HKSAR v. Lee Chi Fai and Others

CACC000099/2002

CACC 99/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 99 OF 2002

(ON APPEAL FROM DCCC 275 OF 2001)

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Coram: Hon Stuart-Moore VP, Stock JA and Pang J

Date of Hearing: 29 May 2003

Date of Judgment: 21 July 2003

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 26 February 2002, following a trial lasting eighteen days in the District Court before Deputy Judge A. Kwok, the Applicants (D1, D2 and D3 respectively) were convicted on three closely connected charges alleging against each Applicant individually that he had done an act tending and intended to pervert the course of public justice, contrary to Common Law. D1 was additionally convicted on charge 4 of common assault. D2 and D3 were acquitted on a fifth charge of jointly aiding and abetting D1's assault in charge 4.

2.D1 was sentenced to two years' imprisonment on charge 1 and to a consecutive term of six months' imprisonment on charge 4. D2 and D3 were each sentenced to eighteen months' imprisonment on charges 2 and 3 respectively.

3.The Applicants now seek leave to appeal against conviction.

4.The particulars of charges 1, 2 and 3 against D1, D2 and D3, respectively, were in identical language and alleged that:

".... on the 13th day of January, 2001, at Yuen Long, New Territories, in Hong Kong, with intent to pervert the course of public justice, (he) did an act which had a tendency to pervert the course of public justice in that he made a false statement that accused Tai Hiu-tung of obstructing a policeman, namely, Detective Senior Inspector Lee Chi-fai, in the course of his duty in order to incriminate the said Tai Hiu-tung of a criminal offence."

5.The common assault in charge 4, of which D1 was convicted, alleged that on 12 January 2001, at Shui Che Kwun Lane, outside the Catwalk Fantasy Disco in Yuen Long, D1 assaulted Tai Hiu-tung.

6.The Applicants were serving police officers attached to a District Anti-Triad Squad stationed in Yuen Long. D1 was a Senior Inspector of Police. D2 and D3 were detective sergeants.

7.In the course of their duties as police officers, they were instructed on 12 January 2001 by a senior officer to make a visit to the Catwalk Fantasy Disco ('the Disco') where Tai Hiu-tung (Tai) was the manager in charge. In due course, they met Tai and spoke to him in the laneway at the back of the Disco. Tai alleged that D1 assaulted him there and that following this incident he was falsely charged at Yuen Long Police Station with obstructing D1 in the course of his duty.

8.Each Applicant made a statement on 13 January 2001 which incriminated Tai on the charge of obstruction. It was these statements which led to the individual charges of doing an act tending and intended to pervert the course of public justice being laid against each of the Applicants.

9.In the normal course of events, the alleged assault on Tai, which according to him had not involved any obstruction on his part of the police, would have been one man's word against the three police witnesses about the events behind the Disco in Shue Che Kwun Lane. However, the Disco appears to have had an elaborate security system involving a large number of video cameras placed in strategic positions in and around the premises. One of these monitored the back laneway and allegedly recorded all the events as they happened. In particular, the videotape showed D1 kicking and punching Tai before he was forced into the rear doorway of the Disco where he was kept, out of sight from the lens of the camera, for about 7 minutes. During that time, D1 and D2 were with Tai while D3 stood in front of them in the laneway. When Tai emerged, apparently somewhat dazed by his experience, he was taken away by police without any visible act on his part which could have given rise to a charge of obstruction.

10.The judge, when convicting the Applicants, stated that he relied on the contents of the tape together with Tai's evidence when arriving at the conclusion that the Applicants were guilty of the charges they faced.

11.The principal effect of the grounds of appeal which counsel who represent the Applicants in these proceedings advanced was that the judge ought to have placed no reliance upon the videotape recording at all. It was said, firstly, that it ought not to have been admitted in evidence and, secondly, that even if it had been properly admitted, the judge should have attached no weight to it.

12.At trial, the defence alleged that the videotape was not authentic in that the material parts of it had been altered in a way which produced a false picture of what had occurred in the laneway.

Prosecution's case

13.The prosecution alleged that when the Applicants went to the Disco at about 11.00 pm on 12 January 2001, they were engaged on an exercise which involved trying to locate an individual known as 'Ah Chau'. They were hoping to obtain information from Tai about Ah Chau's whereabouts. However, on their arrival, Tai was absent. Staff at the Disco were told to get hold of Tai and, soon afterwards, he duly arrived. Tai recognised D1 and D2 as the police officers who had previously asked him for help in finding Ah Chau. They asked him to go outside and, together with D3, he was led through the back door leading to the laneway. His mobile telephone was inspected and D2 asked Tai once more about Ah Chau. Tai explained that he had spoken to Ah Chau who was going to make contact with the officers after Chinese New Year. He was accused of being uncooperative. Suddenly, D1, who had been standing in front of Tai while he was being questioned by D2, swore at Tai and then kicked him on the thigh and punched him in the face. D1 then pushed Tai by the neck into the recessed back doorway to the Disco. While he was kept there, D1 again struck him and D2 restrained him. D3 kept guard over the doorway. Tai was eventually led away by police.

14.It was these events, other than those which were obscured from view while Tai was kept in the doorway recess, which were recorded on the closed circuit television (CCTV) apparatus.

15.We were informed that an anonymous caller had summoned an ambulance to attend the scene. Tai was then taken to hospital where subsequent medical examinations revealed areas of redness to the right lower neck and to the back of the head. No other physical injuries could be seen.

16.When Tai left the hospital, he was taken to Yuen Long Police Station from where he was released on or about 13 January 2001. Meanwhile, the Applicants had each made a statement as the result of which, on 17 January 2001, Tai was charged with the obstruction offence.

17.Two days prior to being charged, Tai made a complaint to CAPO by telephone about the assault to which he alleged he had been subjected. A week later, on 22 January 2001, Tai provided CAPO with two abbreviated copies of the relevant parts of the videotape taken from the video cassette recorder (VCR) at the Disco which had recorded these events. As a result, the Applicants were arrested on 24 January 2001. Tai identified them on the same day at formal identification parades as the police officers responsible for his treatment in the laneway at the back of the Disco. At trial, Tai's identification of the Applicants was not in dispute.

18.The prosecution produced an abbreviated copy of the original videotape (Exhibit P11) as well as the original tape (Exhibit P10). Tai testified that he had activated the CCTV system at sometime after 4.00 pm on 12 January 2001 and that when he was able to view the contents of the tape, he could see that it had recorded the assault by D1 in the presence of D2 and D3. He then made abbreviated copies. The original tape lasted ten hours in long play mode, and just over seven hours had been recorded by the time the VCR had been switched off. He said that he had made copies of the relevant portions of the tape because he did not trust the police. Tai eventually handed the original tape to CAPO on 24 April 2001. He said that he had kept it at his home from the time he had been handed it by someone (who he did not name) on or about 13 January 2001. By this time he had made several more abbreviated copies.

19.Tai said that he had at no stage tampered with the original tape. This assertion was confirmed by Inspector Lo Wing-kai (PW13) who testified as an expert examiner of videotapes. He found no signs of fabrication following detailed examinations of both the original tape (Exhibit P10) and the copy (Exhibit P11).

20.It is apparent from this brief description of the prosecution's case that Tai had not been able to gain custody over the videotape (Exhibit P10) until his release from the police station on or about a day after the events recorded on the videotape. We shall return to this gap in the continuity of the evidence in due course as the defence, both at trial and in these proceedings, placed considerable reliance on what they termed "the missing witness" when alleging that the original tape may have contained fabricated film sequences.

Defence case

21.None of the Applicants gave evidence. Four witnesses were called on their behalf including an expert, Dr Li Chi-kwong, to deal with matters relating to the authenticity of the videotape (Exh. P10). Dr Yip Chi-pang, a forensic pathologist, commented on the inconsistency of Tai's injuries when compared to Tai's own account of the assaults to which he had allegedly been subjected. The two remaining witnesses gave evidence providing, firstly, a background to the police visit to the Disco and, secondly, character references.

22.Dr Li's evidence regarding the videotape effectively amounted to a series of criticisms of the methods employed by PW13 to examine the videotape. His own examination of the tape had been relatively cursory. He postulated, amongst other things, that with modern technology it was possible that 'seamless editing' could have taken place.

23.In a comprehensive review of the evidence, the judge summarised what Dr Li had to say in these terms:

"According to him, with the advent of modern digital technology, anyone with a powerful computer and appropriate software could edit the images of a video recording in a computer. He said that such a process could have been carried out and then the edited version could then be downloaded and recorded back into the original tape without being detected. His comment was that all the tests performed by Inspector Lo were not sufficient to detect any 'seamless editing'. In order to have a more detail(ed) investigation, Dr Li is of the opinion that additional tests can be conducted. However, his evidence was, even with such tests, there is no guarantee of detecting that any 'seamless editing' had indeed taken place." (Appeal bundle p. 34)

24.Relying on a combination of Dr Li's evidence, the gap in the so-called 'chain of evidence' relating to the videotape immediately after its removal from the VCR and on doubts which were raised about Tai's general veracity, the defence challenged the admissibility of the original videotape (Exh. P10). For these purposes, the 'alternative procedure' was adopted to conduct a voir dire in order to determine its admissibility. The defence also objected to the prosecution being allowed to call their expert, PW13, on the footing that the prosecution had failed to provide the defence, under the terms of section 65DA(1)(b) of the Criminal Procedure Ordinance, Cap. 221, with copies of all his records and other documents showing the basis upon which he had formed his opinion that the videotape had not in some way been fabricated. The relevant terms of this section are as follows:

"65DA Notice of expert evidence

(1) Following the committal of any person or the transfer of any charge or proceedings or action or matter for trial in the court, or the making of an order for the retrial of any person in the court, if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so -

(a) ....

(b) where a request in writing is made to him in that behalf by any other party, provide that party also with a copy of (or if it appears to the party proposing to adduce the evidence to be more practicable, a reasonable opportunity to examine) the record of any observation, test, calculation or other procedure on which such finding or opinion is based and any document or other thing or substance in respect of which any such procedure had been carried out.

(2) ....

(3) ....

(4) ....

(5) A party who seeks to adduce expert evidence in any proceedings and who fails to comply with subsection (1) shall not adduce that evidence in those proceedings without the leave of the court." (Appeal bundle p. 28)

As to this, the judge accepted that there had not been full compliance with the terms of the section but, exercising his discretion under section 65DA(5), he allowed the prosecution's expert evidence to be adduced and ordered at the same time that the defence should be supplied with all the documents they had requested. An adjournment for these purposes was necessitated.

The applications for leave to appeal

25.The grounds of appeal advanced by Mr Macrae, SC, on D1's behalf were effectively adopted by Mr Cheng Huan, SC, on behalf of D2 and D3. Mr Macrae essentially submitted that the videotape ought not to have been admitted as an exhibit because "there was a vital and incurable breach in the chain of evidence" as the prosecution had been unable to prove who had obtained the tape on 12 January 2001 and what had happened to it before it was handed to Tai on either 13 or 14 January 2001. Thus, he argued, the prosecution was unable to prove that the videotape had not been fabricated and, in any event, even if it was strictly admissible, it should have been accorded no weight. He contended, also, that the evidence given by the prosecution's expert, Inspector Lo (PW13), had been wrongly admitted as the result of the judge's failure to exercise his discretion properly, following the prosecution's non-compliance with section 65DA of the Criminal Procedure Ordinance.

26.Mr Macrae also advanced a number of propositions which individually or in combination, he suggested, meant that D1's convictions could not stand. He pointed, in particular, to the judge's reliance upon Tai's evidence which was found to have been confirmed by the videotape. This led the judge to conclude that "the content of the tape, together with evidence of Tai" proved that "what had happened to Tai .... was exactly described by Tai and accurately depicted on the tape". If the tape should not have been admitted, he argued, or, alternatively, if no weight should have been attached to it, inevitably the convictions of D1 were unsafe or unsatisfactory. Mr Macrae accepted that the relevance of the videotape, as a first requirement for its admissibility, had been established whereas he disputed that the prosecution had done enough to establish its authenticity on the basis that its provenance had not been strictly proved. This, he submitted, provided an opportunity for someone to have tampered with the videotape.

27.In the course of argument, we were referred to a number of previous authorities, as well as the works of various learned textbook authors, for the purposes of establishing the proper approach to be adopted before evidence of the kind with which we are presently concerned can be admitted in a court of criminal jurisdiction. The judge in the instant case admitted the videotape on the basis that it had been shown to be prima facie original and authentic. In doing so, he relied upon R v Robson and Anor [1972] 1 WLR 651 at 653H where, in a case concerned with the admissibility of audio tapes, Shaw J ruled that:

'.... 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."

28.This test of admissibility in respect of tape recordings is summarised in Archbold 2003 at para 4-290. This indicates also that Shaw J's ruling was upheld in an unreported judgment of the Court of Appeal. By way of contrast, Mr Macrae placed some weight on paragraph F3.21 at page 2007 in Blackstone's Criminal Practice 2003 entitled 'Standard of proof on facts affecting admissibility of evidence' which states that:

"When the burden of proving the admissibility of a particular item of evidence is borne by the prosecution, the standard to be met is proof beyond reasonable doubt."

However, it is plain from the illustrations of this principle, which are given immediately afterwards, that the learned author was not referring to evidence in the form of tape recordings. The same author in his textbook entitled 'Murphy on Evidence' (6th ed.) at page 108, when dealing with evidence of the kind with which we are presently concerned, wrote:

"Questions of authenticity and originality, on the other hand, are those cases in which there is no question that the evidence tendered is admissible from a legal standpoint, but there is a question whether the piece of evidence tendered is what it purports to be, that it is an original piece of evidence and that it has not been tampered with. These cases concern tangible exhibits, such as photographs and tape-recordings. There is no doubt that such evidence may be admitted, but there must be some foundational showing that the actual exhibit proffered is what it is represented to be. The judge would therefore receive evidence of the secondary facts necessary to demonstrate that the proffered exhibit is authentic and original, that is to say that it was made or found in the manner described by the proponent, and that it has not since been altered or tampered with."

A footnote to this extract indicates that the author had in mind the ruling in R v Robson (above) and the earlier decision in R v Stevenson [1971] 1 WLR 1. The text, before this embarked on a consideration of Robson's case, continued at page 113:

"Where the question is one of authenticity or originality, it appeared until recently to have been settled (and, it is submitted, should be the law) that the party proffering the evidence should be required to do no more than establish a prima facie case of authenticity or originality. The reason for this is simply that authenticity and originality are ultimately matters affecting the weight of the evidence, and there is no doubt that the evidence is legally admissible. Questions as to its weight, including any questions of whether the evidence is shown to be authentic or original, are matters for the tribunal of fact. Conversely, where the question is one of whether evidence is legally admissible or not, the tribunal of fact cannot consider the evidence unless it is first ruled to be admissible."

29.Counsel in these proceedings were able to find only one reported case where a court in Hong Kong has considered the admissibility of tape recordings. This was a magistracy appeal, Choi Kit-kau v R [1980] HKLR 433 at 438-9, where the test in R v Robson was applied. Roberts CJ said:

"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.

The best method of proving that a tape recording produced in court is authentic is to show that it has been, since the time it was recorded, continuously in the custody of persons who assert that it was not tampered with. This is a course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not."

30.In that case, an ICAC officer had taken possession for some time of the tape recording in question but had not been able to give evidence as to its safe custody throughout that period. Dealing with this aspect, Roberts CJ went on to say:

"In theory, it could have been tampered with during that time. In practice, in this case, it is highly unlikely, if the evidence of PW6 is accepted, namely that a copy of the original tape was taken for translation purposes before the original was placed in Mr Moyce's custody. Once the copy had been taken for transcription, it would have been too late for alterations to be made to the original with any hope of deceiving the court.

In any event, it was never suggested by the defence that the original tape was other than a genuine one. I am satisfied that there was sufficient evidence on which the magistrate could decide that the tape was genuine and had been satisfactorily proved."

31.In a more recent case decided in Northern Ireland, the Court of Appeal comprehensively reviewed a number of cases concerning the approach taken to the admissibility of filmed recordings. The headnote in R v Murphy and Anor [1990] NI 306 provides a summary of the facts in that case which reads as follows:

"The appellants were charged with the murder of two soldiers on waste ground off the Andersontown Road, Belfast, on 19 March 1988. The soldiers were driving to Lisburn when their car by chance came face to face with the cortege of an IRA style funeral. The approach and presence of the car with the soldiers in civilian clothes attracted hostile notice from some of the mourners and spectators. Groups of them ran to the car, surrounded it and smashed at it and eventually dragged the soldiers from it. The soldiers were beaten, overpowered and taken by taxi to waste ground where they were shot dead by two gunmen who were not the appellants. The appellants were seen and apprehended by an RUC patrol near the waste ground a short time after the incident. The appellant Murphy's clothing was bloodstained. The appellant Maguire was not wearing a shirt and blood was seen on his chest and hands. The prosecution adduced in evidence films which were alleged to show the appellants' participation in the murder. The first was a 'heli-tele' film, capturing the whole incident continuously from an airborne army helicopter. In this film, two persons, alleged to be the appellants, were seen to assist others in restraining and beating the soldiers and assisting the two gunmen. The second film was a copy of a 'European' film, taken by a European cameraman, which was alleged to show Maguire as the front seat passenger in the abducting taxi and a person like Murphy as the back seat passenger. Other 'commercial' film from British and Irish television showed the two appellants together in the funeral cortege before the incident. In addition, forensic evidence was adduced that established that the appellants had been in contact with the soldiers and in the taxi in which the soldiers were abducted. The trial judge convicted both appellants, holding that each had been a party to a joint enterprise to murder the soldiers and that each was guilty as an aider and abettor."

32.For present purposes, as Mr Gavin Shiu on the Respondent's behalf was right to emphasise, this authority was principally relevant to the issue of the European film's admissibility. Adopting his helpful analysis about this aspect of the decision in R v Murphy, the starting point is that the cameraman was not called as a witness. The individual who produced the film at trial was not even from the camera crew or the company for whom the camera crew had worked. He was an officer from the Paris police. The Paris studio, under court order, produced a video copy to the officer of the relevant clip of film. This particular clip had also been recorded, during its broadcast, by several different sources including the BBC. The film clips were not objected to on the basis they were unauthentic but on the basis that they were only admissible if "the cameraman was called or that evidence was adduced that it was an authentic copy of the original". The trial judge said he would admit the European film as it was clearly relevant and "he would determine the extent of its authenticity when he saw it and what weight, if any, should be given to it". The trial judge compared the 'European' film with the 'heli-tele' film and he concluded in due course that it was clear beyond any doubt that the European film was authentic and had not been tampered with or altered.

33.It was submitted that the trial judge in that case had been in error in admitting the evidence of this film clip. In dismissing the appeals, the court (at p. 342-4) held that:

:.... the European film being relevant, once it was shown to be prima facie authentic, it was admissible. Any attack thereafter could only go to weight. The issue of weight could embrace many things - further inquiries into its authenticity, its provenance and history and whether it was an original and if not how it came to be copied.

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. In the case of a tape recording the evidence of its authenticity will, in almost all cases, be that it is the original recording made at the time. In the context of tape recordings, the word 'original' will invariably be a synonym for 'authentic' as we consider it was in the context of the three cases relied upon by Mr Treacy and not 'original' in contrast to 'secondary'. If the original tape is not available, then the 'provenance and history' of the copy will be a necessary requirement to prove authenticity. In all these three cases the essential contest was the authenticity of the tape recordings, and we repeat that no such issue was raised in the instant case.

So, in our opinion, in the case of video recordings, the issue for the judge is, is it relevant? If it is, is it prima facie authentic? If it is, then it is admissible and it is left then to the jury or the Diplock judge to decide whether its authenticity is beyond doubt and if its contents prove or add to the proof of guilt beyond reasonable doubt.

We think that the foregoing accords with these passages from current text-books. Cross on Evidence at 43 states:

'At a trial by jury the party relying on a recording or a film must satisfy the judge that there is a prima facie case that it is authentic, and it must be sufficiently intelligible to be placed before the jury. The evidence must define and describe the provenance and history of the recording up to the moment of its production in court. There is no need to account for the absence of the original if the copy is shown to be authentic.'

And Murphy in A Practical Approach to Evidence at 92, 93 writes:

'Questions of admissibility properly so called are those cases in which the judge has to decide whether a professed piece of evidence is admissible as a matter of law, having regard to the rules of evidence. In order to decide this, the judge may have to receive evidence of secondary facts. . .

Questions of authenticity and originality, on the other hand, are those cases in which there is no question that the evidence tendered is admissible from a legal standpoint, but there is a question whether the piece of evidence tendered is what it purports to be, that it is an original piece of evidence and that it has not been tampered with. These cases concern tangible exhibits, such as photographs and tape recordings. There is no doubt that such evidence may be admitted, but there must be some foundational showing that the actual exhibit proffered is what it is represented to be.'

That authenticity completes the requirements of proof of the admissibility of a relevant tape recording and that authenticity may be proved in a number of ways, are sufficient grounds, in our opinion, for upholding the trial judge's ruling that the European film was admissible. He came to his ruling by a route which has much in common in principle and which equally commends itself to this court. It was that the defence objection to admissibility was based on the best evidence rule which in almost all cases of evidential proof has petered out and undoubtedly has done so in the proof of video recordings since the decision in Kajala v Noble [1982] 75 Cr App R 149.

In Kajala the video cassette recording of the BBC news programme produced to show the defendant and others throwing missiles at the police was not the original film but the court was satisfied it was an authentic copy. The original was not available as it was the BBC's policy not to allow the originals of their films to leave the premises. The defence submitted that as the original film existed it should have been produced and the prosecution was not entitled to rely on the recording since it was secondary evidence. This was rejected by the Divisional Court. Ackner LJ (as he then was) said, in what has become a well known passage, at 152:

'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 goes only to weight, and not to admissibility: Garton v Hunter [1969] 1 All ER 451 per Lord Denning MR at p 1001. In our judgment, the old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.'

He added at 153, and this is equally pertinent to the instant case:

'Mr Wiggs complains that, because the cameraman was not called, the justices could not be satisfied that the incident alleged took place on July 3. We cannot agree. The justices were fully entitled, from an examination of the material to which we have referred, to be satisfied as to the date. Mr Wiggs further complains that no doubt the film had been edited, in the sense that material had been cut out of the original film, in order to reduce it to an appropriate length, and that in the absence of the cameraman it was not possible to tell whether the film showed the events in their true sequence. However, no attack was made upon the integrity of the film in the sense that it had, by cutting, distorted the activities of the appellant. In such circumstances it is irrelevant that the film might not have shown the events in their true sequence, so long as the film accurately showed the activities of the defendant.'"

34.We consider that the approach adopted by the Northern Ireland Court of Appeal was, with respect, wholly correct. In the present case, where there had been an attempt by the defence to attack the authenticity of the videotape, the judge carefully analysed the evidence he had heard before deciding that the film was prima facie admissible. In particular, he had rightly observed, with regard to the film's authenticity, that the prosecution's expert (PW13) had found no signs of fabrication and that the evidence of the defence expert had largely consisted of "criticisms about the methodology" used by PW13.

35.The videotape, which we have had the advantage of seeing, shows the actions described by Tai in his evidence with vivid clarity. Of equal importance, in the present context, is what the film fails to show when compared to the allegations made by each of the Applicants in their witness statements. These, of course, were made at a time well before they had been alerted to the possibility that their actions had been recorded on videotape. It is especially noteworthy that there is no sign of Tai pulling at D1's sleeve and refusing to let go which was the basis of the obstruction charge arising from those statements. Also, if the Applicants' statements were to be believed, it must follow that the actions of D1 kicking Tai and punching him, as depicted on the film, are false images which have somehow been incorporated into the videotape. As to this, the judge, when dealing in his Reasons for Verdict with the cogency and weight to be attached to the videotape, and rightly at that stage applying the criminal standard of proof, stated:

".... the degree and extent of any possible editing is far more elaborate and complicated than was suggested by Mr. Chandler in his cross-examination. Inspector Lo in his evidence has positively said that there is no sign of physical editing. As to digital editing, he was also alive to the possibility of 'seamless editing'. One of the institutes to which he is a member, is the Society of Motion Pictures and TV Engineering. The society (is) involved, so he said, with digital filming and digital filming format. He was also heavily involved with a sizeable case of authenticity examination of videotapes and received considerable practical experience during his work and the on-the-job training. His considered opinion was that the tape has not been tampered with, physically or digitally.

When questioned about the technique of digital editing, Inspector Lo (PW13) was of the view that in order to create the sort of image now appearing in the tape, actors might have to be employed and filmed against a blue screen and then transposed the same onto the tape. Dr. Li concurred in his evidence that this is one of the ways to achieve the desired effects especially involving elaborate or complicated editing. In my judgment, it is far from easy to find doubles with comparable body build and facial features of the three Accused and performed or simulated the action. To me, the actions of the figures in the tape are so smooth and continuous that it is unlikely that image so presented was indeed created by digital imaging or editing.

Comparing with Inspector Lo, Dr. Li's experience and background is more academic. He suggested that technically it is possible to alter or manipulate the pixels ('picture elements') of the image so as to create body movements or actions. What he said was with perfect 'seamless editing', the edited tape would be as good as the real tape and no matter what method is used there is no guarantee that the editing could be detected. As I see it, his criticism levied against Inspector Lo' s method was made under the assumption of the existence of a perfect 'seamless editing' in an extreme case. It remains however theoretical as Dr. Li testified. He said he had, in the past, only performed minor modification of arrangement of pixels like the re-arranging of the sequence of the films. Even based on his knowledge and experience, his estimate was, assuming the effort and skills was there, it would require at least a number of weeks before the image of kicking and punching alone could be created and edited to the tape. It is noteworthy that the copy tape (Exhibit No. P11) which depicted the same image in the tape was delivered to the CAPO by Tai as early as on the 24th January i.e. only 12 days after the incident. As stated, the extent and magnitude of the editing taken place in this tape must be far greater than the mere creation of 'kicking and punching'. Dr. Li accepted in his evidence that for more complicated editing, arrangement of pixels alone is insufficient. Upon further analysis, his observation about Inspector Lo's inability to detect 'seamless editing' was far fetch(ed) and unrealistic in the light of the kind of editing necessitated in the tape. While it is not for the defence to prove anything, the reality is Inspector Lo has examined the tape, which according to him, is devoid of any sign of digital or physical editing. I find that in the evidence before me about the tape, the so-called 'seamless editing' can at its best cast a 'fanciful' doubt on Inspector Lo's opinion.

All the Accused stated in their witness statements that the 3rd Accused had pulled away Tai and then Tai began to bang his head and legs against the rear door. Again this was not shown in the tape. What the tape clearly depicted was that it was Tai who himself emerged from the doorway to the lane after 6 to 7 minutes together with the 2nd Accused which was then followed by the 3rd Accused. Again if the version of the Accused was true this image shown on the tape must be false and created as well. This would certainly render the task of 'seamless editing' more difficult.

All in all, the quality of the tape is good. It is clear and cogent and the image in it showed actions of people which were continuous and uninterrupted. The record of the timing of the tape being removed from the recording machine i.e. 7 hrs. 16 ms. 55 s. is also consistent with Tai's claim that he started the recording at 4 pm and the incident took place sometimes after 11 pm. I am satisfied beyond reasonable doubt that Inspector Lo's opinion that the tape is an original and has not been tampered with must be correct. By implication of his evidence, it is also authentic. A picture is worth a thousand words, as my finding is the tape consists of real pictures, I place full weight on the content of the image as shown on the tape." (Appeal bundle pp. 47-49)

36.Mr Macrae accepted that no longer was an original of a videotape necessarily required before evidence of its contents could be admitted and that it was for the prosecution in the present case to establish its authenticity to the satisfaction of the judge. He submitted that the judge could not have been satisfied about the authenticity of the videotape when at least twenty-four hours had elapsed before Tai was given what purported to be the original tape by someone whose identity was never revealed, and when twelve days had elapsed before CAPO was handed a copy of what purported to be the relevant extract from the tape.

37.However, the judge had, in our opinion, ample material on which to arrive at the conclusion that Exhibit P10 was prima facie authentic and ultimately to arrive, as he did, at the conclusion that it was the original tape with which no one had tampered. The circumstantial evidence in this regard was very strong. Aside from Inspector Lo's evidence that he could find no evidence of Exhibit P10 being altered in any way, an acceptance of the logistics and general stage management which would necessarily have been involved in the practical realisation of the theories propounded by Dr Li for the defence would have bordered on the absurd. For any of Dr Li's theories to have been a practical reality, the videotape needed to have been digitally edited, following the substitution of the Applicants in the laneway at the back of the Disco with actors who looked like them. Bearing in mind the limited time in which this complicated process had to be carried out, the videotape would then have had to be "seamlessly edited", to borrow the defence expert's phraseology, to include scenes which never happened and to exclude others which had taken place. We have set out, at paragraph 35, the judge's analysis of the position. Dr Li's theories, based upon his academic background were, as the judge aptly stated, "far fetched".

38.This ground fails.

39.A further ground, which Mr Macrae submitted should have resulted in the exclusion of the videotape evidence, involved a repetition of the arguments put before the trial judge that the prosecution's conduct revealed that there had been a breach of section 65DA(1)(b) of the Criminal Procedure Ordinance (see paragraph 24).

40.The judge was alive to the issues and no reason has been advanced in these proceedings to show that he exercised his discretion wrongly when permitting the videotape to be admitted in evidence. The judge comprehensively reviewed the relevant chronology of events before concluding that the prosecution had not fully complied with the section because they had served on the defence "the methodology" adopted by Inspector Lo without also serving "the notes, charts and photographs" that he had made during his examination of the videotape. The judge very properly considered whether the defence would suffer any prejudice if he exercised his discretion to admit the videotape evidence. He had been made aware that Inspector Lo was content to supply all his preparatory material to the defence and that all of it had been retained. In such circumstances, the judge concluded that:

"Under the circumstances, after the receipt of these further documents, if the defence needs time to consult their own expert, further adjournment could always be sought and the court will be prepared to accommodate any reasonable request for adjournment for this purpose. If, however, any costs of the defence is thought to have been wasted through this application and adjournment, subject to argument, the court always has a discretion to award costs in any event.

As can be seen, any conceivable prejudice can thus be cured through the granting of adjournment and/or costs. To stop the prosecution from adducing the expert evidence would be, in my judgment, introducing disciplinary jurisdiction and ought not to be done simply to express judicial dissatisfaction of the way it is handled by the prosecuting authority. In any event, the interest of the defence has not been prejudiced to the extent that a fair trial is impossible.

What the present case concerns is a serious allegation against the three Accused who are serving members of the Police Force. The evidence of Inspector Lo deals with the authenticity of the tape which allegedly depicted the incident of the assault and is thus highly probative of the issue tried by the court. The interest of the prosecution, and therefore the interest of the public, demands that the guilt or innocence of the Accused being fairly and openly determined upon the proper merits of the evidence and not a mere technicality.

Accordingly, I ordered .... the prosecution to serve to the defence all the copies of the requested documents forthwith and exercised the discretion to allow them to adduce expert evidence." (Appeal bundle pp. 30-31)

41.Although we were referred to the English Court of Appeal's judgment in R v Ward [1993] 2 All ER 577, which was also concerned, amongst other things, with the non-disclosure of forensic evidence, the circumstances were so completely different that an analysis of that case for the purposes of these proceedings would provide no useful purpose. It suffices to say that there had been material and wilful non-disclosure of scientific evidence on a massive scale, leading the English Court of Appeal (at p. 626) to conclude that there had been a "catalogue of lamentable omissions" arising from three scientists taking the law into their own hands to conceal from the prosecution, the defence and the court "matters which might have changed the course of the trial".

42.This ground of appeal fails.

43.Another complaint raised by Mr Macrae about the factors which led the judge to permit the prosecution to introduce the 'videotape' evidence was that the judge had accepted the truth of Tai's assertion that the 'missing' witness, who had removed the videotape from the VCR and handed it to Tai a day or so later, was not willing to reveal his identity. Mr Macrae submitted that this issue was seemingly resolved, so far as the judge was concerned, by what he was told by prosecution counsel during his closing address. This was to the effect that the so-called 'missing' witness had made a statement, that it had been served on the defence and that neither side had chosen to call him. Mr Macrae's contention was that the judge "suggested" that the defence ought to have called the witness and, in doing so, erred in law by reversing the burden of proof.

44.These points, together with the submission that the judge never mentioned or considered whether the videotape evidence was more prejudicial than probative, were singularly unmeritorious and we reject them.

45.Dealing with the last point first, obviously the nature of this evidence was, as most cogent evidence called by the prosecution is likely to be in every case, highly prejudicial. Equally, if accepted, the evidence provided by the videotape was highly probative. It was said not only to confirm the testimony given by Tai but also to expose the falsity of the Applicants' witness statements. The judge's Reasons for Verdict provide a fine example of articulate expression of opinion based on a fair, sensible and accurate evaluation of the evidence together with his interpretation of the relevant law. It is true that there is nothing to be found in the judge's approach to the law so trite as a self-direction that evidence should be more probative than prejudicial before being admitted. There was no need for this to be spelt out when the judge plainly and implicitly had found that this was so.

46.Returning briefly to the judge's apparent acceptance of what he was told from the Bar table, this related to the provenance of the videotape on which the defence had placed such great store. The judge had rightly found that there had been no evidence to refute the account which Tai had given about how he had come by the videotape after his release from police custody. When the judge considered the role played by the unnamed person who had handed the videotape to Tai, he said:

"As to the 'missing' witness so-called by Mr Chandler in his submission, I accept that Tai's reluctance to divulge the information about the identity of this witness is only due to his desire to respect the anonymity of that witness and I found nothing sinister in this regard. In any event, I learned later from Mr Mullick in final submission that Tai had indeed provided to the police detail of that witness after he had finished giving evidence. As I understand, a witness statement has been obtained from that witness and the same has also been served to the defence. It is the decision of both the prosecution and the defence that this witness would not be called. Mr Chandler urged me to take that into account. I disagree. My task here as a Judge is to decide the case on the evidence that has been placed before me and no more. As a matter of law, the prosecution is not obliged to call all available evidence and if the prosecution adopts such a course that does not automatically lead to an adverse inference against the prosecution witnesses. In this case, the statement has been made available to the defence and it is up to them to decide whether this evidence should be led. I should certainly not speculate about what evidence this witness might have been and allow myself to be drawn into the speculation ......... The prosecution is under no obligation to call all witnesses from whom it had taken a statement ........." (Appeal bundle p. 44)

47.The prosecutor, Mr John Mullick, had been extremely circumspect in what he had himself described as a "guarded" response. He had understandably been called upon by the judge to deal with this issue and he was not only entitled, but duty-bound, to provide a clear response to the judge which he had duly proceeded to do. As we have set out in the passage we have just cited, the judge, having heard the explanation, which defence counsel had sought to have taken into account as a favourable circumstance in the defence case, said:

"My task here as a judge is to decide the case on the evidence that has been placed before me and no more". (Emphasis added)

48.It is apparent that what had properly been stated by Mr Mullick had not been regarded by the judge as 'evidence' in the case and as such was not taken into account for or against any of these Applicants. On the other hand, the judge had to be provided with the information he had sought which was no doubt in order to satisfy himself that the defence had not been treated unfairly by an act of apparent non-disclosure.

49.In fact, this whole issue relating to what Mr Chandler had termed a 'missing witness' was, it seemed to us, a red herring designed to give the appearance of a doubt in relation to the authenticity of the videotape in circumstances where there existed no other possible line of attacking its integrity. Tai had apparently been willing, during his evidence, to provide the name of the person who had handed him the videotape (Exhibit P10) so long as this was not made public. Mr Mullick sensibly suggested that the name should be written down on a piece of paper. Mr Chandler's tactic of seeking to maintain an ongoing mystery about a 'missing witness' was revealed in the following passage during his cross-examination of Tai which provides illustration of how he managed to silence Tai and was able to prevent the 'missing witness' from being identified. The course adopted was unattractive and unedifying. This went as follows:

"Q. I require you to answer. Tell me who it was.

A. Sorry, I can't tell you.

Q. I want an answer, please.

Court: The witness ....

A. Sorry, I can't.

Mr Mullick: May I suggest an alternative. He's going to have to answer the -- sorry to interrupt, but unless my learned friend -- perhaps he can write down the name on a piece of paper. ....

Mr J Chandler: I don't want it written down, I want it in open court. This is an open hearing.

Mr Mullick: Well, I think that's being unnecessarily dramatic. Write it down on a piece of paper and then rather - he's reluctant to voice it in public and there are reporters here.

Court: Yes.

Mr J Chandler: I don't think that's right. This man has refused to disclose the identity of an important person to the police, notwithstanding the fact that many requests have been made of him.

Court: No, it's not a matter of disclosure, it's a matter of how it is disclosed.

Mr J Chandler: Yes, well, I would like it done in open....

Court: Mr Mullick has rightly pointed out that there are reporters here and then if the identity of that person has to be revealed in the open court, now...

Mr J Chandler: Yes, I can't think of any basis why it shouldn't be revealed in open court. It's a person who gave a tape to somebody else.

Court: Yes.

Mr J Chandler: Well, can he then please answer?

Court: Yes. I will direct the witness.
Witness, now, you have a duty to answer the questions. Now, what the defence counsel ask you to disclose is the person's name, the identity of the person who hand you the original tape on that night. That is going to be very important to the issue of the authenticity of the tape because that person had apparently kept in his or her custody for a period of time, unspecified period of time, of that tape. All right? Now, you have to appreciate that and you have a duty to disclose that to the court. Do you understand?

A. (No audible answer)

Court: Now, what I would like you to do is to write down the name of that person into a piece of paper and hand it to the court.

Mr J Chandler: With respect, I'm not going to keep that name a secret. I will read it out. There is no privacy, with respect, in the identity of the person who received this particular tape.

Court: Well, we have...

Mr J Chandler: I can't think of any basis or any provision of any ordinance which would allow Your Honour to protect the identity of that individual ...."

(Appeal bundle pp. 123-124)

50.Later, Mr Chandler twice repeated that he did not want the name of the 'missing witness' to be written down. Not surprisingly, that is where the matter rested.

51.We propose to deal with the last ground of appeal raised on D1's behalf, which was again adopted on behalf of D2 and D3, very briefly indeed. A variety of complaints were made which, in combination, amounted to an allegation that the judge had erred in his approach to certain aspects of the evidence which left the defence at a disadvantage. In particular, it was suggested that in holding that Tai's evidence was "unshaken and undiminished" the judge must have overlooked parts of the evidence which showed that Tai's evidence cannot always have been reliable or true.

52.Mr Macrae sought to illustrate this ground by reference to several examples. He suggested, firstly, that the judge had unfairly tried to reconcile Tai's evidence about a previous licence check at the Disco, two days before the events with which we are concerned, with the evidence given by the defence witness (DW2) who was called to deal with those events. However, this was, in our opinion, a peripheral issue where it is hard to see that this could have made any difference to the judge's approach to Tai's credibility in relation to the events on 12 January 2001, supported as it was by the videotape recording of what had occurred.

53.Secondly, it was submitted that the judge's explanation for Tai's denial in evidence that he had known he had been "arrested" on 12 January 2001 provided an illustration that other evidence in the case had been ignored. He pointed out that Tai's denial conflicted with the testimony of two other police witnesses which exposed Tai's knowledge of this fact. The point was rightly described by Mr Shiu as pedantic. Nothing whatever turned on this. It was common ground that Tai was taken into custody and whether Tai, as Mr Shiu put it, was "actually arrested" was neither here nor there.

54.Thirdly, it was contended that the judge's explanation for the apparent inconsistency which arose between Tai's account of the assault upon him and the medical evidence, which failed to bear out a prolonged assault of the kind described by Tai, was based upon a misreading of Tai's evidence and a misunderstanding of the testimony given by the defence pathologist, Dr Yip Chi-pang. It was also said that other medical evidence given by prosecution witnesses had apparently been ignored.

55.Whilst Mr Shiu responsibly accepted that Tai may well have exaggerated aspects of his evidence in regard to the assault to which he was subjected, we were not persuaded that any of the matters raised by the medical evidence truly undermined Tai's evidence or that the judge had misread or misunderstood what Tai or the medical witnesses had said. Equally, the judge had not ignored anything of any importance. The most that Mr Macrae was able to show was that Tai had probably exaggerated the degree of the assault on himself, as revealed by the minor nature of the injuries he had actually suffered, and that the judge may not have given much weight, and certainly less than the defence would have liked, to this feature of the case despite the emphasis which had been placed on it.

56.Somewhat unwisely perhaps, Mr Macrae also chose to criticise the judge's approach to evidence which, as he put it, "clearly demonstrated that (Tai), notwithstanding his denials, must have known and been concerned about the removal (by D1) of underage customers on 12 January 2001 ....." This enabled Mr Shiu to reinforce the point that the defence witness, Chief Inspector Deakins (DW3), had apparently informed the court that the purpose of the police visit that day was to find the whereabouts of 'Ah Chau'. If, as the defence had suggested, based upon what was contained in the Applicants' witness statements, a licence check had been the real purpose of the visit, why, asked Mr Shiu rhetorically, was Tai taken outside by all three Applicants to discuss matters in the back laneway? In addition, there had been evidence from two prosecution witnesses that when the back door was shut, a number of police officers made it their business to prevent people from the Disco going through this door.

Conclusion

57.We have not found any merit in any of the grounds raised on behalf of the Applicants all of whom were convicted on overwhelming evidence.

58.Accordingly, the application by each Applicant for leave to appeal is dismissed.

Representation:

Mr Gavin Shiu, SADPP (Ag) and Mr David Leung, SGC, of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC and Mr James Chandler, instructed by Messrs Chong & Partners for D1/Applicant.

Mr Cheng Huan, SC and Mr Keith J. Oderberg, instructed by Messrs S.H. Chan & Co., for D2 and D3/Applicants