HKSAR v. Shum Hiu Lun

[English Translation - 英譯本]

CACC 174/2020

[2022] HKCA 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 174 OF 2020

(ON APPEAL FROM DCCC 825/2019)

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BETWEEN

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JUDGMENT

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Hon Pang JA (giving the Judgment of the Court):

1.The applicant was charged with one count of “riot” (Charge 1), one count of “assault occasioning actual bodily harm” (Charge 2) and one count of “failing to surrender to custody” (Charge 3). He pleaded guilty to Charge 3, and in respect of the remaining two charges, he only admitted to “unlawful assembly” which was an alternative to “riot”. After trial, the trial judge (District Judge Anthony Kwok) convicted him of “riot” for Charge 1. As to Charge 2, he was only convicted of the lighter offence of “common assault”, and he was sentenced to imprisonment for a total of 3 years and 10 months for these two charges. A total term of 4 years was imposed for all three charges together. The applicant applied for leave to appeal against convictions^[1] in respect of Charges 1 and 2, which was directed by a single judge to be directly dealt with by the full Court of Appeal.

Basic information

2.The offences under both Charges 1 and 2 happened on 26 June 2019, in the evening when the Police Headquarters (“PH”) was besieged. The locations (i.e., the L-shaped junction of Harcourt Road and Arsenal Street in Wanchai) and the timing (shortly after 11:30 pm) of the two offences almost completely overlapped. It is worth mentioning that the old building with the surrounding granite wall between the PH and Harcourt Road was in fact the Hong Kong Island Regional Headquarters (“IRH”), but it is generally regarded as being included within the precinct of the PH. Moreover, in the particulars of both Charges 1 and 2, the applicant was alleged to have acted together “with other persons unknown”.

Prosecution case

3.In the evening on the day in question, the public meeting held by the Civil Human Rights Front at Edinburgh Place in Central came to an end. A crowd moved to and gathered outside the PH, up to several thousands of people. These protesters not only blocked the entrances and exits of the PH with self-made obstacles, but also committed conducts such as throwing eggs at the PH, covering the security cameras with cellulose tape and smearing the external wall with spray paint.

4.At around half past eleven on the same evening, a police constable in plainclothes (“PW1”^[2]) tried to enter the PH through a side door near Admiralty but was spotted by the protesters. So he moved away along the granite wall outside the IRH, but on reaching somewhere on Harcourt Road near Arsenal Street, he was verbally abused, obstructed and even chased and beaten by more and more protesters behind him. PW1 walked with quick paces and then ran. He knocked down a female protester upon turning right onto Arsenal Street. After that, he changed his direction slightly and rushed towards the exit gate of the PH but was assaulted by “double punches and a single kick” by the applicant who had already guarded there to block the passageway. PW1 turned and ran back in the direction from which he came. He eventually managed to get onto the escalator at the main entrance to the PH and freed himself from the protestors (including the applicant) behind him.

5.In summary, the prosecution alleged as follows^[3]: As soon as PW1 was attacked by the protesters going after him, the unlawful assembly outside the PH turned into a riot, in which the applicant took part and thereby committed Charge 1. The applicant directly attacked PW1 and, together with other protesters, caused PW1 actual bodily harm; thus, he committed Charge 2.

Defence case

6.The applicant elected to give evidence but called no witness.

7.According to the applicant, in the afternoon on the day in question, he purposefully changed into a black top and went to the outside of the PH, where by way of “performance art” he appealed to the police not to impose violence abusively. After that, he returned to the place “under the pot” of the Legislative Council at Admiralty to support the protesters who stayed there. At 11:05 pm on the same evening, he, who personally had first-aid experience, heard that something had happened outside the PH, so he ran to assist, but eventually found that there was nothing. In fact, the applicant did not agree to storm the PH or to have confrontation between the protesters and the police. He considered that so doing would give an impression to the public that the protests were not peaceful.

8.The applicant admitted that on that evening, he had taken part in moving mill barriers and blocking passageways outside the PH and accepted that he might have committed unlawful assembly by so doing. As to the assault on PW1, the applicant explained as follows^[4]:

“52. … When [PW1] was being chased and beaten on Arsenal Street and then turned right and reached somewhere outside the vehicular gate, he himself was at that time blocking an access with a mill barrier and chatting with someone nearby, during which he suddenly heard a burst of noise come from the corner and saw [PW1] rush out and push a female protester deliberately with great force, causing her to fall onto the ground. After that, [PW1] even ran towards the vehicular gate where he was. The defendant said that he at that time did not know that [PW1] was being chased and beaten by other protesters. He only thought that PW1 was attacking another protester and so he himself went up with the intention of stopping [PW1] from further attacking others. He described [PW1] as being fierce, moving with large-ranged movements and seemed to be trying to attack whoever attempted to get close to him.

53. When [PW1] rushed towards the defendant, he had his side towards the defendant. The defendant thought that PW1 intended to attack him and so he stretched out his left arm to the front and clenched his right hand into a fist to protect himself. The defendant said that he had indicated to PW1 not to move towards him but the two finally got into contact. On seeing PW1’s left shoulder turn anti-clockwise, he thought that PW1’s left fist was going to give a backhanded punch, so he hit [PW1] once with his right hand for self-defence. The defendant was as tall as 1.94 m while [PW1] was shorter and therefore, his punch naturally hit the face of [PW1].

54. After that, the protester(s) nearby kept pulling and pushing to try to subdue [PW1] but could not get hold of him. In order to stop his resistance and struggle, the defendant punched him the second time without aiming at any particular part of PW1’s body, as he said.

55. The defendant saw [PW1] lose balance, turn his body and bend down, and then face the main entrance to the PH. The defendant thought that [PW1] might further attack other passers-by or storm the PH. He kicked PW1 once from behind in the hope of subduing him on the ground and calming him down. However, [PW1] was not stopped as a result but kept on running along the escalator towards the main entrance to the PH. At this juncture, the defendant stopped, and no other protester chased up to the podium because they knew that was a ‘forbidden zone’. Anyone who chased forward would certainly be regarded by the police as performing the conduct of charging. The defendant said that he had never realised that [PW1] was a police constable.”

9.Having combed through the defence, one may summarise its main theme as follows^[5]: When the crowd gathered and blocked the roads, the applicant did take part in the unlawful assembly, and within those ten to twenty seconds from the time he began to attack PW1 to the time when the latter succeeded in freeing himself, the applicant did use or take part in using force. The issue is that the purposes of the unlawful assembly that evening was “besieging the PH” and “against the police”, but the applicant did not even know that PW1 was a police constable whilst other protesters were aware of PW1’s identity and they chased and beat him. In that case, the applicant and other protesters could not possibly be regarded as having the “common purpose”, which was a requisite of the offence of riot. That is to say, his attack and other protesters’ attack on PW1 were two separate matters. PW1’s identity was unknown and he appeared to be attacking a protester and [/] or storming the PH; thus, the applicant’s action taken on him was for self-defence, protecting others and [/] or subduing him. Accordingly, such action not only constituted no unlawful force, but also negatived the applicant’s intention to take part in the riot. Finally, in the present case, the requisite element of actual breach of the peace for constituting Charge 1 was in fact Charge 2. However, at common law a person cannot be convicted twice for one single act which would amount to two offences; therefore, even if the court were to convict the applicant, it could only be of either Charge 1 or Charge 2.

Verdict of the trial

10.Apart from considering the respective testimonies of PW1 and the applicant, the trial judge also watched a number of video footage and relevant screenshots of what had happened at the scene. It was held that in respect of the attack on PW1, PW1’s description was consistent with the video footage; on the contrary, the applicant only attempted to make use of the accident of the female protester being knocked down to create an excuse for his defence^[6]:

“75. As to [PW1], I find him to be an honest witness. He has done his best to tell the court all that had happened to him when he was on the way back to Wanchai Police Station to report for duty after being summoned that evening. In fact, based on the content of the footage produced, even without having to rely on PW1’s recount of what had happened, the court has a generally clear idea of the situation at the time. PW1’s testimony was completely consistent with the contents of the footage and screenshots produced to the court.

76. As to the defendant’s testimony, the court has heard and watched him testify in court and comes to the view that he only made use of the incident in which PW1 accidentally knocked down a female in the course of trying to free himself and get away from the protesters’ attack in order to purport his attack on [PW1] to be for the prevention of crime or the protection of others or even self-defence. His testimony was plainly a Procrustean bed and not credible.

77. The defence has repeatedly stressed that [PW1] had deliberately pushed away that female with his hand. Nevertheless, according to the court’s careful review of the relevant footage, [PW1] did not deliberately push her away, but it was only when his body turned, his left shoulder hit that female who was standing beside him. As shown by the footage, he did not deliberately push away that female with force. Since [PW1] was relatively muscular and was in the course of running, he knocked down that female accidentally. In fact, [PW1] was unaware of this. Upon watching the relevant footage under cross-examination, he immediately said that he had no intention to push that female down and had no impression of the incident. He expressed, ‘Perhaps I brushed her away, which was a natural act.’ He said that the accident might have been caused because the female was blocking his way at the time, and he admitted he did not apologise afterwards.

78. Going back to the ‘double punches and a single kick’, in the court’s view, the defendant simply had no need to give [PW1] the first punch at the time, and it was obviously a deliberate attack. Had [PW1] really tried to attack the defendant, [PW1] would have naturally given a straight punch or right hook, rather than turning his left shoulder with the intention of attacking the defendant with a left backhanded punch as the defendant has described presently. The fact is that, as shown in the footage, [PW1] had never intended to attack anyone. Even when someone tried to attack him from behind on Harcourt Road, he never turned to fight back or intended to do so. He only kept on running forward as fast as possible, twisted his body from time to time to find the space and dodged sideway so as to move forward. In fact, at that time, being outnumbered by enemies, [PW1] would absolutely not be so foolish as to try to attack the defendant or anyone. As to the second punch which followed and the kick at the end, it is apparent from the footage that [PW1] simply did not take any action or intend to further attack the defendant or others whatsoever. However, the defendant claimed that for the purpose of stopping PW1 or prohibiting PW1 from attacking other people, he again punched [PW1]’s head, and after that further kicked PW1’s back once, causing him to lean forward; but because PW1 did not lose balance, he eventually managed to break out and successfully run along the escalator to the podium on Floor Two to hide.

79. In the court’s view, according to the overall circumstances at the material time as shown by all evidence, the defendant only saw [PW1] being chased and beaten by other protesters and disturbances arose immediately at the scene. Under such circumstances, he ‘joined in the commotion’, took advantage of the confusion and gave [PW1] two punches and one kick. Such force used was definitely unlawful. As to the female who was pushed onto the ground by [PW1], since the defendant described that female in his testimony as a protester there, this reveals that in the defendant’s mind, he considered that female and other people assembling there as ‘fellows’, namely protesters supporting them and having the same purpose. Naturally, the defendant felt resentment towards the hostile act of [PW1] knocking the female down. Therefore, rather than saying that the defendant joined in chasing to stop or even to beat [PW1] for the purpose of ‘subduing’ him, the court finds that he did so obviously for ‘revenge’.

80. The court does not accept the defendant’s testimony that he delivered the first punch for self-defence. It is found that he used unlawful force on [PW1] at the material time. In view of the above analysis and the consideration of the overall circumstances of the attack on [PW1], the court also refuses to accept that when the defendant used such force, he honestly believed that it was for self-defence or prevention of crime.”

11.It was contended that the applicant’s attack was an independent incident and so could not render the unlawful assembly in which he participated a riot. The trial judge had a different conclusion. The essence of the conclusion lay in his finding that there was on the said evening only one unlawful assembly which had the common purpose of besieging the PH^[7]; therefore, no matter whether the applicant knew that PW1 was a police constable or only thought that he was an ordinary opponent, once the applicant had started to attack PW1, he had joined in a riot which had begun on Harcourt Road (“in a broad sense”), or another riot which had started on Arsenal Street (“in a narrow sense”)^[8].

12.Finally, as to the possible overlap between Charge 1 and Charge 2, the trial judge concluded as follows:

“117. The defence in the last paragraph of their closing submissions stated that there is a clear principle at common law that an accused cannot be charged twice for the same offence, and they put forward a number of precedents in support:

…

118. It was also suggested that even if the court accepted the prosecution case, the defendant should only be convicted of either one of the two charges.

119. This court must point out that each case of riot has its own peculiar circumstances… but the main alleged breach of the peace committed by the defendant in this case is the very conduct of attacking another person allegedly committed by him under Charge 2.

120. I have noted the precedents referred to by the defence, but not all those cases were decided based on common law principles, and some were even based on the criminal statutes specific to the relevant jurisdictions….

121. In reply, the prosecution… submitted that it has always been the practice of the Department of Justice to charge a defendant with the offence of ‘riot’ in tandem with another offence involving the breach of the peace. However, the court also notes that in fact it has been raised under section 101D, Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong:

‘Where any act constitutes two or more offences, whether under the same Ordinance or otherwise, the offender shall be liable to be prosecuted and punished for any or all such offences but shall not be liable to be punished twice for the same offence. (emphasis added)’

122. One may think that even if the court orders the sentences of the two offences to run concurrently upon conviction, it will still be unfair to the defendant, who will be prosecuted and punished twice for the same conduct, because conviction and criminal records are by themselves a type of punishment. In any event, this is the existing statute which also overrides the common law.

123. Of course, the Department of Justice may consider exercising its discretion to make Charge 2 an alternative to Charge 1 in the present case…. In particular, in the present case, the content of the accusation under Charge 2 does not go beyond but is fully covered by Charge 1….

124. In view of the requirement under section 101D of the Criminal Procedure Ordinance cited above, there are precedents in support of the decision of prosecution in the present case. The court should not and cannot criticise the Department of Justice for making a legally wrong decision of prosecution. Under the legal framework of the Basic Law, the Department of Justice has full power to decide whether and how a case would be prosecuted. Unless there is a violation of the Prosecution Code and/or the principles of fairness, the court normally would not intervene. The defence’s complaint that the first two charges in the present case overlap does not stand.”

Grounds of appeal

13.Ms Catherine Wong of counsel (with Mr Anthony Lai who represented the defendant at trial), acting for the applicant, put forward four grounds of appeal.

(Ground 1 - against Charge 1 in tandem with Charge 2)

14.The trial judge was criticised for having erred in finding that the applicant had the intention to impose unlawful force on PW1, as particularised below:

(1) the trial judge failed to consider the right of making lawful arrest;

(2) even if the applicant’s evidence was not accepted, “self-defence”, “protecting others”, “prevention of crime” and “stopping the breach of the peace” should not have been ruled out;

(3) the trial judge failed to give proper consideration to the applicant’s subjective belief;

(4) “revenge” was not the only reasonable inference;

(5) the evidence supported that the applicant had no intention to use unlawful force.

(Ground 2 - against Charge 1 only)

15.The trial judge was criticised for having erred in dealing with the “common purpose” which was a requisite of the offence of riot, as particularised below:

(1) The evidence was not sufficient for drawing the inference that the applicant was aware of the connection between the act of attacking PW1 and the unlawful assembly of besieging the PH such that they were not independent incidents;

(2) If the purpose concerned was solely attacking PW1 without any other common purpose, it would be a violation of the basis of prosecution and was not a proper application of the principle of the offence of riot.

(Ground 3 - against Charge 1 only)

16.The trial judge was criticised for holding, when there was a lack of relevant evidence, that when the applicant attacked PW1, the applicant and two or more persons did have a “common purpose” or did “assemble together”, thereby constituting the offence of riot.

(Ground 4 - against Charges 1 and 2 at the same time)

17.The trial judge was criticised for having erred in applying section 101D of the Criminal Procedure Ordinance, thereby wrongly finding that the applicant could be convicted of Charge 1 in tandem with Charge 2.

Latest authority

18.The date of conviction of the present case is 17 September 2020, when there were still disputes on the “common purpose” which was a requisite of unlawful assembly as well as the offence of riot. Therefore, in respect of this issue, the stance of the defence at trial and even at the time of lodging this appeal (see the above) was based on the usual but not necessarily correct propositions. Nevertheless, on 4 November of the same year, the issue in question was eventually resolved in a judgment of the Court of Final Appeal: Lo Kin Man^[9]. In brief, the Court of Final Appeal held in that case that, in Hong Kong, the “common purpose” required for constituting the offence of unlawful assembly refers to the participation in the unlawful assembly concerned, and therefore it is not necessary for the prosecution to prove any “extraneous common purpose”^[10]. Since the same principle applies to the offence of riot, the prosecution is only required to prove the defendant’s intention to participate in the riot along with other participants^[11].

Discussion and analysis

(Re Ground 1)

19.Many provisions and precedents have been cited for the assertion that the applicant’s conduct might legally constitute various circumstances for lawful use of force; for example, self-defence, protecting other people, prevention of crime, stopping breach of the peace, and/or exercising the right of making civil arrests and so on. The applicant wholly relied on the evidence, as he had purportedly seen, that PW1 had pushed others, intended to hit others, resisted others’ attempts of subduing him and also eventually appeared to storm the PH.

20.As this court indicated at the hearing, some of the above notions were contradictory and could hardly co-exist. For example, PW1 was dressed all in light colour which was entirely different from most of the people besieging the PH, who were wholly in black, and he was, according to the applicant, attacking a protester wildly, so it was hardly imaginable that when PW1 was running towards the main entrance to the PH, the applicant thought that he was going to storm the PH, i.e. changed and sided with the protesters. Another example is that the unlawful assembly that evening was against the police and it aimed at paralysing their operation. There was not much awareness of abiding by the law amid the clamour, so it is really out of place to describe the applicant’s action as exercising the right of making civil arrest.

21.In any event, reference may be made to the video footage which recorded what happened at the time of the offence, and the trial judge has objectively analysed the footage before reaching the conclusion. He said that it was only when PW1 turned his body that he accidentally knocked down the female protester, that he would not have first turned his left shoulder to attack backhandedly had he intended to attack the applicant, and that the applicant had absolutely no need to give the first and even the second punches, and so on. These are good examples of objective analysis which are completely within reason. In saying that PW1 would not be so foolish as to try to attack anyone under the circumstances at the time, and PW1 had never fought back against the protesters, the trial judge was not assuming that the applicant knew the development of the incident in full; the trial judge was only using this to lend support to his observations drawn from the video footage. He was asking the question: Under the circumstances that PW1 could not fight back rashly due to the huge disparity in the number of people between the two sides, was PW1’s action in the video footage one of dodging or one of attacking?

22.Based on the analysis in the above two paragraphs, the trial judge cannot be criticised when he said the applicant intended to “avenge” rather than to “subdue” PW1. He was at the most not prudent in his choice of words. As this court pointed out at the hearing, at the critical moment, PW1 and the protester next to him, as the video footage showed, had their arms interlocked, and the applicant could have assisted in subduing PW1 without punching, but he chose to use force. As to the criticism that the trial judge focused so much on the content of the footage that he neglected to consider the applicant’s subjective belief, this court notes that PW1’s appearance at the gate immediately attracted the applicant’s attention, that the latter turned his head toward PW1, and moreover, due to the short distance between them, it is impossible the applicant did not see PW1’s exceptional clothing and dodging action and that he was passively being pulled, enclosed and wrenched by the surrounding protesters. Therefore, when the applicant said that he himself only saw PW1 knocking down others^[12], it was totally unconvincing and inherently improbable. Admittedly, the matter happened in a split second, but we do not think that under all the relevant circumstances at the material time, anyone would misconceive what was happening.

23.Ground of appeal 1 does not stand.

(Re Ground 2)

24.Although ground 2 is obscurely worded, the applicant’s propositions can be simply expressed in the following three points with further reference to their submissions: The participation in an unlawful assembly by the people who breached the peace is a requisite for establishing the offence of riot and an unlawful assembly is constituted on the basis of a common purpose; hence, the act of breach of the peace has to be related to the common purpose of the unlawful assembly. According to the prosecution’s position at the trial, the unlawful assembly in the evening in question had the common purpose of besieging the PH and acting against the police. However, the trial judge found that the applicant attacked PW1 for “revenge”. Taking revenge was different from acting against the police. The two could not be regarded as the same common purpose, in particular when the applicant did not know that PW1 was a police constable.

25.After the delivery of the judgment of Lo Kin Man, the applicant amended their submissions as follows:

“Ground of appeal 2

14. The applicant accepts that based on the decision of the Court of Final Appeal, the prosecution do not need to prove that people assembled have any common purpose other than the prescribed acts and breach of the peace. However, it is submitted that on the basis of the definitions of ‘participation’ and ‘participatory intent’, the conduct of breach of the peace which turned the initial unlawful assembly into a riot should not be a completely independent incident, because the people who breached the peace at the beginning and thereby turning the unlawful assembly into a riot must be participating in the unlawful assembly, and conducting themselves in a way belonging to the prescribed acts constituting part of the initial unlawful assembly or procuring those prescribed acts, and had the intention to act in concert with other participants of the unlawful assembly. That is to say, in the unlawful assembly besieging the PH on that evening, a fight, say, between two protesters for some sudden personal reasons, should not turn the unlawful assembly into a riot because their private fight was not intended to form part of the initial unlawful assembly, nor was it intended to be any prescribed act committed in concert with other protesters or to procure any prescribed acts of other protesters. As the Court of Final Appeal described the participants of unlawful assembly in paras 16 to 17:

…

15. In addition, since participatory intent is also a requisite of riot, the defendant had to know the nature of other people’s behaviour and to act together with them…. Therefore, unlawful assembly and riot are two graduated offences. See para 10 in Lo Kin Man.

16. The trial judge basically considered the present case on the above basis. However, he found the attack on PW1 as a part of the unlawful assembly on that evening. Therefore, the contention under ground 2 is whether there was a sufficient basis for the trial judge to be sure that when the applicant attacked PW1, he intended to take part in an unlawful assembly containing unlawful force, or to take part in a violent incident independent from the unlawful assembly. The applicant has explained his argument in para 23 of the first submission. The applicant has also invited the court to consider his subjective understanding of the attack on PW1 because the applicant can be convicted only if he had ‘participatory intent’.”

26.We do not think that what is said above is helpful to the applicant.

27.Before making the amendment, the prosecution relied on some old English and Australian cases in which the statutes governing the offence of riot were vastly different from the legislation in Hong Kong. Those statutes plainly had the element of “extraneous common purpose”^[13], which could not be taken as applicable examples. After making the amendment, the applicant repeated and cited the crucial parts in Lo Kin Man in complicated and circumlocutionary language as they had been doing, and also invited this court to take a fresh look to see if the applicant’s conduct amounted to “participating” in a riot and contained the relevant “participatory intent”, doing nothing more than this.

28.Lo Kin Man has explained the constitution of the offence of riot very clearly^[14]:

“ 19. The offence of riot builds on that of unlawful assembly. Its starting-point is that an unlawful assembly exists, ie, that elements [1] to [5] are established. Element [8] specifies that when any person taking part in the unlawful assembly [9] commits a breach of the peace, the assembly [10] becomes a riot and the people assembled are riotously assembled. The actus reus of the offence of riot under section 19 is committed [11] when any person “takes part” in the riot.

20. Thus, as with unlawful assembly, the offence of riot has its initial constituent elements which are distinct from the actus reus of “taking part in a riot”. Any person taking part in an unlawful assembly may turn that assembly into a riot by committing a breach of the peace. That person does not have to be one of the constituent offenders who initially constituted the unlawful assembly, but he or she has to be a participant in the unlawful assembly. Any person who “takes part” in a riot which has come into existence commits the offence of riot [11]. Such a person does not have to be the person responsible for the initial, constituent breach of the peace. Neither does he or she have to have taken part in the unlawful assembly prior to it turning into a riot. Any person may take part by joining in after the unlawful assembly has become a riot.

21. Mirroring the analysis regarding unlawful assembly, the defendant’s conduct amounting to “taking part” in the riot must involve acts in furtherance of the riot. It must involve committing breaches of the peace or doing acts facilitating, assisting or encouraging breaches of the peace by others, making the defendant guilty as a principal or as an aider and abettor. We will return below to consider what committing a breach of the peace entails.

22. The offence of riot is also participatory in nature. The constituent act involves a breach of the peace by a person who was taking part in an unlawful assembly. When that occurs, the “persons assembled” are declared by element [10] to be “riotously assembled”. The person who first committed a breach of the peace would thus be taking part in an assembly which has become a riotous assembly. Any other person who commits the offence by “taking part” in the riot, does so as part of the “riotous assembly”. Such person must have a participatory intent, intending to take part in the riot by committing, or acting in furtherance of, breaches of the peace together with other participants engaged in riotous activities.

23. As with unlawful assembly, it follows that liability for the offence of riot as a principal implicitly requires the defendant to be present and acting with the others riotously assembled. Again, this is subject to what is said about accessorial and inchoate liability incurred by persons who are absent, discussed below.”

29.In comparison with the paragraphs above, the approach taken by the trial judge in the present case was obviously correct and also consistent with the basis of the prosecution. As admitted by the defence at trial, there had already been an unlawful assembly in the vicinity of Harcourt Road and Arsenal Street. This unlawful assembly became a riot when other protesters began to beat up PW1. When the applicant took action to attack PW1, he joined in this riot (in the “broad sense” as referred to by the trial judge). However, even if the applicant had no knowledge of the first half of the incident, another riot was constituted in which he took part when he attacked PW1 upon seeing the situation at the entrance gate^[15] (in the “narrow sense” as referred to by the trial judge). As to the “participatory intent” emphasised by the applicant, paras 21 and 22 in Lo Kin Man clearly pointed out that the law only required that the applicant had intended to commit or act in furtherance of performing the act of breach of the peace with other participants, and that would already suffice. These requirements were undoubtedly fulfilled in the present case. There was no reason for the applicant to complain.

30.Ground 2 is unsustainable.

(Re Ground 3)

31.Simply speaking, the applicant submitted that the Court of Final Appeal confirmed in Lo Kin Man that regardless of whether it was an unlawful assembly or a riot, it could only be constituted by three participants having the relevant “participatory intent”^[16]. The relevant “participatory intent” in unlawful assembly is committing the “prescribed conduct” under the offence with other participants of the assembly. In a riot, the relevant “participatory intent” means commission of the act of breach of the peace with other participants of the riot. In the present case, even if the applicant was found to have the relevant “participatory intent”, the court would not be able to confirm whether the other protesters who pulled and wrenched PW1 had the same intention. Those protesters might be exercising the lawful right of, say, making civil arrests.

32.This court must sternly point out that the above submissions are wholly unrealistic. The applicant only shifted the focus to other protesters, applying grounds 2 and 3 to them by changing their position in the hope of creating doubt. The problem with the submissions is that, according to the undisputed evidence, PW1’s identity was uncovered at an earlier time when he was on Harcourt Road and it was for this reason that he was provoked and chased, and this went on even when he had turned onto Arsenal Street. In fact, it was not until he had successfully run to the bottom of the escalator at the main entrance to the PH that he got away, and in the course of it, apart from knocking down a female, he did not use force to resist. Under the overall circumstances as described, it is completely groundless and beyond imagination to say that the protesters besieging the PH and participating in the unlawful assembly were defending themselves or protecting others, or even exercising the civil right of making a lawful arrest against PW1 and so on, and is merely arguing for the sake of arguing.

33.Ground 3 also fails.

(Re Ground 4)

34.The applicant’s proposition may be summarised as follows: there is a common law doctrine known as autrefois convict; see DPP v Henderson^[17]. The Queen’s Bench Division of the High Court of Justice in England confirmed in the case^[18] that double convictions which were “mutually exclusive”, i.e. “true alternatives”, for a single wrong were unfair and disproportionate. It was not a matter of the defendant being punished twice but there were two convictions for one single criminal act. The Divisional Court^[19] further pointed out that section 18 of the Interpretation Act 1978 permitted the prosecution to charge a defendant with more than one offence but did not give the court the power to convict both “true alternatives” at the same time. Returning to the present case, Charge 1 came into being solely because of Charge 2; therefore, there should not be convictions of the two offences at the same time. In view of the construction of section 18 of the Interpretation Act 1978 by the Divisional Court, the trial judge was also wrong to use a similar provision in section 101D of the Criminal Procedure Ordinance to lend support to the doctrine of autrefois convict. In fact, there is case law in Hong Kong stating that the recording of a conviction is in itself a punishment, see CMT^[20] as an example.

35.This court does not accept the above assertion.

36.As we pointed out at the hearing, the Divisional Court did not look into the legislative history and legislative intent of section 18 of Interpretation Act 1978, nor did it analyse its provisions before reaching the conclusion mentioned above^[21]. The problem is that, unless the court defines the word “punished” therein wherever it appears to mean conviction or a combination of conviction and sentence, and section 18 could only be correctly construed as meaning that the defendant could be convicted under either or any of those Acts or at common law, it would be very difficult to reach the same conclusion arrived at by the Divisional Court. However, so doing does not appear to be a matter of course, and certain reasoning is necessary (see below):

“ Where an act of omission constitutes an offence under two or more Acts, or both under an Act and at common law, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished more than once for the same offence.”

37.This Court must also point out that although section 101D of the Criminal Procedure Ordinance is similar to the English provision, there is no lack of substantive and significant differences between the two, including the crucial phrase “any or all such offences”. In other words, section 101D has explicitly stated that a defendant may be prosecuted and punished for any or all such offences; therefore, if “punished” is uniformly defined as conviction or conviction and sentence, the whole passage would become self-contradictory and inexplicable; i.e., disapproving it immediately after approving it (see below):

“101D. Acts constituting 2 or more offences

Where any act constitutes 2 or more offences, whether under the same Ordinance or otherwise, the offender shall be liable to be prosecuted and punished for any or all such offences but shall not be liable to be punished twice for the same offence.”

38.The above is the difficulty encountered simply by looking at the provision. Apart from that, in respect of the procedure, if the prosecution does not put the offences constituted by one act as alternative charges for trial and, before the trial commences, the defence does not apply for a stay of proceedings on the ground of oppression by the prosecution, what will be the reason or power on which the court can rely so as not to determine the “extra” offence? (There is applicable statutory law in DPP v Henderson.) The applicant can hardly answer such questions. Without any further assistance from either party^[22], a more probable conclusion is that the subject matter governed by the doctrine that “one cannot be punished twice for one single offence” is in fact the situation of autrefois convict; that is to say, it is completely irrelevant to being charged with several offences in one case (as in the present case).

39.If the above analysis is correct, i.e. section 101D does confer the court with the power to convict on all charges arising from one single act, the trial judge did not err in citing this section for support. However, as we emphasised at the hearing, we do not find that assault and riot are “true alternative charges”. Therefore, even if the principle in DPP v Henderson is applicable in Hong Kong, it will not be applicable to the present case. The applicant’s perpetration indeed began when he delivered his first punch, but it would be contrary to the rigour required in technical legal analysis to say that Charge 1 came into being completely because of Charge 2. In fact, the applicant is required to have the “participation” and “participatory intent” presently emphasised under either the broad or the narrow sense of riot (see above). Therefore, although the assault sparked the present case, it is not necessarily related to whether the applicant has committed riot. Putting it plainly, having proved Charge 2 does not mean that Charge 1 is also proved, which is the very contention argued for on behalf of the applicant under the other grounds of appeal, and not non-contradictory to ground of appeal 4.

40.Ground of appeal 4 also fails.

Decision of this court

41.The application for leave to appeal against convictions is refused and the appeal is also dismissed. The convictions of Charges 1 and 2 are upheld.

Ms Catherine KK Wong, instructed by Ip, Kwan & Co, assigned by the Legal Aid Department, and Mr Anthony Lai (on pro bono basis), for the Applicant

Mr Ivan CK Cheung, Assistant Director of Public Prosecutions (Ag), of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.