HKSAR v. Choi Yuk Wan

[English Translation - 英譯本]

HCMA 360/2021

[2022] HKCFI 686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 360 OF 2021

(ON APPEAL FROM KTCC 1794 OF 2019)

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J U D G M E N T

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1.There were originally two defendants in this case, and the Appellant was the second defendant. She and the first defendant were jointly charged with one count of Unlawful Assembly (Charge One)[1], and each of them was also charged with one count of Use of Facial Covering in an Unlawful Assembly (Charge Three concerning the Appellant)[2]. She pleaded not guilty to both charges. After trial, the Magistrate[3] found her guilty on both counts. She appeals against conviction.

The Prosecution Case

2.During the trial, the Prosecution called several police officers to testify and also submitted video clips of the scene.

3.The testimony of the main witnesses for the Prosecution can be briefly described below.

Police Sergeant 4019 (PW1)[4]

4.At 1:38 a.m. on 5 October 2019, he and police constables from Team 3, Emergency Unit, Kowloon East took a police vehicle to the scene of the crime to deal with an incident of road blockade and obstruction of traffic. Upon arrival at Kai Tin Road, there were miscellaneous objects ahead, making it impossible to drive. At the same time, he saw, in the direction of the road blockade, that there were about 50 persons on the pedestrian crossing. Upon seeing the arrival of the police, the people scattered.

Police Constable 19032 (PW4)[5]

5.He arrived at the scene in a police vehicle at about 1:38 a.m. and saw people blocking the two traffic lanes of Kai Tin Road with objects such as bricks, garbage cans, wooden boards, and plastic boards. When the convoy of police vehicles arrived but had not come to a complete halt, he saw people beside the convoy scattering, and about 50 to 60 people gathered on the pedestrian crossing in front of the convoy. At that time, the police bus was on the opposite lane, namely the lane leading downslope, and the front of the bus was 15 to 20 metres away from the pedestrian crossing. His observation was that when the police bus stopped at the place where the blockade occurred, he saw people on the pedestrian crossing scattering in all directions. Before these people scattered, he saw a woman wearing a black short-sleeved top, a black mask, carrying a blue eco-bag, making binding movements with a strap-like object held in her hands. The woman, like the others, turned and ran towards On Tin Street at the sight of the police vehicles.

6.When the police bus where he was on board had stopped, he got off from the left door, went around the front of the bus and gave chase in the direction of On Tin Street. The above-mentioned woman was out of his sight for 3 to 4 seconds. After that, he recognized the woman and continued the chase. In the course of the chase, he warned her, "Police, don’t move, otherwise you may be intercepted by force", but the woman continued to run. He shouted out such warning two to three times. The woman fell in the run and got up immediately. When he was about 1 metre away from her, the woman turned around and took a glance at him, then turned around and was about to run on. He warned her again, but she ignored him, so he hit her once on the right thigh with a baton. The woman stopped and faced him expressing that she would no longer flee.

7.He instructed the woman to take off her mask and put her belongings on the ground. Subsequently Woman Police Constable 17990 conducted a search on her, after which he took her on board a police vehicle and declared arrest on her.

Woman Police Constable 17990 (PW5)[6]

8.She arrived at the scene at about 1:38 a.m. Having alighted the vehicle, while she was running in the direction of On Tin Street, she saw PW4 intercept the Appellant for investigation. Subsequently she was responsible to conduct a search on her. When the Appellant was about to be taken on board a police vehicle, she shouted out her name and some digits believed to be a telephone number.

The Defence Case

9.In the trial, the Appellant testified in court. Her evidence could be briefly described below.[7]

10.At about 1 am that day, she was going to buy something to eat, so she left home and went to the 7-11 convenience store on the ground floor of Kai Tin Shopping Mall. She was wearing a black top, black pants, black cap, slippers and black mask, and carried an Octopus card, keys and a mobile phone in a blue eco-bag. She went past the open space opposite the Kai Tin Shopping Mall and bought something to eat in the 7-11 convenience store. Then she saw many people on the street, so she stood outside the 7-11 convenience store and looked on for 10 to 20 minutes before she intended to go home. On the way home, she saw a bag of cable ties on the ground outside the 7-11 convenience store, so she picked it up and put it in her eco-bag for binding wires at home. When she picked up the cable ties, she did not pay attention to their state nor their number. Suddenly, the street became very noisy, and people began to run. She felt scared, so she wanted to run home. Passing by outside the wet market, she fell on the ground and the things inside the eco-bag fell out. She was then intercepted and taken into a police vehicle. Someone asked for her name and phone number before she was taken on board the police vehicle, and she reacted naturally by shouting out her name and phone number. On board the police vehicle when she was told that she would be charged, she said to the police constable, "I just got out and had a walk on the street. I don't know those people." She also pointed out that the person in the lower right corner on the screen at 1:41:11 of the " CCTV Footage of Kai Tin Shopping Mall" was her. The screen showed the location outside the market. Since she suffered from tracheal allergy and asthma, she had to wear a mask when she went out.

The Findings of the Magistrate

11.The Magistrate was satisfied that all the prosecution witnesses were honest and credible and that their testimonies were the truth.

12.As for the testimony of the Appellant, the Magistrate found it unreasonable, unreliable, incredible and was unlikely to be the truth, so it was not accepted.

13.The Magistrate also found that:

(1)  There was an unlawful assembly in the location in question and it had not come to an end;[8]

(2)  The woman that PW4 alleged was the Appellant[9];

(3)  She had a common purpose with those who were blocking the road at the time[10];

(4)  Her behaviour constituted disorderly conduct[11];

(5)  Her behaviour was likely to lead any person to reasonably fear that the mass of people blocking the road will breach the peace, or that they would incite others to breach the peace[12] through "prescribed conduct"; and

(6)  She participated in an unlawful assembly[13].

Accordingly, the Magistrate found the Appellant guilty of Charge One.

14.The Magistrate not only ruled that the Appellant was in an unlawful assembly, based on the satisfactory evidence of PW4, he also ruled that the Appellant was wearing a black cloth mask[14] which, from the style and method of wearing it, was likely to be a facial mask to prevent identification[15]. The Magistrate also ruled that the Appellant had neither legal authority nor reasonable excuse to wear a mask in this way[16]. Accordingly, the Magistrate found the Appellant also guilty of Charge Two.

Grounds of Appeal

15.In the appeal, Mr. Keith Fung[17], Counsel for the Appellant advanced the following grounds of appeal:

(1)  The Magistrate erred in finding that the Appellant was the woman alleged by the police officer;

(2)  The Magistrate used an inappropriate standard of proof when considering whether the Appellant had a reasonable excuse for using a mask;

(3)  The Magistrate erred in rejecting the Appellant's testimony.

Evidence of the Trial & Reasons for Finding & Submission on Appeal

16.The evidence, the Magistrate's finding and the submissions of the parties in relation to the grounds of appeal are as follows.

Ground of Appeal (One)

17.This ground of appeal concerned the identification evidence against the Appellant and the relevant finding of the Magistrate.

18.The relevant evidence comes from PW4[18] and the video footage.

19.The important points[19] of PW4's evidence pertaining to identification are as follows:

(1)  When the vehicles of the police convoy had not come to a complete halt, he saw people beside the convoy scattering;

(2)  He was on board a police bus which was the second vehicle in the convoy, and the vehicle in front was a patrol vehicle;

(3)  The front of the police bus was 15 to 20 metres away from the pedestrian crossing;

(4)  He sat on the driver's left side closest to the windshield and observed through the windshield and the front side windows;

(5)  Before the crowd in front dispersed, he saw a woman;

(6)  The woman wore a black short-sleeved top, a black mask and was holding a blue eco-bag;

(7)  She had strap-shaped object in her hands with which she made movements of binding;

(8)  Like everyone else, she turned around and ran upon seeing the police vehicles;

(9)  When he made this observation, there was sufficient light coming from the streetlamps. At that time, the patrol vehicle in front was still moving, and the police bus he was on board had not come to a complete halt. He observed the above scenes from the gaps between the vehicles, which lasted for about 2-3 seconds;

(10)  His observations on the movements of the woman's upper body and hands were not obstructed, but because of obstacles blocking his view, he could not see the woman clearly from below her waist;

(11)  The woman ran in the direction of On Tin Street. When the police bus he was on board stopped, he got off from the left door, went around the front of the bus and chased in the direction of On Tin Street. The woman was out of his sight for 3 to 4 seconds. After that, he recognized the woman and continued with the chase;

(12)  He was about 20 metres away from the woman during the chase;

(13)  The woman fell while running and got up immediately;

(14)  When he was about one metre away from the woman, the woman turned around and took a glance at him, then turned back to look uphill and was about to run on;

(15)  As the woman ignored his warning, he hit the woman on the right thigh with a baton. The woman stopped and faced him indicating that she would not flee;

(16)  He confirmed that the "CCTV Footage of Kai Tin Shopping Mall” from 1:40:23 to 1:41:19 was the situation of the scattered crowd mentioned in his evidence;

(17)  When he watched "The CCTV Footage of Kai Tin Shopping Mall" at a normal speed and a slow speed from 1:41:19 to 1:41:30, he said he could not be sure that the person in the area on the ground where there was no square depicted in the upper left corner of the screen was a police officer because the image was very blurred;

(18)  He said his route of chase roughly started from behind the pillar on the left on the screen running from the upper part to the lower left of the screen in the area where there was no square on the ground;

(19)  He considered the woman he first saw binding the long strip-shaped object with her hands was the same woman he intercepted outside Kai Tin Shopping Mall because she was holding in her hands a blue eco-bag on which there was a pattern;

(20)  The pattern matched that of the blue eco-bag seized from the Appellant (Exhibit No. P16, Photo P12(17));

(21)  He said the woman was thin with shoulder-length hair, dark and slightly curled;

(22)  Under cross-examination, he denied the person shown on the lower right corner at 1:41:11 of the “CCTV Footage of the Kai Tin Shopping Mall” was the Appellant;

(23)  He confirmed that he was the second person from the left on the 4 photos of Exhibit D1 and the woman in black next to him was the Appellant;

(24)  He denied he had mistakenly identified the Appellant as the woman because the woman on the photo had a different hairstyle from the woman he described about making binding movements with her hands holding strap-shaped objects; and

(25)  When he gave chase after the woman, she was not wearing a pony tail, but he could not remember whether it was the Appellant who tied her hair as such or a police officer did that for her.

20.With respect to the evidence of PW4 on identification, the Magistrate made the following observations[20]:

(1)  PW4 said that he saw the woman on the pedestrian crossing through the gaps between the vehicles when the vehicle was about to stop. That was for 2 to 3 seconds, and he only saw her upper body because the view of her lower body was blocked by miscellaneous objects. What he did was pragmatically telling what he saw without the slightest exaggeration;

(2)  The Magistrate did not consider that the observations of the woman's condition described by PW4 were insufficient to identify the Appellant as the woman;

(3)  He observed the woman and her movements for 2 to 3 seconds, which was not long, but not so short as to be insufficient;

(4)  Although he observed the woman's condition when the vehicle was about to stop, he only saw the woman through the gaps between the vehicles. However, firstly, his view was not obstructed, and secondly, the vehicle was about to but had not come to a halt, its speed was extremely slow, and the circumstances enabled him to make sufficient observation;

(5)  The Magistrate also did not think that it was impossible for PW4 to notice the pattern of the blue eco-bag on the woman because he was on board the police bus and looked at the woman from a slightly elevated position when he made the observation;

(6)  The Appellant’s blue eco-bag and the bright coloured pattern on it were easy to identify;

(7)  The Magistrate was not of the view that before PW4 started to give chase after the woman, due to the fact that he had to get out and go round the front of the police bus which he was on board, she was out of his sight, thus affecting the credibility and reliability of PW4. This was because the woman was only out of his sight for 3 to 4 seconds, PW4 should still recognize her build, clothing, and the blue eco-bag with a bright coloured pattern on it;

(8)  The Appellant had a ponytail. PW4 said the woman after whom he gave chase did not have a ponytail. PW5 said when the Appellant was stopped by PW4, nobody has changed the way she (the Appellant) wore her hair. The Magistrate found that the difference in the way the Appellant wore her hair from the description of the woman’s hair by PW4 did not affect the overall credibility and reliability of PW4’s evidence, nor did it create any doubt because:

i.  The Magistrate did not rule out the possibility that during the chase, the Appellant herself tied her hair in a ponytail since it was something easy and quick to be done. Furthermore, the Magistrate found it reasonable for the Appellant to tie her hair in a ponytail to prevent it from being tousled during the chase.

ii.  The Magistrate was not of the view that hairstyle was the most important factor of PW4’s identifying the woman who made binding movements with her hands holding strap-shaped objects because according to PW4’s evidence, his attention was focused on the movements of the woman’s hands and the area nearby. Besides the blue eco-bag which the woman carried in her hand was an object more conspicuous, which could constitute special features for the basis of identification; and

iii.  A ponytail was tied on the back of the head. PW4 paid attention to the face of the woman, so the Magistrate was of the view that it was not strange even if her ponytail was not noticed.

21.The Magistrate found that as PW4 had described, the woman he saw on board the police bus in the front on the pedestrian crossing making binding movements with her hands was the Appellant.[21]

22.Mr. Fung criticized that this was an erroneous finding. He put forward the following reasons:

(1)  PW4 was able to identify the Appellant by relying on the Appellant’s build (rather thin), clothing, hairstyle and the blue eco-bag[22] with a pattern on it she carried;

(2)  Before intercepting the Appellant, PW4 had no opportunity to observe the front view or the face of the woman;

(3)  The Appellant’s clothing had nothing special in itself that could serve any directional purpose or had any evidential value[23];

(4)  The woman was dressed in black and in the proximity at the scene, quite a number of people there were dressed in black[24];

(5)  PW4 was unable to identify the “offender” he saw from the video clip. He could not rule out the possibility that the “offender” he saw perhaps did not run towards On Tin street or Kai Tin Shopping Mall[25];

(6)  PW4 expressed more than once in the examination-in-chief that when he saw the “offender” on board of the police vehicle, he was about 15 to 20 metres away from her. Under examination, having seen the photos of the scene, he pointed out that the distance should be over 30 metres[26]. During re-examination, he indicated that when he first lay eyes on the offender, the distance should be 20 to 30 metres[27];

(7)  It was difficult to make a clear observation of the blue eco-bag. For identification of the pattern on the eco-bag, such accuracy was absolutely in doubt;

(8)  The Magistrate erroneously ruled that PW4 was able to see the part below the offender’s waist. Even if the offender had hung the blue eco-bag on her forearm (i.e., the section between the wrist and the elbow), his view would have been blocked by the obstacles and he could not see the offender’s body from below the waist, nor could he see the blue eco-bag she held or the pattern imprinted on it. Moreover, in the examination-in-chief, PW4 stated that he "didn't see clearly" the offender's body from below the waist[28]. During the cross-examination, he further made it clear, "I couldn't see the lower body very clearly because there were some miscellaneous objects, so I mainly saw the upper body -- the upper part of it."[29] When asked, "Actually, which part of her upper body could you see?" he pointed out, "It's above the waist, it's above the waist."[30] Later, when he was asked, "Was the lower portion of her body completely blocked so you couldn’t see that?”, he replied, “That’s right.”[31];

(9)  The Appellant's blue eco-bag[32]had an eye-like pattern right on the middle of it. If the length of the handles of the eco-bag and the position of the eye-like pattern were calculated, the eye pattern would definitely be blocked by roadblocks or obscured by miscellaneous objects, so the prosecution witness could not see it. The Magistrate did not explain how to resolve and reconcile this conflict;

(10)  The Magistrate erroneously held that the woman (represented by the code "Y" hereinafter) appearing on prosecution exhibit P13, the CCTV footage, was not the Appellant. One of the items of clothing seized from the Appellant was a baseball cap[33]. From this clip, the Magistrate determined that only 2 seconds[34] after the crowd dispersed[35], there was a woman wearing a short-sleeved dark/black top and dark/black pants, with hair in a ponytail, wearing a baseball cap and holding a light blue thing in her hand, running from the other direction (i.e. not from the pedestrian crossing/barricade) to where the Appellant was eventually stopped. According to the Magistrate's observation, it could not be ruled out that the offender and the Appellant (i.e. the woman Y) took the same escape route at about the same time. In other words, it could not be ruled out that the arresting police officer mistook the Appellant as the offender[36];

(11)  When the Appellant was stopped, her hair was tied into a ponytail, but PW4 did not see the offender wearing a ponytail when she was binding up something with her hands. Neither PW4 nor PW5 said that they had seen the Appellant tying her hair into a ponytail;

(12)  The Magistrate said, “A ponytail was on the back of one’s head. PW4 paid attention to the front of the woman during his observation. It was nothing strange even if he did not notice that the woman was wearing a ponytail.” This assertion seemed to have neglected the following evidence:

(i)  In fact, a woman wearing a ponytail and clothing that resembled those worn by the Appellant (woman Y) ran towards the location where the Appellant was finally stopped; and

(ii)  PW4 had seen the side view[37] of the offender, and must definitely had seen whether the offender had tied her hair into something like a ponytail/braid/bun;

(13)  The Magistrate pointed out that “tying one’s hair into a ponytail is a simple and quick action for a woman to complete. It’s also very reasonable to tie her hair into a ponytail in order to prevent it from getting tousled during the chase”. An assertion that someone cared for her hair so much that she took the trouble to tie it into a ponytail while being chased after by the police was unreasonable.

23.Mr. FUNG also criticized that the hairstyle dispute showed that PW4's testimony was evasive/incomplete/unreliable, and its credibility was questionable.

24.Ms. TSUI for the Respondent supported the Magistrate's finding on the identification dispute. Her submission included the following points:

(1)  At the trial, the Appellant did not dispute the clothes she was wearing at the material time, including a black baseball cap, a dark blue T-shirt, a white grey-striped vest, a pair of dark trousers, and a pair of pink slippers[38];

(2)  When PW4 made the observation, it was well lit and there were street lights nearby. The observation lasted for about 2 to 3 seconds, and there was enough time to notice the features of the clothing of the offender. She also emphasized that firstly, PW4's sight was not obstructed, and secondly, the police vehicle was moving slowly, and PW4 looked at the traffic lanes from a slightly elevated position on board the police bus. Moreover, the colours of the pattern on the offender’s blue eco-bag were very bright and easy to identify;

(3)  When PW4 went around the front of the police bus to give chase, the woman was only out of his sight for 3 to 4 seconds, after which he recognized the woman and continued with the chase;

(4)  When PW4 was about 20 metres away from her, he warned the woman two to three times: "Police, stop moving". The woman ignored the warning and ran on. During the run, she fell and got up immediately;

(5)  In the end, PW4 caught up with the woman. She was the Appellant;

(6)  The offender had a blue eco-bag with a particular pattern on it, which matched the features of the blue eco-bag seized from the Appellant;

(7)  Although the Appellant wore a low ponytail, the Magistrate believed that because the police officer focused on the woman's hand movements and paid attention to the woman's front, so he was not aware that the woman was wearing a ponytail, which was reasonable;

(8)  The Magistrate had considered the difference in the description of the hairstyle between PW4 and PW5, and opined that whether the offender wore a ponytail was not a critical part of the evidence. The reason given by the Magistrate was reasonable;

(9)  As for the CCTV footage of the alleged woman Y, the images were so blurry that no valid identification could be made. It is also impossible to tell what light blue object was held in the person's hand. The shoes that the person wore did not match with the Appellant’s slippers. The Magistrate was of the view that the above clips were insufficient to raise any doubts in the prosecution case; and it was a reasonable judgment; and

(10)  Although the clip image is very blurry, a black horizontal line can vaguely be seen in front of the left hand of the woman Y, and the palm of Y cannot be seen. The black horizontal line is very likely to be the hemming of the glove that Y was wearing. In the present case, the Appellant did not carry any gloves with her. Upon interception, the Appellant's hands were not gloved either.

Ground of Appeal (Two)

25.This ground of appeal relates to the facial covering charge.[39]

26.Regarding this charge, the Magistrate made the following observation and judgment[40]:

“58. For Charge 3, I have ruled that the second defendant was in an unlawful assembly on 5 October 2019 at the "scene of the crime". According to the testimony of PC19032, which I accept as facts, the second defendant wore a black cloth mask, P15, when she was in the unlawful assembly.

59. From the evidence accepted by me, the second defendant wore a mask covering the bridge of her nose to her chin. In other words, half of her face was covered. Therefore, the black cloth mask, P15 was a mask that was likely to prevent identification.

60. I do not accept the testimony of the second defendant, and am of the view that her testimony is not the truth and has no chance of being the truth. Therefore, there is no evidence of the second defendant on lawful authority or reasonable excuse. Alternately, even if the evidence of the second defendant having had to wear P15, a black cloth mask, because of her suffering from asthma could serve as evidence of a reasonable excuse, I do not think that her evidence was reasonable, and the prosecution's evidence was already sufficient to disprove it beyond all reasonable doubt.”

27.Mr. Fung criticized that the Magistrate adopted an inappropriate standard of proof when considering whether the Appellant had a reasonable excuse for using a mask.

28.At trial, the defence presented a Chinese medicine medical certificate[41], which stated that the Appellant had suffered from asthma since 2016, and the last follow-up consultation was in March 2021. The prosecution did not appear to have disputed the authenticity of the certificate. If so, the Appellant had established that she herself suffered from asthma. When and what defensive measures a patient needs to take to prevent an asthma attack is a personal decision, and there is no objective test. Therefore, the judgment of the Magistrate that "she was of the view that her evidence was not the truth and had no chance of being the truth" could not completely deny whether Appellant decided at that time on the basis of a medical need to take preventive measures.

29.Mr. Fung also criticized the Magistrate's observation on the function of cloth masks.

30.Ms. Tsui stated that the Magistrate made a finding on the evidence of the Appellant after comprehensive consideration of the evidence and testimonies. In the Statement of Findings, the Magistrate pointed out a number of unreasonable points of the Appellant's testimony. He did not use any inappropriate standard of proof.

31.Ms. Tsui also pointed out the following unreasonable aspects of the Appellant’s evidence in support of the Magistrate’s judgment:

(1)  Even if the Appellant did suffer from asthma, a common practice was to keep asthma medication with her. On the day in question, the outbreak of COVID had yet to come, there was no need or reason to wear a mask. Instead of a surgical mask, the mask that the Appellant wore was made of cloth, which was in no way able to protect one from the spread of infectious diseases. With the mask covering half of her face, her breathing will be hindered to a certain extent, causing her discomfort. The Appellant’s claim that because of asthma, whenever she went out, she had to wear a cloth mask, was unbelievable; such cloth mask hindered one’s breathing, fell short of filtering out germs, bacteria, virus and particles.

(2)  The cloth mask of the Appellant was black, and her baseball cap and top were mainly black and dark, which was exactly the same as that of most of the people gathered at the scene.

(3)  Based on the Appellant’s behaviour, dress-up, the exhibits seized from her, and evidence of escape, the court absolutely had the basis to infer from the evidence before it that the Appellant wore a mask to block her face and prevent her from being identified during the unlawful assembly.

(4)  The Chinese medicine medical certificate[42] presented by the Appellant could not prove that the Appellant was required to wear a mask on the day in question due to her asthma because:

i.  The document did not indicate when the Appellant was first diagnosed with asthma, but simply listed the first visit due to cough was on 8 March 2016. It did not state that the cause of the Appellant’s cough on that day was asthma. Nor did it prove that the Appellant was diagnosed with asthma on the day;

ii.  The document also did not state the date the Appellant was diagnosed with asthma, the severity of the Appellant's asthma, and whether any medication was required to be taken; and

iii.  The certificate did not suggest that the Appellant must wear a mask.

(5)  If the Appellant really suffered from very severe asthma, upon seeing the chaos and road blockage at the scene, her normal reaction should be leaving the scene immediately to protect her own health and avoid conflicts at the scene. At that time, there had been social incidents for some time. After the police arrived, there would be chances for them to use tear gas to disperse the crowd. The Appellant was exposing herself to an environment that was dangerous to her own health by staying at the scene.

Ground of Appeal (Three)

32.The Magistrate was not satisfied with the evidence of the Appellant and considered that there were quite a number of aspects that defied common sense and reasons[43] in her evidence including:

(1)  The Appellant's claim to have picked up an already opened pack of 50 white plastic cable ties from the ground, which the Magistrate found extremely far-fetched;

(2)  Even if the Appellant did pick up the bag of plastic cable ties from the ground, she had no reason not to notice from the state and quantity of the contents of the bag when she picked it up that the bag of plastic cable ties might be of use to others, yet she still took it for herself;

(3)  According to the Appellant, the reason for her fear was the chaos on the street. Her original purpose was to buy food to eat. When she saw a lot of people on the street, given the social environment at that time, the street could turn chaotic at any time, there was no reason for her not to go home as soon as possible having bought something to eat, but instead she stayed on the street for as long as 10-20 minutes, increasing the risk of encountering a chaotic situation;

(4)  The Appellant testified that when she was told by the police that she would be charged, she said to the police, "I only went out for a walk. I don't know those people." The Magistrate pointed out that the Appellant's explanation to the police was an important part of her case, but her counsel had never put it to the prosecution witness, so she was suspected of fabricating her testimony at the last minute;

(5)  The mask[44] worn by the Appellant was a cloth mask rather than a surgical mask, and had no prescribed ability to filter bacteria, viruses and particles, and was not as breathable as a surgical mask. If the Appellant suffered from asthma or tracheal allergy, there was no reason for her to wear a cloth mask with poor breathability lacking the ability to filter bacteria, viruses and particles, and that hindered breathing;

(6)  The Appellant stated that because she was asked for her name and phone number, she shouted out her name and phone number out of a natural reaction before boarding the police vehicle. The Magistrate believed that names and phone numbers were important personal data, and most people attached great importance to keeping these personal data confidential, but the Appellant did the opposite, saying it out loud in public when asked, never minding the unnecessary disclosure of such personal data in the public, which was not reasonable;

(7)  As for the CCTV footage showing woman Y, the quality of the picture was very poor. The person was running and the image was very blurry. It just looked like a woman based on the body shape. The blue thing held in her hand was unidentifiable. Furthermore, the Magistrate did not consider that the shoes on the person's feet matched those of the Appellant. The Magistrate found that there was nothing sufficient in woman Y to cause any doubts on the prosecution case.

33.Mr. Fung criticized that when the Magistrate considered whether he was satisfied with the evidence of the Appellant, he adopted inappropriate methods/standards of proof in the following areas, placing the burden of proof on the Appellant, and/or ignored evidence in support of the defence. Mr. Fung noted the following matters in support of his submission:

(1)  Regarding the Magistrate's finding on the plastic cable ties[45], Mr Fung submitted that if there were other people using cable ties to build roadblocks, it would not be strange that the cable ties would be scattered everywhere. The Appellant may have taken the cable ties for her own, in which case it was not surprising that these items were not examined carefully;

(2)  Regarding the fact that the Appellant stayed outside the 7-11 convenience store for 10-20 minutes, Mr. Fung said, from the video clips, it could be seen that in addition to the many people passing by the scene, there were also many people stopping by to look on. There was nothing peculiar about the behaviour of the Appellant, merely out of a state of mind of curiosity. The Magistrate did not give due consideration to the possible innocuous reason explaining the Appellant's presence;

(3)  The Magistrate was wrong to have suspected that the Appellant fabricated her evidence at the last minute from the fact that the Appellant's counsel at the time had not put her case to the prosecution witness;

(4)  Regarding the cloth mask, the Magistrate pointed out that the cloth mask would constitute a greater degree of obstruction to respiration than the surgical mask[46]. Even if there was no scientific data in the case, it was not difficult to draw the opposite conclusion from life experience. In any event, it was not "unbelievable" that the Appellant chose to wear a cloth mask;

(5)  Regarding the issue of woman Y, Mr. Fung submitted strenuously that from the clip, one could be sure that it was indeed a light blue object held in the hand of woman Y. The court should consider in the direction that was the most favourable to the Appellant, treating the object as an eco-bag, instead of asking the defence to confirm so, thus misplacing the burden of proof;

(6)  Woman Y was quite similar to the Appellant in terms of clothing - both wearing a baseball cap, long hair (tying her hair in a pony-tail could not be ruled out), a dark/black short-sleeved top, dark/black trousers, and carrying a light blue object/eco-bag; and

(7)  The importance of Woman Y was that after the crowd dispersed for about 2 seconds, she ran in the direction of the position where the Appellant was subsequently stopped. When woman Y disappeared from the upper left of the screen, within a few seconds, fully equipped police officers appeared, definitely including PW4. Taking into account that the location and time were quite close, the chance that the police officer mistakenly identified woman Y (Appellant) running from the other direction as the offender could not be ruled out.

34.Ms. Tsui made the following submissions:

(1)  As to the plastic cable ties, a large number of people gathered at the scene that day, and there were people in black who were transporting large plastic boards, obviously for the purpose of forming obstacles as roadblocks. The Appellant also confirmed that she observed that there were road blockages at the scene. If the Appellant saw the pack of plastic cable ties on the ground, she should at least have a reasonable suspicion that they were tools left over or were in the course of being used by someone else at the scene. Moreover, if the Appellant meant to take the pack of plastic cable ties for a five-finger discount, she should have left the scene immediately once she had picked it up, but she stayed at the scene. It was only until the police arrived that she fled;

(2)  The Appellant admitted that she had stayed at the scene for 10 to 20 minutes, having stopped to watch the crowd and their behaviour. The situation on the street became chaotic and she was afraid, so she ran away. However, given the social environment at the time, chaos on the streets could happen at any time. Before police officers arrived at the scene, ambulances with emergency lights on were already parked at the scene. Upon seeing a large crowds of people gathering on the road with barricades built and ambulances with emergency lights on, a normal person would definitely want to leave the scene as soon as possible to avoid trouble or risking oneself to the exposure of danger;

(3)  The Appellant's attire was similar to those of other road blockers at the scene. She also wore a baseball cap and a mask to cover her face. The eco-bag contained 50 plastic cable ties that she claimed she had just picked up from the ground. All of these were inconsistent with her claim that she only stayed on at the scene to watch; and

(4)  The Appellant claimed that when she was taken on board the police vehicle, she explained to the police officers that "I just went out for a walk. I don’t know those people". It was to exonerate herself and was closely related to the direction of her defence. The Appellant's counsel should have put this crucial fact to the prosecution witness under cross-examination, yet the Appellant only mentioned such crucial evidence for the first time during examination-in-chief in the defence case, and the court absolutely had the basis to suspect that the Appellant fabricated the evidence at the last minute.

35.Ms. Tsui also pointed out that the court was entitled to consider whether the equipment and clothing of the demonstrators at the scene were similar and whether they could constitute circumstantial evidence in this case, so as to consider whether the Appellant had a "participatory intent" and whether she had participated in an unlawful assembly at the scene. The Court of Final Appeal in HKSAR v Tong Wai Hung[47] stated that the equipment on the accused was of sufficient evidential value[48].

36.Ms. Tsui emphasized that in the small hours of the day, the Appellant wore a black baseball cap, a black mask, a dark-coloured top and black trousers. The attire of black clothes, black trousers and black shoes was the common attire of the participants of the demonstrations at that time. The Appellant also carried with her the plastic cable ties commonly used by unlawful assemblers as a tool for tying up objects to form barricades. At the time of the police dispersal, the Appellant had been stopped and arrested in a very close proximity to the unlawful assembly within a very short period of time. The court could definitely draw the only irresistible inference that the Appellant was a participant in the unlawful assembly. She was definitely not a citizen who was looking on or passing by the scene.

Discussion and Consideration

37.The three grounds of appeal raised by Mr. Fung are related to one another, and I do not think they should be dealt with separately. The Magistrate found the Appellant guilty on the factual basis that as described by PW4, she was the woman who was amidst the miscellaneous objects for barricading the roadway, with her hands making binding movements[49]. The only evidence from the prosecution to prove this matter came from PW4. Whether the conviction of Charge One was safe involved whether his testimony was truthful and reliable, and whether his identification was accurate. On the other hand, the Appellant testified that she did not participate in the unlawful assembly and was not the woman described by PW4. Instead she was woman Y shown in the clip. If her exculpatory testimony was true, or might be true, it meant that the Magistrate could not be sure that PW4's testimony was truthful and reliable and his identification accurate, and he must acquit the Appellant.

38.The credibility and reliability of a witness is within the assessment of the trial magistrate. Lacking the advantage of having seen and heard the witness giving evidence, the appellate court relies solely on written records to make judgments. Therefore, unless the findings of the trial magistrate are shown to be unreasonable or illogical, or inherently improbable, or that the trial magistrate has misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the appellate court would be slow to interfere with those findings[50].

39.The Magistrate rejected the Appellant's testimony and set out his reasons[51].

40.One of the reasons that the Magistrate set out was the omission of the defence counsel in putting the case to PW4 in cross-examination, so he was of the view that the Appellant made a last-minute fabrication of that part of the evidence[52].

41.The Court of Appeal in Chan Hing Kai[53]conducted an in-depth discussion on how to deal with where matters were not “put” to the witnesses during cross-examination (the so-called breach of the Browne v Dunn rule). In short, Zervos JA[54] pointed out that although the fact finder was empowered to take into consideration the breach of the Browne v Dunn[55] rule in assessing a witness’s credibility and reliability, that should be applied with care and circumspection in criminal cases and before this was to be taken into account, regard should be taken as to whether there was a remedy, such as understanding why this happened or recalling witnesses[56]. The case concerned was a jury trial, but the same principles apply to a case before a single judge.

42.I agree that under the circumstances of the present case, the Magistrate erred in not having looked into why the matter was not put to the witness in the cross-examination or the witness was not recalled. However, whether the final verdict of guilty was erroneous, further consideration was called for.

43.The Magistrate listed a number of reasons[57] why he was not satisfied with the Appellant's testimony. The lack of the cross-examination in question was only one of them, and the weights attached to the various reasons would not be exactly the same.

44.The absence of such cross-examination does not mean that it could not be taken into account in the assessment of credibility and reliability. Problems arose only because the Magistrate handled it inadequately. Except for the reason of the cross-examination that was not conducted by the defence, I think the rest were matters that the Magistrate was entitled to take into account. Regarding the fact that the Appellant wore a cloth mask[58], I will explore that further when I come to deal with the issue of reasonable excuse. However, I agree that the Magistrate could take this into account when assessing the overall credibility and reliability of the Appellant. I am not of the view that he misplaced the burden of proof in assessing the overall credibility and reliability of the Appellant.

45.The Magistrate took into account of matters including the footage[59] showing woman Y upon which Mr. Fung relied quite heavily. Mr. Fung submitted that it was at least possible that woman Y depicted in the footage might be the Appellant. Therefore, the Magistrate should take this into consideration.

46.The quality of the relevant footage was very poor. As mentioned by the Magistrate, one could not tell at all what the blue thing woman Y was holding in her hand. I also concur with the Magistrate’s observation that woman Y’s shoes did not match with those[60] worn by the Appellant. Mr. Fung said that soon after woman Y had walked past, there came the police officers. Even if one gives consideration based on what Mr. Fung had said, there was quite a lapse between the moment the police officers appeared and when woman Y was captured leaving the scene. The proximity between them was not as close as that described by Mr. Fung.

47.The Magistrate was of the view that overall speaking, what the footage showed was sufficient to make him refute the assertion that woman Y was the Appellant, and it did not constitute a doubt in the prosecution case. I do not think that this judgment was manifestly wrong and should be interfered with, nor did it reverse the burden of proof.

48.As for other matters to which the Magistrate was entitled to consider, I think that the Magistrate's assessment and judgment were reasonable.

49.In general, I do not believe that there are sufficient grounds in the case to interfere with or even overturn the Magistrate's well-founded reasons in his findings on the credibility of the Appellant's evidence. The related grounds of appeal are untenable.

50.Even though after assessment, the Magistrate was entitled to reject the Appellant’s exculpatory evidence, the prosecution still had to prove the charges against the Appellant. The allegations against the Appellant all came from PW4, so it was very important to assess his credibility and reliability and whether his evidence was truthful and reliable.

51.The honesty of a witness and the truthfulness and reliability of his testimony are separate matters to be assessed and adjudicated. Honest witnesses can also get facts and observations wrong.

52.PW4 alleged that the Appellant was the woman who made the binding movements, which concerned whether he testified honestly and whether his identification was correct.

53.The evidence concerned whether the identification was wrong, as PW4 stated that he observed the woman for 2-3 seconds, then got out of the police bus and chased after her. Since he had to get around the bus, the woman was out of his sight for 3-4 seconds, after which, according to the testimony of PW4, he had been chasing the woman whom he believed was the same person.

54.As for the influence of woman Y on the incident, it was also related to the identification. The relevant testimony of PW4 was that after he began chasing the target woman, he had been chasing the same person.

55.The Magistrate found PW4 an honest and credible witness and was satisfied with his testimony, including what have just been stated.

56.Having examined the relevant evidence, taken into account the submissions of both parties and what was mentioned in paragraph 38 above, I consider that there is no sufficient reason to interfere with the Magistrate's finding on the assessment of PW4’s credibility and reliability.

57.Even if PW4 testified honestly, whether his identification was flawed has to be assessed. From the Statement of Findings, it can be seen that the Magistrate had a full grasp that the assessment of the evidence of identification was a very important duty. It also shows that he had carefully assessed the relevant evidence.

58.Judging from the overall relevant evidence of PW4, the reason why he said that he was chasing the woman who made the binding movements was because the woman and the Appellant were both of lean build, clothed and wore their hair in the same way and held a blue bag.

59.Among them, the hairstyle and the bag are the main points raised in the appeal.

60.PW4 said the woman wore long hair about the length down to her shoulders, slightly curled[61]. From the photo exhibited in court, it could be seen that the Appellant had a ponytail when she was arrested, with length not only down to her shoulders.

61.In assessing the veracity of identification evidence, the consistency or discrepancy between the witness's description of the person concerned and the factual reality are factors to be considered.

62.In my opinion, PW4's description did not constitute a discrepancy that would call into question the accuracy of his identification.

63.In his submission, Mr. Fung criticized that it was far-fetched for the Magistrate to think that the Appellant might tie her hair into a ponytail in the process. I agree with this. However, the Magistrate also pointed out that PW4 did not pay attention to whether there was a ponytail behind the woman's head when he was observing in the police bus, which I find reasonable.

64.The Appellant wore a ponytail and the fluttering of her hair during the chase should be seen. But whether it would be regarded as having worn a ponytail, the matter of whether the style of her ponytail was wearing it high or low would definitely affect one’s judgment. Moreover, wearing a ponytail was what the Appellant appeared to be when she was arrested, which should be seen by the two police officers. The testimony of PW4 showed that he did not identify the Appellant as the same woman based on the woman's ponytail. Whether the identification was correct or not depended on the overall relevant evidence.

65.PW4 said another basis for his identification was that the woman had in her hand a blue eco-bag with a pattern on it.

66.When the Appellant was arrested, she was holding a light blue eco-bag. The bag was not large, about one square foot in size. There was a very conspicuous pattern on one side of the bag.

67.Mr. Fung submitted that according to the circumstances described by PW4, it was impossible for him to notice the pattern on the bag from where he was observing inside the police bus. He might not even have seen the bag.

68.In his submission, Mr. Fung focused on the height of the Appellant and the position and height of the items that might have obstructed the sight of PW4. However, the Magistrate considered that because PW4 was observing from a higher position on board the police bus, it was possible for him to see the bag and the pattern on it. Taking into account the overall situation shown by the evidence and the position of the pattern on the bag, I consider that the Magistrate's thinking was reasonable and his judgment should not be interfered with.

69.I have also considered whether there was a possibility that although PW4 genuinely believed that he was chasing after the same person, he made a mistake in the course of it.

70.The woman Y mentioned earlier was related to this issue. In this regard, on the one hand, I agree with the relevant judgment of the Magistrate, and on the other hand, I do not see any evidence sufficient enough for one to suspect that PW4 had pursued the wrong person during the chase.

71.In HKSAR v Ip Chin Kei[62], McWalters[63] J of the Court of First Instance of the High Court[64], summarized some legal principles for handling magistracy appeals, including the following:

(1)  An appellate court will only deviate from the magistrate's findings of fact and the assessment of credibility of witnesses only when the finding is manifestly wrong;

(2)  In deciding whether an appeal should be allowed in the event that a magistrate errs, the key consideration was whether quashing the conviction was in the interest of justice; and

(3)  Whether or not the magistrate's error is found, and even if the appellant's grounds for appeal are untenable, the court handling the appeal must still perform its statutory duty to conduct a "rehearing" and must therefore examine whether the evidence in the case is sufficient to prove the charge beyond reasonable doubt, and if the evidence is insufficient, the appeal shall also be allowed.

72.The Court of Final Appeal affirmed the above principles of considerations in HKSAR v Finan Boris Anthony[65].

73.After careful consideration, taking into account that the woman only left PW4's sight for a few seconds, I am of the opinion that the Magistrate's finding that the Appellant was the woman who was observed making binding movements by PW4 on board the police bus was safe and supported by sufficient evidence.

74.The woman's conduct under the circumstances was sufficient to constitute an unlawful assembly, and I dismiss the appeal against the conviction for charge one.

75.I am now dealing with the appeal against conviction on charge three. In the trial, it was not a disputed fact that the Appellant wore a mask at the scene. I have ruled that the Magistrate's finding that the Appellant participated in an unlawful assembly was safe, which means that the Appellant wore a mask during the unlawful assembly, which had the effect of preventing identification. The key issue of the appeal is: whether the Appellant could be acquitted by reason of the statutory defence.

76.Section 4 of the Prohibition on Face Covering Regulation[66] provides the following defences for the offence of Charge 2:

“(1) It is a defence for a person charged with an offence under section 3(2) to establish that, at the time of the alleged offence, the person had lawful authority or reasonable excuse for using a facial covering.

(2) A person is taken to have established that the person had lawful authority or reasonable excuse for using a facial covering if—

(a) there is sufficient evidence to raise an issue that the person had such lawful authority or reasonable excuse; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(3) Without limiting the scope of the reasonable excuse referred to in subsection (1), a person had a reasonable excuse if, at the assembly, meeting or procession concerned—

(a) the person was engaged in a profession or employment and was using the facial covering for the physical safety of the person while performing an act or activity connected with the profession or employment;

(b) the person was using the facial covering for religious reasons; or

(c) the person was using the facial covering for a pre-existing medical or health reason.”

77.In my view, the interpretation of section 4(2) above should place the accused with the burden of proving lawful authority or reasonable excuse, but this is only an evidential burden[67]. It is sufficient to make the proposed defence an issue, and when the accused has successfully fulfilled her evidential burden, the burden of proof shifts to the prosecution, who has the onus to prove beyond reasonable doubt that this was not the case.

78.In HKSAR v Ng Po On[68], Ribeiro PJ[69] of the Court of Final Appeal pointed out: For evidential burden, the accused would be required to raise the issue of reasonable excuse, supported by sufficient credible evidence to engender a reasonable doubt as to the prosecution’s case, but the prosecution would retain throughout the persuasive burden of proving non-compliance, encompassing a burden of negativing any purported reasonable excuse[70].

79.From what the Magistrate said[71], he was not mistaken about the treatment of statutory defences mentioned in the Ordinance.

80.The Magistrate also explained the reasons for his decision, and Mr. Fung's criticism in this regard can be found in paragraphs 27 to 29 above.

81.Indeed that there was no evidence of expert opinion on surgical masks and cloth masks in the case, but it was not necessarily impossible for one to judge by common sense. The Magistrate opined that cloth masks constituted a greater degree of respiratory obstruction than surgical masks. I agree that such judgment lacks a solid basis. However, the Magistrate had the right to take into account the overall situation shown by the evidence in arriving at the final verdict. Even if the Appellant suffered from asthma, having considered the overall circumstances of the case and the submissions of both parties, the Magistrate ruled that the prosecution had proved beyond reasonable doubt that the Appellant's defence was untenable. Although I have reservations about some of the Magistrate's reasons, I have no objection to his final decision.

82.Regarding Charge Three, I am also of the opinion that the conviction is safe and the evidence is sufficient.

83.Based on the above reasons, I dismiss the appeal against the two convictions and uphold the original verdict.

Mr. Keith Fung, instructed by Messrs. Ho, Tse, Wai & Partners for the Appellant

Ms. Jennifer TSUI, Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.