Read the full judgment text of CACC 277/2021 and CACC 278/2021 on BabelCite. This Court of Appeal judgment was delivered on 14 July 2023 before 潘兆初 高等法院首席法官, 彭偉昌 高等法院上訴法庭法官, 彭寶琴 高等法院上訴法庭法官.
Criminal law – riot – unlawful assembly – conspiracy – case stated appeal – service of appeal documents – procedural requirements – participatory offences – encouragement and facilitation – acquittals challenged as perverse – Riot occurred in Hong Kong on 1 October 2019 in Tsim Sha Tsui and on 31 August 2019 on Hennessy Road in Wan Chai during anti-extradition bill protests – Five respondents in CACC 277/2021 arrested in Wan Chai flat containing extensive riot paraphernalia, raw materials for Molotov cocktails, maps of protest routes, and receipts for white oil – charged with conspiracy to riot and alternative conspiracy to participate in unlawful assembly – Eight respondents in CACC 278/2021 charged with riot on Hennessy Road – Trial judge (Shum Siu Man) acquitted all respondents – Secretary for Justice appealed by way of case stated under s.84 of the District Court Ordinance – Issue of whether appeal notices and case-stated copies were properly served on absconded respondents – Court applied s.106 of the Magistrates Ordinance (Cap 227) and s.115 via s.84 of the District Court Ordinance (Cap 336) – Held that delivery to former trial counsel who no longer represented respondents did not constitute valid service under s.115(3) – Secretary for Justice failed to apply under s.115(4) for alternative service or under s.84(b) for warrant – Lex non cogit ad impossibilia principle did not apply as Secretary for Justice had not exhausted all available means – Failure to comply with mandatory 14-day service requirement meant appeals against absconded respondents were not validly instituted and had to be set aside – First issue (CACC 277/2021): whether in conspiracy to riot or conspiracy to participate in unlawful assembly involving only two defendants, prosecution must prove agreement included recruiting a third person – Held: no, following HKSAR v Harjani (2019) 22 HKCFAR 446, HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 and HKSAR v Choy Kin Yue (2022) 25 HKCFAR 360, where two defendants agree to initiate a riot or unlawful assembly knowing others would join, or agree to participate in one initiated by others, the conspiracy offence is made out – relevant time is moment of agreement – trial judge's contrary view was wrong in law – Second issue (CACC 277/2021): whether acquittals were perverse – Held: yes, trial judge took overly narrow approach, failed to take judicial notice of 1 October 2019 riot, wrongly excluded 'unknown persons' from analysis, wrongly distinguished offensive and defensive items, wrongly focused on absence of finished Molotov cocktails, wrongly rejected co-conspirators rule under Vivien Fan v HKSAR (2011) 14 HKCFAR 641, and wrongly analysed evidence piece-by-piece rather than cumulatively – First issue (CACC 278/2021): whether trial judge erred in finding no prima facie case against D5 (a social worker) who used megaphone for over 40 minutes addressing police and rioters – Held: yes, following Lo Kin Man, a person can participate in riot by facilitating, assisting, or encouraging others – at no-case-to-answer stage, judge must not weigh evidence or usurp jury's role – trial judge wrongly focused only on whether D5's words were threatening, insulting, or provocative – Second and third issues (CACC 278/2021): whether acquittals of D1-D4 and D6-D8 were perverse – Held: yes, trial judge wrongly compartmentalised evidence, failed to apply Lo Kin Man's facilitation principle, wrongly treated clothing and equipment as merely protective, and wrongly speculated respondents arrived independently – On alternative unlawful assembly charge, trial judge wrongly held that if no riot proven, no unlawful assembly could be found – Appeal allowed against D2-D5 with retrial ordered before different judge; appeal against absconded respondents set aside for service defects – Costs order in favour of D5 set aside – Court noted need for procedural rules on service in District Court case-stated appeals.
Legal issues: Service of case-stated appeal notices on absconded respondents · Elements of conspiracy to riot or unlawful assembly with only two defendants · Whether trial judge's acquittals in CACC 277/2021 were perverse · Whether trial judge erred in finding no prima facie case against D5 in CACC 278/2021 · Whether trial judge's acquittals of D1-D4 and D6-D8 in CACC 278/2021 were perverse
Outcome: In CACC 277/2021, the appeal was set aside due to improper service of the appeal notice and case-stated copy on the absconded respondents, although the Court of Appeal indicated it would have allowed the appeal on the merits. In CACC 278/2021, the appeal against D2, D3, D4, and D5 was allowed, their acquittals were quashed, and the case was remitted to the District Court for retrial before a different judge. The appeal against D1, D6, D7, and D8 was set aside due to improper service, although the Court of Appeal indicated it would have allowed the appeal on the merits. The costs order previously made in favour of D5 was set aside.
Cited by 13 cases · Cites 12 cases