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[English Translation – 英譯本]

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This Summary is not part of the Judgment.
D The Judgment is available at: D

http://legalref.judiciary.hk/lrs/common/ju/judgment.jsp
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PRESS SUMMARY
F F

G IN THE DISTRICT COURT OF THE G

HONG KONG SPECIAL ADMINISTRATIVE REGION

H H
CRIMINAL CASE NO 12 OF 2020
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J
HKSAR J
V
K K
YU Tak-wing (D1)

L
LAI Pui-ki (D2) L
CHUNG Ka-nang (D3)
M M
GUNG Tsz-shun, Jason (D4)

N CHEN Hung-sau (D5) N

KAN Ka-hong (D6)
O O
MOK Ka-ching (D7)
P LEUNG Ngan-pan (D8) P

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Q Q

R Before: His Honourable Judge Sham R

Date of Verdict: 31 October 2020

S S
Representation: Mr Adonis Cheung, counsel on fiat and Ms
T Angela Wong, Public Prosecutor, for HKSAR T

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Ms Linda Wong, instructed by L & W Lawyers,

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assigned by the Director of Legal Aid and Ms Chow C
Hang-tung, instructed by L & W Lawyers on pro bono
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basis, for D1

E Ms Fiona Nam, instructed by Cedric & Co., assigned E

by the Director of Legal Aid, for D2
F F
Mr Jon Wong, instructed by JCC Cheung & Co.,
G Solicitors, assigned by the Director of Legal Aid, for G

D3
H H
Mr Randy Shek, instructed by S.T. Cheng & Co.,
I Solicitors assigned by the Director of Legal Aid, for I

D4
J J
Mr Hectar Pun, S.C. leading Mr Chris Ng, instructed
K by JCC Cheung & Co., Solicitors, assigned by the K

Director of Legal Aid and Ms Ferrida Chan, instructed

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by JCC Cheung & Co., Solicitors on pro bono basis,
M for D5 M

Ms Olivia Tsang, instructed by O Tse & Co., assigned

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by the Director of Legal Aid and Mr Ernie Tung,
O instructed by O Tse & Co., on pro bono basis, for D6 O

Mr Li Kwok-wai, instructed by Ho Tse Wai &

P P
Partners, assigned by the Director of Legal Aid and
Q Mr Eric Wan, instructed by Ho Tse Wai & Partners, Q

for D7 & D8
R R

Charges: [1] Riot

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[2] Possession of offensive weapons in a public
T place T

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Verdict: Acquittal for Charge [1]

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Acquittal for Charge [2] C

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Summary:

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1. The Prosecution alleged that on 31 August 2019 (which was
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a rainy day), in the 2-hour period from sometime after 6 p.m. to sometime

E after 8 p.m., widespread riots took place on Hong Kong Island. Crowds E
set up road barricades with miscellaneous objects chiefly at two places
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(first at No.1 Hennessy Road, then on Luard Road about an hour later).
G Subsequently, the situation at these two places with road barricades G

turned into riots. At the former location, it was mainly that the
H H
miscellaneous objects that formed the barricades were set ablaze, and at
I the latter location, some people threw petrol bombs at the police check- I

line.
J J

K 2. The police made arrests later on and apprehended numerous K

people, including the 8 defendants in this case. Except for D5 (who was
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arrested on Marsh Road), all other defendants were arrested by police
M officers on the eastbound lanes and pavement of the stretch of Hennessy M

Road off Southorn Playground.

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O 3. The 8 defendants jointly face one count of riot (i.e. Charge O

1), which alleges that they, in the area of Luard Road and Hennessy
P P
Road, Wan Chai, in Hong Kong, together with other persons unknown,
Q took part in a riot. D4 faces an additional charge of possession of Q

offensive weapons (in a public place), contrary to s.33 of the Public Order
R R
Ordinance (i.e. Charge 2), which alleges that he had with him one petrol
S bomb and one extendable metal baton. S

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4. All defendants have a clear record. They each pleaded not

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guilty to the charge(s) and raised their defence through their legal C
representatives. At the end of the prosecution case, the Court ruled that
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there was no case to answer for D5, whereas the remaining defendants all

E elected not to testify and called no defence evidence. E

F F
5. In relation to the offence of riot, the Defence essentially did
G not dispute that riotous situations did occur that night; however, the G

question is, did the defendants take part in them?

H H

I 6. Regarding the offence of possession of offensive weapons, I

the crux of the matter is whether D4 was in possession of those items.

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The Defence accused the police of planting the items on D4 to frame him
K up, arguing that the CCTV footage at the scene of arrest could be K

corroborating evidence.
L L

M Analysis of evidence M

N
D1/ D7 N

O O
7. When D1 was arrested, he was with D7. The evidence

P against them mainly came from PC 13970 and PC 15126. P

Q Q
8. PC 13970 said D1 acted in a way to provoke the police
R before the arrest – he flipped open his respirator and chanted slogans with R

others (“Damn (you) black cops”, “Black cops, may your whole family
S S
die”), pointed an umbrella at the police, and hit it once on the ground,
T whereas the Defence denied that these had happened. The Court does not T

rely on the evidence of PC 13970 primarily because while he recorded the

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above-stated incident (in his Police Notebook, for example) at the first

C
opportunity, he did not make a record of the relevant matters, and his C
explanation that the Notebook was merely for making a simple record
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was also unsatisfactory.

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9. Based on the evidence of PC 15126, the Court cannot be
F F
sure that D1 and D7 did flee.
G G

D3
H H

I 10. The Prosecution contended that, from the video footage, it I

could be seen that D3 had shown up on two different occasions before his
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arrest. The first one was in the vicinity of No.1 Hennessy Road. It could
K be seen from the video footage that someone put white plastic boards on K

the pavement, seemingly to set up a road barricade. The second occasion

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was on Luard Road near Hennessy Road, where a person was seen
M holding a shield, staying together with people who were holding opened M

umbrellas. The face of that person could not be seen from any of the
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footage. The Prosecution ascertained the identity of D3 mainly on the
O basis of the following 5 points: O

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1) - wore a white glove on the right hand;
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2) - wore a black short(-sleeved) top;
R 3) - wore black trousers with the pattern of three stripes (there were white R

stains on the left thigh position and the trousers were a bit too long);
S S

4) - wore white sports shoes (with a black pattern near the sole);
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5) - carried on his back a blue backpack (with brown edges).
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11. The Prosecution submitted that these items of clothing or C
outfit had their own peculiarities. While each of these elements might
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appear to be ordinary when viewed individually, they became unique in

E combination. Coupled with the fact that the location and time of D3’s E
arrest was close to the place where that person appeared, the two
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therefore must have been the same person.
G G

12. In summary, the Court does not find the combination unique.
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The main reason is that the person concerned was at that time in some
I main streets and roads crowded with people instead of a closed and I

narrow space. Besides, the image captured in the video footage can only
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show a small group of people amongst the crowd.
K K

13. Regarding the Prosecution’s assertion that the person was

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D3, the Court can only conclude that it was likely the case, but it was not
M up to the standard of beyond all reasonable doubts (unless the scope of M

that area and the number of people were further reduced). As such, the
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Court is not going to rely on the evidence concerned to draw the
O conclusion as invited by the Prosecution. O

P P
D4
Q Q

14. In addition to the offence of riot, D4 is also charged with an

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offence of possession of offensive weapons, the objects in question being
S one petrol bomb and one extendable baton. The evidence concerning the S

offence of riot mainly came from a CCTV video clip which captured the
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course of D4’s arrest. The video clip was not in dispute.
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C
15. As far as the offence of possession of offensive weapons is C
concerned, in short, Sergeant 58171’s evidence was that he, while giving
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chase to D4, lunged at him, causing him to fall onto the ground. There

E was a struggle between the two. D4 broke away, got to his feet and fled E
(in fact, at a spot not far away, he was subdued onto the ground by other
F F
police officers). The sergeant, however, seized a backpack left by D4. He
G said he found in the backpack a petrol bomb and an extendable baton. G

H H
16. It could be seen from the video clip that before the sergeant
I and D4 appeared in the footage, an object which bore close resemblance I

to the extendable baton in the case had already appeared on the pavement
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(and at that time the crowd was running in the direction of Causeway
K Bay). The baton was rolling on the ground and ended up at the kerb of K

the pavement near the road. After the struggle with D4, the sergeant was
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later seen holding D4’s backpack while walking to that spot where he
M squatted down and picked up something. The sergeant said in evidence M

that the object he picked up was part of his gear, namely a torch.
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O 17. However, the explanation of the sergeant could not reconcile O

with the situation shown by the video. As shown by the video, at the time
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when the black object appeared on the pavement, the sergeant was
Q actually at a spot far away, running and advancing from behind to give Q

chase to the protestors. He then appeared and lunged at D4, causing him
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to fall onto the ground. That location was also at some distance (around
S 20 to 30 feet) from the part of pavement where the black object was S

lying. It was impossible for one to suggest that the black object had come
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from either the sergeant or D4’s backpack.
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18. The sergeant failed to provide a satisfactory explanation to C
his suggestion about his torch dropping mainly because of the
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discrepancy between his account of the course of the event and the video

E footage. Therefore, the Court cannot rely on the evidence of the sergeant. E
There is also no independent evidence from the Prosecution to show the
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source of the petrol bomb and the extendable baton. For these reasons,
G the charge of possession of offensive weapons against D4 cannot possibly G

be substantiated.
H H

I D5 I

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19. The evidence against D5 mainly came from PC6798, who
K came across her (clad in a black short-sleeved top and white trousers) K

twice in the evening in question. On the first occasion, when he reached

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Fenwick Street while advancing along the eastbound lane of Hennessy
M Road in the direction of Causeway Bay, D5 was on the westbound lane of M

Hennessy Road, about 30 metres in front of police check-line, with a

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microphone and a speaker in her hand(s), shouting towards the police
O check-line. What she said was mainly about calling on the police to O

exercise restraint, or words to that effect.

P P

Q 20. On the second occasion, when he continued to move Q

forward, he saw that D5 was at the junction between Hennessy Road and
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Marsh Road, speaking towards the police with a microphone, calling on
S the police to exercise restraint and to “allow sufficient time for citizens to S

leave. Don’t fire” or words to that effect. He then went over and arrested
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D5 for the offence of unlawful assembly.
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C
21. Other than that there is a video footage, in which she seemed C
to be with a man (not in black top) in somewhere. Those around them
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were mainly black-clad people wearing helmets. She appeared to be

E watching only and was not seen to be speaking to any of the black-clad E
people. She stayed for about 7 seconds before going away with the man
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to an area outside the camera lens.
G G

22. As seen from objective circumstances, in the places where

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D5 appeared, many people did in fact gather together at different times,
I petrol bombs were thrown and miscellaneous items were set on fire. But I

the question is, is there prima facie evidence to show that D5 and these
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people assembled for the purpose of breaching the peace?
K K

23. First, objectively speaking, what D5 said was not

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intimidating, insulting or provocative. Besides, there was no evidence
M from the Prosecution to show that D5 and the rioters assembled. Her M

appearance among a group of black-clad people seems to be for, more

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than anything else, the purpose of observing the environment.
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24. Based on such evidence, the Court was of the view that a
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properly directed jury could not possibly convict D5. It therefore
Q exercised its discretion to conclude her case at this stage by ruling that D5 Q

had no case to answer and dismissing the charge concerned.

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S D6 S

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25. The evidence against D6 mainly came from PC4906. It was
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not disputed that after he arrested D6, D6’s head was injured and

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bleeding, leaving quite some bloodstains on the ground. C

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26. The main reason why the Court does not rely on PC4906’s

E evidence is that in the witness stand he was evasive when asked about E
how D6 got injured, and did not tell the truth when confronted with the
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undisputed video footage.
G G

D8
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I 27. The evidence against D8 mainly came from PC14620. The I

main reason why the Court does not rely on his evidence is that his
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testimony might have been exaggerated and untrue. The officer’s account
K leaves an impression that, when he was moving forward at somewhere 20 K

metres away, he was already able to spot D8 to be among the front rows
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of the crowd, and that he was able to give a meticulously detailed
M description of his outfit. Under cross-examination, the officer admitted M

that, before advancing swiftly, he fixed his eyes on the group of people in
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front of him, without targeting anyone for arrest. Without targeting
O anyone for arrest, how could he have focused his attention on D8 from a O

distance and carefully noted down his outfit?

P P

Q Other evidence of participation in riot Q

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28. Based on the above analysis of the evidence, this Court is
S not going to rely on the evidence regarding the acts of some defendants S

prior to their arrests as alleged by the Prosecution. What remains are the
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location of the arrest of each defendant (including D2), i.e. eastbound
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lanes and pavement of the stretch of Hennessy Road off Southorn

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Playground, their clothing (mainly black in colour), their outfits and the C
items they carried at the time in question. Their outfits and the items they
D D
carried were nothing other than backpacks, helmets, goggles, respirators,

E face masks, gloves, saline solution and torches etc. Further, according to E
the facts accepted by the Court, D3 and D4 had been fleeing prior to their
F F
arrests.
G G

29. If the Court is to rely on “flight and concealment” as

H H
evidence against the defendants, the Prosecution must prove that the sole
I purpose for their “flight and concealment” was to flee out of I

consciousness of guilt. The Defence submitted that the Court must not
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neglect that there could be many innocent reasons for flight. They
K included leaving by acting upon the warning given by the police, or out of K

fear of the police because of the social environment around the time in
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question, or out of spontaneous reaction to swarms of people leaving.
M Having regard to the circumstances in which this case happened at the M

time in question, the Court agrees with the Defence’s contention that
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there could be other innocent reasons for the defendants’ flight, and that it
O was not necessarily out of consciousness of guilt. O

P P
30. The Prosecution invited the Court to infer that the
Q defendants had participated in the riot that had taken place in the area of Q

Hennessy Road and Luard Road on the basis of their clothing and outfits
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as well as the close proximity between the location of the arrests and the
S riot scene. S

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31. Solely based upon such evidence, there are at least two
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possibilities:

C C
(1) - They were related to the riot that took place earlier in the area of
D D
Hennessy Road and Luard Road;

E (2) - They just arrived and were arrested by the police before having any E

chance of participation.
F F

G 32. The first situation may support a finding of guilt, but the G

second obviously does not. This is because, the latest time at which the
H H
riot arising from the unlawful assembly in the area of Hennessy Road and
I Luard Road ended was the moment when the police took dispersal and I

arrest action. It was impossible for the defendants to have taken part in
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the assembly with the participants there. Furthermore, judging from their
K K
perspective, after they arrived and had yet to have a chance to take part in

L
the assembly with the others, they already had to escape from the scene. L
Under such circumstances, how can one conclude that the person(s) had
M M
participated in the riot that took place in the area of Hennessy Road and

N
Luard Road? N

O O
33. The Prosecution also asked the Court to consider whether

P the defendants should be convicted under the legal principle of P

“encouragement by presence”.
Q Q

R 34. However, it is stated in the relevant guidance note in the R

Specimen Directions in Jury Trials (page 8.4) that:

S S

T “Mere presence at the scene of a crime is not enough to prove guilt. But if you find T
that a particular defendant was at the scene and intended and did by his presence
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B alone encourage the others in the offence, he is guilty.” B

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35. The main point of the above guidance note is “did (by his
D presence alone) encourage the others in the offence”. If there is no D

evidence to indicate where the defendant was and what he/ she did
E E
previously, how can it be inferred that his/ her acts did encourage others?
F F
The first sentence of the guidance note already gives the warning: “Mere

G
presence at the scene of a crime is not enough to prove guilt.” G

H H
Clothing and outfits of the defendants

I I
36. The Court is of the view that one should not casually regard
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those dressed in black as participants of riots or unlawful assembly. This

K is in itself a dangerous approach by which innocent people could be K

wronged. The reason is that, in the circumstances at that time, apart from
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the people dressed in black, people wearing white or other colours could
M also be participants of the riot. The choice of colours for clothing is a M

matter of personal preference. There is no evidence to suggest that they

N N
deliberately used that to distinguish themselves from non-participants.
O O

37. Most of the defendants were wearing gear such as face

P P
masks, goggles, respirators and gloves. The Defence submitted that all
Q such gear was defensive and not offensive in nature. Q

R R
38. Undoubtedly, the situation of the night in question was not
S something that one would often see in Hong Kong. To some people, it S

was perhaps a rare and special historical moment. The Court does not rule
T T
out the possibility that, among those present, there were indeed some who
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went there hoping to witness everything that was happening. It is also

C
understandable that some concealed their faces to avoid being mistaken C
as rioters. Of course they understood that they had to bear a certain
D D
degree of risk and there was no guarantee that they would not run into

E any violent scenes. It was not wholly blameworthy to bring along E

protective gear (such as respirators, face masks and goggles) for they
F F
could offer some protection when there was tear gas around. Gloves and
G other protective gear could also serve a protective purpose to a certain G

extent.
H H

I Conclusion I

J J
39. Based on the above analysis, it can be seen that, even if the
K defendants are to be regarded as being related to the incidents that had K

happened before their arrests, their being participants of the riot is not the
L L
only reasonable inference. The biggest problem encountered by the
M Prosecution of the present case is the absence of evidence to show the M

acts of the defendants before their arrests. On the basis of the above-
N N
stated, the Court is of the view that the Prosecution has failed to prove the
O offences beyond all reasonable doubts and therefore the Court finds all O

the defendants not guilty of the offences charged.

P P

Q Q

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T T

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