On 17 April 2020, the Court of Final Appeal gave its reasons for refusing leave to appeal to the CFA in HKSAR v Wong Cho Shing (黃祖成) and Ors; HKSAR v Chan Siu Tan (陳少丹) [2020] HKCFA 14; FAMC 48&49/2019, examining the legal standard for admissibility of video recordings.

Five police officers were convicted of assault occasioning actual bodily harm against Tsang Kin Chiu during a police operation conducted during the “Occupy Central” protests.  One of them was also convicted of common assault against Tsang on the same day.  Their convictions were upheld by the Court of Appeal.  The five sought leave to appeal to the Court of Final Appeal in respect of four questions of general public importance and two grounds on the substantial and grave injustice basis.

The first question states:

When the authenticity (and thus relevance) of video recorded material is in issue, does the test for admissibility require the party seeking to admit it to establish, to any legal standard, that the material is in fact authentic or is it sufficient merely to ask whether the disputed evidence, if believed by the tribunal of fact, would be sufficient to prove authenticity beyond a reasonable doubt?”

The CFA held that, contrary to the parties’ contentions, the Judge did not use the “if believed” formulation to indicate the standard of proving authenticity.  Instead, the formulation arose in the context of a voire dire and plainly used to draw a distinction between the Judge’s dual role as the tribunal considering the evidence for the purposes of admissibility and that of a tribunal determining the general issue of guilt.

The CFA went on to affirm that the applicable test for admissibility of video recordings is the “prima facie authentic” standard, in line with established authorities (HKSAR v Lee Chi Fai [2003] 3 HKLRD 751, R v Robson [1972] 1 WLR 651).

The second question concerned the authentication of disputed video footage.  The CFA held that prima facie authenticity is fact-specific and can be established using circumstantial evidence.  Further, the comparator evidence (as a control sample to authenticate other impugned evidence) need not be authentic beyond a reasonable doubt.

The third question concerned the use of ‘open source’ footage where originals were shown to be readily obtainable.  The question was dismissed firstly because trial counsel had never mounted any application for originals to be produced at trial.  In any event, it was held that the absence of original recordings should not necessarily negate the sufficiency of video evidence which admissibility ultimately rests on all the evidence available for assessing its authenticity.

The fourth question was dismissed as an attempt to invite the CFA to re-assess the weight of the evidence.

The grounds on substantial and grave injustice were rejected as they rested primarily on the contention that the Judge’s approach to determining admissibility of video evidence was erroneous.

 

Clive Grossman SC leading Benson Tsoi, instructed by Kwok, Ng & Chan appeared for the 1st, 2nd, 3rd, and 6th appellant.

The full judgment is available here.