Judge in Occupy activist’s assault trial should have pressed media to hand over video footage, court hears
Lawyer for one of seven convicted policemen argues authenticity at stake
The judge who convicted seven police officers of assaulting pro-democracy activist Ken Tsang Kin-chiu during the 2014 Occupy protest should have pressed the media to hand over original copies of key video footage at trial even at the expense of treading upon press freedom, an appeal court was told on Thursday.
Footage capturing the assault became incriminating evidence and was already the subject of an earlier judicial review. A High Court judge had ruled in favour of the press, saying they were not obliged to provide original copies to the prosecutors.
But on Thursday Tim Owen QC, for Chief Inspector Wong Cho-shing, said without the raw copies, it was not possible for his client to challenge their authenticity. The downloaded versions were used by the prosecution as key evidence during the trial.
Owen said District Court Judge David Dufton should have “taken the initiative” to request the original footage and photographs from various media outlets, including broadcaster TVB and newspaper Apple Daily.
“The procedure adopted in this case has problems,” he said, adding that it would be an important legal issue for the Court of Appeal to address as it could have a bearing on future cases that relied on press coverage as court evidence.
The British barrister was seeking permission to lodge an appeal against the inspector’s conviction and sentence.
Wong was convicted in February of one count of assault occasioning actual bodily harm on Tsang on October 15, 2014, and sentenced to two years in jail.
A considerable part of the trial hinged on news footage that the prosecutors downloaded from the internet. The footage, when viewed collectively, captured Wong and his six colleagues carrying Tsang to a substation in Lung Wo Road, Wan Chai, from a nearby protest site that night, before the assault.
The defence at the time challenged the authenticity of the footage, questioning its accuracy and whether it had been edited. Dufton allowed it to be included in the end, but Owen asserted on Thursday that the judge had erred in his legal assessment.
Owen said prosecutors had called a TVB representative to the trial to give an account of the result after he compared the footage they provided him with the original in his office. This approach was insufficient, he argued.
He said without viewing the actual original footage, the defence would not be able to confirm the witness’ findings. He also asked whether the judge should be allowed to cross-reference other footage with that of TVB to confirm their authenticity.
A decision will be handed down at a date to be specified.