellants.  We cannot agree.

122.First, neither Mr Owen’s predecessor as leading counsel for D1 at trial, nor any of the other defence counsel ever urged the judge to revisit the decision of Barnes J; nor was any submission made that the judge had the power to compel the production of the original video material or identify the cameramen concerned.  Secondly, that they did not do so was plainly a tactical decision to take advantage of what they would have considered a lacuna in the evidence by virtue of the failure by the prosecution to produce the originals.  Thirdly, for reasons we have explained elsewhere, the failure to produce the originals did not render the trial unfair, provided that the Court was satisfied as to the relevance and authenticity of the copies.

123.In respect of the failure to produce the original video recordings, it is worth reminding ourselves that the Court in Kajala v Noble was faced with an argument that since the original of a video recording was still in existence, it should have been produced in court; and that the prosecution were not entitled to rely upon a copy as secondary evidence, the production of which could not be justified in such circumstances.  In a well-known statement of the current law, Ackner LJ (as he then was) said of this argument[162]:

“We cannot agree. 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. … 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 or films.”

This particular passage was also cited with approval in Murphy[163]. For present purposes, such statement of the law is uncontroversial.  We note that it was originally argued on behalf of D2 before the Single Judge that the best evidence rule was infringed in the present case.  The Single Judge refused leave on this ground[164], which has not been repeated before us.

124.Although we regard the decision of Barnes J as readily appealable for a number of reasons, we are also of the view that it did not ultimately matter.  We are satisfied that the judge was right to find the video recordings produced both relevant and authentic and thereby admissible.

G.1.8 The photographs (Exhibits P13 and P14)

125.Tsang identified himself in Exhibit P12 as the person being escorted away from the scene of his arrest, having already been handed over to the second group of police officers[165]; while, in Exhibit P13, he was being carried face down by the same group of officers, having been lifted off the ground by his arms and legs[166]. No challenge was made to Tsang’s identification of himself in either photograph.  The judge was satisfied that Exhibit P12 was taken during the time Tsang was shown being escorted in Exhibits P1(b), (d), (g) and (h) at identifiable times[167]; while Exhibit P13 was taken later also at identifiable times in the course of the same video recordings[168]. The judge was satisfied of the prima facie authenticity of both photographs and admitted them into evidence.  Being further sure that there were no signs of tampering causing him to doubt the authenticity, accuracy and integrity of either photograph, he found that the prosecution had proved them beyond reasonable doubt.

126.Both photographs are of relatively good quality, enabling identifications of the presence of various of the participants to be made.  The admissibility of the photographs and their use by the judge in his evaluation of the evidence cannot be faulted.  Indeed, it would be somewhat fanciful to suggest that they were not authentic, when Tsang was never challenged as to his identification of himself or the episode he said they depicted.

G.1.9 The CCTV recordings (Exhibits 15(a) and (b))

127.Considerable time was taken up at trial with challenging the chain of evidence and the content of the police CCTV recordings, resulting in a detailed analysis of the evidence and findings running to 83 paragraphs and 24 pages in the judge’s Reasons for Verdict.  No specific complaint is made about those findings and we can see no reason to impugn them.  The judge accepted that SPC 16408 had burnt two discs (Exhibits P15(a) and (b))[169]. He was satisfied with the chain of evidence and saw no signs of tampering or discontinuity such as to cause him to doubt the authenticity, accuracy and integrity of the recordings.

128.Of course, Tsang was able to identify himself being escorted to and from interview room 7 in Central Police Station, which by itself would have been sufficient to establish the authenticity of the recordings on a prima facie basis.  Having read the judge’s reasons, we see no reason to doubt the judge’s acceptance of the authenticity of Exhibits P15(a) and (b) beyond a reasonable doubt.

G.2    The identification of the appellants

129.Before we examine the evidence which led the judge to be satisfied beyond a reasonable doubt that the individual appellants were part of the group which assaulted Tsang at the Substation, it is important not to examine the evidence in isolation detached from the reality of the police operation and the context of the officers’ presence at the scene on the night in question.  That context was: firstly, that the appellants were all on duty on 15 October 2014 from 3 am in the area of Lung Wo Road, Central[170]; secondly, QRT A2 ‑ 2 comprised D2 (as Detective Senior Inspector and officer‑in‑charge of the team), D3, D5, D6 and D7[171], as well as two other police officers, namely DPC 8097 and DPC 5840, under the immediate supervision of D1 (as Detective Chief Inspector), who was under the ultimate operational command of Superintendent Ng Lok‑chun; and thirdly, that Tsang testified from the moment he was lifted up until he arrived at the Substation, no one left the group that was escorting him[172].  He was not able to say whether anybody joined the group[173].

130.It may be noted at this stage, and we shall return to this matter in due course, that D4 was not a member of QRT A2 – 2; instead, he was deployed as a member of a video team[174] under the command of Detective Sergeant Ma (“DSgt Ma”)[175]. Furthermore, neither D4 nor D7 was identified by any witness at trial from any of the video footage or the photographs.

G.2.1 D1

131.D1 was identified by SSP Chan, who was called as a live witness, PW37.  He identified D1 from the ATV footage, Exhibit P3(2), at the stage when Tsang was handed over to members of QRT A2 ‑ 2; from the TVB footage when Tsang was escorted away; and from the photograph, Exhibit P13, when Tsang was carried face down by members of QRT A2 ‑ 2.  From this footage and, in particular, from Exhibit P13, in which D1 is clearly identifiable, an identification which was not challenged either at trial or before us, the judge found that D1’s clothing could be readily seen: namely, an open‑necked white shirt with the sleeves rolled up and the front hanging loosely over his jeans, a black OCTB sleeveless jacket/waistcoat, a watch on his left wrist and brown shoes.  We might add that in Exhibit P13 the bottom of the front of D1’s shirt parts to form an inverted ‘V’ about 6” in length over the front of the jeans.

132.These distinctive clothing features are clearly visible, as the judge found, on the man shown in the forefront of the video footage of the group of men at the Substation in Exhibit P1(h), who was appearing to keep a lookout while the assault was being carried out by those behind him; particularly the open-necked, untucked shirt with its inverted ‘V’ at the lower front, the rolled up sleeves and the watch.  Given the context of the role D1 was playing at that time as Chief Inspector in relation to QRT A2 ‑ 2, the short period of time between D1’s unchallenged identification as one of the men escorting Tsang face down in Exhibit P13 to the arrival at the Substation, which Tsang put at one to two minutes[176], and the evidence that no one left the group, which the judge analysed and accepted[177], we see no reason to impugn the judge’s meticulous and detailed analysis identifying D1 as the man acting as a lookout at the Substation while Tsang was being assaulted.

133.We might add that Tsang was able to see, at the time he was walking but before being lifted off the ground, that among the group of officers controlling him, “[s]omeone was responsible for leading the way.  Someone was responsible for driving away the reporters”[178].  The depiction of D1 in the photograph, Exhibit P13, suggests that he was performing both of those functions when Tsang was lifted off the ground and carried face down, which would certainly be consistent with his role as the senior officer in the group.

G.2.2 D2

134.CIP Chung, under whose command D2 worked from the beginning of 2014 until his interdiction in October 2014, was able to recognise D2 in Exhibit P1(g) and marked him on a screen capture of the particular shot[179]; as well as on Exhibit P1(h) which he said was essentially the same as Exhibit P1(g).  Although he was unable to recognise D2 on either Exhibit P12 or P13, no issue was taken at trial with CIP Chung’s identification.  In his Reasons for Verdict, the judge was himself satisfied that D2 could also be seen in the ATV footage, Exhibit P3(2), the Apple Daily “moving photograph”, Exhibit P2(c) (which, it seems, was not shown to CIP Chung), the TVB footage, Exhibit P1(a), the Now TV footage, Exhibit P4, and in Exhibits P12 and P13.

135.No issue was taken before this Court with the identification of D2, either by CIP Chung in evidence or by the judge, from the various video recordings and photographic material of events prior to the group arriving at the Substation.  The thrust of the complaint made on his behalf concerns the judge’s finding that D2 was one of those depicted in the TVB footage of the assault at the Substation.

136.Chronologically, D2 was first identified by the judge in the ATV video recording, Exhibit P3(2), at the time when Tsang was handed over from one group of police officers to another near the planter above Lung Wo Road underpass.  An officer is shown, from 01:38 to 01:39 hours[180], wearing an azure blue (or royal blue) T‑shirt, a black sleeveless jacket and a glove extending beyond his right wrist, standing and talking on a white earpiece.  The judge described this as “the first time D2 is seen” which was “very easy to miss”[181].

137.Then, from the photograph Exhibit P12, at the stage when Tsang was escorted by the police, this officer in the same clothing and accessories just described is observed standing on the far right of Tsang. The TVB footage Exhibit P1(h) depicts, from 00:07 to 00:11 hours, more or less the same view[182] as Exhibit P12 but from a different angle.  As between that five seconds on Exhibit P1(h) and Exhibit P12, D2 is in the same position wearing the same clothing and accessories (although the glove can only be seen between 00:04 and 00:05 hours); furthermore, by reference to other features (to which we shall come shortly), this officer is clearly the same person.  Notwithstanding that CIP Chung was unable to identify anyone in the photograph, Exhibit P12, he was able to identify D2 in Exhibit P1(h) at the stage when D2 was being escorted.

138.Next, in the “moving photograph”, Exhibit P2(c) from 00:25 to 00:27 hours, the officer on the far right of the photograph is noted to be wearing an azure blue (or royal blue) T‑shirt and a black sleeveless jacket with an identification card on the left.  His white earpiece can also be seen[183]. In this regard, the “moving photograph” may usefully be compared with Exhibit P13, showing Tsang being carried face down, in which D2 may be identified (by his facial features, and his gloves) as the officer on the far right of the photograph.  Likewise, turning to the first nine seconds of Exhibit P1(a), where Tsang was being carried face down, presumably towards the Substation, the officer in question is seen in the same position in Exhibit P13.  Although only his back is captured, his azure blue (or royal blue) sleeves, black sleeveless jacket and gloves are clearly visible[184].

139.Pausing here, it may be noted from these particular video recordings, as well as Exhibit P12, that the T‑shirt worn by D2 had a very distinctive blue colour, while his clothing and accessories were the same in each piece of evidence.  He is also to be observed slightly ahead, but not holding Tsang.  Nor is he holding any part of Tsang’s body in Exhibit P13.  We would also add our own observation that his face is oval in shape and his nose relatively long, which facial features can consistently be observed. Furthermore, his blue T‑shirt had somewhat tight sleeves covering the upper part of his upper arm.  We are satisfied that the judge is correct in finding that this person is one and the same.

140.The question remains, however, even if D2 can be identified at the earlier stages of the drama, whether he can be linked to the assault at the Substation.  On this question, we have the evidence of Tsang that from the time he was carried face down by the group of police officers until they arrived at the Substation, no one had left the group[185].  Once that evidence was accepted, which it was[186], and given the continuity and relatively short period of time in which these events unfolded, the compelling inference is that D2 was continually present as part of the group up to and including the events at the Substation. Notwithstanding the compelling nature of such inference, we have further examined the TVB video recordings of the group’s arrival at the Substation.

141.Using the enhanced version of the footage, Exhibit P1(h), D2 can best be identified from 00:30 to 00:36 hours when he appeared to be keeping watch.  His clothing and accessories were the same as depicted in the earlier stages, particularly his distinctive blue T‑shirt, black sleeveless jacket with an identification card on the left, and black gloves extending beyond both wrists.  He was also seen using his earpiece at times[187], and can further be identified by the shape of his face, and by the shirt covering the upper part of his upper arms.  As the judge correctly observed, “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”, which was attached to the prosecution’s closing submissions[188].

142.It must be remembered that the judge’s identification of D2 from the video recording of the assault did not stand alone. The presence of D2 has to be considered in the context of the formation of QRT A2 ‑ 2, of which it was an admitted fact that he was the officer‑in‑charge[189].  Given that QRT A2 ‑ 2 was the group to which Tsang was handed over by uniformed police officers near the planter, it is a natural, obvious and compelling inference to draw, absent any evidence to the contrary, that D2, in the proper discharge of his duties, would not have absented himself from the group and would have ensured that Tsang, as an arrested person, would be directly escorted to the police vehicle on Lung Wo Road.  Had there been a change of guard, which the judge expressly rejected[190], or something which occurred to take D2 away from the group and away from his role as the officer in charge of QRT A2 ‑ 2, one would have expected there to be some evidential basis to dispel the otherwise obvious and irresistible inference to be drawn.

143.In our judgment, when the evidence is looked at as a whole, we are satisfied that the judge was entitled to come to the conclusion he did that D2 was one of those involved in the incident at the Substation.

G.2.3 D3

144.CIP Chung, under whose command D3 had worked at the beginning of 2013 and June 2013, and again from the beginning of 2014 until his interdiction in October 2014, identified D3 from the TVB footage, Exhibits P1(g) and P1(h); and marked him on a screen capture of a shot from Exhibit P1(g)[191]. He also identified him on the ATV footage, Exhibit P3(1), and again marked him on a screen capture of the shot[192]. He further recognised D3 in the photograph, Exhibit P13, as the person holding Tsang’s right arm/shoulder when he was being carried face down. 

145.From these pieces of evidence, the judge was further satisfied that D3 could be identified on the Now TV video recording, Exhibit P4, the ATV video recording, Exhibit P3(2), and the Apple Daily video recording, Exhibit P2(c)[193].

146.From this material, in particular Exhibit P13, D3 is clearly identifiable wearing, inter alia, a distinctive grey collared, short-sleeved shirt with pink horizontal stripes and a black sleeveless jacket/waistcoat.  The face and shirt of D3 can also be clearly seen from the front in the screen capture of the “moving photograph” in the Apple Daily footage, Exhibit P2(c).

147.The judge was also satisfied that D3’s shirt could be seen in the TVB and Apple Daily footage, in particular in the Apple Daily video recording, Exhibit P2(a), when he was standing in front of the Substation following his assault on Tsang[194]. We have examined the footage on which the judge relied, in the important context of D3’s membership of QRT A2 ‑ 2 as the Detective Sergeant, of his carrying of Tsang face down by his right arm continuously throughout and of Tsang’s evidence that nobody left the group until he was deposited on the ground at the Substation.  We regard the judge’s identification of D3 as one of those who assaulted Tsang to be unassailable.  Of all the appellants, D3’s shirt has the most distinctive pattern.

148.We are wholly unimpressed with Mr Wong’s analysis of the colours and width ratio of grey to pink stripes on D3’s shirt. With due respect, it loses all sight of the reality of a dynamic situation being viewed in difficult circumstances at an unknown distance through the lens of a camera.

149.D3 can be seen bending over Tsang just after he had been dropped onto the ground and then assaulting him by both stamping on and kicking Tsang.  He is also seen after the assault standing in front of the Substation.

G.2.4 D5

150.Woman Senior Inspector Wu (“WSI Wu”) identified D5 on the TVB footage, Exhibit P1(h), at the stage when Tsang was under escort by a group of police officers to whom he had been handed over, and from a screen capture of this part of the recording, which marked screen capture was annexed to Exhibit P44(a)[195]. She was also able to identify D5 in the photograph, Exhibit P12, when Tsang was being frogmarched by the group, but not able to identify him when he had been lifted up and was being carried face down, in photograph Exhibit P13.

151.Although nobody identified D5 at the Substation, it was Tsang’s evidence that the two officers who sat on either side of him in the police vehicle when he was taken to Central Police Station were two of the officers who had assaulted him at the Substation[196].  He was then taken into interview room 7 at Central Police Station[197].  It was the evidence of the Duty Officer at Central Police Station, Woman Station Sergeant So (“WSSgt So”)[198] that at about 3:45 am, two officers in plain clothes walked past her desk together with a male suspect, whom she directed to be taken to interview room 7.  From there, Tsang was subsequently taken by the same two officers to Wong Chuk Hang Police Training College by coach[199].  Tsang subsequently identified these two officers at a confrontation as D5 and D6.  No issue is now taken by Ms Draycott, on behalf of either D5 or D6, with those identifications by Tsang, which the judge accepted[200].

152.It is the submission made on behalf of D5 that, although he may be identified as an officer who escorted Tsang at the initial stage after Tsang was handed over to officers of QRT A2 ‑ 2, and as one of the two officers who thereafter escorted Tsang in the police vehicle to Central Police Station and subsequently by coach to Wong Chuk Hang Police Training College, there is no identification of him at the Substation assault. That is true.  However, these identifications of D5 in events shortly before and shortly after the assault provide a rather devastating context in which to judge his involvement in the events at the Substation.  Given that Tsang was obviously under arrest at the time he was being escorted away from the planter and that he was, after the assault at the Substation, continually in the company of D5 and D6 to Central Police Station until his arrival at Wong Chuk Hang Police Training College, it would be remarkable indeed if D5, as a member of QRT A2 ‑ 2, had absented himself at some stage following his frogmarching of Tsang depicted in Exhibit P12 and after his carrying of Tsang face down, as depicted in Exhibit P13 (as found by the judge[201]), only to re‑appear shortly afterwards in order to convey him to Central Police Station by police vehicle.

153.We consider that it would be speculative to make such an assumption, without any evidence which might explain, or point to, such an absence, particularly when Tsang had positively testified that two of the group who had assaulted him subsequently escorted him to Central Police Station, which testimony the judge accepted[202].

154.Notwithstanding the compelling inference to be drawn from D5’s established presence and contact with Tsang shortly before and shortly after the assault at the Substation, the judge found that D5’s distinctive shoes supported Tsang’s evidence that he was one of those who had assaulted him.  We have examined the various parts of the photographs and video recordings, including the CCTV recordings at Central Police Station, showing D5’s shoes and, while they alone would not be a basis for finding that D5 was present at the Substation during the assault, they certainly provide support for his continued presence at the scene.  And, to be fair to the judge, that was the only way in which he made use of the shoes[203].

155.Looking at the evidence as a whole in the important factual context to which we have referred, we see no error in the judge’s assessment of the evidence that D5 was part of the group which assaulted Tsang at the Substation.

G.2.5 D6

156.Much of what we have said concerning D5 applies to D6 as well.  Again, it is not disputed that IP Wong identified D6 in the ATV video recording, Exhibit P3(2), when being handed over by uniformed officers, and on Exhibit P12, where he is seen holding Tsang’s left arm.  Although IP Wong did not identify D6 from the TVB footage, the judge was satisfied that D6 was seen between 02:47 and 02:55 hours, again holding Tsang’s left arm.  It is clear that Exhibit P12 and the TVB footage depict the same event, albeit from different cameras at different angles.

157.The judge was further satisfied that D6 is depicted in the Now TV video recording, Exhibit P4, and the ATV “moving photograph”, Exhibit P2(c), neither of which were shown to IP Wong.  He was also satisfied that the person carrying Tsang’s left arm in Exhibit P13 was D6, by reference to his clothing and facial appearance in Exhibit P12 and the ATV footage.

158.In the CCTV images taken at Central Police Station, both D6 and D5 are clearly shown escorting Tsang into, and later out from, the police station.  As the judge found, a comparison of their clothing is consistent with the clothing shown in the video recordings and photographs taken at the scene.  Again, the judge considered the most important feature of the clothing, which he described as “supporting evidence”[204], to be D6’s shoes.

159.It is clear that when Tsang was escorted away from the planter, he was under arrest.  He was not free to go on his way and was under police restraint.  The evidence of DSgt 51344 (PW45) and PC 9765 (PW46) was that D6 was the arresting officer.  PC 9765 had asked who was responsible for arresting Tsang and D6 said that he was.  PC 9765 accordingly wrote down D6’s service number on the Short Arrest Form, Exhibit P56.  We find it inconceivable that D6, having arrested Tsang, escorted him at the stage of the frogmarch (vide Exhibit P12) and then carried him face down (vide Exhibit P13), should have suddenly absented himself while Tsang was beaten by other police officers, only for him to return shortly afterwards to escort him to Central Police Station in a police vehicle with D5, and finally to Wong Chuk Hang Police Training College.  Certainly, there was no evidence from any source capable of even hinting at such a hiatus in what would be customary police procedure upon arrest.

160.The evidence of D6’s involvement in the assault upon Tsang at the Substation is highly compelling.  In respect of Ms Draycott’s additional complaint that D6 was deprived of the opportunity of challenging the judge’s identification, it is the function of any tribunal of fact to judge the evidence called before it.  Given that the prosecution were inviting the judge to conclude, in the context of a case which was all about identification, that a particular appellant was shown in various video recordings and photographs, whether or not he had been identified by a witness, the defence would have been alive to the possibility that the judge might find a particular appellant was identified in that material.

G.3   D5’s conviction for common assault

161.We should here deal with the separate conviction of D5 on Charge 2 for common assault of Tsang inside interview room 7 of Central Police Station.  Ms Draycott does not pursue grounds of appeal on which leave was refused by the Single Judge dealing with the validity of the identification by Tsang of D5, who was brought before him by way of confrontation.  Her argument is that, having found that Tsang “lied” when he claimed he was assaulted by the police at his arrest, the judge failed to explain why he was able to rely on the unsupported evidence of Tsang that he was slapped by D5 inside interview room 7 at Central Police Station (Ground 8).

162.Mr Draycott recognises that the identity of D5 as the officer who escorted Tsang, together with D6, into interview room 7 of Central Police Station was supported by other evidence: the slap was not.  However, she essentially asks why, if Tsang lied about being assaulted at arrest, he could not also lie about being slapped.

163.Strictly speaking, the judge did not say that Tsang “lied” about being assaulted upon arrest: rather, he rejected the assertion that the police had assaulted him when he was arrested[205].  Although Tsang did say in evidence-in-chief that, at the planter, he was “pushed to the ground, assaulted, a zip wire was put on me”[206], he did not explain what was the nature of the assault or what he meant by the term.  Nor, when this matter was traversed in an admittedly rather confusing passage of cross‑examination by leading counsel for D2 (not Mr Yu), did he explain what he meant.  What did become clear, however, is that the event he described as an assault upon his arrest was by different officers from the group to whom he was subsequently handed over and reflected their efforts to overcome his resistance to the arrest.

164.Whatever Tsang meant by the assault at the time of his arrest, the judge rejected the claim.  However, it is trite law that a judge (or a jury) may accept some part of a witness’s evidence and reject other parts.  We do not accept that because the judge rejected the claim that he was assaulted at the planter when being subdued that his subsequent claim(s) of being assaulted in interview room 7 (or, indeed, at the Substation) must require supporting evidence.  The circumstances and occasion of his arrest in the tumult and confusion of a demonstration and his later sitting inside interview room 7 at Central Police Station together with two police officers are very different events.

G.4   D4 and D7

165.We come now to D4 and D7.  The reason that we have left them to be dealt with together and at the end of these appeals in respect of conviction is that they have a number of features in common, which distinguish them from the other appellants.  It will be clear from our consideration of the appeals that the overall context is very important when assessing the involvement and identification of individual officers at and around the time of the assault at the Substation.

166.However, in terms of that context, it is clear that D4 was not a member of QRT A2 - 2: he was deployed as a member of a video team under the command of DSgt Ma.  At some stage between 2:40 am and 3:35 am, he was apparently re-deployed to other duties and DSgt Ma never saw him again. Furthermore, unlike D1, D2, D3, D5 and D6, D4 was never identified by any witness in any of the video footage or photographs.

167.We pause here to note that whatever DSgt Ma was informed as to D4’s redeployment, it was hearsay other than to explain why DSgt Ma never saw him again after a certain time.  There is certainly no evidence of his being redeployed to QRT A2 – 2, or what his duties were after he had finished his video recording duties.

168.By contrast, D7 was a member of QRT A2 - 2, but he likewise was not identified by any witness in any of the video recordings or the photographs.  The prosecution case was that at some later stage he must have joined his fellow QRT A2 - 2 officers because, while six officers were initially seen receiving Tsang, and then frogmarching and carrying him away, seven officers were seen at the Substation.

169.The absence of any identification of either D4 or D7 by any witness from the video recordings or photographs places them in a very different position from the other appellants, particularly when one of them was not even a member of the team and neither was witnessed to have been involved in the early stages before the events at the Substation.

170.It is true that the judge himself purported to identify D4 from some of the footage and from a partial view of the face of someone carrying Tsang’s right leg in Exhibit P13.  But, with respect, with what was he comparing in order to make such an identification?  If there had been an earlier identification of D4 in any of the video recordings or Exhibit P12 by a witness, then the judge could have traced the particular features of his clothing or appearance through to the Substation and determined that the person so identified continued on to the Substation and appeared to kick Tsang, as he indeed found.  But, in the absence of such identification by a witness, there is no sure basis for saying that the partial view of someone’s face in Exhibit P13 was that of D4.

171.The judge found, in respect of D4, as follows[207]:

“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.”

With respect to that finding, D4 was never identified by any witness at trial from any of the video footage or from Exhibit P12; while Exhibit P13 shows only a partial view of the left side of a man’s face, which we do not consider sufficient to identify anyone.  Moreover, this incident took place on 15 October 2014.  The 31-day trial over which the judge presided commenced on 8 June 2016 for two days, before resuming on 24 October 2016.  Judgment was delivered on 14 February 2017.  While a judge (like a jury) is certainly entitled to make his own identification of a defendant from sufficiently cogent material, we do not think that, in this particular case, the judge’s identification can stand alone as the primary source of identification from which all other depictions are then derived.  His ultimate conclusion is built upon identifications which only he was prepared to make, without a single authenticating identification of D4 at the scene from any witness by which to compare and test them.  An edifice may be meticulously and attractively built, yet if it lacks proper foundations it is a dangerous construction.

172.In the case of D7, absent any identification of his being present in any of the video footage or photographs prior to the arrival at the Substation, we question what is the evidence linking D7 to the assault at the Substation?  Essentially the judge relied on D7’s membership of the team and the possibility that he would have been in the vicinity of the Substation because he had just taken another arrested person to a coach positioned nearby (which clearly establishes that he was not present in the earlier frogmarching or carrying of Tsang); together with the fact that the seventh officer to arrive at the Substation at the time of the assault on Tsang appeared to be wearing spectacles and it “seems like (D7) was wearing glasses on the day of the operation”[208]. While there is some force in the judge’s observation that it would be unlikely that another officer from another team would be allowed to witness an assault by QRT A2 - 2 – although we note that D4 was not a member of the team yet on the judge’s findings was apparently permitted to witness and participate in the assault – we have come to the conclusion that the evidence is too tenuous to establish D7’s participation in the assault at the Substation beyond a reasonable doubt.

173.Ultimately, the case against D7 suffers from the same flaw as the case against D4.  There is no identification by any witness of either appellant from any of the video recordings or the photographs to stand as a sure yardstick or foundation for his presence in the group either immediately before or after the assault on Tsang.  Ultimately, their convictions, unlike those of the other appellants, derive from an identification which the judge himself made but which none of the witnesses at trial was prepared to make.

174.In these circumstances, the appeals against conviction by D4 and D7 must be allowed and their convictions quashed.  In consequence, the sentences passed on D4 and D7 are duly set aside.  Given the successful appeal against conviction by D7, it is not necessary to deal with his application to adduce fresh evidence.

175.We would like to emphasise that our conclusion that the convictions of D4 and D7 are unsafe and unsatisfactory has come about following our own comprehensive analysis of the raw material and evidence disclosed in the appeal papers, in the wake of the judge’s extremely detailed evaluation and counsel’s equally thorough submissions.  Regrettably, since this was an essentially factual exercise in respect of the issue of identification for all appellants, it has taken the Court much longer than it would have liked to conscientiously discharge its function.

176.We also note that in this case leave applications were heard before a Single Judge over the course of four separate hearing days, excluding the dates of the delivery of judgments[209].  The resulting decisions of the Single Judge read together comprise a total of 189 pages of written judgment.  Given the factual intricacies of this case and the obvious array of grounds of appeal involving pure matters of law, on which leave to appeal was not required, and pure matters of fact as well as matters of mixed fact and law, on which leave was required, we think in retrospect that the exercise of separate leave applications before a Single Judge was not a prudent use of judicial time and resources. 

177.Moreover, a Single Judge when faced with such a case cannot be expected to master all the complexities of the evidence and arguments, particularly when dealing individually at different times with different appellants without an overview of the case and the arguments to be deployed by each appellant.  This is a case in which, given the intricate and complex facts, the large number of grounds of appeal, some of which required leave, others of which did not, and the number of appellants involved, the applications for leave to appeal should have been ordered to be heard at the same time as the hearing of the appeals before the full Court.

H.     Discussion on sentence

178.We turn to the appeals against sentence by D1, D2, D3, D5 and D6.  As we have said, the sentences passed upon each appellant for the offence of assault occasioning actual bodily harm were 2 years’ imprisonment.

179.Nobody could take serious issue with the judge’s endorsement of the principle that police officers must be deterred from breaking the very laws they are empowered and entrusted to uphold[210].  Not only did the assault on Tsang dishonour the reputation of the Hong Kong police force in the eyes of the general public, it will have damaged Hong Kong’s reputation in the international community which was also witness to these events.  Leaving aside any issue of the identity of the officers concerned, it is incontrovertible that Tsang was assaulted by serving police officers at a time when he was already under restraint in police custody.  Moreover, Tsang was badly assaulted by several police officers who kicked, stamped on and beat him for a sustained period while he was lying defenceless on the ground with his hands tied behind his back, causing obvious and serious injuries to his face, neck, shoulder, chest and back.  And while they did so, senior officers looked on and allowed their subordinates to break the law.  These actions will have shaken everyone’s faith not only in the Hong Kong police force but in the rule of law itself.

180.The judge accepted that at the time of the offence, the officers concerned were under “great pressure”[211] and acting under “immense stress”[212]. It must be recognised that this was an extremely testing time for a generation of police officers who had never had to face such large‑scale manifestations of civil disorder and disobedience, in which they would inevitably, and no doubt reluctantly, become embroiled.  In HKSAR v Chu Frankly[213], the Appeal Committee of the Court of Final Appeal, in dismissing the application of a police Superintendent for leave to appeal against both conviction and sentence, said[214]:

“We echo the Magistrate’s and Judge’s acknowledgement of the extremely difficult and often provocative circumstances faced by the Police during the Occupy Central protests and pay homage to the disciplined professionalism exhibited by the vast majority of the officers deployed. While we have sympathy for the highly regrettable situation in which the applicant finds himself, such a violation of the law involving the unwarranted use of force against a member of the public cannot be condoned.”

We respectfully agree.  Whatever the pressure and stress the appellants were under, and however great the insult and provocation they perceived from participants in the events that night, there was no excuse for what they did to Tsang.

181.In our judgment, an offence such as this, in which the public had witnessed police officers, who were entrusted to uphold the law, break that law in such a deliberate and shocking way, must be visited with an immediate sentence of imprisonment. However, bearing in mind the competing considerations to which we have referred, we would have assessed the starting point for D3, D5 and D6 in respect of Charge 1 at 21 months’ imprisonment; and for D1 and D2, as the senior officers who lent their approval and authority to their subordinates to commit this offence, which it lay within their power to stop, at 24 months’ imprisonment.  We do not, with respect, accept the respondent’s submission in support of the judge’s finding that all of the participants in this joint enterprise were of equal culpability.  In any event, in the context of a sentence that can essentially be measured in months, the starting point adopted by the judge of 30 months’ imprisonment may be said to be manifestly excessive.

182.We also do not agree with the judge that the sentence of 1 month’s imprisonment on Charge 2 in respect of D5 should have been ordered to run concurrently with his sentence on Charge 1.  This was a separate and distinct offence on a suspect in custody in a police station, who was simply refusing to cooperate.  The sentence should have been ordered to run consecutively to the sentence on the main charge and we shall so order.

183.We would, however, honour the judge’s reduction of 6 months for the appellants’ records in serving the community as members of the Hong Kong police over many years, and for which they must inevitably suffer a significant fall from grace in terms of their careers and, possibly, their pensions. 

184.Accordingly, the sentences to be served by the appellants will be as follows:

D1 – 18 months’ imprisonment;

D2 – 18 months’ imprisonment;

D3 – 15 months’ imprisonment;

D5 – 16 months’ imprisonment (15 months’ in respect of Charge 1, with 1 month in respect of Charge 2 to be served consecutively);

D6 – 15 months’ imprisonment.

I.     Conclusion

185.In the result, we find no merit in the ground of appeal raising a question of law only; the renewed Grounds 1.2 to 1.6 and 1.10 advanced by D1; the renewed Grounds 1, 3 and 4 advanced by D2; Ground 7 advanced by D3; Grounds 4.1, 4.4, 4.5 and 9 (except 9.4) and the renewed Ground 8 advanced by D5; and Ground 7 (except 7.4) advanced by D6.  Accordingly, we dismiss the appeals against conviction by D3, D5 and D6 and the renewed applications for leave to appeal against conviction by D1, D2 and D5.

186.However, we allow the appeals against conviction by D4 and D7 for the reasons we have set out in this judgment.  Accordingly, their sentences are duly set aside.  We also allow the appeals against sentence by D1, D2, D3, D5 and D6 to the extents we have indicated.

Mr Jonathan Caplan QC instructed by, and Mr David Leung SC, DPP, Ms Clara Ma SPP and Ms June Wong PP of, the Department of Justice, for the Respondent

Mr Tim Owen QC, Mr Clive Grossman SC and Mr Benson Tsoi, instructed by Kwok, Ng & Chan, for the 1^st Appellant

Mr Selwyn Yu SC and Mr Edward Tang, instructed by Sun Lawyers LLP, for the 2^nd Appellant

Mr Wong Man Kit SC and Ms Amanda W M Li, instructed by Rowdget W Young & Co, for the 3^rd Appellant

Mr Peter Duncan SC and Ms Mavis Lam, instructed by Christine M Koo & Ip LLP, for the 4^th Appellant

Ms Charlotte Draycott SC, Mr Job K M Mak and Mr Gavin P H Wan, instructed by Rowdget W Young & Co, for the 5^th Appellant

Ms Charlotte Draycott SC, Ms Priscilia Lam and Ms Fiona Chong, instructed by Rowdget W Young & Co, for the 6^th Appellant

Mr Joseph Tse SC and Ms Doris Ho, instructed by P C Woo & Co, for the 7^th Appellant

[1] At the time D1 was a Detective Chief Inspector, D2 was a Detective Senior Inspector, D3 was a Detective Sergeant, D4 was a Police Constable, and D5 to D7 were all Detective Police Constables: Admitted Facts (2), para 1, Appeal Bundle p 27.

[2] They were found not guilty of a charge of causing grievous bodily harm with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212 but guilty of the lesser offence of assault occasioning actual bodily harm.

[3]     Lunn VP.

[4] By Yeung VP and Lunn VP respectively.

[5] A summary of the appellants’ grounds of appeal is set out at Annex A to the respondent’s submissions dated 22.10.2018.

[6] See Appeal Bundle p 1085 for a layout of the scene.  Exhibit P20(c) is a video subsequently taken of the scene with the agreement of the parties in lieu of a site visit.

[7] Tsang was subsequently charged and convicted of one charge of assaulting a police officer and two charges of resisting police officers in the due execution of their duties.  Tsang subsequently lodged an appeal against conviction (see HCMA 311/2016).  However, upon his filing of a Notice of abandonment, his appeal was dismissed on 21.3.2017.

[8] A total of five police officers testified in the voir dire as to what took place during the struggle with Tsang.  Sgt 47574 (PW1) was the first police officer to get hold of Tsang.  Sgt 34200 (PW2) then assisted PW1 to subdue Tsang and take him to the pavement; PW2 was also the one who sprayed OC foam at Tsang’s face.  Both SIP Fu (PW3) and SSgt 52820 (PW4) went forward to assist PW2.  SIP Wat (PW5) followed in order to assist PW3 and PW4.  These events can be seen in the Now TV video recording, Exhibit P4 (depicting the struggle at 00:30-00:39) and the ATV video recording, Exhibit P3(2) (depicting Tsang’s face being washed at 00:13-00:17).

[9] In view of one of the arguments raised by D7 on appeal, namely that the judge was wrong to regard it as an “inherent improbability that D1 - D6 would let a police officer from another team … assist them to carry Tsang and witness their assault on Tsang”, as a basis for convicting D7 (see Reasons for Verdict, para 680(iii)), it may be relevant to note that, as a matter of the constitution of the team in question, it was the prosecution case that, save for D4, who was a member of a different team (namely, the video team), but later apparently re‑deployed as a member of the Quick Response Team (“QRT”) A2 ‑ 2, and save for D1 (the leader) and D2 (the officer-in-charge), the other appellants were original members of QRT A2 ‑ 2 constituted on 15.10.2014: Reasons for Verdict, para 3.

It was also an admitted fact (Appeal Bundle; pp 27 and 28, paras 2 and 3) that D1 was a member of the Organised Crime and Triad Bureau at Police Headquarters; D2, D3, D4 and D7 were members of different teams of the Anti-Triad Section of Kwun Tong Police District; D5 was a member of the Regional Special Duty Squad of Kowloon East Region; while D6 was a member of the Anti-Triad Section of the Kowloon City Police District.

Apart from D2, D3 D5 and D6, DPC 8097 (PW28) and DPC 5840 (PW29) were also members of QRT A2 - 2, whose witness statements (Exhibits P48 & P49) were read into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221. 

[10] Commissioner of Police v Television Broadcasts Ltd & Others (Unrep., HCMP 114, 115, 118, 190 & 120/2016, 8 March 2016).

[11] Exhibit P12: Appeal Bundle p 1034.  The prosecution alleged that it depicted D1, D2, D4, D5 and D6 in the act of escorting Tsang.

[12] Exhibit P13: Appeal Bundle p 1035.  The prosecution alleged that it depicted D1 to D6 escorting Tsang who was being carried face down.  The same was depicted in the Apple Daily so-called “moving photograph”, Exhibit P2(c) (00:20-00:26).

[13] These include the video footage of TVB (Exhibit P1), Apple Daily (Exhibit P2), ATV (Exhibit P3) and Now TV (Exhibit P4).  Save for Exhibit P3(2), the ATV footage library copy, all other footage was downloaded from the Internet: Respondent’s submissions dated 22.10.2018, para 29.

In short, the Now TV footage and the TVB footage both showed Tsang pouring liquid from a bottle. The ATV footage shows Tsang being subdued and handcuffed.  All video footage showed Tsang being escorted and assaulted but only the TVB footage showed Tsang being carried.  A summary of the video footage and the photographs depicting the event in sequence is set out in the “Extracts of footage/photographs in chronological order” in Annex E to the Respondent’s submissions.

[14] They included PW1 to PW5 (police officers mentioned supra), PW7 (ATV witness), PW8 to PW10 (TVB witnesses) and PW11 (Tsang).  

[15] Apart from the photographs and the video footage, the voir dire also aimed to determine the admissibility of the CCTV recordings at Central Police Station, which recorded two police officers taking Tsang into, and out of, the police station.  These CCTV recordings are relevant to Charge 2.

[16] Exhibit P1 contains eight video recordings, namely P1(a) ‑ (h).

[17] Transcript of PW8’s evidence (re-examination): Appeal Bundle p 389E ‑ F.

[18] Transcript of PW8’s evidence (examination in chief): Appeal Bundle p 364E ‑ F.

[19] Between 00:09 and 00:10.

[20] Transcript of PW8’s evidence (examination in chief): Appeal Bundle p 366R ‑ T.

[21] That part of the footage may be compared with Exhibit P12 (Appeal Bundle p 1034).

[22] Transcript of PW8’s evidence (examination in chief): Appeal Bundle p 370Q.

[23] Transcript of PW7’s evidence (examination in chief): Appeal Bundle p 332F ‑ G.

[24] Reasons for Verdict, para 24.

[25] Reasons for Verdict, para 41.

[26] Transcript of oral ruling given on 28.6.2016: Appeal Bundle pp 1061 ‑ 1062.

[27]   R v Robson [1972] 1 WLR 651.

[28]   R v Murphy [1990] NI 306.

[29]   HKSAR v Lee Chi Fai [2003] 3 HKLRD 751.

[30]   “Social Networking Material as Criminal Evidence” [2012] Crim LR 486.

[31] Reasons for Verdict, para 47.

[32] Reasons for Verdict, para 55.

[33] Reasons for Verdict, para 60.

[34] Reasons for Verdict, para 65, where the judge said he agreed with the prosecution that, in Murphy,when it said “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”, the Court was only giving an example taken from the circumstances of that case, but not saying for every comparison the authenticity of the footage compared with must be beyond doubt.

[35] Reasons for Verdict, para 56.

[36] Reasons for Verdict, para 118.

[37] Reasons for Verdict, para 119.

[38] Reasons for Verdict, para 164.

[39] Reasons for Verdict, para 165.

[40] Reasons for Verdict, para 167.

[41] Reasons for Verdict, paras 328 - 331.

[42] Reasons for Verdict, para 355.

[43] Reasons for Verdict, para 380.

[44]  Reasons for Verdict, paras 356-358.

[45] Reasons for Verdict, para 338.

[46] Reasons for Verdict, para 773.

[47] For the relevant photographs taken from Tsang’s mobile telephone, see Appeal Bundle pp 1071 ‑ 1076.

[48] Reasons for Verdict, para 814.

[49] Reasons for Verdict, para 816.

[50] Reasons for Sentence, para 9.

[51] Reasons for Sentence, para 18.

[52] Reasons for Sentence, para 10.

[53] Reasons for Sentence, paras 13 ‑ 15.

[54]   HKSAR v Hui Man Tai (Unrep., CACC 334/2007, 22 July 2008).

[55] Reasons for Sentence, para 12.

[56] Ground 1.1 of D1’s PGA, Ground 2 of D2’s Amended PGA, Ground 1 of D3’s PGA, Ground 1 of D4’s PGA, Ground 1.1 of D5’s Amended PGA, Ground 1.1 of D6’s Amended PGA, and Ground 1.1 of D7’s Amended PGA.

[57] Respondent’s submissions dated 22.10.2018, para 23.

[58] Respondent’s submissions dated 22.10.2018, para 26.

[59] Respondent’s submissions dated 22.10.2018, para 28.

[60] By way of a Notice of Renewal (Form XIII) filed on 6.4.2018.

[61] Respondent’s submissions dated 22.10.2018, para 36.

[62] Respondent’s submissions dated 22.10.2018, paras 37 ‑ 38.

[63] Respondent’s submissions dated 22.10.2018, para 40.

[64] Respondent’s submissions dated 22.10.2018, para 46.

[65] Respondent’s submissions dated 22.10.2018, paras 47 ‑ 60.

[66] Respondent’s submissions dated 22.10.2018, para 68.

[67] By way of a Notice of Renewal (Form XIII) filed on 5.4.2018.

[68] D2’s Amended PGA, paras 1.2 and 1.5.

[69] D2’s Amended PGA, paras 1.3 and 1.4.

[70] D2’s Amended PGA paras 1.6 and 1.7.

[71] Respondent’s submissions dated 22.10.2018, para 71.

[72] D2’s Amended PGA, paras 4.1 ‑ 4.4.

[73] D2’s Amended PGA, para 4.4.4.

[74] D2’s Amended PGA, para 4.4.1.

[75] D2’s Amended PGA, para 4.4.2.

[76] D2’s Amended PGA, para 4.4.3.

[77] D2’s Amended PGA, para 6.

[78] D2’s Amended PGA, paras 5.1 ‑ 5.3.

[79] D3’s Ground 7.3 and written submissions for D3 dated 8.10.2018, para 22.

[80] D3’s Grounds 7.1 and 7.2.

[81] D3’s Ground 7.5.

[82] D3’s Ground 7.6.

[83] Written submissions for D3 dated 8.10.2018, para 25(2) and Annexure 2 attached thereto.

[84] Written submissions for D3 dated 8.10.2018, para 25(4).

[85] Respondent’s submissions dated 22.10.2018, para 74.

[86] Respondent’s submissions dated 22.10.2018, para 78.

[87] Respondent’s submissions dated 22.10.2018, para 75(2).

[88] Respondent’s submissions dated 22.10.2018, para 76.

[89] Respondent’s submissions dated 22.10.2018, para 81.

[90] By way of a Notice of Renewal (Form XIII) filed on 4.4.2018.

[91] D5’s Ground 4.1.

[92] D5’s Ground 4.4.

[93] D5’s Ground 4.5.

[94] Respondent’s submissions dated 22.10.2018, para 83(8).

[95] Respondent’s submissions dated 22.10.2018, para 84.

[96] D5’s Ground 9.1.

[97] D5’s Ground 9.2.

[98] D5’s Ground 9.3.

[99] Skeleton submissions for D5 dated 8.10.2018, para 37.

[100] Respondent’s submissions dated 22.10.2018, para 87.

[101] Respondent’s submissions dated 22.10.2018, para 110(2).

[102] Respondent’s submissions dated 22.10.2018, para 112.

[103] Respondent’s submissions dated 22.10.2018, para 111.

[104] Respondent’s submissions dated 22.10.2018, para 113.

[105] The full answer 3 in Exhibit P48(c) read “Yes. At about 3:15 a.m. on 15 October 2014, having taken over an arrested male later known as CHAN Tsz-kin, [D7] and I walked along the West‑bound carriageway of Lung Wo Road and escorted the arrested male onto the coach for arrestees at the lay‑by outside the barracks of the Liberation Army Force.  Then, I got on board with the arrested male and escorted him to the detention centre for further action. [D7] left there to join other team members.”

[106] Respondent’s submissions dated 22.10.2018, para 100.

[107] Respondent’s submissions dated 22.10.2018, paras 102 - 103.

[108] Respondent’s submissions dated 22.10.2018, para 101.

[109] Respondent’s submissions dated 22.10.2018, para 103.

[110] D1’s PGA, para 3.1(5); D2’s Amended PGA, para 10.

[111] D1’s PGA, para 3.1(6).  It may be noted that D1’s date of arrest was 26.11.2014 and the first day of trial was 1.6.2016.

[112] HKSAR v Lau Kwok & others (Unrep., CACC 529/2001, 30 May 2003).

[113] Respondent’s submissions dated 22.10.2018, paras 122 ‑ 123.

[114] Respondent’s submissions dated 22.10.2018, para 127.

[115] Respondent’s submissions dated 22.10.2018, para 129.

[116] R v Nikolovski [1996] 3 SCR 1197, at paras 20 - 21.

[117] “Video Tape Evidence: The Risk of Over‑Persuasion”, by D.W. Elliot [1998] Crim LR 159.

[118] Ibid., at 159.

[119] “Social Networking Material as Criminal Evidence”, by O’Floinn and Ormerod [2012] Crim LR 486.

[120] Ibid., at 511.

[121] R v Bain [2009] NZCA 1, at para 232.

[122] R v Penney [2002] 163 CCC (3d) 329, at para 46.

[123] See, for example, the controversy between the authors of “Social Networking Material as Criminal Evidence” (supra), at 491, and the article by Rosemary Pattenden, namely “Authenticating ‘things’ in English Law: principles for adducing tangible evidence in common law jury trials” (2008) 12 Int Jnl of Evidence and Proof 272.

[124] Phipson on Evidence (19^th ed), at 41-07.

[125] R v Quinn [2011] NICA 19.

[126] HKSAR v Lee Chi Fai [2003] 3 HKLRD 751.

[127] R v Quinn [2011] NICA 19, at para 12.

[128] It may be noted that Higgins LJ was a member of the Court in both Murphy and Quinn.

[129] R v Robson [1972] 1 WLR 651.

[130] Choi Kit Kau v R (Unrep., Crim App No 333 of 1980, 20 June 1980).

[131] R v Robson [1972] 1 WLR 651, at 653E-F.

[132] Ibid., at 653G - 654F.

[133]   Ibid., at 655H - 656B.

[134] Ibid., at 656B-C.

[135] See, for example, in Australia, Workcover Corporation v Camarinha [1999] SASC 390, at paras 13 - 14; R v Pizlea [1998] SADC 4000, at pp 12-13; and R v Smith, Ashford and Schevella (1990) 50 A Crim R 434, at 451.  And, in New Zealand, R v Bain [2009] NZCA 1, at paras 232 - 233.  Whilst we do not think that those passages in the New Zealand Court of Appeal judgment establish that the Court was in fact adopting a “balance of probabilities” test, the Supreme Court of New Zealand in R v Bain [2010] 1 NZLR 1, appears to have interpreted it as having done so, at para 31.  However, this matter was no longer germane to the appeal by the time the case had reached the Supreme Court of New Zealand.

[136] See, for example, R v Brown [1999] OJ No 4865, at para 3; R v Penney (2002) 163 CCC (3d) 329, at para 47; R v Crawford [2013] BCJ No 2879, at para 49; R v Iyer (2015) ABQB 577, at para 9; and R v Parsons (2017) NLTD(G) 160, at para 44.

[137] “Social Networking Material as Criminal Evidence”, by O’Floinn and Ormerod [2012] Crim LR 486, at 492.

[138] Cross and Tapper on Evidence (12^th ed), at p 184.  We would, however, respectfully point out that Robson was not a Court of Appeal decision, as was erroneously suggested by Cross and Tapper on Evidence at p 184.  The claim by the editors of both Archbold (at 4-360, page 551) and Blackstone (at F8.54, page 2650) that there is a Court of Appeal decision upholding Shaw J seems to be erroneous.

[139] Phipson on Evidence (19^th ed), at 41-07 footnote 82.

[140] R v Murphy [1990] NI 306, at 342B - C.

[141] Appeal Bundle, p 410K.

[142] Appeal Bundle, p 409I - N.

[143] Reasons for Verdict, paras 333 - 336.

[144] Reasons for Verdict, paras 337 - 338.

[145] Appeal Bundle, p 409J.

[146] R v Murphy [1990] NI 306, at 313D.

[147] Ibid., at 315A.

[148] Ibid., at 342E - F.

[149] Reasons for Verdict, paras 162 - 163.

[150] R v Murphy [1990] NI 306, at 338H - 339A.

[151] Reasons for Verdict, para 148.

[152] Reasons for Verdict, paras 164 - 165.

[153] Appeal Bundle, p 412M.

[154] R v Murphy [1990] NI 306, at 342F - G.

[155] Admitted Facts, para 18: Appeal Bundle p 25.

[156] Appeal Bundle, pp 402O - 405R.

[157] Appeal Bundle, p 406B - E.

[158] Appeal Bundle, p 413F - G.

[159] Commissioner of Police v Television Broadcasts Limited & Others (Unrep., HCMP 114, 115, 118, 119 & 120/2016, 8 March 2016).

[160] Ibid., at para 51.

[161] Kajala v Noble (1982) 75 Cr App R 149, at 152.

[162] Kajala v Noble, at 152.

[163] R v Murphy, at 343H - 344B.

[164] See the judgment of Lunn VP in HKSAR v Lau Cheuk Ngai [2018] HKCA 59, at paras 23 - 29.

[165] Appeal Bundle, p 414N - S.

[166] Appeal Bundle, p 415A - D.

[167] Reasons for Verdict, para 229.

[168] Reasons for Verdict, para 231.

[169] Reasons for Verdict, paras 265 - 266.

[170] Admitted Facts (2), para 6: Appeal Bundle, p 28. 

[171] Admitted Facts (2), para 3: Appeal Bundle, p 28.

[172] Appeal Bundle, p 399Q - R.

[173] Appeal Bundle, p 399P - Q.

[174] Admitted Facts (2), para 3, Appeal Bundle, p 28.

[175] See the witness statement of DSgt Ma, Exhibit P50(a).

[176] Appeal Bundle, p 398D-E; pp 457T - 458C.

[177] Reasons for Verdict, paras 348 - 358.

[178] Appeal Bundle, p 396C - E.

[179] Annex A to the witness statement of CIP Chung, Exhibit P43(a): Appeal Bundle p 1038.

[180] The position of D2 is also shown on screen capture 6 attached to the prosecution’s closing submissions: Appeal Bundle p 1016.

[181] Reasons for Verdict, para 468.

[182] See also the Now TV footage Exhibit P4 from 00:40 to 00:44 hours. As a side note, it can be seen in the stated parts of both Exhibits P1(a) and P4 that there was a logo emblazoned above the left chest of D2’s T‑shirt, the seen part appeared to be an animal’s tail.

[183] See screen capture ID3 attached to the Reasons for Verdict: Appeal Bundle p 272.

[184] See screen capture ID4 attached to the Reasons for Verdict: Appeal Bundle p 272.

[185] Reasons for Verdict, para 348.

[186] Reasons for Verdict, paras 348 - 358.

[187] In the Apple Daily footage, Exhibit P2(d), from 00:25 to 00:42 hours, it is much clearer that D2 was talking on the earpiece and put such earpiece in his right ear.

[188] Reasons for Verdict, para 474.  For screen capture 19, see Appeal Bundle p 1029.

[189] See Admitted Facts (2), para 3, Appeal Bundle p 28.

[190] Reasons for Verdict, para 358.

[191] Annex A to the witness statement of CIP Chung, Exhibit P43(a): Appeal Bundle p 1038.

[192] Annex A to the witness statement of CIP Chung, Exhibit P43(b): Appeal Bundle p 1041.

[193] Reasons for Verdict, paras 483 - 485.

[194] Reasons for Verdict, para 489.

[195] Exhibit P44(a) is the witness statement of WSI Wu (PW39) which was read into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221.

[196] Appeal Bundle, pp 400A - E, J - K; 401E - F; 421D - E.

[197] Appeal Bundle, p 421C - G.

[198] The witness statements of WSSgt So (PW47) were read into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221.

[199] Appeal Bundle, pp 401T - U; 520M - O.

[200] Reasons for Verdict, para 590.

[201] Reasons for Verdict, para 599.

[202] Reasons for Verdict, para 590.

[203] Reasons for Verdict, paras 615 and 622.

[204] Reasons for Verdict, paras 615 - 617.

[205] Reasons for Verdict, para 328.

[206] Appeal Bundle, p 393 C – D.

[207] Reasons for Verdict, para 500.

[208] Reasons for Verdict, para 680.

[209] D1’s application for leave being heard on 23 November 2017; D2’s application on 18 January 2018; D4 and D7’s applications on 12 February 2018; and D3, D5 and D6’s applications on 8 March 2018.

[210] See para 33 (supra).

[211] Appeal Bundle, p 280E - F.

[212] Appeal Bundle, p 281C.

[213] HKSAR v Chu Frankly (2019) 22 HKCFAR 1.

[214] Ibid., at para 20.