HKSAR v. Mak Wing Wa (麥永華)

Press Summary (English)

Press Summary (Chinese)

FACC No 6 of 2023

[2023] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 6 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMA NO 448 OF 2021)

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J U D G M E N T

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Chief Justice Cheung:

1.I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Ribeiro PJ:

2.I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Fok PJ:

3.I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Lam PJ:

4.This is an appeal brought by the prosecution against the judgment of Barnes J (“the Judge”) in a magistracy appeal. Magistrate Andrew Mok[1] (“the Magistrate”) found the defendant Mak Wing Wa (“the Respondent”) guilty of the offence of taking part in an unlawful assembly under Section 18 of the Public Order Ordinance[2] (“the POO”) and made a detention order[3] against him. On 23 August 2022, the Judge allowed the Respondent’s appeal, quashed the conviction and set aside the sentence. The Appellant contended that the Judge had misapplied the law as set out in HKSAR v Lo Kin Man[4]. Leave to appeal was granted by the Appeal Committee on 20 February 2023.

Background and facts of the case

5.In the midst of a period of social disorder in Hong Kong, there was an incident of unlawful road blockading at Lung Cheung Road in the evening of 7 October 2019. At around 8:45 p.m. a mob of mostly black clad persons wearing face coverings and masks threw objects into the eastbound carriageway of Lung Cheung Road near Hsin Kuang Centre to obstruct the traffic. The carriageway was cleared by the police and a team of police officers were stationed at the Hsin Kuang Footbridge in Wong Tai Sin which overlooked that part of Lung Cheung Road.

6.At about 10:00 p.m. a team of anti-riot police officers took over the police duties there. The commander of the team was a Senior Inspector who gave evidence at the trial. She testified that upon their arrival, there was a crowd of more than 100 people gathered at Wong Tai Sin Square (which was adjacent to the Hsin Kuang Footbridge) shouting abuse at the police and there were people shining laser pointers at police officers[5]. Despite repeated warnings by the commander urging the crowd to disperse, many people remained and some of them shouted insulting and provocative remarks at police officers. Finally, the police took action to disperse the crowd shortly after 11:00 p.m. and several persons were arrested. The Respondent was amongst those arrested on that occasion. He was subsequently charged with the offence of unlawful assembly.

Findings by the Magistrate

7.At the time when the Magistrate decided the case, he did not have the benefit of the guidance of this Court in Lo Kin Man. By reference to the discussions on the elements of the offence in two earlier authorities[6], the Magistrate mainly focused on the conduct of the Respondent and three other persons between 10:20 p.m. and 10:25 p.m.

8.During that time, a male person and a female person took turns in using a laser pointer to shine laser beams at police officers. In the meantime, another person shone a torch at the police in the same direction. That person was subsequently identified as To Chak-pong (“To”)[7]. At that time, the Respondent sat on a railing at the top of a staircase leading to the public light bus station at Wong Tai Sin Square. These three persons, namely, To, the male and the female, sat in a row on that staircase.

9.The Respondent later moved to sit on the staircase, positioning himself immediately in front of the female. After a while, the Respondent took the torch from To[8] and shone it at the police while the female sitting behind the Respondent continued to shine a laser beam at the police[9].When the female stopped, the male person next to her took over the laser pointer to shine laser beams at the police. The Respondent again shone the torch at them[10]. The Respondent had the use of the torch for about 50 seconds. Then he handed it back to To[11].

10.The Magistrate found that the use of torch to shine at police officers affected their ability to observe the crowd at the scene but he did not accept that the shining of the torch would hurt their eyes[12].

11.He found that the shining of laser beams at police officers could harm their eyes and that such act constituted prohibited conduct under Section 18 of the POO[13]. He further found that in the circumstances of the incident at Wong Tai Sin Square, the use of torchlight against police officers also constituted prohibited conduct[14] when there were people nearby shining laser beams at the police. Thus, he held that the Respondent, To, the male and the female at the staircase committed acts of prohibited conduct and that the requirement of 3 or more persons engaging in such conduct in Section 18 of the POO was satisfied[15].

12.The Magistrate further found that there was a sufficient nexus between the Respondent and To in using the torch and the male and the female in using the laser pointer for them to be acting together. Apart from being in the vicinity, the Magistrate took account of the fact that the torch was used at the same time as the laser beam was being shone at the police[16] as well as the passing of the torch between To and the Respondent[17]. He found that they were shining the torch so as to obstruct the police’s observation and to disrupt their view. He found that they did so in order to aid the male and the female in using their laser pointer against the police[18]. He also found that the Respondent must have had knowledge of the acts of the male and the female at the material time[19]. He rejected the Respondent’s suggestion that shining the torch was a natural reaction to the police’s shining of their own torches at them.

The appeal to the Court of First Instance

13.Due to disruption to the court’s business by the COVID-19 pandemic, the Respondent’s appeal against conviction was determined by the Judge on the papers after reading submissions from the parties. By then, this Court had delivered the judgment in Lo Kin Man. The Judge was aware of this judgment though she analysed the case by reference to the three elements discussed by the Court of Appeal in its judgment in HKSAR v Leung Tin Kei[20]. She did not find it necessary to address each element of the offence at length. The essence of her reasoning was as follows[21]:

“21. Having considered the appellant’s conduct all along and his age (16), I cannot rule out that he may just out of fun, thus took the torch from ‘To’, then shone it at the police. Although he sat near the female, and that female at that time was still shining her laser pointer at the police. I think, in view of all the surrounding circumstances of the case, I cannot draw the only reasonable inference that the appellant acted together with that male and female, and at the same time when they were shinning the laser pointer at the police, participated in their conduct. In my view, one of the reasonable inferences is that the appellant acted independently and separately where his acts had no connection with the male and the female.

22. While it may be provocative or even disorderly for the appellant to shine a torch with a considerable light intensity at the police, this only shows at most that the appellant performed the ‘prescribed conduct’ on his own. I find that the prosecution failed to prove that the appellant assembled together with the male and the female to perform the ‘prescribed conduct’. Therefore, the prosecution is not successful in proving that the appellant committed the offence of ‘unlawful assembly’.”

The law on unlawful assembly

14.As stated in Lo Kin Man, the offence of unlawful assembly under Section 18 of the POO should be analysed by reference to the following elements:

“ [1] When 3 or more persons,

[2] assembled together,

[3] conduct themselves in a disorderly, intimidating, insulting or provocative manner

[4] intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace,

[5] they are an unlawful assembly. [section 18(1)]

[6] It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid. [section 18(2)]

[7] Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly ... [section 18(3)]”

15.Since the law has been clearly set out in Lo Kin Man and this Court’s recent judgment in HKSAR v Choy Kin Yue[22] has explained at length how the law is to be applied, it is not necessary for us to repeat the same exercise in this judgment. Ms Ng and Mr Wong did not advance any submissions urging us to depart from the guidance given in those judgments.

16.Though the Judge quashed the conviction on the ground of her doubt regarding element [2] (viz. assembled together), in my opinion the criminal liability of the Respondent should be examined by reference to element [7] (viz. taking part and participatory intent). In this connection, I note that the Judge analysed the offence by reference to three elements of the offence as set out in earlier authorities. Her Ladyship apparently thought that in Lo Kin Man we only split the element of “3 or more persons assembled together” into two elements[23]. With respect, such analysis is not correct. For the reasons explained in Lo Kin Man and Choy Kin Yue, a defendant’s “taking part” (viz. element [7]) is the crucial element.

17.As explained by this Court in Lo Kin Man, elements [1] to [4] have to be established in order to show that there is an unlawful assembly. But the offence itself is the taking part in an unlawful assembly, element [7]. A defendant can take part in an unlawful assembly at its commencement by engaging in prohibited conduct as a constituent offender. Alternatively, a defendant can take part at a later stage by joining or participating in an unlawful assembly with a participatory intent[24].

18.In a case where a defendant is a constituent offender (viz. one of the persons whose conduct brings an unlawful assembly into being)[25], it may not make much practical difference whether the question is considered in the context of element [2] or element [7]. However, in a case where a defendant joins an unlawful assembly which has already come into existence before he participates in it, element [2] could be satisfied by the activity of the other persons in the assembly and the crucial issue concerning such defendant is element [7]. Moreover, as explained in Lo Kin Man, a defendant could take part without himself committing any prohibited conduct. A defendant could take part by facilitating, assisting or encouraging the performance of such conduct[26].

19.Hence, instead of asking whether a defendant has assembled with other persons who have committed acts which could be characterized as prohibited conduct, the better approach is to identify the unlawful assembly in which a defendant allegedly took part before addressing the question whether the defendant did take part in it with participatory intent.

20.I acknowledge that sometimes it could be difficult to make a very precise demarcation of an unlawful assembly in respect of a mass gathering of people with different backgrounds which degenerated spontaneously into an unlawful assembly. However, as a matter of procedural fairness, the prosecution should try its best to provide adequate information to the defence in respect of the prosecution case on the alleged unlawful assembly and the stage at which a defendant allegedly took part in it. Such information could also be useful in assisting a trial judge to direct his or her mind to the relevant issues.

21.In this regard, the observations in Lo Kin Man[27] on the fluidity of an assembly should be borne in mind. The ebb and flow of prohibited conduct in an assembly which do not extinguish the apprehension of breach of the peace by those taking part in the assembly should not be regarded as the discontinuation of such assembly. Also, as held by this Court:

“… an overly rigid view should not be taken of what constitutes the assembly, its location and duration. Evidence regarding the geographical area affected, the conduct of and communication maintained among the participants and the duration of the disturbances should be considered as a whole.”

The application of the law in the present case

22.In the present case, Ms Ng submitted that the prosecution’s case was that the unlawful assembly in respect of which the Respondent was charged was not confined to the four persons involved in the shining of the laser pointer and torchlight at the staircase (“the Staircase Shining”). Rather, she submitted, the assembly was the gathering of the crowd at Wong Tai Sin Square on the night of 7 October 2019 between 10:00 p.m. and 10:43 p.m.[28] Mr Wong had the same understanding though he submitted that the Magistrate only took account of the conduct of the four persons.

23.Whilst the Magistrate did focus on the conduct of these four persons in his assessment of prohibited conduct, he also referred to the overall situation at Wong Tai Sin Square on 7 October 2019 and the other persons gathered there:

(a)  He highlighted that at 10:00 p.m. the commander found that there were more than 100 persons gathered there shouting. Verbal warnings were given and a warning flag was displayed to those gathered[29]. The crowd gathered there was not confined to the Respondent and the 3 persons involved in the Staircase Shining;

(b)  He referred to the police shining their torches at the targets of their warnings[30]. From the video recordings, it can be seen that such targets were not confined to those involved in the Staircase Shining;

(c)  When he considered whether the act of shining a torch at the police was prohibited conduct, he referred to the surrounding circumstances and the potential consequences in terms of leading to physical confrontations between the police and the crowd[31]. Obviously, the crowd was not confined to the four persons involved in the Staircase Shining. Rather, the Magistrate was referring to all the people gathered at Wong Tai Sin Square.

24.At the same time, the Magistrate approached the liability of the Respondent by asking whether those involved in the Staircase Shining were sufficient to constitute an unlawful assembly. Thus, he referred specifically to the Respondent being assembled with To and the male and the female shining laser beams in finding him guilty of the offence[32]. The Judge also approached it in the same manner[33].

25.In my view, such approach is too narrow as it fails to have regard to the overall circumstances at Wong Tai Sin Square when the Staircase Shining took place. Based on the facts as found by the Magistrate and as shown in the video recordings, there was a large crowd gathering there with different persons engaged in prohibited conduct in the vicinity. Though the conduct varied, they were all directed against the police officers at the Hsin Kuang Footbridge. At the same time, the police issued warnings to all those in the gathering and directed them to disperse. Those who refused to heed such warnings and remained at the scene were assembled there. In such circumstances, the conduct of individual persons in the crowd at Wong Tai Sin Square could affect the dynamics of the confrontation between the police and those gathered. This was not the kind of situation referred to in Secretary for Justice v Leung Kwok Wah[34] where prohibited conduct was committed by different persons in different parts of an assembly sparking off different incidents involving and affecting an entirely different mix of persons.

26.Since the purpose of the offence under Section 18 of the POO is to prevent a potential breach of the peace and to protect the public from the harm of public disorder (see HKSAR v Leung Chung Hang Sixtus[35]), the Magistrate quite rightly had regard to the potential impact of the conduct of the Respondent on such dynamics in deciding whether there was prohibited conduct.

27.In my view, the conduct of those gathered there (including those involved in the Staircase Shining) could be taken into account in deciding whether there was an unlawful assembly. By adopting a narrower approach, the Magistrate and the Judge actually erred in favour of the Respondent.

28.Even on the narrower approach confining one’s assessment to the Staircase Shining only, the unlawful assembly came into existence when To sitting next to the male and the female used the torch when they were using their laser pointer against the police.

29.Paying proper regard to the fluidity of the situation, the temporary cessation of the use of the torch by To did not bring the relevant assembly to an end. To remained seated in the same row and he readily handed the torch to the Respondent when the latter asked for it. The critical question was whether the Respondent joined To and the male and the female when he took the torch from To and used it against the police officers. In other words, in that scenario the crucial issue was whether the Respondent had taken part in the unlawful assembly.

The Judge misapplied the law

30.In this connection, the Judge differed from the Magistrate because she held that she declined to draw the irresistible inference that the Respondent had acted together with the male and the female and participated in their conduct. She held that it was possible that the Respondent had acted independently and separately and that his acts had no connection with the male and the female.

31.In so holding, the Judge fell into error. An intention to become part of the assembly is not the same as an intention to take part in the individual acts of those assembled. As this Court explained in Choy Kin Yue[36], on the proper understanding of Lo Kin Man, taking part in an unlawful assembly could involve different acts to the acts of the constituent offenders and it is not necessary to show that a defendant had the intention to take part in the acts of each and every participant. Further, the prosecution need not establish any extraneous common purpose amongst the participants and there is no requirement of mutual assistance[37].

32.As we have held in Choy Kin Yue:

“… if a defendant was in proximity to the other participants who committed prohibited acts and, whilst being aware of such conduct, the defendant joined in by committing further [prohibited] act or acts, a sufficient nexus could readily be established.”[38]

33.The Magistrate found that the acts of the Respondent constituted prohibited conduct and the Judge did not differ from that finding. Such conduct could constitute acts of participation and the intention to commit such conduct could constitute participatory intent. On the evidence, it is indisputable that the Respondent was in the vicinity and was aware that To and the male and the female were shining the torch and laser pointer at the police. Under such circumstances, it must be an irresistible inference that when the Respondent got the torch from To he intended to participate and took part in the unlawful assembly. Such inference was reinforced by his use of the torch in conjunction with the use of laser pointer first by the female and then by the male against the police and his subsequent handing of the torch back to To.

34.Though the four of them left the staircase after the Respondent had handed the torch back to To and he no longer remained in close proximity to the male and the female, the offence of unlawful assembly had already been committed.

35.Ms Ng also submitted that in light of the overwhelming evidence of participation the Judge’s finding that the Respondent could be acting out of fun independently and separately could not be sustained. However, that would not be an adequate basis for entertaining this appeal as this Court does not function as an ordinary second appellate tier for assessing the facts[39].

36.For the reasons canvassed above, I would allow the appeal and restore the conviction and sentence imposed by the Magistrate.

Mr Justice Keane NPJ:

37.I agree with the judgment of Mr Justice Lam PJ.

Chief Justice Cheung:

38.Accordingly, the Court unanimously allows the appeal and restores the Respondent’s conviction and sentence.

Ms Karen Ng SPP and Ms Angela Wong SPP (Ag), of the Department of Justice, for the Appellant

Mr H. Y. Wong, instructed by To, Lam & Co., assigned by the Director of Legal Aid, for the Respondent