Secretary for Justice v. Law Hiu Fung and Others

CACC 13/2023
and CACC 14/2023

[2023] HKCA 177

CACC 13/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 13 OF 2023

(ON APPEAL FROM DCCC NO 854 OF 2020)

_______________

_______________

_______________

AND

CACC 14/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 14 OF 2023

(ON APPEAL FROM DCCC NO 438 OF 2021)

_______________

_______________

_______________

______________

D E C I S I O N

______________

1.This is an ex parte application by the Secretary for Justice for a warrant of arrest against (1) eight respondents in DCCC 854/2020, who were acquitted after trial of the offence of unlawful assembly[1]; and (2) a single respondent in DCCC 438/2021, who was acquitted after trial of the offence of rioting[2]. The applications are made pursuant to s.84(b) of the District Court Ordinance, Cap 336, (the Ordinance), primarily to admit the respondents on bail pending an appeal by way of case stated.

The statutory provision

2.For the purpose of these applications, it is useful to set out s.84 in full, which provides:

“84. Appeal by way of case stated

An appeal shall lie at the suit of the Secretary for Justice to the Court of Appeal against a verdict or order of acquittal, which shall include any order quashing or dismissing a charge for any alleged defect therein or want of jurisdiction. Such an appeal shall relate to matters of law only and the following procedure shall apply thereto—

(a) within 7 clear days after the reasons for a verdict have been recorded or after the order of acquittal, or within such further period as a judge of the High Court may, whether before or after the expiration of such period, allow, an application may be made in writing to the judge to state a case setting forth the facts and the grounds on which the verdict or order was arrived at or made and the grounds on which the proceeding is questioned for the opinion of the Court of Appeal; and the provisions of sections 106 to 109 inclusive of the Magistrates Ordinance (Cap. 227) shall apply, mutatis mutandis, to the preparation, amendment and setting down of such case stated;

(b) following such application a judge of the High Court may, on application being made to him in Chambers, issue a warrant addressed to police officers directing that the respondent be arrested and brought before him, and may commit the respondent to prison pending the disposal of the appeal or admit him to bail;

(c) at the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall—

(i) if it is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or

(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge; and

(iii) give all such necessary and consequential directions as it shall think fit.”

The first application

3.In support of the first application (CACC 13/2023), an affirmation from Senior Inspector of Police Lee Tsz Kei dated 30 January 2023 has been filed with the court. Senior Inspector Lee in her affirmation provides a background of the case and a summary of the prosecution against and a summary of the defence case of the respondents, who testified or called evidence. She gives a brief account of the judge’s reasons for verdict of each respondent and the preliminary grounds in support of the appeal. She finally sets out the background and previous bail conditions of each respondent. Whilst a transcript of the judge’s reasons for verdict had been requested, the court did not have the benefit of the judge’s full reasons for verdict.

4.The eight respondents (whose trial designations were D2 to D6 and D8 to D10), together with two other persons (whose trial designations were D1 and D7), stood trial before District Court Judge Edmond Lee (the judge) jointly charged with unlawful assembly on 18 November 2019, in the area of Science Museum Square, Tsim Sha Tsui, Kowloon.

5.Between 11 and 28 November 2019, a series of incidents or riots and other unlawful acts took place inside and around the area of the Hong Kong Polytechnic University (PolyU). It is alleged that during these incidents, large numbers of different groups of persons gathered in the area of the PolyU to support the persons inside the PolyU. One such gathering occurred at about 8.00 am on 18 November 2019, in the area of Science Museum Square, Tsim Sha Tsui, Kowloon. The respondents, together with many others, were arrested in the vicinity of this area. They were taken into custody and later released on police bail or released temporarily until they were charged in September 2020 and admitted to bail on conditions.

6.About three years later after arrest, the respondents stood trial in the District Court. D2 to D6 and D10 testified and gave an explanation as to their presence in the vicinity of the unlawful assembly at the material times. On 20 January 2023, the judge, having had the benefit of seeing and hearing the defendants testify and an overview of all the evidence, concluded that their explanations might be true and acquitted them of the charge. He came to the same conclusion in respect of the case against D8 and D9, who had not testified but had given an explanation in a cautioned statement. Some of the defendants presented additional evidence to support their explanations, which the judge seemed to accept to be true or might be true. Of the remaining two defendants, D1 and D7, he duly convicted of the charge.

7.On 27 January 2023, Mr Anthony Chau, Deputy Director of Public Prosecutions, made an application to the judge pursuant to s.84 to state a case to the Court of Appeal. It was stated that the Secretary for Justice was dissatisfied with the verdict of acquittal as being erroneous in points of law, particulars of which included but were not limited to the following:

“You failed to properly, adequately and fully consider and analyse the whole of the evidence in respect of the charge, or failed to address evidence against the said defendants which should have been addressed, or misdirected yourself on the facts or misunderstood them, or took into account irrelevant considerations or overlook relevant considerations, or otherwise acted contrary to the principles stated in Li Man-wai v Secretary for Justice (2003) 6 HKCFAR 466 so that the verdict is one which no reasonable tribunal of facts, applying its mind to the proper considerations and giving itself the proper directions, could have come to.”

8.It was stated in the application that it had been prepared without the benefit of the transcript of the proceedings. The application was enclosed in a letter of the same date from Mr Chau to the Registrar of the District Court, in which it was stated that a copy of the letter and the enclosure had been faxed to the solicitors for the eight respondents. During the hearing of this application, I was informed by Mr Ivan Cheung, for the Secretary for Justice, that this had not been done, and it was, therefore, incorrect that the solicitors of the respondents had been copied to the correspondence. However, in a letter dated 2 February 2023 to the court, I was informed that this has now been done, and the respondents were therefore aware that proceedings had been instituted to state a case against them.

The second application

9.In support of the second application (CACC 14/2023), two affirmations have been filed with the court, one from Chief Inspector Yam Suet Ying dated 30 January 2023 and another from Senior Inspector Poon Sung Lai dated 8 February 2023. The respondent was one of five defendants (her trial designation was D1) that stood trial on a joint charge of rioting before District Court Judge Kathie Cheung (the judge). On 20 January 2023, the judge acquitted D1 but convicted the other four defendants of the charge. D1 testified and called evidence as part of her defence that she was not involved in the riot. She testified that she had been unwell the night before and was in the area in order to attend the Kwong Wah Hospital. The judge found that her testimony on certain matters was supported by other evidence, and her account for being present in the area might be true.

10.On 27 January 2023, Mr Chau made an application to the judge pursuant to s.84 to state a case to the Court of Appeal because the Secretary for Justice was dissatisfied with the verdict of acquittal as being erroneous in points of law, the particulars of which were expressed in exactly the same terms as stated in the first application. The application was forwarded to the Registrar of the District Court under cover of a letter dated 27 January 2023, which was copied to the solicitor for D1 and this had actually been done. I was further informed that D1 had left Hong Kong on 25 January 2023. As a consequence, it raised for consideration on what basis the court could issue an arrest warrant and bring a person before the court when that person was not in the jurisdiction. After some discussion, Mr Cheung applied to withdraw the application, so there was no necessity to make the order as requested.

Submission in support of the applications

11.Mr Cheung submits that the following matters apply to the exercise of discretion under s.84(b):

(a)  an arrest warrant is the only appropriate means to bring a respondent to the court to decide the question of his or her detention or bail under this provision;

(b)  the court has a discretion whether to pursue an arrest warrant and the main consideration is to preserve the status quo and not to render the appeal by way of a case stated nugatory;

(c)  the court can have regard to the conventional bail considerations with necessary modifications, and to this end, the merits of the case stated based on the existing materials are relevant and whether on their face they give rise to a ground for a case stated;

(d)  the grant of an arrest warrant does not presuppose any matter under the provision.

12.He further submits that s.84(b) provides:

(a)  a judge of the High Court may on an application being made to him in Chambers;

(b)  issue a warrant addressed to police officers directing that the respondent be arrested and brought to him; and

(c)  may commit the respondent to prison pending disposal of the appeal or admit him to bail.

13.Mr Cheung accepts that the issuance of an arrest warrant under s.84(b) is to bring the respondent in question before the issuing judge to decide the question of the respondent’s detention or bail pending the appeal by way of a case stated. He acknowledges that this power is discretionary to be decided on the papers and materials filed with the court. Relevant considerations would include the intended course of action that the applicant seeks to achieve and the merits of the appeal concerned.

14.He notes that the case stated procedure under the Magistrates Ordinance, Cap 227, does not contain a similar power as provided under s.84(b) (and s.35 of the Court of Final Appeal Ordinance, Cap 484). He makes the point that this power is provided for more serious cases in the higher levels of courts. This is a relevant consideration when dealing with the offence of unlawful assembly, which can and has been tried in the Magistrates’ Court and does not involve the level of offending that is usually seen in other criminal offences that are prosecuted in the District Court or High Court.

15.Mr Cheung emphasises the importance of ensuring the attendance of a respondent at the hearing of a case stated appeal, which would not be guaranteed if he or she were allowed to leave the jurisdiction. This is a legitimate concern to be taken into account.

Discussion

16.By s.84, the Secretary for Justice may appeal by way of a case stated “on matters of law only” to the Court of Appeal against a verdict or order of acquittal. Following such an application, the Secretary for Justice may make an application under s.84(b) to a judge of the High Court. The judge “may” issue a warrant directing that “the respondent be arrested and brought before him”, and “may” commit the respondent to prison pending the disposal of the appeal or admit him to bail. As is plainly apparent, the statutory power under s.84(b) is discretionary.

17.The basis of the case stated in the two applications were expressed in the same broad and general terms, which essentially challenge in each case the judge’s findings of fact and rejection of the prosecution case.

18.I am informed that the respondents in the first application have no criminal record and had been on court bail since 9 September 2020. The conditions of bail imposed on each of them were as follows: (1) pay a cash sum of $5,000; (2) not to leave Hong Kong; (3) reside in the reported address; (4) notify police within 24 hours prior to any change of residence; (5) report to a designated police station every Monday (for D2, D4, D5, and D10), Wednesday (for D3 and D8), Saturday (for D9) and Monday, Wednesday and Sunday (for D6); and (6) obey a curfew between 0000 hours and 0600 hours (for D2-D5 and D8-D10).

19.I am also informed that the respondent in the second application has no criminal record and had been detained in police custody until she was admitted to court bail on 21 November 2019. The conditions of bail imposed on her were as follows: (1) pay a cash sum of $5,000; (2) not to leave Hong Kong; (3) surrender all travel documents; (4) reside in the reported address; (5) notify police within 24 hours prior to any change of residence; (6) report to a designated police station every Saturday; (7) obey a curfew order between 0100 hours and 0700 hours; and (8) not to enter certain specified streets and roads in Mongkok, except on transport or in transit.

20.As provided by s.84(a), the procedure of the case stated applies the provisions of ss.106 to 109 of the Magistrates Ordinance, with necessary modifications. The comments I made about the case stated procedure under the Magistrates Ordinance in SFC v Chan Shui Sheung Ivy[3]are therefore apposite, and worth repeating:

“64. As I have already observed, the power under section 105 should be used appropriately by prosecuting authorities and only in the most clear and obvious cases where in the interest of justice a judge’s opinion is required in relation to a magistrate’s decision on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction. Where a defendant has been acquitted of a criminal charge he can and should expect that the matter has been finally determined unless there has been some clear and obvious error of law that warrants further adjudication. The principle of finality plays an important role in fostering trust and confidence in our criminal justice system. Excessive and inappropriate use of this power may become an instrument of injustice.

65. The purpose of a case stated is not to retry the case but to identify within the terms of the provision an issue or error of law that requires adjudication on appeal because it is complained that it is fundamentally wrong. It is important that questions are framed with sufficient precision to clearly and accurately identify the legal issue or error on which opinion from a judge is sought. The question should not include any unnecessary comments or opinions and should be framed in appropriate language, setting out the basis for questioning the decision of the magistrate as being erroneous on a point of law.

66. It is not uncommon for an appeal by case stated to question whether the magistrate’s decision was correct on the facts found proved by the evidence. It is equally not uncommon for the magistrate’s decision as to what facts were established by the evidence to be challenged on the ground that there was no evidence to support them or that they were findings to which no reasonable magistrate properly directing himself could make. I would note, however, that such a challenge should not simply rest on the premise that the party aggrieved would have come to a different conclusion or finding from the magistrate. If the conclusion or finding was open to be made, and it was reasonable to make, then there is no error of law on which to challenge by way of case stated. It is an easy ground to formulate and therefore it is incumbent on a party and their legal representatives to ensure that it is an appropriate ground for the case stated procedure and that it is properly particularised and reasonably arguable. In other words, there is a proper basis for challenge of the magistrate’s decision on a principle of law which has some real chance of success.” (Emphasis added)

21.In making these observations, I had previously referred to principles laid out by the Court of Final Appeal in Li Man Wai v SJ[4], which are relied upon by the Secretary for Justice as the basis of the case stated in the two applications:

“31. The Court of Final Appeal in Li Man Wai v SJ (2003) 6 HKCFAR 466 emphasised that an appeal by way of case stated is not an appeal by way of rehearing but a review by the appellate court on the limited ground that there is an error of law or an excess of jurisdiction. The Court went on to explain that where a magistrate has come to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this would be regarded as an error of law which is often described as being perverse. The appellate court would be entitled to intervene where it is satisfied that the magistrate, in reaching his conclusion or finding, has misdirected himself on the facts or misunderstood them, or has taken into account irrelevant considerations or has overlooked relevant considerations.”

22.In Li Man Wai, the Court cited with approval the case of R v Mildenhall Magistrates’ Court, ex p Forest Heath District Council[5], in which Lord Bingham of Cornhill made the following observations in respect of a case stated where the challenge was on the basis that the court’s decision was perverse[6]:

“It is obviously perverse and an error of law to make a finding of fact for which there is no evidential foundation. It is also perverse to say that black is white, which is essentially what the justices did in Bracegirdle v Oxley and Cobley. But it is not perverse, even if it may be mistaken, to prefer the evidence of A to that of B where they are in conflict. That gives rise, in the absence of special and unusual circumstances (absent here), to no error of law challengeable by case stated in the High Court.”

See also Ting Kwok Keung v Tam Dick Yuen and Others[7].

23.I will address these applications by considering the following matters:

(1)  the terms and purpose of s.84(b);

(2)  the nature and basis of the application under s.84(b);

(3)  the nature and history of the underlying substantive cases:

(i)  the offence or offences;

(ii)  the procedural history of the case and the treatment of the respondent as a defendant (whether remanded in custody or admitted to bail and its terms);

(iii)  the judge’s reasons for the acquittal;

(4)  the nature and basis of the case stated:

(i)  the ground or grounds (matters of law only);

(ii)  the merits of the case stated and the prospect of success;

(iii)  the outcome if successful;

(5)  the prospect of committing the respondent to prison or admitting him to bail:

(i)  if committing to prison, the time already served;

(ii)  if admitting to bail, the likely terms and conditions;

(iii)  whether necessary and proportionate in all the circumstances;

(6)  any other factor or consideration that may be relevant.

24.An important limitation on the availability of appeals by way of case stated under s.84 is that the grounds for such an appeal are restricted to “matters of law only”. However, if the case stated is successful, the Court of Appeal, under s.84(c), can reverse the verdict or acquittal and make appropriate consequential orders and directions. This is an important consideration in order to understand the purpose of the power under s.84(b).

25.In the recent case of HKSAR v Milne John[8], the Court of Final Appeal made some useful observations when addressing a similar power under s.35(2) of the Hong Kong Court of Final Appeal Ordinance. Fok PJ, with whom the other judges agreed, explained that the purpose of the power was to assist in the just and efficient administration of the criminal justice system. He said[9]:

“It is generally in the interests of that system that defendants facing allegations of serious criminal wrongdoing are subject to a fair trial and, if a conviction follows thereafter, subject to such sentence of punishment as is appropriate. Thus, s.35(2) expressly provides that where, but for the decision sought to be appealed from, ‘the defendant would be liable to be detained’, there is a power to detain in custody or grant bail.”

26.He went on to explain that the statutory intent of the section was to enable the status quo to be maintained by putting the defendant in his original position in case the lower court’s decision proved to be wrong and the prosecution’s intended appeal was successful. A relevant consideration was the substantial risk that a defendant would be absent from the jurisdiction, which would render a successful appeal nugatory. However, he made it clear in his discussion that the exercise of discretion would depend upon the particular circumstances of the case.

27.It is apparent from the terms of s.84(b) that it should have an immediate effect in that the arrest warrant is to be issued to enable the respondent to be brought before the judge and in order for him to decide whether to put the respondent in prison custody or admit him to bail.

28.As regards the two present applications, it was said by Mr Cheung that the object of the applications was to admit the respondents to bail to restrict them from leaving Hong Kong. He acknowledged that the prosecution would be satisfied with this condition alone. He withdrew the application against the respondent in the second application because the respondent had already left the jurisdiction, and therefore, there was no basis on which to arrest her and bring her before me. However, the question still arises as to whether I would have granted the application in the circumstances of the case.

29.Mr Cheung argues that the applications are made to maintain the status quo because if the appeal by way of case stated is successful, the defendant’s absence (by leaving the jurisdiction) would frustrate proceeding with the prosecution and, in that sense, render the appeal nugatory. However, this needs to be examined in the context of the nature and history of the case below and the basis and prospect of the case stated.

30.The respondents in the first application faced a joint charge of unlawful assembly, in which it was alleged that they took part in a gathering of people outside the PolyU on 18 November 2019. Each of the respondents presented evidence in support of a defence to the charge, which the judge accepted. He was in the best position to make this evaluative assessment of the evidence, and consequently, there would have to be clear and obvious grounds for an appellate court to interfere with a trial judge’s findings of fact, particularly where it is alleged that the findings were perverse.

31.The respondents are all young with a clear record, and it is fair to say that their lives have been put on hold while these proceedings have taken place over a three-year period. Indeed, for a substantial part of this period, they were subject to very serious restrictions because of their terms of bail. They were restricted from leaving Hong Kong and required to report to the police on a regular basis and obey a curfew to reside at a specified address. An additional factor to be taken into account is that they have each abided by and complied with these restrictions throughout this protracted period. I also bear in mind that the case stated procedure could take some time to complete before the appeal is eventually heard by the Court of Appeal, which would mean that if the respondents were admitted to bail, they would be subject to restrictions on their liberty for a further protracted period.

32.By virtue of s.18 of the Public Order Ordinance, Cap 245, a person found guilty of the offence of unlawful assembly on conviction on indictment is liable to imprisonment for 5 years, and on summary conviction to a fine at level 2 and to imprisonment for 3 years. It would be usual, therefore, for cases of unlawful assembly where the likely penalty upon conviction is less than 3 years’ imprisonment to be tried in the Magistrates’ Court. Mr Cheung informed me that the sentence upon conviction for similar cases has been about 24 months’ imprisonment. However, various factors would need to be taken into account in assessing the gravity of the offending for this type of offence: Secretary for Justice v Wong Chi Fung[10]. I am informed that, on 7 February 2023, the judge, in this case, sentenced the convicted defendants, D1 and D7, to terms of imprisonment of 5 months, having adopted a starting point of 6 months.

33.The relevance of the quantum of the penalty upon conviction for unlawful assembly is that the case could have been dealt with in the Magistrates’ Court, where the jurisdictional limit is 3 years’ imprisonment. The significance of this point is that a Magistrate does not have the equivalent power contained in s.84(b) in respect of an appeal by way of case stated. In other words, if this case had been dealt with in the Magistrates’ Court, this application would not have been made. However, the case against the respondents was transferred to the District Court, and s.84 applies. Nonetheless, the foregoing indicates that the level of seriousness of this offence is at the low end of the spectrum.

34.Overall, this was a relatively minor offence compared to the more serious offences that took place during this period of unrest in Hong Kong. It is also relevant that Fok PJ’s comments in Milne John were made in the context of serious criminal wrongdoing, where the offence alleged against the respondent, in that case, was drug-trafficking.

35.In the application to the judge to state a case, it was stated that it was made without the benefit of the transcript of proceedings, conveying the impression that it was a perfunctory application. The point of law on which the case stated is based is expressed in very broad and general terms and is essentially a challenge to the judge’s assessment of the credibility of witnesses and findings of fact. Indeed, the exact same point of law is repeated verbatim in the second application, indicating that it is a pro forma ground that could be applied to practically any case.

36.Senior Inspector Lee provided a summary of the prosecution case, in which she described the incident and the dispersal and arrest operation of the police. She then set out what each defendant was wearing or had in his or her possession when arrested and what he or she said under caution, if anything. She also provided a summary of the case of each defendant. This was followed by a summary of the judge’s reasons for verdict. She noted that the judge accepted that the prosecution witnesses were honest and reliable and that he found that the police had given clear warnings and that people in the vicinity of the Science Museum Square would have been aware that an unlawful assembly was taking place. There was a brief reference to the judge convicting D1 and D7 of the offence. It appears the judge gave a comprehensive description of the evidence of each defendant and detailed reasons for acquitting them of the charge, which the Senior Inspector summarised.

37.The Senior Inspector set out the preliminary grounds in support of the appeal, which she said was subject to any further submissions that may be advanced and the receipt of the transcript of the proceedings. She stated in paragraph 40 of her affirmation:

“(a) The Judge’s acquittals of D2-D6 and D8-D10 are perverse. In particular, the Judge has failed to properly, adequately and fully consider and analyze the defence’s case of D2-D6 and D8-D10. He also failed to appreciate the unreasonableness and/or inconsistencies in their testimonies and/or their versions in the cautioned statements that would cause a reasonable tribunal of fact to have rejected their cases;

(b) Further or alternatively, the Judge erroneously found D2-D6 and D8-D10 might be innocent passers-by. In his analysis, the Judge erred in placing undue weight and/or emphasis on and/or erroneously taking into consideration matters that should not have been so treated including but not limited to the matters covered in the examples given below;

(c) Further or alternatively, the Judge erred in acquitting D2-D6 and D8-D10 for reasons which are not necessarily exclusive of a finding of conviction against them of the offence of unlawful assembly;

(d) Further or alternatively, in wrongly acquitting D2-D6 and D8-D10 of the offence of unlawful assembly, the Judge has failed to apply and/or acted contrary to the principles stated in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302;

(e) The perverseness of the Judge’s verdict in acquitting D2-D6 and D8-D10 is illustrated as follows:-

…

(f) Further or alternatively, the Judge has failed to properly, adequately and fully consider and analyze the whole of the prosecution evidence against D2-D6 and D8-D10 and has failed to appreciate that there was sufficient evidence that would allow a reasonable tribunal of fact to convict D2-D6 and D8-D10 of the charge of unlawful assembly.”

38.As is apparent from the above, the grounds are expressed in very general and broad terms, with the particulars of the case stated against each respondent set out in paragraph 40(e), which briefly stated are as follows:

(i)  In the case of D2, it is complained that the judge failed to consider the veracity of D2’s evidence properly. The judge had erred in placing undue weight on his view that no one would have had the mood to participate in an unlawful assembly after their mother had just passed away.

It should be noted that D2, a teacher, testified that he was on his way to a funeral parlour in Hung Hom to handle the funeral of his mother who had passed away on 3 November 2019. The principal of his school gave character evidence on D2’s behalf. The judge had accepted the defence evidence.

(ii)  In the case of D3, it is said that he admitted under caution that he went to look for his younger brother who was inside PolyU and met a person representing the organization, “Protect the Children”, who assisted persons looking for their relatives. It was complained that the judge wrongly found D3 to be an innocent passer-by.

(iii)  In the case of D4, it was noted that he was found to be in possession of a helmet, goggles, a respirator, gloves, a black neck warmer and torches. It is complained that the judge failed to consider the veracity of D4’s evidence properly. The judge accepted that these items were irrelevant to the protests or unlawful assembly on the basis of D4’s evidence that he rode a bicycle earlier that day and brought along the respirator and goggles in case he encountered situations where teargas would be used because he was working in the area.

D4 worked as a freelance personal trainer. He testified that he had arranged to work as normal, notwithstanding the social unrest. He explained why he had the items in his possession, which the judge accepted.

(iv)  In the case of D5, it is complained that the judge failed to consider the veracity of D5’s evidence properly and was wrong to find that he was possibly an innocent passer-by.

D5 was a PolyU student and he testified he wanted to retrieve his computer to submit his final year project. He knew the police would not let him enter PolyU but he still wanted to try and obtain the permission from the police. He also explained why he had two goggles and masks in his possession.

The particulars of the case stated were brief and would have been clearer if the judge’s reasons for verdict had been provided.

(v)  In the case of D6, it is complained that the judge failed to properly consider the veracity of D6’s evidence that he was on his way home, having been at the Urban Centenary Garden to pray and rest since early morning. No suspicious items were found on D6.

(vi)  In the case of D8, it is complained that the judge failed to consider the veracity of the evidence presented by D8 properly. It is also complained that he was found with gloves and a mask, and the judge failed to consider this. D8 called three witnesses who variously testified that D8 suffered from an allergy and that he was to meet a school friend at the time, which explained why some of the items were in his possession.

(vii)  In the case of D9, it is complained that the judge wrongly found D9 to be an innocent passer-by and erred in accepting his explanation. D9 said under caution he was at the scene because of an online appeal for people to go to PolyU for support and had arranged to meet a friend. D9’s understanding of providing support was to clear the barricades. The judge could not be sure whether he meant he was trying to clear the roadblocks for the police or the protestors. The judge could not rule out that D9’s evidence might be true and that he might have been an innocent passer-by. It would have been beneficial to have had the judge’s reasons for verdict in understanding the basis of the complaint in respect of this respondent.

The particulars of the case stated would have been clearer had the judge’s reasons for verdict been provided.

(viii)  In the case of D10, it is complained that the judge failed to properly consider the veracity of D10’s evidence, particularly in respect of his explanation for the items found in his possession of gloves, a mask and goggles. D10 had testified that he had two jobs. He worked as a staff member of a private clubhouse and as a delivery worker for an online shop. He was in the vicinity to have breakfast and go to work. He said the items were mainly for work.

39.In addressing this application, I have not had the benefit of a transcript or full note of the judge’s reasons for verdict and had to rely on a statement or summary of matters as contained in the Senior Inspector’s affirmation. Nevertheless, taking all the circumstances into account, I do not consider it necessary, nor proportionate, to admit the respondents in the first application to bail. In exercising my discretion, I refuse the application.

40.For similar reasons, I would have come to the same conclusion in respect of the second application. Whilst the respondent faced the more serious offence of rioting, she gave and called evidence in her defence which the judge accepted. I have had the benefit of the Chinese version of the judge’s reasons for verdict, and had the respondent’s case translated into English. The judge gave detailed reasons, examining the evidence and explaining the basis of her decision. It was noted that the respondent had been unwell during this period, and after an evening meal on 18 November 2019, she went to the Kwong Wah Hospital, where a disturbance was taking place nearby. She had previously accompanied her mother to a hospital, who had also been ill that day, and had clothing and daily necessities for her mother in her bag. She was confronted by a police special task force as she was seeking to go to the Kwong Wah Hospital and, out of fear, ran back to the main road, where she was arrested. She testified and called witnesses, who verified her account of her activities at the material times. She had also been sent to the hospital for treatment after her arrest, and her medical report confirmed that she was unwell as she had claimed. The judge accepted the respondent’s evidence and gave her the benefit of the doubt, acquitting her of the charge. On the information at hand, I do not see that there is a reasonable prospect of success with the case stated. Like the other respondents in the first application, she has had this case hanging over her head for the last 3 years and has been the subject of stringent bail conditions that have restricted her liberty.

41.In the circumstances of this case, I would have exercised my discretion to refuse the application.

Conclusion

42.In respect of the first application, I refuse the application for the reasons I have given. The second application has been withdrawn, but as I have already indicated, I would have also refused that application. I would have exercised my discretion notwithstanding the merits of the case stated. However, I have expressed my view as to their viability based on the information and materials presented to me. I have taken into account all the circumstances of the application, including the points advocated by Mr Cheung as well as the nature of the offence and the circumstances of the case, the acceptance of the defences advanced at trial by a court of law and the unconscionable long period that the respondents have had their liberty limited or curtailed.

Publication of the decision

43.Mr Cheung raised an additional issue regarding the publication of this decision. He accepted that if the court was to grant the application, there was no objection to the publication of its decision. If, however, the court was to refuse it, he argued that the court should not publish its decision, wholly or partially (with appropriate redactions), because there was a risk that the respondents in the first application would leave the jurisdiction if they became aware of this application. He seemed to withdraw his objection if a partial decision was sufficiently redacted to ensure it had no connection with the respondents.

44.In Scott v Scott[11], the House of Lords affirmed the general rule of the common law that justice must be administered in public, although a court by reason of its inherent jurisdiction to control its own procedure, may direct exceptions to that rule. To allow an exception, it must be shown that it was necessary in order for the due administration of justice to be achieved. This was succinctly stated by Lord Diplock in Attorney-General v Leveller Magazine[12]:

“As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonable believes it to be necessary in order to serve the ends of justice.”

45.I do not consider that the ends of justice would be properly served by not publishing this decision. The public pronouncement of court decisions and their reasoning is a fundamental requirement of the just and efficient administration of the criminal justice system. There would have to be cogent grounds to depart from this important rule. As I have stated, for the reasons I have given, I do not consider it necessary, nor appropriate, in the circumstances of this case, to admit the respondents on bail. The argument that some or all of the respondents may leave the jurisdiction if this decision is published, ignores the fact that since their acquittal, they have been able to do so if they wish. The respondents and their legal representatives have been notified of the case stated, and the legal representatives would be well aware of the procedures and consequential applications that could be made during the course of these proceedings.

Mr Ivan Cheung, ADPP (Ag) (on 30 and 31 January and 7 and 10 February 2023) and Ms Kathy Sum, PP (on 30 January and 7 and 10 February 2023), of the Department of Justice, for the applicant