HKSAR v. Wu Kin Cheung

HCMA 346/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 346 OF 2012

(ON APPEAL FROM ESCC 3421 OF 2011)

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J U D G M E N T

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1.This Appellant, a police officer in his early forties, was convicted after trial in the Magistrates’ Court on two charges. Charge 1 was of doing an act or acts tending and intended to pervert the course of public justice. It was particularised as follows:

“WU Kin-cheung, on the 23^rd day of July 2011, in Hong Kong, with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice in that he falsely represented to Police Constable 12667 and Sergeant 58443 that his mobile phone was damaged by FU Man-chi and to the said Police Constable 12667 that the said FU Man-chi attempted to leave so he had to hold her hand.”

Charge 2 was of assault occasioning actual bodily harm.  It was particularised as follows:

“WU Kin-cheung, on the 23^rd day of July 2011, outside a hawker stall at Chun Yeung Street, North Point, in Hong Kong, assaulted at FU Man-chi, thereby occasioning actual bodily harm to the said FU Man-chi.”

2.As to the prosecution’s case, the Magistrate said this in his Statement of Findings:

“2. The incident occurred in Chun Yeung Street where there are many hawker stalls selling a variety of goods. The defendant, at the time of the offense, was an off duty police officer. His wife (Ms. Hui) owned a fish ball stall there. The victim (Ms. Fu), a 68 years old lady and her daughter in law (Ms. Lo) ran a clothing business (Clothing Stall) in the same area. The neighboring stalls include a florist shop operated by one of the prosecution witnesses (Ms. Wong). She also assisted Ms. Hui in running the fish ball stall. In the past years, it was alleged that the Clothing Stall often caused street obstruction and hygienic problems in the vicinity. There had been constant disputes over those matters between the parties. The relationship between Ms. Fu and Ms. Lo as a family and Ms. Hui and the defendant as another was not harmonious.

3. At about 4:20 p.m. on 23 July, 2011, the defendant wanted to collect evidence so as to launch a complaint to the Food and Environmental Hygiene Department that the Clothing Stall had caused obstructions to the street. He pointed a mobile phone, which has a photo taking function, at Clothing Stall with a view to take pictures. Seeing that, Ms. Fu tried to prevent him from doing so. A heated argument between Ms. Fu and the defendant ensued. There was exchange of abusive language between them. She brushed off the phone by slapping his hand for two to three times. He reacted by deliberately throwing the phone away and quickly subdued Ms. Fu by pushing her down to ground. He squatted on her back and twisted her arm behind for some 20 seconds.

4. The commotion attracted many bystanders. One of the passerby was critical of what the defendant had done to Ms. Fu. He confronted the defendant by asking him to let go of her. The whole incident lasted for about 12 minutes and was captured by Ms. Wong with the use of a digital camera (P1) and its memory card (P2). The two exhibits, P1 and P2 are collectively referred as the "Footage". The course of the entire event was fully recorded both in audio and video forms as a result. The Footage is the most tale telling piece of evidence. She stopped filming upon the arrival of the police.

5. A number of police officers, amongst whom are PC 12667 and Sgt. 58443, arrived the scene at various intervals. The defendant misled PC 12667 by putting all the blame to Ms. Fu. He told the police that Ms. Fu had damaged his phone and tried to flee from the scene. He had to grab hold of her to prevent her from leaving. She then lay down on the ground by herself. He therefore asked his wife to call the police.

6. Sgt. 58443 saw that Ms. Fu was lying face down on the ground and mourning in pain. There were abrasion, swelling and redness on her face. She was later taken to hospital for medical examinations. Sgt. 58443, on the information of his colleague, learnt that Ms. Wong had captured the incident on camera. He turned to her for assistance. She agreed to show him the Footage by switching on the camera. They watched the Footage together at scene. The viewing abruptly ended in the middle of playback as the camera had run out of battery. He then asked Ms. Wong if he could keep the Footage for use as evidence in future. She agreed to turn over the Footage to him.

7. As the situation was chaotic, Sgt. 58443 took the defendant into a police vehicle where enquiries were further made. The defendant repeated the same version of explanation as what he told PC 12667 earlier (see paragraph 5 above).

8.   Later on of the day, Sgt. 58443 returned to police station where he viewed the Footage with the use of a computer (Unknown Computer) that belongs to North Point Police Station.  Upon watching the entire Footage, he passed it to the Duty Officer for safe-keeping.  Two days later, on 25 July 2011, DPC 3819 collected the Footage from the Duty Officer.  He delivered it to Sgt. 51276 of Technology Crime Division for forensic examination.  Sgt. 51276 is a qualified officer to handle evidence in digital form. He copied the Footage onto a DVD disc (P14).  In the end, all relevant exhibits were taken back, by DPC 3819, to North Point Police Station for storage.”

3.The defence case was summarised by the Magistrate in paragraph 21 of his Statement of Findings where he said this:

“21. In respect of the general issues, the defendant elected to give evidence. At the material time, he held a mobile phone intending to take photos of the Clothing Stall. Ms. Fu tried to stop him by striking his hand which caused pain to him. At that juncture, she turned around and tried to flee from the scene. He immediately put down his phone and intended to grab hold of her. It was completely out of his expectation that Ms. Fu suddenly slipped and fell. His spontaneous reaction was that he stretched out his arm to hold her. He emphasized that the incident happened very quickly and that he had no intention to harm her. Not long after that the police arrived. He had no recollections as to what questions were asked of him by the police. Neither did he recall how he answered them.”

4.After conducting a voir dire into the admissibility of the footage and the DVD, the Magistrate admitted them into evidence over the defence’s objection to them.  At the request of the Appellant’s leading counsel, the DVD was played and watched at the hearing of this appeal.

5.The Magistrate found that the footage and the DVD bore out the prosecution’s case as to the encounter between the Appellant and Madam Fu and that the Appellant had falsified his testimony and what he had represented to PC 12667 and Sergeant 58443.  On that basis the Magistrate found both charges proved.

6.He sentenced the Appellant to a total of 3 months’ imprisonment by way of concurrent terms of 3 months on Charge 1 and 2 months on Charge 2.

7.The Appellant now appeals against conviction and sentence.

8.Four grounds of appeal against conviction have been filed.  Ground 1 reads:

“The Learned Magistrate erred in having ruled that the prosecution has proved beyond reasonable doubt that the elements of the 1^st charge namely, doing an act tending and intended to pervert the course of public justice were satisfied.”

Ground 2 reads:

“The Learned Magistrate erred in not having dealt adequately with the mens rea of the Appellant as the charge of doing an act tending and intended to pervert the course of public justice requires specific intent.”

Ground 3 reads:

“The Learned Magistrate erred in having ruled that the footage taken by a prosecution witness WONG Sheung-ying and the DVD disc were admissible as evidence at trial.”

Ground 4 reads:

“The Learned Magistrate erred in ruling that the appellant’s act was an intentional use of force and that it was excessive by arm-locking and squatting Madam Fu at the scene.”

9.With the exception of the issues raised by Ground 3, all the issues are essentially issues of fact.  In my judgment, none of Grounds 1, 2 and 4 have been made out.  There was sufficient evidence on which to convict.  The mens rea under Charge 1 was properly inferred.  There was sufficient evidence on which to find intentional and excessive use of force duly proved.

10.Having paid close attention to the written and oral arguments of counsel on each side, I am satisfied that the Magistrate resolved the issues under Grounds 1, 2 and 4 in a way which cannot be disturbed on appeal.

11.It is submitted on the Appellant’s behalf under Ground 3 that the footage had been tampered with in violation of the provision of the Police Manual.  That argument is put like this in paragraph 17 of the Appellant’s skeleton submissions:

“17. The Learned Magistrate erred in having ruled that the footage is admissible and the court attached full weight in this case. It is submitted that, according to the Police Manual D1 (A) and (B), only trained officer may handle digital evidence with the use of proper hardware and software. SGT 58443 (PW3) is not a trained officer who had tampered with the footage with an unknown computer which rendered the footage inadmissible in the present case. The court has a duty to exercise residual discretion to exclude inadmissible evidence.”

12.That argument is answered by paragraphs 43 to 45 of the respondent’s skeleton submissions which read as follows:

“43. The Respondent submits that the Magistrate was alive to this issue at trial and he had carefully analysed the evidence before deciding that the clip was authentic, untampered with and therefore admissible. In particular, he rightly observed that:

(i) Sgt 51276 (a trained officer working at Technology Crime Division) who had viewed the video clip in question had detected nothing unusual about the digital data;

(ii) the video clip showed the actions of the Appellant, Ms Fu and the bystanders in a continuous manner. It recorded the speeches of various prosecution witnesses, the Appellant, the onlookers and the background noise. The continuity of the event was not interrupted. There was no sign to indicate that the video and audio recordings of the clip were lost or disrupted even for a fraction of a second; and

(iii) the contents of the video clip were consistent with the testimonies of various prosecution witnesses that described the incident.

44. It is also noteworthy that in HKSAR v Lee Chi-fai & Others [2003] 3 HKLRD 751, the Court of Appeal, in upholding the trial Judge’s finding on the authenticity of a video tape, stated in paragraph 37 that:

‘… 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’.’

45.   It is respectfully submitted that given that there is no sign indicating that the video and audio recordings of the clip in question were lost or disrupted, the video clip would have had to be ‘seamlessly edited’ to have the scenes which had taken place excluded.”

13.In my judgment, that adequately answers the Appellant’s argument.  There is no basis, whether as a matter of law, fact or discretion, on which to interfere with the Magistrate’s decision to admit the footage and DVD in evidence and to act upon the same.

14.All the grounds of appeal against conviction fail.  I dismiss the appeal against conviction.

15.Two grounds of appeal against sentence have been filed.  Ground 1, consisting of a paragraph numbered 2, reads:

“2. The Learned Magistrate failed to take sufficient consideration of the following factors from the Appellant in sentencing. They are as follows:

i) no sentencing guideline for both offences;

ii) potential loss of retirement benefits, his pensions and jobs;

iii) his previous 24 years of services as a police officer and his record of services in the police force;

iv) he did not involve abusing his duties as a police officer while committing both offences;

v)    his committing the offence out of anger and not a well-planned offence.”

Ground 2, consisting of paragraphs numbered 3 and 4, reads:

“3. The Learned Magistrate erred in not imposing the Community Services Order on the appellant simply based on the fact that Defendant had not shown any genuine remorse, despite the fact that the probation officer recommended the appellant a community service order and the contents of the report are favourable to the appellant.

4.   In the circumstances, the sentence of 3 months’ imprisonment in total is manifestly excessive.”

16.Reading the Reasons for Sentence, it is apparent that the Magistrate considered the question of sentence with care.  Whatever sympathy one may have for the Appellant having regard to the effect of this matter on his career and future and no matter what respect one accords to the recommendation in favour of community service, the fact remains that these were serious offences.  In my view, the sentence passed by the Magistrate was neither wrong in principle nor manifestly excessive.  I see no basis on which to interfere with it.  The appeal against sentence is dismissed.

17.I thank counsel on both sides for the assistance which they have rendered the Court.

Mr Graham Harris, SC and Mr Victor Ho, instructed by May Cheng & Co, for the appellant

Ms Irene Fan, of the Department of Justice, for the respondent