HKSAR v. Fu Chi on and Others
Read the full judgment text of HCMA 460/2021 on BabelCite. This High Court CFI judgment was delivered on 15 July 2022.
1. There were originally seven defendants in this case. They were jointly charged with the following offences:
Cites 31 cases
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[English Translation – 英譯本] HCMA 460/2021 [2022] HKCFI 1895 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 460 OF 2021 (ON APPEAL FROM KTCC 1146 OF 2020) ___________________
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JUDGMENT Table of Contents ============= 1.There were originally seven defendants in this case. They were jointly charged with the following offences:
2.Each of them pleaded not guilty to the charges. After trial, the magistrate[3] convicted the four appellants, the first defendant at the trial (hereinafter referred to as the first appellant, “D1”), the fifth defendant (hereinafter referred to as the second appellant, “D2”), the sixth defendant (hereinafter referred to as the third appellant, “D3”) and the seventh defendant (hereinafter referred to as the fourth appellant, “D4”), of charges one and three. The four of them appealed against conviction. 3.The incidents involved in charges one and three actually occurred at the same place in the same evening, though they were related to two different periods of time with 8:26 p.m. being the dividing line between them. The unlawful assembly in respect of charge one, as alleged by the prosecution, started at about 7:51. The alleged unlawful assembly in respect of charge two lasted until about 8:40 when the police took action. 4.In respect of charge one, the prosecution alleged that from about 7:51 to 8:26 that evening, some 100 people assembled inside Telford Plaza, and the situation was as follows:
5.In respect of charge three, the prosecution alleged that after the persons assembled had left for a short while, some people gathered outside Fortress again and proceeded in the same direction along the passageway of the mall towards Phase II via the ground floor and podium of Phase I of Telford Plaza in a manner similar to the one described earlier. In the meantime, the persons assembled conducted themselves in a manner similar to what was referred to in paragraphs 4(2) ‑ (5) above. At about 8:40 p.m., when the persons assembled reached the podium near Phase II of Telford Plaza, the police arrived at the scene. The persons assembled then scattered. 6.The prosecution alleged that each of the appellants had taken part during both periods of time mentioned above. 7.At trial, none of the defendants gave evidence or called any witness. 8.The issues raised by the defence are, by and large, as follows:
9.At trial, the prosecution called nine witnesses:
10.The prosecution also produced the following video footage and relevant screenshots:
11.The defence agreed that the above footage and screenshots accurately reflected what had happened at the material times. 12.There were also facts admitted by both sides[4]. Matters of significance are as follows:
13.The evidence of each of the prosecution witnesses can be summarized as follows. PW1: security manager of Telford Plaza[6] 14.The salient points of his testimony are as follows:
PW2: sergeant 51369[8] 15.The salient points of his testimony are as follows:
PW3: sergeant 33624[9] 16.The salient points of his testimony are as follows:
PW4: police constable 12373[11] 17.He entered Phase I of Telford Plaza at 9:00 p.m. Prior to that, he was on standby outside the Circle K convenience store on the podium of Telford Plaza. He entered through the upper level of Phase I of Telford Plaza and saw more than 50 people wearing black upper garments, black trousers and masks yelling and demonstrating. They turned round and ran upon seeing the police. PW5: police constable 50321 18.His testimony was of little significance to this appeal. PW6: woman police constable 11997[12] 19.The salient points of her testimony are as follows:
PW7: police constable 9760[13] 20.The salient points of his testimony are as follows:
PW8: police constable 23262[14] 21.On 28 December, three days after the incident, he obtained from D4 (the seventh defendant at trial) his personal particulars at Telford Plaza. At that time, D4 was wearing a black jacket, a pair of black trousers, a pair of black shoes and a black mask. D4 was carrying a black rucksack, and the hood attached to the black jacket was pulled over his head. On that day, he found upon search from D4’s black rucksack a black speaker (about the size of a palm or about 3 to 4 cm in width) and a microphone (black in colour, with a black ball-shaped sponge attached to its end). PW9: police constable 19720[15] 22.The salient points of his testimony are as follows:
23.The magistrate took the view that PW1 was an unbelievable and unreliable witness and rejected his testimony that the situation at the material time was orderly and peaceful. 24.As to the other prosecution witnesses, the magistrate took the view that they were all credible and reliable witnesses and accepted their testimonies as true.[20] 25.The magistrate also found that all of the four appellants were the persons as alleged by the prosecution.[21] 26.The magistrate found that chanting the slogans in question in the procession was conducting oneself in a disorderly, insulting or provocative manner, thereby constituting “the prescribed conduct”.[22] 27.The magistrate was of the view that section 18 of the Public Order Ordinance[23] and article 16 of the Hong Kong Bill of Rights[24], when read together, indicate that the exercise of the right to freedom of expression in a procession does not include wantonly insulting or cursing others, denigrating customers of businesses and tarnishing the reputation of businesses during the procession, which are sufficient to constitute “the prescribed conduct”.[25] 28.The magistrate also pointed out:
29.The magistrate further found that the relevant conduct might cause “the stipulated fear”. Accordingly, the magistrate found D1 (the first defendant at trial), D2 (the fifth defendant at trial), D3 (the sixth defendant at trial) and D4 (the seventh defendant at trial) guilty of charges one and three.[28] 30.D1 was represented by Mr Mike Lam of counsel, who put forword the following grounds of appeal:
31.D2 and D3 were represented by Mr Kin Lau of counsel and Mr Henry Leung of counsel. They put forward on behalf of D2 and D3 the following grounds of appeal:
32.D4 was represented by Mr Jonathan Ip of counsel and Mr Jay Koon of counsel. They put forward on behalf of D4 the following grounds of appeal:
VII. Submissions from both sides 33.Mr Lam made it clear right at the outset that D1 would not dispute the magistrate’s finding on the identification of him. 34.Mr Lam pointed out that as none of the police witnesses was present at Phase I of Telford Plaza at the time of the offence, under the circumstances that the magistrate had rejected the great majority of PW1’s testimony, the remaining prosecution evidence consisted of merely the various video clips[30]. Ground of appeal (1): The magistrate erred in finding that some people had “conducted themselves in the prescribed manner” 35.Mr Lam made submissions on two aspects:
36.In respect of the aforesaid first point, the constitutional issue, Mr Lam relied on the right to freedom of speech under article 16 of the Hong Kong Bill of Rights[31]. He made it clear that he was not challenging the constitutionality of the offence involved and that he was merely criticizing the magistrate for wrongly finding that the slogans chanted during the procession did not fall within the protection of constitutional rights. 37.He criticized the magistrate for putting the cart before the horse in coming to a finding[32] which is wrong and arbitrary. 38.Citing the Court of Final Appeal case of Leung Kwok Hung v HKSAR[33], Mr Lam criticized the magistrate for wrongly considering that the acts of insulting or vilifying businesses, cursing or (tarnishing) their reputation did not fall within the protection of freedom of expression[34]. 39.Mr Lam also submitted that by considering that only expressing “views” could be counted as freedom of expression and automatically categorizing the utterances of the participants in the procession as cursing, inciting hatred against the police and blackening the reputation of others and further deducing therefrom the actus reus of “the prescribed conduct”, the magistrate overlooked the fact that the right to freedom of expression could be exercised through any media of one’s choice[35] and that any restriction and restraint on fundamental human rights and freedoms should be minimal[36]. 40.In respect of the second point, the factual issue, Mr Lam submitted that the prosecution had no direct evidence capable of showing that at the material time, there were police officers who were present inside Phase I of Telford Plaza and felt harassed, frightened or distressed at the same time. No police officer was captured on the footage produced in court and all the police officers who did testify were on guard outside Phase I of Telford Plaza. 41.Citing Campbell v Adair[37] and HKSAR v Chan Ka Chuen Raymond[38], Mr Lam submitted that certain less than civilized behaviour (e.g. using foul language) or street obstruction in itself is not “disorderly” in law unless something further occurs. 42.Mr Lam further criticized the magistrate for misjudging the circumstantial evidence at that time and drawing wrong inferences consequentially. Ground of appeal (2): There was no sufficient evidence to show any person reasonably feared that the persons so assembled would commit a breach of the peace 43.Citing R v Howell[39], Mr Lam submitted that mere disturbance might not necessarily constitute a breach of the peace. In assessing whether the conduct of the protesters is reasonable, diligent or blameworthy, the factual background of the case should be taken into consideration. In the present context, all the relevant utterances were merely slogans, which would not go so far as to give rise to an inference that someone at the scene might be in fear that there would be a breach of the peace, especially when there were no people with opposing views coming out to have a verbal dispute at the scene, and there was never any sign that a physical conflict would ensue. Under the circumstances, asserting that there would be an immediate danger of the outbreak of violence or use of force is tantamount to prohibiting all those who had taken a stance, to which someone might object, from expressing their stance verbally. When examining the effect of “the prescribed conduct” (if any), there is a need to balance it against the impact freedom of expression would otherwise bring about[40]. 44.Mr Lam submitted that even if certain less than civilized behaviour (e.g. using foul language) or street obstruction might arise in the course of the event, and even if there might be police officers and people holding opposing views present at that time, the magistrate overlooked the following circumstantial evidence, and what was more, there was no objective evidence to suggest that something further might occur:
Ground of appeal (3): The magistrate erred in finding that D1 had participated 45.Mr Lam stressed that it was incumbent on the prosecution to prove that D1 had a participatory intent[42], and yet the magistrate wrongly considered that whether D1 was present when Genki lowered its shutters was not a material point[43]. In any event, there was no sufficient evidence to support the magistrate’s finding that D1 was present at the scene and participated in chanting slogans as well. 46.Mr Lau pointed out that the two police witnesses relevant to the cases of D2 and D3 only arrived at the scene or saw D2 for the first time after the material time of the case and they did not see D3 hurling abuse at the police, thus having little bearing on the present case, and that PW1’s testimony was rejected by the magistrate. Therefore, the evidence upon which the magistrate relied to convict D2 and D3 would simply be the relevant video footage. 47.Mr Lau also stressed that during the demonstration on that day:
Ground of appeal (1): The magistrate wrongly considered that those slogans did not fall within the protection of the Hong Kong Bill of Rights and overlooked the fact that they were chanted against the background of the demonstration, thereby failing to properly examine whether chanting those slogans could be regarded as conducting oneself in the prescribed manner and/or whether it would cause “the stipulated fear” 48.Mr Lau submitted that the magistrate misinterpreted the judgment of the Court of Final Appeal in Fong Kwok Shan Christine[44] and wrongly considered that expressing or chanting the relevant slogans did not involve freedom of speech or expression, nor was it an expression of views, and should be excluded from freedom of speech or expression. Thus, the magistrate failed to properly consider and determine whether the incident constituted an unlawful assembly against the background of the demonstration and in the context of an environment which was reasonable, tolerated demonstrations and expressions of rights and accommodated pluralistic views, and disregarded the fact that chanting slogans is one of the ways of expressing views or discontent. 49.Mr Lau cited the following cases:
and submitted that:
50.Mr Lau also cited the European Court of Human Rights case of Gul v Turkey[49] and submitted that the fact that some highly offensive or aggressive words are used does not mean that such words, in essence, have to be categorically excluded from freedom of speech or expression because such seemingly aggressive words can purely be one of the forms of rhetoric or expression. Therefore, the court has to take into consideration the context in which the words are uttered or the slogans are chanted in order to properly understand the substantive meaning of those slogans. 51.Mr Lau also submitted that from a protester’s utterance, which was audible in one of the video clips[50], it can be seen that by shouting attention-seeking slogans, the protester was trying to convey to the public or draw the public’s attention to his/her concern and discontent over the relevant issues. 52.In HKSAR v Chow Nok Hang[51], Ribeiro PJ pointed out that once a demonstrator commits a breach of the peace, that demonstrator crosses the line and goes beyond the constitutionally protected rights. The same applies where the demonstrator crosses the line by unlawfully interfering with the rights and freedoms of others[52] 53.Another submission made by Mr Lau is about the difference between the provision of section 17B(2) of the Public Order Ordinance [53] and the provision of the Ordinance relevant to the present case. Mr Lau stressed that section 17B(2) deals with words while the offence involved in this case is concerned with conduct and that, having regard to this difference, merely chanting slogans should not amount to the conduct aimed at by the offence involved in this case, otherwise it is inexplicable why different formulations were adopted at the time of enactment. Having carefully considered the formulations of those two provisions, I am of the view that they do not support Mr Lau’s argument. 54.As to the meaning of disorderly conduct, citing the judgment of Tang PJ in Chow Nok Hang[54], Mr Lau submitted that while this was a minority opinion, in assessing or considering whether the conduct for the purpose of expressing demands or views in a procession or demonstration constitutes disorderly conduct, reference could be made to Tang PJ’s observation.[55] 55.Mr Lau contended that, as shown in the footage, while the participants in the procession were walking through the passageway of the mall, other mall users all went past the procession peacefully. Despite the fact that there were people among the participants chanting slogans which were considered questionable by the magistrate, the procession only shouted the “five demands” or sang most of the time. In the meantime, no confrontation, threat of vandalism or act of using violence had occurred. Without giving sufficient regard and thus proper weight to the background and situation surrounding the participants’ chanting of those slogans and the people present when those slogans were being chanted, the magistrate was wrong to directly consider those slogans to be outside the protection of the Bill by reason of their negative connotations, and thus erred in finding that chanting those slogans constituted the prescribed conduct. 56.Mr Lau stressed that even if someone “conducted himself in the prescribed manner”, having regard to the background of this case, i.e. a demonstration, the slogans some people chanted in the course of it and that, on the evidence, there was no clash, confrontation or counter-demonstration activity at the material time, under the circumstances that the appellants were exercising the right to demonstration and merely chanting slogans which carried negative connotations during the demonstration, it would not cause people reasonably to have “the stipulated fear”. In assessing whether there was the objective “stipulated fear”, the court should not take into consideration some people’s unreasonable reactions, nor should it unduly impair the ability to exercise such constitutional rights of peaceful assembly and demonstration. 57.Mr Lau cited the following evidence:
Ground of appeal (2): In considering whether the conduct caused any person present to have “the stipulated fear”, the magistrate relied upon a wrong or non-existent factual basis 58.In respect of this ground of appeal, Mr Lau made criticisms on two fronts: 59.First, he criticized the magistrate for taking the view that there might be relatives, family members, friends, etc. of police officers at the scene in Telford Plaza and that they would perhaps come into physical conflict with the participants in the procession as a result of being insulted without factual basis. The second criticism was about the magistrate’s assessment that the reason why the security guards did not intervene was that there was fear on their part[56]. Mr Lau stressed that there was never any evidence at trial that the security guards themselves had any “stipulated fear” or indeed any fear and, therefore, even though the magistrate only used the word “might”, his assessment was not supported by any evidential or factual basis at all and was sheer speculation on his part. In any event, on the evidence, the situation was such that it was by and large peaceful and there was no physical conflict, which was not capable of supporting the magistrate’s finding in relation to “the stipulated fear”. Ground of appeal (3): In considering D2 and D3’s participation in the case, the magistrate overlooked their respective participatory intent 60.Mr Lau cited the following cases:
61.Although the magistrate found that D2 and D3 were among the participants in the procession, acting in concert, walking in the same direction, forming a circle and singing together with others, there was a lack of analysis and assessment as to whether the two of them had the requisite knowledge that the assembly was unlawful.[60] Ground of appeal (4) 62.This is a general and conclusory ground of appeal. Ground of appeal (1): The magistrate’s finding in respect of the identification was erroneous 63.Mr Ip pointed out that, at trial, there was no direct identification evidence against D4 from the prosecution witnesses, and on this issue, the magistrate made an assessment as to whether the subject person shown in the video footage was D4 by scrutinizing the footage himself. However:
64.At trial, despite objections from the defence, the magistrate ruled that the video recording dated 28 December was admissible in evidence. One of the bases was the testimony of PW9. He said that there was sufficient basis for him to believe that the items (exhibits P21 ‑ P24) he seized from D4’s home belonged to D4[64]. 65.Mr Ip submitted that it was wrong for the magistrate to find that the relevant items belonged to D4 based on PW9’s testimony and accordingly ruled that the video footage was admissible in evidence because:
66.If the video footage dated 28 December was wrongly admitted into evidence, the magistrate’s finding in respect of the identification based on the comparison of the two video recordings would definitely be unsafe. 67.Mr Ip also submitted that as the footage dated 28 December was of such poor quality that the face of the person alleged to be D4 by the prosecution was not clearly visible, it was impossible for the magistrate to make an assessment or identification by comparing this footage with D4 he saw in the flesh. 68.As regards identification by comparison of the two video clips, citing Tagao Saudee Abad[65], Mr Ip submitted that under the circumstances that the face of the person in the video footage could not be clearly seen, that the clothing of the subject person was not particularly distinctive and that he did not possess some unusual bodily features, it was insufficient to make the court sure of the identity of the person in the footage. 69.Regarding the issue of the magistrate giving himself the warning, Mr Ip pointed out that in respect of the identification of the other accused, the magistrate directed himself[66] in accordance with the principles in R v Turnbull[67]，whereas in dealing with the issue of identification of D4, he failed to do so. Further, regarding the identification of D4, the risks involved in dealing with it was completely different to those concerning the other appellants, and therefore it was all the more necessary to remind himself. 70.All in all, it was the submission of Mr Ip that the magistrate erred in finding that D4 was the person shown in the footage as alleged by the prosecution. Ground of appeal (2): The magistrate erred in finding that the conduct would cause “the stipulated fear” and thus a breach of the peace 71.The main points of Mr Ip’s submissions are as follows:
72.Mr Ip also pointed out that according to the Guidelines on Freedom of Peaceful Assembly[68], it would be illegitimate to impose any content-based restrictions. Any restrictions on assemblies should not be based on the content of the message(s) that they seek to communicate. He submitted that even if there was tension or even heated exchange between opposing groups during an assembly, it would not necessarily mean that the assembly should be prohibited, otherwise society would be faced with being deprived of the opportunity of hearing differing views on any issue which might offend the sensitivity of the majority opinion[69]. 73.Mr Ip also criticized the magistrate for wrongly rejecting PW1’s testimony. As PW1 testified that the procession was peaceful and orderly, regard should be had to this testimony. 74.Another criticism by Mr Ip concerns the magistrate’s finding on the issue of “the stipulated fear”. Mr Ip submitted that the magistrate’s finding was illogical and self-contradictory. He pointed out that the magistrate, on the one hand, stated that the utterances of the participants in the procession affected the reputation of businesses such as Genki and Maxim’s Restaurant, hindered normal promotional or publicity activities of these businesses and had an adverse effect on their business operations and profits[70], but on the other hand, found (to the standard of beyond reasonable doubt) that Genki’s “lowering of its shutters” indicated that the person in charge of Genki had “the stipulated fear”[71]. These two statements were not only self-contradictory and illogical, they also indicated that the latter was merely a finding based on presumptions and speculations without evidential basis and without excluding any other reasonable possibilities that might lead to Genki’s “lowering of its shutters”. 75.He submitted that the finding that the person in charge of Genki had “the stipulated fear” was not the only reasonable inference supported by evidence. 76.Mr Ip further submitted that the magistrate had regard to matters to which he should not have had regard in his consideration, for example:
77.Mr Ip also submitted that the magistrate did not have an exact grasp of the distinction and relationship between the relevant slogans and “the stipulated fear” and was therefore wrong in his judgment. 78.Mr Ip also criticized that in the reasons given by the magistrate, apart from the slogans used by the participants in the procession, there was never any mention of any other factors which would cause “the stipulated fear”. 79.He also made reference to the situation at the scene, to which other counsel also referred, and submitted that the evidence did not support the magistrate’s findings on “the prescribed conduct” and “stipulated fear”. Ground of appeal (3) 80.This is a general and conclusory ground of appeal. 81.The respondent was represented by Mr Wilson Lam, Public Prosecutor. The main line of Mr Lam’s submissions on the issue of “the prescribed conduct” is: whether the slogans fall within the protection of the Bill of Rights is not a crucial issue because section 18 of the Public Order Ordinance[77] has set clear boundaries for freedoms of speech and assembly. Where a protester’s conduct constitutes “the prescribed conduct” and causes “the stipulated fear”, he shall be guilty of an offence; therefore, the magistrate did not adopt wrong principles of law in his consideration. Under the legal principles mentioned above, whether or not there is “the prescribed conduct” is a finding of fact, and it is not necessary to further consider the proportionality test in the course of consideration as submitted by the appellant(s). 82.Regarding the issue of “the stipulated fear”, citing Secretary for Justice v Leung Kwok Wah[78] and Leung Chung Hang Sixtus[79], Mr Lam stressed that the offence of unlawfully assembly is preventive in nature. There is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fears that it would occur if no action is taken in the meantime to prevent it. On the other hand, conduct which is peaceful in itself might, if persistently pursued, provoke others to violence, and if a violent response could be considered the natural consequence of such persistent conduct, it would constitute a breach of the peace[80]. 83.Mr Lam also cited decided cases and made submissions on the relevant law. He also supported the magistrate’s findings of fact on various matters and submitted that the magistrate was correct in making a finding of guilt against each of the appellants. VIII. Discussion and consideration 84.Discussion and consideration, in my view, can be divided into the following two parts:
IX. Whether the circumstances in this case constituted an unlawful assembly 85.The offence of unlawful assembly (“the offence involved”) was created under section 18(1) of the Public Order Ordinance[81]. It is in these terms:
86.The Court of Final Appeal in Lo Kin Man[82] made a determination on the elements of the offence involved in this case and the matters that have to be proved. By the time of the trial of this case[83], the Court of Final Appeal had not heard that case yet[84]. The determination in that case, which applies to this case, is as follows[85]:
87.The respective counsel for the four appellants all submitted that the magistrate erred in finding that the conduct of the persons involved in the assembly constituted “the prescribed conduct” and was likely to cause “the stipulated fear” and, therefore, it was also wrong for the magistrate to find that the circumstances of the case constituted an unlawful assembly. 88.Counsel adopted such formulations as “the prescribed conduct” and “the stipulated fear”, which I had also adopted in other cases. The purpose of my adopting such formulations was to use them to represent the following for the sake of brevity:
89.It was apparent from the submissions of counsel that the issues in relation to “the prescribed conduct” and “the stipulated fear” involved both issues of law and fact. 90.The issue of law involved the constitutional right of freedom of speech. 91.Article 27 of the Basic Law provides that Hong Kong residents shall have freedom of speech, of assembly, of procession and of demonstration. Other persons in Hong Kong shall also enjoy such rights and freedoms.[86] 92.It can be seen from article 39 of the Basic Law that the relevant rights and freedoms may be restricted as prescribed by law. However, such restrictions shall not contravene the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions, and shall not be restricted unless as prescribed by law. 93.Article 42 of the Basic Law also provides that the persons referred to in paragraph 91 above shall have the obligation to abide by the laws in force locally. 94.Article 16(2) of the Hong Kong Bill of Rights[87] provides that everyone shall have the right of freedom of expression. However, article 16(3) also provides that:
95.Article 17 of the Hong Kong Bill of Rights also provides that:
96.Freedom of speech is a constitutional right guaranteed by both the Basic Law and the Hong Kong Bill of Rights. However, both the Basic Law and the Hong Kong Bill of Rights expressly state that such rights may be subject to restrictions as prescribed by law. 97.In Ng Kung Siu[88], the Court of Final Appeal pointed out: Freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong’s system and way of life. The courts must give a generous interpretation to its constitutional guarantee. This freedom includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticise governmental institutions and the conduct of public officials.[89] Only when a demonstrator becomes involved in violence or threat of violence[90]，will that demonstrator cross the line of constitutionally protected peaceful demonstration, and may therefore be subject to legal sanctions.[91] 98.In Chow Nok Hang[92], the Court of Final Appeal emphasized the importance of freedom of speech and attached importance to tolerance of different views. However, the Court of Final Appeal also pointed out that any person exercising such rights cannot go beyond the constitutional limits of those rights.[93] The point is that in exercising those rights, one cannot commit a breach of the peace or infringe the rights and freedoms of others.[94] Chan Ag CJ[95] pointed out that the right to freedom of speech may be subject to restrictions as prescribed by law in the interest of public safety and for the protection of the exercise of the same rights by others.[96] However, any law which has the effect of restricting the constitutional rights must be necessary to achieve the legitimate aim and the restriction must satisfy the test of proportionality. In construing the relevant statutory provisions, they must be narrowly interpreted while provisions concerning rights should be given a generous interpretation.[97] His Lordship also pointed out that those who exercise the right to freedom of speech must also respect the rights of others and must not abuse such rights.[98] 99.In Leung Kwok Hung[99], the Court of Final Appeal pointed out: Freedom of peaceful assembly is a fundamental constitutional right. It is closely associated with the fundamental right of freedom of speech. The resolution of conflicts through open dialogue and debate is of the essence of a democratic society, and procession is a rather effective means of expression. The courts must give such a fundamental right a generous interpretation so as to give individuals its full measure; on the other hand, restrictions on such a right must be narrowly interpreted. 100.In Chow Nok Hang[100], Tang PJ cited and adopted the following passages[101] from the guidelines on Freedom of Peaceful Assembly 2nd edition[102] published by OSCE/ODIHR (Organisation for Security and Co-operation in Europe / Office for Democratic Institution and Human Rights)[103] dated 25 October 2010:
101.There are clear authorities that the essence of freedom of speech or expression includes not only the content of expression but also the means of expression, and further, it encompasses not only the mainstream views or means of expression but also some non-mainstream, unpopular, offensive or even heretical views and means of expression. 102.One criticism of the magistrate from counsel for the appellant(s) was that the magistrate took the view that freedom of speech only includes the freedom to express views. I agree that the magistrate’s view in this regard was too harsh or narrow. 103.Some of the magistrate’s observations about the incident, such as what was referred to in the preceding paragraph, might not be correct, but the point is, whether the circumstances revealed by the evidence were sufficient to make the court sure that what was taking place there and then was an unlawful assembly. As submitted by counsel for the appellant(s), given that the magistrate had rejected PW1’s testimony, the evidence concerning the circumstances surrounding the incident in this case only came from the video footage produced in court. On the premise that a magistracy appeal is conducted by way of rehearing, I am entitled to make a judgment based on the footage. As this exercise does not involve the assessment of the credibility of the witnesses, the magistrate and I are on an equal footing and there is no question of the magistrate having the advantage of hearing and seeing the witnssses give evidence. 104.Counsel raised the issue of “proportionality”, which would generally be touched upon in the course of consideration of constitutionality. In assessing whether the restrictions on the constitutional rights are necessary, the court has to take into consideration whether the relevant restrictions have struck a balance between the constitutional rights of the individual and the general interest of the community, and whether the restrictions imposed in pursuit of a legitimate aim go further than is necessary to achieve that aim. 105.Clearly, the offence involved has satisfied all the conditions of the test of constitutionality, including “proportionality”. 106.In my view, it is the duty of a tribunal of fact to assess on the evidence whether the prosecution has proved “the prohibited conduct”[104], having regard to the background, nature and overall circumstances surrounding the case in the course of consideration, in particular, to assess whether “the stipulated fear”, if any, is reasonable, and to assess whether a balance in safeguarding the rights of the parties when “the prohibited conduct” arises has been struck. 107.It must be noted that the Court of Final Appeal in Lo Kin Man[105] expounded on the two elements of the offence, which were described by parties in the present case as “the prescribed conduct” and “the stipulated fear” and collectively referred to as “the prohibited conduct”. Although the prosecution has to prove “the prescribed conduct” and “the stipulated fear” separately, what constitutes an unlawful assembly is “the prohibited conduct”, which is a combination of the aforesaid two elements. Thus, in considering whether there is an unlawful assembly, it has to be considered on the basis of “the prohibited conduct”. If it can be proved beyond reasonable doubt that there was “the prohibited conduct”, then it is proved that there was an unlawful assembly. The submisssions of one or two counsel for the appellant(s) overemphasized the argument that even if certain conduct has gone too far, it can still be regarded as the exercise of the relevant constitutional rights. Such an argument is inconsistent with what is articulated in the authorities. 108.In Chow Nok Hang[106], Ribeiro PJ pointed out: Once a demonstrator becomes involved in violence or the threat of violence (namely a “breach of the peace”), that demonstrator crosses the line separating constitutionally protected peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints. The same applies where the demonstrator crosses the line by unlawfully interfering with the rights and freedoms of others[107]. 109.In Leung Chung Hang Sixtus[108], the Court of Final Appeal also held that where the assembled persons, acting in concert, “conduct themselves in the prohibited manner” with the objectively likely consequence of causing “the stipulated fear”, their behaviour would inevitably take them outside the scope of constitutional protection in respect of peaceful assembly.[109] 110.In To Kwan Hang[110], the Court of Appeal held that the offence involved is not inconsistent with the right of peaceful assembly[111] and that article 17 of the Hong Kong Bill of Rights[112] does not confer a right of assembly on those who will “conduct themselves in the prohibited manner”.[113] 111.In Leung Kwok Wah[114], Lam JA[115] pointed out[116]:
112.In Leung Kwok Hung v Secretary for Justice (No 2)[117], which was cited on behalf of the appellant(s), the Court of Appeal pointed out: The proportionality assessment has to be applied on two levels[118]:
113.In that case, there was no need for the Court of Appeal to actually deal with the application issue in item (2) above. Nevertheless, the Court of Appeal gave the following example: If it is only a small number of participants deviating from the approved route of procession without any conduct or behaviour causing serious disruption to public order, an order for the stop or dispersal of the gathering will not be compatible with the principle of proportionality on an operational level, and the authorities will need to consider whether there are any other measures which are compatible with the principle of proportionality to deal with the situation. 114.In Kudrevicius v Lithuania[119], the European Court of Human Rights pointed out that the court has to strike a proper balance between the following[120]:
115.In the present case, there is evidence that the participants in the procession intensified the prescribed conduct from time to time, showing a total disregard for the rights of others, and the situation persisted. The police gave a number of warnings and the participants were clearly aware of the deployment of the police. They once dispersed after getting wind that the police would take law enforcement actions, but gathered again subsequently. The police entered the mall for law enforcement only after the procession had been going on for about an hour. If it was said that the police misjudged the nature of the procession, it would be a matter of evidence. If the court also found that the prohibited conduct was proved, it would not be justified to say that the police made a misjudgment. In my view, taking action to enforce the law under those circumstances will not fail the proportionality test. 116.Further, in his/their submissions, counsel for the appellant(s) made a comparison of section 17B(2) with section 18, the section relevant to the offence involved, and submitted that the wording used in the latter is “conduct” instead of “words”, which indicates that what section 18 is concerned with does not include sheer words. I am unable to agree with this submission. First, generally speaking, “conduct” includes “words” as well; second, as pointed out by Mr Lam, section 17B(2) is, in fact, aimed at not only words but also other conduct. 117.In the present context, “the prohibited conduct” of the offence involved was: “conducting oneself in the prescribed manner” which was likely to cause any person reasonably to have “the stipulated fear”. The prosecution did not allege any of the appellants to have intended to cause “the stipulated fear”. 118.“The prescribed conduct” means conduct which is disorderly, intimidating, insulting or provocative. 119.As to the meaning of disorderly conduct and insulting, Ribeiro PJ pointed out in Chow Nok Hang[121] that it should be left to the tribunal of fact to determine by applying the ordinary meaning of the words to the time, place and circumstances of the conduct in question.[122] 120.In Leung Kwok Wah[123], Lam JA[124] pointed out that the conduct which might constitute disorderly conduct was less aggressive or specific than that would be required to constitute a breach of the peace, and was not dependent on the reaction of others who were present or whether the person conducted himself in such a manner was exercising his right to freedom of assembly, but dependent on whether his conduct amounted to disorderly conduct.[125] 121.As regards the word “insulting”, in Chow Nok Hang[126], the Court of Final Appeal adopted the construction in the English case of Brutus v Cozens[127]: whether or not certain behaviour constitutes an “insult” is a question of fact for the fact-finding tribunal to determine and that should be determined by applying the ordinary everyday meanings of the word “insult”. And the word “insult” should be construed to include treating with insolence or contempt or indignity or derision or dishonour or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. An ordinary sensible man knows an insult when he sees or hears it[128]. 122.As to the word “provocative”, the observations made by the Court of Appeal in Secretary for Justice v Chung Ka Ho[129], a sentence review case, are of reference value:
123.Whether or not certain conduct is intimidating should be left to the tribunal of fact to determine by applying the ordinary meaning of the aforesaid words to the time, place and circumstances of the conduct concerned. 124.As stated in paragraph 107 above, apart from proving “the prescribed conduct”, the prosecution also has to prove that such conduct was likely to cause someone reasonably to have “the stipulated fear”. 125.Fear of what? Fear of a breach of the peace. 126.In the past, the courts in Hong Kong had all along adopted the relevant decision in R v Howell[130]. The Court of Final Appeal in Lo Kin Man[131] took the view that the formulation of the decision in that case was too narrow and pointed out that the following situations could constitute a breach of the peace: committing or threatening an act of violence against another person or another’s property; or committing an act against another person or another’s property so that such violence may reasonably be apprehended. If the act causes actual harm or is likely to cause such harm, it constitutes a breach of the peace. If such an act is likely to arouse resentment or anger in the persons to whom or whose property harm is done or who are subjected to the threat of such violence, and hence a desire to take instant revenge, it also constitutes a breach of the peace.[132] 127.Previously, Bokhary[133] JA[134] pointed out in To Kwan Hang[135] that someone commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which puts someone in immediate danger of injury or property in immediate danger of damage. On the other hand, conduct which was peaceful in itself might, if persistently pursued, provoke others to violence, and if a violent response could be considered the natural consequence of such persistent conduct, it would constitute a breach of the peace.[136] 128.It is a well-established principle of law that the offence involved is preventive in nature. There is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fears that it would occur if no action is taken in the meantime to prevent it[137]. 129.In Lo Kin Man[138], Ribeiro PJ[139] pointed out that the essence of the concept of breach of the peace is to use actual violence or threatened violence on another person or his property[140], or to cause people reasonably to fear that violence will occur.[141] 130.As far as threatened violence is concerned, where the harm is anticipated, there must be a real risk and the anticipated harm must be imminent (namely likely to occur such that it is precluded from being overtaken by events) but need not occur in the next few seconds or next few minutes[142]. Whether or not it is imminent should be determined based on the relevant overall circumstances. In my view, a situation in which [violence] is on the verge of breaking out of course satisfies this condition. Where an imminent breach of the peace is apprehended, under certain circumstances, it can also satisfy this condition. 131.“The stipulated fear” can be the following two aspects of fear:
132.Lam JA[143] pointed out in Leung Kwok Wah[144]:
133.As to who would be the persons having “the stipulated fear”, apart from the ordinary bystanders, victims of the incident or the persons targeted could also be the third parties having “the stipulated fear”[145], and so could be the security officers and members of the press present at the scene[146], and even those in the assembly but not in favour of taking such action could also have “the stipulated fear”[147]. 134.It was not necessary for the prosecution to call those third parties to prove that they actually had “the stipulated fear”[148]. 135.In Leung Kwok Wah[149], Lam JA[150] agreed with the observations in Yeung Kin Ping[151] and Kamara[152]. In Yeung Kin Ping, Stock[153] J[154] had the following observations[155]:
136.Fok PJ[156] pointed out in Leung Chung Hang Sixtus[157]:
137.Such fear must be objectively reasonable. In other words, if the person having the fear is just overly-sensitive, it does not constitute reasonable “stipulated fear”. 138.In Chow Nok Hang[159], Ribeiro PJ[160] pointed out that in assessing the likelihood of a breach of the peace, the court will take account of the nature of the behaviour involved and all the circumstances in which such behaviour occurred[161]. 139.As stated in Leung Kwok Wah[162], the person’s fear is not fear as to his own safety or security. Rather, it is a fear that a breach of the peace will occur. It is sufficient that the person fears that a breach of the peace will occur if such behaviour is not stopped. 140.The likelihood of a breach of the peace is assessed as a matter of fact based on the circumstances revealed by the evidence, taking account of the nature of “the prescribed conduct” and the overall circumstances in which “the prescribed conduct” occurred.[163] 141.One of the submissions advanced on behalf of the appellant(s) is that protesters have the right to exercise their rights through any location or means of expression of their choice, and these are themselves constitutionally guaranteed rights. It is true that the aforesaid right to choose is a constitutional right[164], however, such a right to choose is not absolute. 142.In Mayor of London v Hall[165], Lord Neuberger MR pointed out:
143.In the present case, since it is not disputed that the offence involved is constitutional, the key issue is whether what occurred has crossed the line or amounted to “the prohibited conduct”. 144.Lam JA [168] pointed out in Leung Kwok Wah[169] that the essence of the offence involved is as follows, and that this is the approach to be taken by the court in its consideration:
145.Lam JA[171] also pointed out[172]:
146.In Leung Kwok Hung (No 2)[178], the Court of Appeal pointed out that in construing and applying the provisions of the Public Order Ordinance[179], the court is required to adopt a manner which is compatible with the rights of demonstration and assembly[180]. 147.The Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council[181] pointed out that a peaceful demonstration does not lose its character as such because of an outbreak of isolated violence.[182] 148.In Leung Chung Hang Sixtus[183], the Court of Final Appeal held that the purpose of the formulation of “likely” is to prevent any behaviour which creates an objective risk of causing “the stipulated fear” and is not linked to whether the assembled persons do or do not foresee such reasonable apprehension as the consequence of their acts.[184]
149.I shall first consider whether or not the act or acts done in the case amounted to “the prescribed conduct” based on the aforesaid legal principles. 150.The magistrate enumerated the following words shouted by someone in the procession:
The magistrate took the view that all these were words for wantonly insulting or cursing others, tarnishing the reputation of businesses and denigrating customers of businesses[190], which constituted “the prescribed conduct”[191]. 151.Apart from the aforesaid slogans, people also shouted “Hongkongers, come out” and “Make every effort to resist” from time to time. Some people used the wording “revenge” and “martyr”, and some shouted abusive words containing references to the mothers of the police officers. At the entrance to Genki, there were also chants of “Don’t open the door if you have the guts” or words to that effect, which were often punctuated with swear words. 152.Having taken into account the background of demonstration of the case, the overall circumstances surrounding the case and the submissions from both sides, I agree with the magistrate’s assessment that all of those slogans were insulting. I am also of the view that some of the slogans had the effect of provocation as well. 153.There were people shouting the aforesaid slogans during different periods of time in the entire course of the procession in the evening in question. I agree with the magistrate’s conclusion that over the two alleged periods of time in the evening in question, up until the police took action, there were people in the procession “conducting themselves in the prescribed manner”. 154.The mere fact that someone “conducted himself in the prescribed manner” would not turn the procession into an unlawful assembly. The prosecution must also prove that “the prescribed conduct” was likely to cause someone reasonably to have “the stipulated fear”. 155.The main points of the submisssions of counsel for the appellants can be summarized as follows:
156.In his submissions, Mr Lam pointed out:
157.Mr Lam also submitted that the following factors could assist the court in inferring that the conduct of the persons assembled was likely to cause “the stipulated fear”:
158.The magistrate stated:
159.The magistrate also pointed out that what people in the procession chanted before Genki lowered its shutters and the result of Genki lowering the shutters indicated that the person in charge of Genki had “the stipulated fear” and that it was reasonable to have such fear.[203] 160.I have carefully viewed the footage produced in court so as to determine whether “the prescribed conduct” occurred in the incident caused people reasonably to have “the stipulated fear” and therefore constituted an unlawful assembly based on the relevant legal principles and the observations stated in the aforesaid cases, and having regard to the submissions from both sides. 161.Notwithstanding the absence of testimony from the relevant person(s), the point is not whether anyone actually had “the stipulated fear”, the point is, objectively speaking, whether “the prescribed conduct” was likely to cause those present at the scene reasonably to have “the stipulated fear”. In my view, the evidence as a whole was sufficient to support the inference that Genki lowered its shutters in response to the conduct of the participants in the procession and that Genki did so simply because of the fear that these people would commit a breach of the peace. 162.Counsel for the appellants all stressed that on the day in question, the demonstration was held peacefully and, from beginning to end, no one used force or brought along any weapon, equipment, flag or placard, with the implication that no one should have “the stipulated fear”, and even if anyone had, he/she did not reasonably have the fear. 163.Although what counsel referred to in the preceding paragraph was true, I fully agreed with the magistrate’s finding that the persons in Genki, whether it be the person(s) in charge, staff members or customers, were likely to have “the stipulated fear” and it was reasonable to have “the stipulated fear”. I am sure that the situation created by the procession at that stage was still likely to cause someone reasonably to have “the stipulated fear”, even if those present at the scene appreciated that those people were demonstrating and showed proper tolerance towards them. 164.The reason why the magistrate specifically referred to the “Genki incident” was clearly because Genki was one of the shops targeted by the procession on this occasion. The procession had stayed and yelled outside the shop, targeting not only the shop itself but also the customers who patronized the shop. Nevertheless, this does not mean that the conduct of the participants in the procession during other periods of time in the course of the procession did not cause someone reasonably to have “the stipulated fear”. Further, the participants in procession gathered outside Genki not only once. In the course of the procession, the participants went there once more and chanted slogans. At that time, Genki’s shutters remained closed. 165.Counsel for the appellants all contended that the people inside the mall behaved just as usual and did not appear to have fear and most of the shops were open for business as usual. 166.As can be seen from the footage, at the early stage of the procession, in the mall, there were many people who were unrelated to the procession and no one showed any obvious sign of fear in his/her response or facial expression. Subsequently, more and more people participated in the procession and packed the passageway. There seemed to be fewer and fewer people who were unrelated to the procession. However, many shops remained open for business. People showed up sporadically also showed no obvious sign of fear in their response or facial expression. 167.While I agree that all these are circumstances ought to be taken into account, they are only some of the matters which ought to be taken into account in considering the issue of “the stipulated fear”. As can be seen from quite a lot of news footage concerning many other incidents, even if a breach of the peace had obviously occurred, there would still be a third person or group of persons who stopped to watch. Further, this case took place at a mall which was connected to a MTR station and there were housing estates in its vicinity. It can be reasonably expected that someone would necessarily go somewhere via the mall. The situation in the present case would not necessarily make people look panicky or run away in panic. Even though those present at the scene did not show any obvious sign of abnormality, whether or not they had “the stipulated fear” is another matter. Furthermore, the court cannot simply place too much emphasis on those people who appeared perfectly normal. As can be seen from the footage, when the procession passed by, some people stepped back and stood aside and some quickened their pace to leave. There were fewer and fewer people who were not participants in the procession (it was then the relatively busy hours before 9 p.m.). Some people looked tense. Some shops closed their doors one after another. Some security guards cordoned off the area where there were large Christmas decorations with plastic straps[204]. Someone once hurled insults at “the blue ribbon” by using foul language. These are circumstances the court should also take into account. 168.In addition, objectively speaking, some of the slogans the procession chanted[205] actually had the connotation of using force or at least reasonably suggested that someone would use force. 169.Furthermore, the fact that there were vastly divergent views among members of the public at that time speaks for itself. It would be self-deceiving to say that there was no one with opposing political views or stances present at the scene. In any event, the point is that if there were people with opposing views present at the scene, would they reasonably have “the stipulated fear”? These people would certainly respect the rights of other participants in the procession. However, judging from the content of the slogans the procession chanted, especially what some slogans were targeted at, inevitably, people with opposing political views would have reasonable concerns. 170.All counsel submitted that the demeanour of the security guards present at the scene did not support the conclusion that they had “the stipulated fear”, and what was more, PW1’s testimony[206] was plainly inconsistent with the suggestion that they had “the stipulated fear”. However, the magistrate wrongly rejected his testimony. 171.The magistrate did not accept PW1’s testimony because he considered that he was hiding something and that his description that the situation at that time was orderly and peaceful was unreasonable.[207] 172.The magistrate had the advantage of having seen and heard the witnesses giving evidence. I can see no sufficient justification for interfering with the magistrate’s assessment of the credibility of PW1’s testimony. The magistrate explained that the reason why he considered it unreasonable for PW1 to describe the situation as orderly and peaceful was that PW1 had nothing to supplement or add as a footnote to his description. 173.As shown in the footage, the procession involved no violence or vandalism, and this was very likely the reason why PW1 described it as peaceful. Whether it was orderly or not was a matter of point of view, but at least no one went on the rampage. As counsel submitted, the procession could be regarded as remaining in formation all along. 174.Even if the part of PW1’s testimony in which he described the situation as orderly and peaceful ought to be taken into account, it would have limited effect on the assessment of the issue of “the stipulated fear”. The security guards were required to perform their duties. Their presence at the scene does not mean they did not have “the stipulated fear”. Instead, a closer look at why they were present at the scene should be taken. As a matter of fact, PW1 also said that:
175.Furthermore, the security guards present at the scene were not acting at ease. Moreover, as can be heard from the footage, when someone claimed that police officers were about to enter the mall, someone else shouted words to the effect of “don’t let anyone in” and made reference to the previous incident of allowing people (judging from the situation at that time, that should be referring to police officers) to enter a mall[210]. These words were apparently directed at the staff members of the mall. Judging by the content and the manner in which they were uttered and the atmosphere at the scene, these words had a frightening effect. 176.This incident occurred in December 2019. The social unrest had been going on for many months by then. Violence broke out every now and then. The clothing of the participants and the main theme of the slogans chanted from time to time in those events were the same as those of the participants in the procession in the present case. For those present at the scene, this would necessarily have an effect on their views about the incident and their reaction to it. From the conduct of the participants in the procession, it can be seen that they hardly showed any respect to the rights of others and that emotions were running high from time to time. They used considerably powerful amplifiers in the passageway of the mall, thereby enhancing the intimidating effect. 177.Having carefully viewed what was shown in the footage and examined the evidence, I am of the view that the only reasonable inference supported by evidence was that during the entire course of the procession, even if those present at the scene appreciated that this was a demonstration and showed proper tolerance, in the context of the overall circumstances at that time, it would be logical and reasonable for someone to fear that there would be an imminent breach of the peace.
178.In my view, regard can be had to the situations referred to by both sides. All in all, I agree with the magistrate’s conclusion that during both periods of time particularized in charges one and three, there were people “conducting themselves in the prescribed manner”, and that such conduct was likely to cause someone to have “the stipulated fear”, namely to worry that the persons assembled themselves would commit an imminent breach of the peace. The magistrate also took the view that the conduct of these people was likely to cause someone reasonably to fear that such conduct would provoke other persons to commit a breach of the peace. I also agree with this conclusion. In the context of the overall circumstances at that time, it was reasonable to have “the stipulated fear” as mentioned above. I agree that the incident constituted an unlawful assembly. X. Whether each of the appellants participated? 179.Since I agree that the magistrate was correct in finding that there had been an unlawful assembly at the scene, I now proceed to consider whether each of the appellants participated in the unlawful assembly. 180.In separately dealing with the case of each appellant, I had regard to the following observations of the Court of Final Appeal in Lo Kin Man[211]:
181.Mr Lam contended that D1 did not participate on the following main grounds:
182.Regardless of whether the magistrate was wrong in individual findings of fact, as set out in paragraph 103 above, I am entitled to make my own assessment based on the overall evidence at trial, especially what was shown in the footage, and on the principles governing a rehearing. 183.The evidence against D1 was twofold:
184.I agree that there was no concrete evidence in this case for finding that the appellant personally chanted the slogans. 185.As regards D1’s admission, Mr Lam submitted that it was not sufficiently clear and unambiguous and was unable to show that he was present at the material time (when Genki lowered its shutters), thus it was not capable of showing that D1 had participated in the unlawful assembly involved. 186.The content of D1’s statement of admission was as follows[224]:
187.Mr Lam submitted that it was wrong for the magistrate to consider that whether D1 was present during the period of time when Genki had its shutters lowered was not a material point[225]. Instead, the circumstances when Genki had its shutters lowered were in fact crucial. Therefore, if the prosecution failed to prove that D1 was present at the material time, according to the considerations set out in paragraph 180 above, it would be difficult to be sure that he:
188.If D1’s admission suggested that he first joined the procession at 7:40, he would necessarily be in the procession when Genki lowered its shutters at about 7:54. However, he also said that he saw the police officers entering the mall after he had been demonstrating for about an hour. The police officers entered the mall at about 9:00[228]. It can be worked out from this that it was not until about 8:00 that D1 joined the procession. If that was the case, he would not know what had happened during the period when Genki had its shutters lowered (at about 7:54). 189.I agree that even if one could be sure that D1’s admission was true, given the content of his admission, it would indeed be difficult to safely exclude the possibility that he joined the procession after Genki had lowered its shutters, notwithstanding that the times referred to were estimates and ballpark figures. 190.Regarding the issue of whether D1 participated, I shall consider it based on what was stated in the preceding paragraph. 191.It should be noted that, as I set out in paragraphs 164 -177 above, although the Genki incident would necessarily cause someone reasonably to have “the stipulated fear”, it does not mean that “the prescribed conduct” subsequently occurred did not cause anyone reasonably to have “the stipulated fear”. In my view, people at the scene continuously and reasonably had “the stipulated fear”. 192.There is no doubt that when D1 was in the procession, he would necessarily know of the conduct of other participants, and it was with such knowledge that he participated in the procession. Notwithstanding that there was insufficient evidence to prove that he himself had performed any “prescribed conduct”, he must have consciously, by his presence, acted in furtherance of “the prohibited conduct” by others with a participatory intent. 193.The conduct of the participants in the procession, objectively speaking, would necessarily be likely to cause someone reasonably to have “the stipulated fear”. There are clear authorities that it is immaterial whether the participants in the procession do or do not foresee the person(s) present at the scene would have “the stipulated fear”. The Court of Final Appeal also pointed out in Lo Kin Man[229] that what has to be proved is whether the defendant knows of or is aware of the conduct of other participants. 194.Therefore, I agree with the magistrate’s conclusion that D1 participated in the unlawful assembly during the two periods of time involved. 195.Ground of appeal (3) advanced on behalf of D2 and D3 by Mr Lau was concerned with the issue of whether the two of them participated. 196.Apparently Mr Lau did not dispute that both D2 and D3 were in the procession, but he criticized the magistrate for overlooking the issue of whether the two of them had the “participatory intent”. He challenged the magistrate on:
197.Likewise, as set out in paragraph 103 above, individual findings of fact made by the magistrate were not crucial. 198.One of the focuses of Mr Lau’s submissions was that the evidence could only show that the two of them were in the procession after 8:08. Under the circumstances, there was no evidence capable of showing that they knew about what had happened prior to that time, especially the “Genki incident”. The situation after the said incident was peaceful. It could not be proved that the two of them, with such knowledge of the incident, had the participatory intent[232] as set out in Lo Kin Man[233]. 199.Mr Lau also criticized the magistrate for failing to analyse the issue of “participatory intent”. In analysing the mental elements of the two of them, the magistrate did not use such wording as “participatory intent”. However, it can be seen from the Statement of Findings that it was in fact not the case that the magistrate did not consider matters in this regard[234]. In any event, whether they had the participatory intent, in the context of this case, is a matter of whether the evidence was capable of supporting an inference of the requisite intent, and it is open to me to make my own judgment. 200.In respect of D2 and D3, the magistrate found that they were among the participants in the procession, acting in concert, walking in the same direction, forming a circle and singing together with others[235]. Mr Lau did not challenge these findings of fact, and I do not differ with the magistrate’s observations. 201.Having carefully looked at the relevant evidence, I am of the view that D2 and D3 had undoubtedly participated in the unlawful assembly during the two periods of time involved. Even if the two of them joined in only after the Genki incident, they would necessarily know of or be aware of[236] the conduct of other participants after they had joined in, at least they themselves had proceeded and formed a circle together with others. In my view, the evidence was capable of supporting the inference that the two of them, with the aforesaid knowledge, by their presence, acted in furtherance of “the prohibited conduct” by others, and had an intent to engage in “the prohibited conduct”. 202.In considering the issue of whether D4 participated in the unlawful assembly on that day, the first thing to decide is whether D4 was the the subject person in the footage in question. D4 was not arrested at the scene and he made no admission. At the time of the offence, he was wearing a mask over his face, leaving only his eyes and forehead uncovered. The prosecution alleged that D4 was the subject person in the footage in question (the footage dated the 25th). 203.The subject person in the footage was wearing a facial covering. Therefore, by relying solely on “the footage dated the 25th”, one could not be sure whether he was the alleged person in the procession. It could only be determined by making a comparison with the “the footage dated the 28th”. On 28 December, several days after the day of the incident, there was also a procession. The prosecution produced the video footage taken on that day (the footage dated the 28th) and alleged that the subject person was also D4. 204.“The footage dated the 28th” can be divided into two parts:
205.Mr Lam submitted that the court could ascertain that D4 did participate in the unlawful assembly involved on 25 December along the following line of reasoning:
206.Mr Ip criticized the magistrate for not correctly adopting the approach established in cases such as AG’s Reference (No 2 of 2002)[237] in making the identification, and submitted that the relevant footage simply should not be relied upon by the tribunal of fact in making the identification for the reason that the footage failed to satisfy the sufficiently clear condition as set out in the authorities. 207.Having carefully viewed the relevant footage, I am of the view that the images of the footage were of high clarity and what was shown could be seen clearly. The question is, whether the content of the footage was sufficient for the tribunal of fact to make a judgment as to the identity of the subject person. This is relevant to probative weight rather than admissibility. Mr Ip challenged the magistrate on his failure to adopt the general approach established in AG’s Reference (No 2 of 2002) in making the identification. On this issue, I agree with Mr Lam’s submissions that the approach to identification in this case was merely an application of the approach referred to in AG’s Reference (No 2 of 2002): The magistrate first identified D4 from “the procession footage dated the 28th” based on the undisputed “interception footage dated the 28th”; and then further identified D4 from “the footage dated the 25th” based on those two clips. Each step was based on the principle that “a jury may make its own identification from the video footage”. In any event, in my view, cases such as HKSAR v Kwok Kin Ming, Timothy[238] are capable of supporting the approach that the tribunal of fact may determine the identity of the person in the footage based on a comparison of the footage. Of course, if the probative effect of the evidence is weak, the prima facie test will not be met.[239] However, I am of the view that this is not the situation in the present case. 208.Therefore, I also carefully viewed the footage myself so as to determine whether the magistrate’s finding that the subject person in the footage was D4 was correct or not, having regard to the relevant evidence and submissions. 209.The footage for comparison with “the footage dated the 25th” was mainly “the procession footage dated the 28th”. 210.The subject person in “the procession footage dated the 28th” was also wearing a mask, leaving only his eyes and eyebrows uncovered. 211.The relevant submissions of Mr Lam are as follows:
212.First of all, was the person in black in “the interception footage dated the 28th” D4? 213.Mr Lam said that this was not in dispute at trial while Mr Ip contended otherwise. 214.Having gone through the transcript of the trial proceedings[240], I agree that, as revealed in the course of the trial, the prosecution and defence conducted their cases on the common ground that the identity was not in dispute. 215.Mr Ip was not counsel who represented D4 at trial. It was possible that, by putting forward this contention, he was making use of the gap left by the prosecution as a result of the absence of the relevant admitted facts, or that he was expressing his own understanding of the matter, and it was only that his understanding was not accurate. 216.In any event, it was shown in the footage that only one of the two persons intercepted was dressed in black[241]. PW8 said that he had inspected the identity card of the person intercepted and found that his name was LAU Ka-ho (namely the name of D4), and that he was wearing a black jacket, a pair of black trousers and a pair of black shoes and carrying a black rucksack, with the hood of the black jacket pulled over his head. 217.Taken together, I agree these showed that the black-clad person intercepted must be D4. 218.If it could be ascertained that the subject persons were the same person by comparing “the procession footage dated the 28th” with “the interception footage dated the 28th”, then the subject person in “the procession footage dated the 28th” would be D4 since the person in black shown in “the interception footage dated the 28th” was D4. 219.In my view, a mere comparison of the appearance of the subject persons in the two clips was insufficient to ascertain that the two of them were the same person. 220.Apart from that, I also took into consideration the following two aspects of the evidence:
221.According to PW8’s testimony[242], apart from the items referred to in paragraph 216 above, he also found upon search from the rucksack of the black-clad person intercepted a black speaker (about the size of a palm or about 3 to 4 cm wide) and a microphone (black in colour, with a black ball-shaped sponge attached to its end). 222.The magistrate pointed out that he observed from “the procession footage dated the 28th” that the subject person was holding a palm-sized black object, which in his view was a speaker, in his hand while chanting slogans and that he subsequently put it back into his jacket or trouser pocket[243]. I agree with this observation. 223.The magistrate also said that it could be seen from the same footage that the subject person spoke into a small black spherical object, which in his view was a microphone, from time to time[244]. I also agree with this observation. 224.It can also be seen from “the procession footage dated the 28th” that there was a square white pattern at the bottom right hand side of the black rucksack the subject person was carrying[245] and that the sports shoes he was wearing were mainly black with white soles and a small portion of the tongue of the shoes was white, with white stripes at the side[246]. 225.The magistrate was of the view that these two items matched the relevant exhibits found upon search by the police from D4’s home[247]. For the purpose of comparison alone, I agree with this observation. 226.Whether or not the exhibits found upon search from D4’s home could assist the court in its consideration depends on whether it could be proved that the exhibits belonged to D4. 227.All these items had some characteristics, but they were not very rare or identifiable characteristcs that could in any event make one sure that these were the same item. 228.In his evidence, the police officer said that D4’s mother had told him that only she and D4 lived in the flat in question. 229.It is not permissible to rely on what the police officer heard to prove that only D4 and his mother lived in the flat in question as it is hearsay evidence. 230.Mr Lam contended that be that as it may, there was sufficient circumstantial evidence in the case for the court to infer that the relevant items belonged to D4. Such evidence was:
231.In considering this matter, I bore in mind that there was no direct evidence in the case as to how many people actually lived in the flat in question. 232.The items found upon search by PW9 were[254]:
233.Having carefully looked at the exhibits, I agree that the conclusion that the trousers and sports shoes belonged to a man was reasonable. 234.I also took into account that exhibit P25, the sketch, was not drawn to scale and that it was merely a simple sketch. The flat in question was a public housing unit. The sketch showed that there was only one bed in the flat, and there was no direct evidence in the case as to the number of tiers of bunks made up of the bed and the number of people who could sleep in it. Nevertheless, to say that the bed could be used by D4, his mother and another man who wore trousers and sports shoes in the size mentioned above for sleeping in on a long-term basis, in the absence of such evidence in the case, is an extremely unreasonable speculation. 235.I agree with Mr Lam’s submissions that there was sufficient evidence in the case to support the conclusion that the relevant exhibits belonged to D4 was the only reasonable inference supported by the evidence as a whole. 236.The magistrate took the view that the aggregate effect of the above was sufficient to make him sure that the subject person in “the procession footage dated the 28th” was D4, with which I do not differ. 237.I now turn to the key issue: whether it could be ascertained that the subject person in “the footage dated the 25th” was D4 by comparing the footage relating to the two dates. 238.The magistrate said that he had taken into account matters including the following:
239.Having carefully viewed the relevant clips, I agree with the magistrate’s observations. Further, I am also of the view that the demeanour and the way of walking of the subject persons in the two clips were very similar to each other. 240.If the prosecution evidence in the case depends solely or mainly upon the identification of the offender, the tribunal of fact must exercise extra caution in examining the evidence in order to determine whether it can be ascertained that the accused is the offender. There are also clear authorities[264] that even if the quality of the identification evidence is unsatisfactory, provided that there is circumstantial evidence capable of supporting the inference that the accused is the offender in the case, the tribunal of fact may take that into account. If the evidence as a whole is sufficient to prove that the accused is the offender, the conviction is safe. 241.This is a situation akin to assessing the evidence so as to consider whether or not an inference of guilt can be drawn. The crucial point is whether the circumstantial evidence as a whole is sufficient to make the tribunal of fact sure that the accused is the offender. As to how to deal with circumstantial evidence, the Court of Appeal in HKSAR v Tsang Chi Wai (transliteration)[265] made the following observations after a careful study of several cases:
242.It was pointed out in the English case of Turnbull[268] as well as Phipson on Evidence[269] that where the evidence shows that there is an odd coincidence, it can be something capable of supporting the identification. 243.The above considerations are applicable in the present case. 244.The magistrate found that the subject person in “the footage dated the 25th” was D4. Upon careful consideration, I agree with this finding. 245.In his submissions, Mr Ip criticized the magistrate for failing to properly direct himself on the issue of identification of D4. This criticism is untenable and of no avail. First, the magistrate was a professional tribunal of fact. In dealing with the issue of identification of the other accused, he properly directed himself right at the outset, and was clearly aware of the need to approach identification evidence with caution. Obviously, the issue of identification of D4 was more strongly disputed than that of the other accused, and the number of points of dispute involved in D4’s case was more. Besides, the defence had made detailed submissions. There was no reason to query that the magistrate failed to properly and fully consider and assess the matter. Even if he did not say right at the outset that he had given himself the direction, it would not at all arouse suspicion that he had overlooked the risks involved and failed to exercise extra caution. In fact, what the magistrate said in his Statement of Findings indicates that he was very careful when dealing with this issue and he assessed and considered the relevant evidence with caution. 246.Further, a magistracy appeal is conducted by way of rehearing. I assessed the evidence with a full grasp of the issues and risks involved, and the conclusion I reached is consistent with that of the magistrate. 247.Mr Lam also cited the Australian case of Bulejcik v R[270] and invited me to make a comparison of the voices of the subject persons in “the footage dated the 25th” and “the footage dated the 28th”. He also pointed out that the defence had made submissions on voice comparision to the magistrate at trial and that such an approach did not cause injustice.[271] 248.In my view, even without making a comparison of the voices, it would be sufficient to ascertain that D4 was the subject person in “the footage dated the 25th”. 249.Nevertheless, since such evidence was available, I also took it into consideration. 250.In considering this evidence, I had regard to the following matters:
251.Without the assistance of expert opinion, suppose I rely solely on listening carefully to the audio recordings of the two clips to make a comparison and conclude that both the subject persons in the two clips were D4, I cannot safely say that it is safe to do so. Nevertheless, judging from quite a number of slogans chanted by the subject persons in the two clips, their intonations indeed had a high degree of consistency with each other. Thus, in my view, the audio recordings of the subject persons in the clips could have the effect of strengthening the identification. 252.Since I agree with the magistrate’s finding that the subject person in “the footage dated the 25th” was D4, the remaining issue is whether D4 participated in the unlawful assembly during the two periods of time on that day. Undoubtedly, the answer is “yes”, and what is more, he played the role of a leader. D4 was at the forefront of the procession all along. In chanting the slogans, he would invariably chant one slogan first, and then other people would echo what he chanted. He was the one who uttered the passage set out in footnote 50. He also led in singing. 253.None of the grounds advanced on behalf of the appellants is sufficient to overturn the convictions. Having examined the evidence as a whole, I am of the view that the convictions of the four appellants are safe, supported by sufficient evidence and consistent with the law. The arrest and conviction of each of them are in line with the approach of striking a proper balance between the exercise of constitutional rights and other interests of the community. Accordingly, the appeals against conviction are dismissed, and the convictions of the four appellants are affirmed.
Mr Wilson Lam, Public Prosecutor, of the Department of Justice, for the respondent Mr Mike Lam, instructed by Ho Tse Wai & Partners, for the 1st appellant Mr Kin Lau and Mr Henry Leung, instructed by Cheng & Co., for the 2nd and 3rd appellants Mr Jonathan Ip and Mr Jay Koon, instructed by Tang, Wong & Chow, for the 4th appellant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Contrary to section 18(1) and (3) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong. [2] Contrary to section 17A(3)(a) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong. [3] Mr Mok Tze-chung, Andrew. [4] Exhibits P2A and P2B. [5] P8(1) ‑ (2), P9(1) ‑ (6), P16(1) ‑ (4), P17(1) ‑ (5), P18(1) ‑ (6), P19(1) ‑ (8). [6] Extracted from Statement of Findings, paras 22 - 25, with modifications. [7] P5(7), 20:23:42 to 20:23:53 and P5(13), 20:31:00 to 20:31:31. [8] Extracted from Statement of Findings, paras 27 - 30, with modifications. [9] Extracted from Statement of Findings, paras 32 - 33, with modifications. [10] At trial, D1 did not dispute the voluntariness and admissibility of what he said to PW3. He disputed only its accuracy. [11] Extracted from Statement of Findings, para 36, with modifications. [12] Extracted from Statement of Findings, paras 45 and 46, with modifications. [13] Extracted from Statement of Findings, para 50, with modifications. [14] Extracted from the transcript of the trial proceedings, Appeal Bundle, pages 2374 - 2376. [15] Extracted from Statement of Findings, para 93, with modifications. [16] Exhibit P21. [17] Exhibit P22. [18] Exhibit P23. [19] Exhibit P24. [20] See Statement of Findings, paras 31, 35, 38, 44, 49, 53, 92 and 101. [21] Regarding D1, D5 and D6, see Statement of Findings, paras 54 - 85; regarding D7, see Statement of Findings, paras 86 - 131. [22] See Statement of Findings, para 147. [23] See footnote 1. [24] Part II of the Hong Kong Bill of Rights Ordinance, Cap. 383, Laws of Hong Kong. [25] See Statement of Findings, para 135. [26] See Statement of Findings, para 149. [27] See Statement of Findings, para 148. [28] See Statement of Findings, para 160. [29] See footnote 24. [30] As far as D1 is concerned, the relevant exhibits were P3, P5, P6, P7, P26A and P26B. [31] See footnote 24. [32] Appeal Bundle, page 1830. [33] (2005) 8 HKCFAR 229, at para 2. [34] See Statement of Findings, para 133. [35] Article 16 of the Hong Kong Bill of Rights. [36] Leung Kwok Hung, see footnote 33, at para 16. [37] [1945] JC 29, page 33. [38] HCMA 816/2008, at para 4. [39] [1982] QB 416, page 427 D - F. [40] As stated in Leung Kwok Hung, see para 38 above. [41] See Statement of Findings, para 143. [42] HKSAR v Leung Chung Hang Sixtus (2021) 24 HKCFAR 164, [2021] HKCFA 24. [43] See Statement of Findings, para 146. [44] (2017) 20 HKCFAR 425, see Statement of Findings, para 133. [45] (1999) 2 HKCFAR 469, FACC 4/1999: at pages 479 B, 479 D, 479 G and 480 E. [46] See footnote 33, at paras 1, 2 and 16. [47] [2000] HRLR 249. [48] [2000] 3 HKC 247. [49] Application No 4870/02: at para 41. [50] “If TG is also used for the event this evening, -- a -- a passage was sent over just now. When you read it, you can look back and think about the significance of what (I am) about to say. 69, 612, 616, 71, 721, 805, 831, 929, 1 October, 5 October, 118, 1111, 1117, 1124, set after set of numbers, each of them represents a certain date. (I) don’t know how you’ll feel when you hear these numbers and whether you remember what these dates represent. But many Hongkongers will really -- will remember these dates, just like remembering June 4. Don’t want to remember, dare not forget. From chanting ‘No retreat no dismissal’, ‘Five demands, not one less’, ‘Hongkongers, add oil’ and ‘Hongkongers, resist’ to chanting ‘Disband the police force, no more delays’, ‘Hongkongers, take revenge’ and ‘Black cops, may your whole family die’ these days, these slogans reflect how Hongkongers changed when faced with totalitarianism. There is really no reason to celebrate in 2019. Even if Christmas, the last festival of this year, arrives, one will feel ashamed to celebrate because over 6,000 people have been arrested and nearly 1,000 people have been charged since the Anti-Extradition Law Amendment Bill Movement. And these people, and these comrades are faced with a term of imprisonment of up to several years, or even more than a dozen years. While we can feel the festive atmosphere of Christmas and admire the Christmas trees on the streets, some comrades can only spend this otherwise joyous festive season in a detention centre, watching our deeply beloved Hong Kong behind bars; and some comrades who have gone into exile are unable to spend this winter solstice and celebrate this joyous festival with their family members. Among the “Five demands, not one less”, we insist that the righteous are innocent and the charges should be withdrawn. We Hongkongers all believe that all this so-called chaos arises from the Hong Kong communist government’s choice to ignore public opinion, make itself the people’s enemy and force the people to rise up against it. The police no longer protect Hong Kong citizens, the abuse of power, indiscriminate arrests, inhumane treatment, etc. caused Hongkongers to come out to resist totalitarianism. We remain true to our original aspiration and resolve to pursue democracy and freedom simply for building our ideal Hong Kong. Finally, I’d like to say a few words to those who are abroad -- the comrades who are abroad or imprisoned. Sorry, sorry for the failure to enable you to come back to celebrate the joyous festival with your family members this year. But you can rest assured that we will make every effort to resist before you come back. By the time you return, Hong Kong -- a better Hong Kong will be handed over to you …”. [51] (2013) 16 HKCFAR 837. [52] At para 39. [53] See footnote 1. [54] See footnote 51. [55] At paras 138 and 139. The judgment was written in English. The original text is:
[56] See Statement of Findings, para 143. [57] (2021) 24 HKCFAR 302, FACC 6/2021. [58] [2021] 2 HKLRD 399. [59] [1994] 2 HKC 293. [60] See Statement of Findings, paras 151 - 155. [61] [2003] 1 Cr App R 21. [62] See video evidence P20A and P20B. [63] Mr Ip cited the following cases: AG’s Reference (No 2 of 2002), see footnote 61; HKSAR v Tagao Saudee Abad, CACC 366/2015; Lariba v R [2015] EWCA Crim 478; and R v Savalia [2011] EWCA Crim 1334. [64] See Appeal Bundle, page 1820, Statement of Findings, para 99. [65] See footnote 63. [66] See Statement of Findings, para 55. [67] [1977] 2 QB 224. [68] Guidelines on Freedom of Peaceful Assembly (3rd Edition, 2019), paras 30 and 149. [69] See Fáber v Hungary, at para 38; Alekseyev v Russia (App Nos 4916/07, 25924/08 and 14599/09) (unreported, 21 October 2010) at para 77. [70] Appeal Bundle, page 1831, para 139. [71] Appeal Bundle, page 1833, para 145. [72] Appeal Bundle, page 1832, para 143. [73] Appeal Bundle, page 1832, para 143. [74] Appeal Bundle, pages 1832 - 1833, para 144. [75] Appeal Bundle, page 1831, para 139. [76] Appeal Bundle, page 1833, para 145. [77] See footnote 1. [78] [2012] 5 HKLRD 556, at para 40. [79] See footnote 42. [80] Chow Nok Hang, at para 90, footnote 51; HKSAR v Chiu Hin Chung [2013] 1 HKLRD 214, at paras 14-15; HKSAR v Leung Hiu Yeung [2017] 5 HKLRD 653, HCMA 229/2016, at para 126. [81] See footnote 1. [82] See footnote 57. [83] August 2021. [84] The Court of Final Appeal handed down its decision in Lo Kin Man on 4 November 2021. [85] The judgment was written in English. It does not have an official Chinese translation. The content of the Chinese version of the headnote in the law report is adopted. [86] Article 41 of the Basic Law. [87] See footnote 24. [88] See footnote 45. [89] Ng Kung Siu, footnote 45, at para 41. [90] The judgment was written in English. The original text is “violence or threat of violence”. [91] See: Chow Nok Hang, footnote 51, at para 39. [92] See footnote 51. [93] At para 33. [94] At para 38. [95] As Chan NPJ then was. [96] At para 2. [97] At para 2. [98] At para 1. [99] See footnote 33. [100] See footnote 51. [101] The original was written in English. The following is not an official translation. See para 141 of the judgment for the original text. [102] Guidelines on Freedom of Peaceful Assembly (2nd Edition). [103] Organisation for Security and Co-operation in Europe / Office for Democratic Institutions and Human Rights (OSCE/ODIHR). [104] See para 86(1) above. [105] See footnote 57. [106] See footnote 51. [107] At paras 39, 44, 48 - 49, 82 and 102. [108] See footnote 42. [109] At paras 31 - 38 and 41. [110] See footnote 59. [111] Article 17 of the Hong Kong Bill of Rights. [112] See footnote 24. [113] At page 299. [114] See footnote 78. [115] As Lam PJ then was. [116] At paras 54 - 58. [117] [2020] 2 HKLRD 771, CACV 541/2019, [2020] HKCA 192. [118] At paras 180 - 186, 193 - 197. [119] (2016) 62 EHRR 34, paras 155 - 157. [120] See Leung Kwok Hung (No 2), footnote 117, at para 184. [121] See footnote 51. [122] At para 68. See also Fong Kwok Shan Christine, footnote 44, at para 81; and HKSAR v Ng Man Yuen Avery and others [2021] 2 HKLRD 1065, at para 50. [123] See footnote 78, at paras 28-32. [124] As Lam PJ then was. [125] At pars 28 - 32. [126] See footnote 51. [127] [1973] AC 854, 862G. [128] “We were referred to a number of dictionary meanings of ‘insult’ such as treating with insolence or contempt or indignity or derision or dishonor or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. There can be no definition. But an ordinary sensible man knows an insult when he sees or hears it.” [129] [2021] 2 HKLRD 1338. [130] See footnote 39. [131] See footnote 57. [132] See Lo Kin Man, footnote 57, at paras 88 - 93. [133] As Bokhary NPJ then was. [134] Bokhary JA, as he then was. [135] See footnote 59. [136] Archbold HK, 2016, 31-10. [137] See: Leung Kwok Wah, footnote 78, at para 40; Leung Chung Hang Sixtus, footnote 42, at para 39. [138] See footnote 57. [139] Ribeiro PJ. [140] The judgment was written in English. The original text is “violence or threatened violence”. [141] At paras 88 - 93. [142] See: Chow Nok Hang, footnote 51, at para 79; R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105, at paras 67 and 69. [143] As Lam PJ then was. [144] See footnote 78. [145] See: Leung Kwok Wah, footnote 78, at para 93; Ng Man Yuen Avery, footnote 122, at para 91. [146] See: HKSAR v Wong Yeung Tat [2016] 4 HKLRD 433, at paras 17 - 18. [147] See: Leung Hiu Yeung, footnote 80, at para 115. [148] See: Ng Man Yuen Avery, footnote 122, at para 65. [149] See footnote 78. [150] As Lam PJ then was. [151] [1997] HKLRD 1008. [152] [1974] AC 104, 116. [153] Stock J, as Stock NPJ then was. [154] As Stock NPJ then was. [155] At paras 88 and 90. [156] Fok PJ. [157] See footnote 42. [158] At para 41. [159] See footnote 51. [160] Rebeiro PJ. [161] At para 93. [162] See footnote 78. [163] See: Chow Nok Hang, footnote 51, at para 93. [164] See Mayor of London v Hall [2011] 1 WLR 504, at para 37. The above text is not an official translation. [165] See footnote 164. [166] At para 38. [167] At para 39. [168] As Lam PJ then was. [169] See footnote 78. [170] At paras 57 and 58. The judgment was written in English. This is not an official Chinese translation. [171] See footnote 168. [172] Leung Kwok Wah, see footnote 78. [173] At para 24. [174] At paras 35 - 40. [175] At para 97. [176] Article 27 of the Basic Law and articles 16 and 17 of the Hong Kong Bill of Rights. [177] At para 58. [178] See footnote 117. [179] See footnote 1. [180] At para 193. This decision was not reversed by the Court of Final Appeal: Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518, [2020] HKCFA 42 at para 107. [181] See footnote 180. [182] At paras 118 - 120. [183] See footnote 42. [184] At paras 24, 28 - 29, 39 - 40, 42 - 44. [185] See Statement of Findings, para 136. [186] See Statement of Findings, para 137. [187] See Statement of Findings, para 139. [188] See Statement of Findings, para 139. [189] See Statement of Findings, para 145. [190] See Statement of Findings, para 135. [191] See Statement of Findings, para 147. [192] See D1’s written submissions, paras 34 and 37(6); D2 and D3’s written submissions, para 70; D4’s written submissions, para 114.1 - 114.6. [193] See D2 and D3’s written submissions, paras 72 - 76; D4’s written submissions, paras 104 and 114.8. [194] See D2 and D3’s written submissions, para 69(i) ‑ (ii); D4’s written submissions, para 104. [195] See D1’s written submissions, paras 37(3) and 41-42; D2 and D3’s written submissions, paras 77 ‑ 79; D4’s written submissions, para 104. [196] See D4’s written submissions, paras 92 - 96. [197] See D1’s written submissions, para 37(5). [198] See D1’s written submissions, paras 37(2), (4) and 40; D2 and D3’s written submissions, paras 68 and 69(iii) - (v); D4’s written submissions, para 114.7. [199] See D1’s written submissions, paras 39 - 40. [200] See D1’s written submissions, paras 32 - 33; D2 and D3’s written submissions, paras 62-67. [201] See Secretary for Justice v Chow Kin Nok [2021] 6 HKC 386, at paras 38 - 42. [202] See Statement of Findings, para 141, see also Statement of Findings, para 144. [203] See Statement of Findings, para 145. [204] Exhibit P3(4), time of the footage: around 07:35. [205] As stated in paras 150 and 151 above. [206] See para 14 above. [207] See Statement of Findings, paras 25 and 26. [208] See Statement of Findings, para 22. [209] See Statement of Findings, para 23. [210] Exhibit P3(2), time of the footage: around 29:09. [211] See footnote 57. [212] At para 11. [213] Referred to as “constituent offender” by the Court of Final Appeal, see para 86 above. The judgment was written in English. The original text is “constituent offender”. [214] At paras 12 and 13. [215] At paras 12 and 13. [216] The judgment was written in English. The original text is “facilitating, assisting or encouraging the performance of such conduct”. [217] At para 14. [218] The judgment was written in English. The original text is “participate”. [219] Namely “sufficient nexus”, at para 16. [220] The original text is “aware of”. [221] At para 17. [222] See D1’s written submissions, paras 44 - 47. [223] See Statement of Findings, para 58. [224] See Statement of Findings, para 32. [225] See Statement of Findings, para 146. [226] The original text is “aware of”. [227] At para 17. [228] PW2’s testimony, see para 15 above; PW3’s testimony, see para 16 above; PW4’s testimony, see para 17 above. [229] See footnote 57. [230] See footnote 42. [231] See D2 and D3’s written submissions, paras 80 - 93. [232] See para 180 above. [233] See footnote 57 [234] See Statement of Findings, paras 152 - 156. [235] See Statement of Findings, paras 151 - 155. [236] The original text is “aware of”. [237] See footnote 61. [239] Turnbull, see footnote 67. [240] Appeal Bundle, pages 2366 - 2377. [241] Exhibit P20B, 00:07:40 ‑ 00:09:40. [242] See Statement of Findings, para 89. [243] See Statement of Findings, para 102. [244] See Statement of Findings, para 103. [245] See Statement of Findings, para 104. [246] See Statement of Findings, para 105. [247] See para 232 below. [248] The relevant transcript: Appeal Bundle, page 2381 G. [249] P25, the sketch: Appeal Bundle, page 2002; the relevant transcript: Appeal Bundle, pages 2383 U - 2384 H. [250] The relevant transcript: Appeal Bundle, page 2407 I - T. [251] The relevant transcript: Appeal Bundle, page 2413 Q - R. [252] The relevant transcript: Appeal Bundle, page 2406 O - P. [253] See: R v Chong Kin Cheong, CACC 196/1995, at para 9. [254] See the transcript of the trial proceedings, Appeal Bundle, pages 2382 - 2383. [255] See Statement of Findings, para 107. [256] See Statement of Findings, para 107. [257] See Statement of Findings, para 108. [258] See Statement of Findings, para 110. [259] See Statement of Findings, para 109. [260] See Statement of Findings, para 111. [261] See Statement of Findings, para 112. [262] See Statement of Findings, para 113. [263] See Statement of Findings, para 127. [264] For example Turnbull, footnote 67, at 230, and R v Long (1973) 57 Cr App R 871. [265] CACC 384/2012. [266] See Shepherd v R [1990] 170 CLR 573, 593, see also HKSAR v Au Hau Ching CACC 146/2008. [267] See R v Exall 176 ER 850, 853, see also Tsang Chi Wai, footnote 265, at para 21. [268] See footnote 67. [269] See 19th Edition, paras 15 - 24. [270] (1996) 135 ALR 517, 530 – 533. [271] See Appeal Bundle, page 1522. [272] Video footage dated 25 December: P3(2), 00:11:13 ‑ 00:25:10; video footage dated 28 December: P20A, 00:48:13 ‑ 00:56:30. | |||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMA 460/2021