HKSAR v. Chan Cho Ho

(English Translation)

CACC 14/2021

[2022] HKCA 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 14 OF 2021

(ON APPEAL FROM DCCC NO. 9 OF 2020)

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J U D G M E N T

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

1.The applicant (D1) and six other defendants (D2 to D7) were jointly charged with one count of “riot”. After trial, he was the only person convicted of the charge. The trial judge (District Judge Frankie Yiu) sentenced him to 4 years’ imprisonment. The applicant was aggrieved and applied for leave to appeal against conviction[1]. A single judge directed that his application be dealt with directly by the Full Bench.

Prosecution case

2.This case originated from the disturbance on Hong Kong Island on 31 August 2019.

3.At about 9:00 p.m. that day, the police had advanced from Admiralty to the eastbound lane of Hennessy Road off Hysan Place in Causeway Bay and set up a cordon line outside Sogo Department Store. At that time, there were people shouting, throwing objects and burning miscellaneous things on Hennessy Road. There were as many as approximately 300 people in the gathering crowd. These people were mainly dressed in dark black; some were even wearing industrial helmets and respirators while some were also holding umbrellas or long objects in their hands.

4.At the cordon line, the police displayed warning banners, broadcasted and issued warnings to the crowd. At about 9:07 p.m., part of the crowd began to disperse and the police immediately proceeded in pursuit. Part of the retreating crowd moved back into Yee Wo Street and part of the crowd into Great George Street.

5.PW3 was a member of the police “Special Tactical Contingent”[2] who chased into Great George Street. When he arrived at Paterson Street, he saw ten odd people dressed in black rushing up the escalator leading to the Jade & Pearl Plaza. Just when he intended to move forward to intercept them, he found several people in similar outfits rushing down the other escalator connecting to the Pearl City Mansion. As a natural sequence of movements, he grabbed hold of one of them (i.e. the applicant) and said “Police, freeze”.

6.The video footage of the scene produced in court showed that there were in fact three people who rushed down the escalator. In the forefront was a woman wearing a yellow reflective vest (“woman in a vest”), the applicant was in the middle, and immediately behind the applicant was another man who was dressed in all black (“man in black”). According to the video footage produced in court and the evidence of PW2 (another police officer at the scene), during the struggle between the applicant and PW3, the “man in black” hit PW3 once with a long umbrella; after that, he and the “woman in a vest” made good their escape.

7.With the assistance of PW2 and other police officers, PW3 subdued the applicant. The admitted facts and the video footage of the scene showed that when the applicant was arrested, he was dressed in all black with black shoes and black armour (chest and arms). He was also wearing labour gloves and carrying a black backpack. In addition to these, he had also brought along with him a helmet (black), a face mask, goggles, smoke filter cartridges, gloves, sleeves, knee pads, a walkie-talkie and six packs of bandages.

8.The prosecution’s stance was that although there was no direct evidence of the applicant’s participation in the riot, the court could rely on the circumstantial evidence to find the applicant guilty of the charge because: (1) the applicant’s place of arrest was in very close proximity to the scene of riot outside Sogo Department Store; (2) he was dressed and equipped in the same manner as the rioters there; and (3) he evaded police pursuit[3].

Defence case

9.The applicant elected not to give evidence but to call a witness (DW1).

10.DW1 was not at the scene at the time of the incident, but as a District Councillor, he said he had come to know the applicant while organising a procession. According to DW1, the applicant knew first aid and DW1 had actually seen him flushing the eyes of someone who had been exposed to tear gas. DW1 further indicated that the applicant had claimed before 31 August that he was “not free” on that day because he had “to help out as a first aider” in another protest. After watching a video footage of the scene, DW1 also confirmed that he had heard the applicant say “I am a First Aider (original in English)” and “I am a first aider” etc. during his arrest.

11.Lastly, DW1 indicated that there were no fixed outfits for first aiders stationed at various kinds of protest and procession. Some would have a “cross” on the back like the “woman in a vest”, but not necessarily so. DW1 admitted that he expected first aiders would have a variety of first-aid supplies to meet different needs. However, providing first aid was team work, so it was not a problem if one did not bring sufficient supplies as long as his teammates were well-prepared and had a large capacity backpack like the one carried by the “woman in a vest”.

12.In a nutshell, the applicant’s defence was that he was at the scene to provide first-aid service.

Verdict at trial

13.The trial judge found the applicant guilty of riot, and the reasons are as follows[4]:

"127. With reference to all the evidence and footages, when the police advanced to Great George Street, firstly in front, there were a number of people in black outfits fleeing ahead [Photo P147(2)]. Up ahead there were surprisingly still quite a number of people crowding up the escalator to (Jade &) Pearl Plaza [Photo D4-P147(3)]. Given the circumstances at that time, these people were obviously evading police pursuit. They were obviously some of those who had taken part in the aforesaid riot. When PW3 immediately went forward to intercept them, unexpectedly the trio rushed down the escalator, sticking closely to each other. There is no doubt that they were evading apprehension by the police. It can be seen from the photo album that the 1^st defendant was attired and equipped in full gear.

128. The defence put forward that he was only a first aider as his defence. However, by looking at his outfit and equipment shown in the photos, it is very difficult to accept him as a first aider, and it is impossible that he was an onlooker. He had no other first-aid equipment in his backpack and at most only a small quantity of bandages. Although DW1 said the 1^st defendant had told him that the 1^st defendant had to help out as a first aider at another place on that day, DW1 could not confirm whether that was really the case.

129. Moreover, regarding the person following closely behind the 1^st defendant, as seen from the footage (see also screenshot PW2_PP158_D1-2), there was only PW3 at that time and no other police officer had taken any action against that person yet. Nevertheless, he used a long umbrella to attack PW3 who was grabbing hold of the 1^st defendant. Undoubtedly, they must have been acting in joint enterprise; that is, they took part in the aforesaid riot and evaded police pursuit together, yet they needed to attack the police to escape when being caught. Furthermore, the 1^st defendant's equipment included a walkie-talkie, which obviously facilitated on-the-spot liaison and communication at the scene of the riot.

130. The 1^st defendant did not give evidence. No adverse inference could be drawn against him for his so doing; but at the same time there was no evidence to contradict, undermine or disprove the only inference drawn from all the above evidence and footages, which is that he must have been a participant in the aforesaid riot.

131. Indeed, the defence also tried to point out that the woman in front of him was wearing a reflective first-aid top and carrying a big backpack, and they might have been a group of people performing first aid (see screenshot DW1_P158_D1-1). However, in any event, there was no evidence whatsoever as to what was inside that backpack, nor was it known what the woman actually did.

132. There is no doubt that given the time of the incident, the location where the 1^st defendant was at, his full defensive equipment, his flight which must have been taken for fear of punishment and the attack on the police by his partner, the only irresistible inference is that the 1^st defendant must have been a participant in the aforesaid riot."

14.As for the remaining six defendants, having regard to their escape routes and/or the time of their arrest, the trial judge found that he could not be sure as to whether they had taken part in the riot[5]:

“150. Having considered the evidence and the relevant footages against the 2^nd, the 3^rd and the 5^th defendants as a whole, there is no doubt that when the police were advancing towards Great George Street, a group of people who had taken part in the aforesaid riot fled in that direction. The police officers went forward to intercept them and subsequently arrested the 2^nd, the 3^rd and the 5^th defendants respectively. All of them were dressed in some sort of black tops and black pants similar to those of the rioters. However, the 2^nd defendant actually had run towards the police, the 3^rd defendant even went back to the original position and stayed outside the H&M fashion shop, and it was unknown from where in the crowd the 5^th defendant emerged.

151. To sum up, although they were dressed similarly to many of the participants in the riot, their emergence was close to the time of the riot and their places of arrest in close proximity to it, in the absence of further evidence, I can only find that it is very likely they had taken part in the aforesaid riot. However, the standard of proof in criminal cases is very high and must be beyond reasonable doubt. Against such background and with such indirect evidence, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. Hence, the 2^nd, the 3^rd, and the 5^th defendants are acquitted of the 1^st charge.

......

164. Having considered all the evidence against the 4^th, the 6^th and the 7^th defendants as a whole, in respect of the 4^th defendant, it can actually be seen from the footage that she might indeed have run towards the direction which the police were heading [P139 (CCTV4a) 21:09:15] and was intercepted and arrested when she turned right into Paterson Street. In view of the direction she fled, her clothing and her equipment etc., though the outfit was somewhat similar to those of some rioters, taking into consideration all the evidence, it can only be said that she might have taken part in the aforesaid riot, but it is actually difficult to be sure that she really did.

165. In respect of the 6^th and the 7^th defendants, first of all, their appearance and outfits were not similar to those aforementioned who had taken part in the riot. Moreover, there was quite a long lapse of time between the time they were arrested (about 2125 hours) and the time the riot took place (2106 hours). It is actually difficult for the prosecution to infer from the circumstantial evidence that they must have taken part in the riot. Perhaps they might have taken part in it, but as far as the evidence is concerned, it is difficult to be sure.”

Grounds of appeal

15.Mr Hectar Pun SC was one of the counsel who represented the applicant at trial. He put forward four grounds of appeal on behalf of the applicant, and they are as follows:

1.  The trial judge departed from the prosecution case. Without prior notification and without inviting the defence to make submissions, he made his own decision to rely on the assault committed by the “man in black” as the basis for conviction, thus preventing the applicant from making timely consideration such as whether he should give evidence in court and/or other responses. This deprived the applicant of the opportunity of a fair trial.

2.  The trial judge erred in completely failing to consider the applicant’s contention immediately and repeatedly at the time of his arrest that he was a first aider. This exculpatory statement was admissible and was one of the best pieces of evidence to rebut the allegation of later fabrication and to reflect the defendant’s instant response.

3.  The trial judge erred in failing to direct himself on the issue of “flight”. Without any relevant analysis, he simply concluded that the applicant fled to escape punishment.

4.  The trial judge erred in finding that the only reasonable inference was that the applicant had taken part in the riot. The reason was that he might have merely stayed in the Jade & Pearl Plaza / Pearl City Mansion all along prior to his rushing down the escalator. The applicant not only carried with him bandages and a walkie-talkie and revealed immediately his identity as a first aider, but it was also proved by DW1 that the appellant knew first aid, and he followed closely the “woman in a vest” whose back had a “cross” sign to leave the scene. There was no evidence to show that the applicant and the “man in black” must have belonged to the same group.

Discussion and analysis

(Ground 3)

16.This Court will first deal with Ground 3 of the appeal. As this Court pointed out at the hearing, it is clear from the outset that one of pieces of the circumstantial evidence relied upon by the prosecution was the applicant’s flight[6]. This was clearly set out in the prosecution’s opening submissions[7]. The trial judge was an experienced judge and could not have failed to understand its legal implications. In finding that the applicant’s flight was not due to innocence, the judge pointed out that in view of his “location” and his “full defensive equipment”, the applicant’s (flight) “must have been taken for fear of punishment”[8]. This was obviously a finding of fact after careful consideration. The criticisms levelled at him by Mr Pun SC are not made out.

(Grounds 1, 2, 4)

17.The above three grounds of appeal can be dealt with together, and it is appropriate to do so.

18.As this Court emphasised at the hearing, acting as a so-called first aider in a riot is not in itself a valid defence. This Court pointed out that, for example, when two armies confront each other on the battlefield, both sides might have their official combat medics who would be deployed to the forefront. However, saving lives is not equal to being neutral. A combat medic of Country A is in any event military personnel of Country A, and his duty remained giving emergency treatment to the injured soldiers of Country A in the war against Country B. This would not change even if he had helped wounded civilians in the war zone when the situation so arose. Coming back from the example to reality, even if someone defined himself as a first aider during a disturbance, as long as his intentions and acts met the elements of the offence of riot, he has taken part in the riot. What is particularly noteworthy is the conduct referred to here can be the administration of first aid, yet the key is whether that conduct can properly be understood as promoting, assisting or encouraging other protesters to breach the peace[9]. When further questioned by this Court, Mr Pun SC indicated that he accepted this view.

19.The next and the more fundamental question is whether the applicant was really a so-called first aider. With respect to this, this Court pointed out at the hearing that even if the one who had shouted “I am a First Aider (original in English)” had really been the applicant (of which the police witness was not sure), it was by no means evidence of the truth of the content of the statement. Such kinds of statements can be used to show the defendant’s instant response to an accusation of a crime, to rebut the prosecution’s allegation that such a defence was a later fabrication and, under some very rare circumstances, to constitute res gestae, but generally speaking (as in this case), it is absolutely not evidence of the truth of the contents. It cannot even be used to show the consistency of the defendant’s defence[10]. Similarly, the interactions and conversations between DW1 and the applicant can explain why the former believed that the latter knew first aid and would act as a first aider on the day of the incident, but such evidence cannot prove that the applicant was actually acting as a first aider. Self-defined roles can simply be changed at any time.

20.Turning to the “woman in a vest”: by questioning DW1, the defence brought her into the defence case, which was already quite far-fetched. This was best demonstrated by counsel showing DW1 the video footage, asking him to point out the big backpack on the “woman in a vest” and trying to use this to explain indirectly why the applicant, who claimed to be a first aider, had only six bandages on him[11]. Since there was no other evidence, the defence expected the court, by looking at the three differently dressed people who fled together, to draw an inference that the first two people were first aiders and members of the same team who could share supplies. This was totally unjustified and unfounded. On the contrary, the court did not even know what the “woman in a vest” had done and what she was carrying in her backpack[12]. Under these circumstances, this Court does not find the trial judge erred in how he dealt with the issue of the “woman in a vest”.

21.The “woman in a vest” and the “man in black” were people who appeared in the same frame of the video, so it is highly doubtful how Mr Pun SC could on one hand emphasise that the court had to consider the relationship between the former and the applicant while on the other hand, criticise the trial judge for having wrongly included the latter in the analysis. This Court queried it was double standard and Mr Pun SC admitted this without reservation. According to Mr Pun SC, regardless of whether it was double standard or not, the applicant’s fair trial was prejudiced. This Court was surprised by this submission and disagreed with it. In our view, the trial judge had the right to consider anything that appeared on the screen and no prior notice was required. Furthermore, compared to the “woman in a vest”, the clothing of the “man in black” was much more similar to that of the applicant, and the “man in black” did have certain direct connection with the applicant as a result of his attack on PW3. Therefore, the defence had no reason not to envisage it to be taken into account by the court.

22.In relation to the observation of the “man in black”, the trial judge actually hit the nail on the head: he was evading police pursuit with the applicant and the “woman in a vest”; he had not yet been caught by any police officer; he did not just run away himself but raised a long umbrella (a tool commonly used by protesters) and hit PW3 once. In view of the above points, coupled with the background at the time of the incident, though the court could not go so far as to conclude that the applicant and the “man in black” knew each other, the court could at least infer that they were in the same camp and had a tacit understanding to flee from the riot that had just taken place. With respect to this, Mr Pun SC strongly contended that there were many reasons for evading police and the court could not be sure as to whether the applicant had taken part in the riot. Nevertheless, there was a fundamental flaw in this submission, that is, the applicant did not give evidence. For example, the applicant could say he had idly sat in a nearby building for a few hours. Yet he needed to explain this to the court and to be cross-examined about it, but he did not.

23.In short, in the face of strong evidence, if there is no evidence to the contrary, including that from the defence, an appropriate inference will then be drawn by the court naturally. And in addition to what has been mentioned in the previous paragraph (paragraph 22), the strong evidence includes that the applicant was equipped with a variety of equipment which was commonly used by radical protesters; he was wearing various kinds of armour, indicating that he expected short range contact or even conflict with the police; he was in possession of a walkie-talkie, showing that he had accomplice(s) and had planned to coordinate with his accomplice(s) for deployment; he was arrested at about 9:10 (p.m.), only three minutes from the time the protesters began to retreat and the police launching the simultaneous pursuit; and he was arrested nearby the entrance of Sogo Department Store. All of the above were pointed out by the trial judge, although it was not expressed in an equally clear manner. In all, that the applicant had taken part in the riot is in fact the only reasonable inference that can be drawn.

Decision

24.None of the grounds of appeal put forward by the applicant can be substantiated. This Court refuses his application for leave to appeal against conviction, dismisses his appeal and affirms his conviction for the offence of “riot”.

Mr Hectar Pun SC, instructed by S.T. Cheng & Co., assigned by the Director of Legal Aid, and Mr Anson Wong Yu Yat (on pro bono basis), for the applicant

Ms Sham Wing Yan, Jessie, Senior 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.