Secretary for Justice v. Wong Chi Wing
Read the full judgment text of CACC 132/2021 on BabelCite. This Court of Appeal judgment was delivered on 28 August 2024.
1. At trial, there were eight defendants who were charged, either alone or in different combinations, with six offences: Charge 1 “riot” (against D1, D2, D3, D4, D7, D8), Charge 2 “wounding with intent” (against D1, D2, D3, D4, D7, D8), Charge 3 “riot” (against D5, D6), Charge 4 “conspiracy to wound with intent” (against D5, D6), Charge 5 “riot” (against D5) and Charge 6, “wounding with intent” (against D5). After trial, His Honour Judge Yip, found D1 not guilty and D2, D5, D6, D7 and D8 guilt
Cited by 5 cases · Cites 12 cases
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[English Translation － 英譯本] CACC 132/2021 and CACC 171/2021, [2024] HKCA 823 Original cases: [2021] HKDC 751 and [2021] HKDC 862 CACC 132/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 132 OF 2021 (ON APPEAL FROM DCCC NOS. 888 OF 2019, 11 & 734 OF 2020 (Consolidated)) ________________________ BETWEEN
________________________ CACC 171/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 171 OF 2021 (ON APPEAL FROM DCCC NOS. 888 OF 2019, 11 & 734 OF 2020 (Consolidated)) ________________________ BETWEEN
________________________ (Heard Together)
________________________ J U D G M E N T ________________________ Hon Pang JA (giving the Judgment of the Court): A. Introduction 1.At trial, there were eight defendants who were charged, either alone or in different combinations, with six offences: Charge 1 “riot” (against D1, D2, D3, D4, D7, D8), Charge 2 “wounding with intent” (against D1, D2, D3, D4, D7, D8), Charge 3 “riot” (against D5, D6), Charge 4 “conspiracy to wound with intent” (against D5, D6), Charge 5 “riot” (against D5) and Charge 6, “wounding with intent” (against D5). After trial, His Honour Judge Yip, found D1 not guilty and D2, D5, D6, D7 and D8 guilty[1]. The Secretary for Justice then appealed against the acquittal of D1 by way of case stated, and the other defendants applied for leave to appeal against their convictions (D5, D6, D7 and D8) and sentences (D5 and D8). The appeals and applications concerned were directed to be heard together by the Court of Appeal. B. Basic facts of the case B1. Overview 2.All the charges in this case occurred on the night of 21 July 2019 and in the early hours of the following day. The flashpoints included the interior of Yuen Long MTR Station (concourse and platforms), Exit J of Yuen Long Station and on the ground level near Exit J (Long Wo Road outside Ying Lung Wai), and Exits K and F of Yuen Long Station which led to the adjoining shopping malls (Yoho Mall I and Yoho Mall II). In terms of camps, they could be generally described as black-clad men and white-clad men (D1 to D8 were some of the white-clad men)[2]. In addition, in terms of time and location, three stages could be more specifically defined (“Stage 1 to Stage 3”). B2. Stage 1 - Charges 1 and 2 3.Stage 1 covered the period from 10:40 p.m. to 11:14 p.m. on the evening of the 21st. Charges 1 and 2 allegedly occurred at this stage. The former alleged that D1, D2, D3, D4, D7 and D8 were at “Yuen Long Station” together with other persons unknown “participating in a riot”. The latter alleged that D1, D2, D3, D4, D7 and D8 together with other persons unknown “unlawfully and maliciously wounded people with intent to cause grievous bodily harm to them” at the same place. 4.These violent incidents happened in Stage 1[3]:
B3. Stage 2 - Charges 3 and 4 5.Stage 2 was from 00:00 to 00:16 in the morning of the 22nd. Relevant to this stage were Charges 3 and 4. Charge 3 alleged that D5 and D6 “participated in the riot” in “the vicinity of Long Wo Road and Yuen Long MTR Station” together with other unidentified persons. Charge 4 alleged that D5 and D6 “conspired together and with other persons unknown to unlawfully and maliciously wound others with intent to cause grievous bodily harm to them” at the same place. 6.Below are the violent incidents[4] included in Stage 2:
B4. Stage 3 - Charges 5 and 6 7.Stage 3 was from 00:26 to 00:32 on the 22nd. The relevant charges were Charges 5 and 6. Charge 5 was laid against D5 for “participating in a riot” in “the vicinity of Yuen Long Station and Yoho Mall I” together with other persons unknown. Charge 6 alleged that D5, together with other persons unknown, “unlawfully and maliciously wounded others with intent to inflict grievous bodily harm on them” at the same place. 8.Below are the violent incidents included in Stage 3[5]:
C. The conduct of the defendants concerned C.1 Stage 1 9.D1 was alleged to be involved in two charges at Stage 1, referring to the whole period after 10:40 pm on the 21st, for specific conduct including hurling abuses, provoking, throwing objects and personally participating in an assault on a man wearing black and a grey helmet in the non-payment area. After trespassing into the paid area and running onto the platform, he raised a rattan cane, hurled abuses at the people in the train compartments and clapped his hands.[6] (Clothing at the material time: white short-sleeved T-shirt with the words “中國製造” (MADE IN CHINA) and “MADE IN CHINA” printed in red on the front and the back respectively, brown shorts, black shoes with yellow laces, and a green mask most of the time). 10.D7 faced the same allegation, which started at 11:01 p.m. when he jogged into Yuen Long Station from Yoho Mall II together with about 20 other white-clad men. The prosecution said that he was holding a wooden pole when he entered the station and did not put it down until 11:06 p.m. when he walked up the stairs to the platform, and subsequently he continued to hold the wooden pole and talked with a white-clad man on the platform. At 11:08 p.m., 11:10 p.m. and 11:12 p.m., he walked to the middle of the platforms for trains towards Hung Hom and Tuen Mun three times and looked in the direction of Tuen Mun. At 11:13, he returned to the concourse of Yuen Long Station with some white-clad men, and at 11:15 p.m., he left the station with about 100 white-clad men via Exit F to Yoho Mall II[7]. (Clothing at the material time: white short-sleeved T-shirt with “Champion” printed on both the front and the back, black shorts, black shoes, and no face mask.) 11.D8 was alleged to have walked into Yuen Long Station at 10:46 p.m. on the 21st together with some other 65 white-clad men, belonging to the same batch as D1 and D2. In the following 10-odd minutes, D8 allegedly hurled abuses, knocked on railings, shook notice boards and threw objects in the non-payment area near Exits F and K. At 11:03 p.m., he entered the paid area and struck a man who wore a top with black and white horizontal stripes eight times on the head with a rattan stick and with his fist on the staircase leading up to the platform. At 11:05 p.m., he and a group of white-clad men left the paid area via a glass door near the railings at Exit F[8]. (Clothing at the material time: white short-sleeved T-shirt with the print of jeans in the centre in front, black shorts, shoes with white laces and no face mask.) C.2 Stage 2 12.D5 was alleged to have been involved in Charges 3 and 4, firstly that he was involved in besieging a man in a white striped top at 00:00 in the morning of the 22nd. The prosecution claimed that he not only put his forearms around the man from behind, but also stopped and scolded an ambulanceman who wanted to come forward to examine the man. Later, between 00:03 and 00:05, when the white-clad men and the black-clad men were exchanging abuses and pushing each other, D5 communicated with D6 briefly (see the next paragraph) and attacked three persons with his fists and a pole in the ensuing escalation of violence. At 00:08, he went to the ground below Exit J of Yuen Long Station to check on D6, and returned to his position on Long Wo Road after handing over the pole to his accomplice to hit the umbrella(s) of black-clad men. Finally, D5 was alleged to have charged up to Exit J. He allegedly used a broken umbrella to point at and attack a black-clad man and threw hard objects at the black-clad men inside the station between 00:14 and 00:16[9]. (Clothing at the material time: white short-sleeved T-shirt with multiple dark repetitive patterns printed on both the front and the back, white shorts, black shoes with white soles, and no face mask.) 13.D6’s involvement allegedly started at 0003 at Long Wo Road outside Ying Lung Wai. He and the other what-clad men demanded that the black-clad men leave, then a confrontation between the two camps started. The prosecution alleged that the communication between him and D5 started when he tapped D5 on the arm, followed by eye contact and a short dialogue between the two men (see the paragraph above). Later, during the escalation of violence between 00:05 and 00:07, having obtained a wooden pole from a man in a blue and white checkered top, he swung it at black-clad men and knocked down a man in an orange helmet to the ground (the latter was allegedly hit on the head twice before and after he fell to the ground). When he was walking on the ground below Exit J holding a wooden pole, he was then struck by an object and fainted until he suffered a short cardiac arrest[10]. (Clothing at the material time: white T-shirt, black trousers, black waist bag, and no face mask.) C.3 Stage 3 14.According to the prosecution, D5 entered Yuen Long Station at 00:29 in the morning of the 22nd. The sequence of his behaviour included: he walked to a corner of the footbridge at Yoho Mall I and watched 13 white-clad men surrounding and attacking a man clad in black; after seeing another man in black being surrounded and attacked by white-clad men in white, D5 raised his hand to indicate and walked towards the location with the abovementioned group of white-clad men; later, he walked with the white-clad men towards the atrium of Yoho Mall I; at 00:31, D5 and some white-clad men turned back and walked towards Yuen Long Station, during which they pointed at and approached two persons who were being assaulted; a man in white wearing black gloves raised his hand to make an indication, D5 and the white-clad men who had surrounded and assaulted the two said persons continued to walk towards Yuen Long Station; at 00:32, D5 and a group of white-clad men left Yuen Long Station via Exit J, but they returned upon a gesture from a man who wore a white top and black shorts; and when a man in white whose palm and arm bound with strips of cloth raised his hand to gesture, only did the group of white-clad men , including D5, actually leave the station via Exit J[11]. D. Relevant evidence 15.Relevant evidence included video recordings from a variety of sources and locations, screenshots of video recordings, witnesses (the victims of the attack, the ambulanceman who was berated by D5, and others who were present at the scene), various admitted facts (such as addresses and movement records), and post-arrest photographs of the defendants (Arrest Procedure System photographs (“APS photographs”) and other photographs). The police also seized a T-shirt, a pair of shorts, and a pair of sneakers from D1’s home. E. The defence cases 16.D1, D5, D7 and D8 did not testify or call any witnesses. 17.D1 disputed the identity of the offender, arguing that all the relevant video recordings and screenshots were not clear enough for identification. He adduced a report of the Government Identification Bureau as a defence exhibit, stressing that the T-shirt found at his home was not the T-shirt worn by the offender in the video recording, and that the shorts and shoes found were inconclusive. 18.D5 also disputed the identity of the offender. He said that the ambulanceman identified the wrong person (including at the identification parade) and that he was not the man who berated and prevented the ambulanceman from examining the man. He denied that he was the man who wandered around on the footbridge to Yoho Mall I to watch the assaults on the black-clad men and the others. 19.D7 did not dispute that he was the person in the video recording. His argument was that as a resident representative of a village in the Pat Heung Rural Committee, he did not go to the scene to take part in a riot or to injure people. He did not want outsiders to come and cause troubles; that even if he was carrying a wooden pole, it was not necessarily for the purpose of assaulting other people, as the wooden pole could be used for his own protection, not to mention the fact that there was no evidence in the case to prove that he was aware of what had been going on at Yuen Long Station before he entered the station; and that prosecution witnesses testified in cross-examination that D7 did not berate at or assault any person. 20.D8 complained about the poor quality of the recordings and did not accept that they could be used for identification. He also emphasized that there was no evidence in the case to show that the print of jeans on the front of the T-shirt was one of a kind, so the court could not be sure that it was the same person who appeared in front of the camera on each occasion. 21.D6 testified and did not dispute that he was the person in the relevant video recordings. He said that he had lived in the villages in Yuen Long for 38 years and was familiar with the villagers of a number of villages, and he would go back to visit them three or four times a week. Before the incident, he was on his way home and saw a crowd gathering when he passed through Ying Lung Wai, so he stopped his car and approached them. There, an acquaintance, “Aunt Kitty”, told him that the black-clad men under the memorial archway were going to enter the village to “demolish the ancestral hall”. Worried about the villagers, he stayed at the scene to persuade the black-clad men to leave, but in the end, as the latter were not willing to leave, they pushed and clashed with each other. As he was hit on the nose by a hard object and felt threatened by the man in a black top beside him, he grabbed the wooden pole held in the man’s hand. He waved the pole because someone had thrown hard objects like a road sign at him. He struck the water-filled barrier with the wooden pole because he wanted to make noise to make the other party go away quickly. He did not attack the man in the orange helmet with the pole. That man was tripped over by a man wearing a white cap. For fear that he would also be tripped over, he swung his pole to make an empty blow to cause the man to withdraw his foot. He went underneath Exit J of Yuen Long Station to make sure that the black-clad men would leave, but there he was hit by a hard object and lost consciousness. He said he only knew D5 as a villager in Yuen Long and they usually only nodded to each other. On the material night, he did not pay attention to the person whom the prosecution claimed to be D5, and was not in contact with him. F. Case stated appeal F.1 The trial judge’s verdict on D1 22.The trial judge found D1 not guilty of Charges 1 and 2 and that his analysis of the identification evidence was the crux[12] :
F.2 Issues of law arising from the Verdict 23.In the light of the trial judge’s verdict, the Secretary for Justice raised the following points of law:
F.3 Submission of the Secretary for Justice 24.The Secretary for Justice was principally represented by Senior Assistant Director of Public Prosecutions, Mr Lai Kim Wah, Derek. The following are the key submissions made by Mr Lai. 25.Matters admitted into evidence under section 65C of the Criminal Procedure Ordinance, such as the Admitted Facts at trial, are “conclusive” as per the provision, and they prevail even if there is conflicting or inconsistent evidence in the case: R v Chan Chun Ming [1986] HKC 261 (266E-F); HKSAR v Surinder Singh [2012] 2 HKLRD 8 ([10]-[11]). 26.According to the Admitted Facts at trial, the T-shirt, shorts and sneakers seized from D1’s home were all “items belonging to D1”, and the trial judge had no power to overrule this fact and draw further inference that D1 was keeping the sneakers for another person. As D1 did not testify, call any witnesses, or present his case in any affirmative way, this inference was in fact only a speculation not supported by evidence. 27.The trial judge’s dismissal of the live video recording capturing D1 because “the faces did not exactly resemble one another” was on too narrow a basis. He should have paid, but did not pay attention to the eyes, eyebrows, forehead, ears and stature of the relevant offender captured on the footage and compared them with the APS photographs taken shortly after the offences. The above facial and other features were strong circumstantial evidence. 28.The Admitted Facts showed that the residential address of D1 was “Flat Y, 2/F, Block X, Greenfields, 1 Fung Kam Street, Yuen Long”. The video recordings of the estate also showed that, at 10:20 p.m. (20 minutes before the start of Stage 1) and 11:31 p.m. (20 minutes after the end of Stage 1), the offender took the lift for 17 seconds and 16 seconds respectively on the evening of the 21st to leave and return to Block X of Greenfields. The time spent in the lift rides (16 to 17 seconds) coincided with the time required to travel between a flat on the lower floors and the ground floor, as well as D1’s movement records showed he was in Hong Kong on the day, it was a piece of cogent circumstantial evidence which the trial judge did not take into consideration. 29.Although the report of the Identification Bureau did not come to any conclusion on the shorts and the sneakers, they were obviously similar to those worn by the offender. The trial judge was sure that they were the same pair of sneakers because of the distinctive style. In that case, the trial judge should have, but did not, considered the shorts, the sneakers and the other circumstantial evidence together as a whole. 30.To conclude, the trial judge failed to take note of the “unusual coincidences” (R v Turnbull [1977] QB 224 (230D)) and the cumulative effect of the above evidence, which rendered his finding on the identification of the offender perverse. This is an error of law that must be rectified. F.4 Respondent’s rebuttal 31.Mr Kwan Tong Lee, the counsel who represented D1 since trial, opposed the appeal. The following were the key points of Mr Kwan’s submissions. 32.In the present case, in the absence of any direct evidence, the prosecution’s only option was to have the trial judge serve as jury to compare the video recordings and screenshots taken at the material time with D1 in court to determine whether D1 was the offender concerned: AG’s Reference (No 2 of 2002) [2003] 1 Cr App R. 33.However, apart from the fact that the camera was too far away and the offender was wearing mask most of the time, resulting in the video recordings and screenshots not being clear enough to satisfy the conditions set out in the abovementioned cases, the appellant’s emphasis on “unusual coincidences” and the cumulative effect were in fact not applicable to the circumstances referred to in AG’s Reference (No 2 of 2002). Alternatively, the appellant failed to provide any case law showing that circumstantial evidence could assist the jury in making comparisons between video recordings, screenshots and the defendant himself. 34.The circumstantial evidence adduced by the appellant did not have much probative value. For example, the forensic report from the Identification Bureau revealed that the trousers and shoes recovered from D1’s home were either definitely not, or could not be confirmed to be of the same type as those worn by the offender concerned; there was no concrete evidence in the case as to how fast the lift in Block X of Greenfields ascended and descended. Moreover, the Admitted Facts stated that the sneakers were “items belonging to D1”, which in fact did not contradict the phrase “retained on behalf of another person”, because what was found at D1’s home naturally “belonged” to D1, i.e. the sneakers could have belonged to more than one person. 35.The trial judge was sure that the shoes were those worn by the offender concerned, but it was only obiter dictum. When he made this observation, he had already found that D1 was not the offender concerned, that is to say, he had fulfilled the duty of the jury as specified in AG’s Reference (No 2 of 2002). Moreover, the prosecution adduced all the circumstantial evidence mentioned above at trial, so the trial judge must have known and considered it, only that he finally decided that D1 was not the offender concerned. 36.Taking all these points together, the trial judge’s finding on identification was not perverse. F.5 Analysis and discussion 37.Mr. Kwan seeking to rely on AG’s Reference (No 2 of 2002) in order to support the proposition that identification of an offender must be limited to observation by naked eye of the trial judge was misconceived. The fact that there was no circumstantial evidence other than photographs in that case does not mean that circumstantial evidence could not have been used if it had been available. All evidence that is relevant to the issue and lawfully adduced can and should be considered, and there is no need to cite any authorities in support of this point. Accordingly, the circumstantial evidence adduced by the prosecution at trial was what the trial judge had to consider in its entirety before making a finding on the identity of the offender. In the circumstances, although subjectively the masked faces “did not look exactly alike”, taking into account the concurrence of various factors such as time, place, distance, clothing and other physical features, and the probability of the concurrence was no more than pure coincidence, the question is: was D1 the offender? This is the question that the trial judge should have asked. However, the trial judge got the approach to the question completely wrong. He obviously regarded visual identification, with all its limitations, as conclusive, so that once he considered that the image of the offender did not resemble D1, he had to work backwards to explain away the sneakers found in D1’s home by postulating they had been retained on behalf of someone else, and he could not even accommodate the admitted fact that D1 was their owner (we unreservedly refused to accept Mr Kwan’s interpretation of the term “belonging to D1”). As for other circumstantial evidence, it was not even mentioned. The error in approach, which led to the omission of so much evidence, was fundamental, and the conclusions drawn from it were therefore perverse. The answer to the question raised by the Secretary for Justice is “yes”. F.6 Judgments and orders 38.The Secretary for Justice’s appeal is allowed. The two acquittals of D1 are quashed and the part of the case relating to him is remitted to the trial judge for reconsideration. G. Appeal against conviction of D7 39.D7’s appeal is relatively simple. He was only concerned with Charges 1 and 2 at Stage 1. G.1 Original verdict 40.Here are the trial judge’s key findings and related reasons[13] :
G.2 Grounds of appeal 41.Mr James Tze was the defence counsel for D7 at trial. He raised five grounds of appeal on behalf of D7. With the exception of the last two, which referred generally to the lurking doubt and the conviction being unsafe, the first three can be elaborated into the following submissions[14]. 42.Firstly, it concerns Charge 1. 43.The Court of Final Appeal has clearly explained the constituent elements of the offences of “unlawful assembly” and “riot” in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302. Since a riot must be preceded by unlawful assembly (and followed by a breach of the peace), a riot is defined as a “participatory offence” in the same way as an unlawful assembly. As to what constitutes participation, it means that the offender is guilty of breaching the peace, or “acting in furtherance” the riot by ways of “facilitating”, “assisting” or “encouraging” others in breaching the peace. 44.The above are only the acts required for the offence of riot. As to mens rea, there must be “an intent to participate”, that is, an intent to breach the peace, or to facilitate, assist or encourage others to breach the peace so as to further the riot. In other words, someone who joined the offence subsequently had to know that a riot was taking place, or else he would not have the mens rea at all. Had he not known about it, he could not have taken part in it; as simple as that. 45.The problem was that Stage 1 commenced at 10:40 p.m. in the night of the 21st, whereas D7 entered Yuen Long Station only at 11:01 p.m. Moreover, there was no evidence in the case to show that he knew what had been happening in the concourse before he entered the station, let alone on the platform which was on the upper level. Moreover, even if he was carrying a pole when he entered the station, it did not prove that he intended to take part in the riot. He could have been carrying a pole for self-defence just in case or he could have intended to take part in an unlawful assembly, and the pole was just a tool to intimidate the other camp. 46.As a matter of fact, having watched the entire video recording of Stage 1, the prosecution could not identify any footage that could show D7 cursing, assaulting or encouraging others to assault. On the contrary, he was captured going up to the platform and soon after he no longer held the pole. He was captured interacting briefly with a white-clad man who wore black gloves and took the initiative to approach him for a chat on the platform, and this white-clad man held out his arms to prevent other white-clad men from rushing into the train compartment to beat up people. During those three minutes or so, D7 was far away from the train compartment. All these images were in D7’s favour. Later, when he walked to the centre of the platforms and looked in the direction of Tuen Mun, he acted in the same way as a number of other members of the public, so it was even more obvious that he disapproved of, or was at least not supportive of, the violent behaviour of the white-clad men. Later, when he left Yuen Long Station, he was also on his own. 47.Regarding the abovementioned acts of D7 on the platform, the defence had made a lot of efforts in the closing submission and selected a number of related screenshots to support its view that it could be shown that D7 did not have any intention to take part in the riot, or that his intention to take part in the riot was not the only reasonable inference to draw, but the trial judge did not deal with this at all and found in paragraph 133 of the Reasons for Verdict that D7 took part in the riot in his capacity as an “encourager” and that was the end of the matter. This finding was also contrary to the principle that “mere presence” does not constitute participation in a riot, as clarified in Lo Kin Man. 48.Finally, the trial judge stated at paragraph 71 of the Reasons for Verdict that at common law, the principle of “joint enterprise” also applied to the offence of riot, which was also a fundamental error: Lo Kin Man. 49.Further down concerns Charge 2. 50.This part of the submission was much the same as that relating to Charge 1, the short version being that D7 merely appeared at the scene and did nothing. But even if the prosecution emphasized that he had been holding a bat, he could have been planning to take part in an unlawful assembly rather than to wound someone. Apart from a brief exchange with the white-clad man with black gloves, there was no evidence in the case that D7 was acting in concert with anyone else. The defence mentioned all the above points in its closing submission with the aid of relevant screenshots, but the trial judge failed to address them. The trial judge’s finding at the end of paragraph 133 of the Reasons for Verdict that D7 was involved in “wounding with intent” in the capacity of an encourager was a further mistake made in relation to the mental element for Charge 2. Charge 2 required the offender to “wound ... with intent to cause grievous bodily harm”. This additional element is fundamentally different from the simple “wounding with intent”. G.3 Analysis and discussion 51.This case predated Lo Kin Man. Applying the principle of joint enterprise which that case held to be inapplicable to a charge of riot was indeed erroneous. Beyond that error, however, we have to ask on what basis the trial judge found D7 guilty of the offence, and whether the requirements laid down in Lo Kin Man can be satisfied. If so, the relevant verdict can be upheld. 52.As pointed out by the respondent, the trial judge based his inference of D7’s guilt on the totality of evidence in the case. For example, two major points mentioned by him in paragraph 132 of the Reasons for Verdict, that are, entering Yuen Long Station armed, with as many as 20 white-clad men, and, being the head of the village, not staying at the entrance of the village to guard against those who really intended to cause trouble in the village but walking to the station where he directly confronted the black-clad men in black, were very much to the disadvantage of D7. If more details were to be added, they were the following: although there were words on his chest, D7 was also wearing a white T-shirt; he was running into Yuen Long Station instead of walking at a normal pace; some of the white-clad men who entered the station with him were carrying wooden poles and rattan sticks; when they entered the station, there were incidents of cursing and assaults at Exit F where they were located, as well as at Exit G on the opposite side and at Exit J and Exit K on the other side of the station, which could not have escaped the attention of D7; D7 did not stay in the concourse of the station but went to the platform where black-clad men had run up because they had been chased and beaten; on the platform, D7 was not captured stopping or trying to stop the white-clad men from assaulting others, nor did the defence counsel make such a claim; and when he went back to the concourse of the station and withdrew to Yoho Mall II via Exit F, D7 acted together with a similar number of white-clad men. All the above pointed strongly to a gang attack with a common intention. 53.Admittedly, the trial judge did not set out the above evidence in the same details as we do, and he did not deal directly with the defence’s questions on several observations, such as D7 was subsequently unarmed, but his main analysis was correct, and D7 did not testify or call witnesses. The point is that D7’s overall behaviour at the material time hardly fit with the defence’s claim that he was only trying to defend his homeland. His behaviour was more akin to that of an active assailant, and he had full knowledge of the development of the situation; otherwise, he would not have gotten up onto the platform. The trial judge grasped this key point. As to why D7 no longer had the pole, whether he had lost it or had given it to someone else, and the relationship and dialogue between him and the man in black gloves, we had no idea due to the lack of relevant defence evidence. It was also futile for the defence to try to link D7 to his preventing others to use violence by the action of the white-clad man who prevented other white-clads from entering the train compartments to beat people. Further, it was possible that D7, seeing that the white-clad men on the platform had the upper hand, thought that as the head of the village, he did not need to do anything, and so put down his pole. Similarly, the man in black gloves might have realized that some ordinary citizens were inside the train compartment and was afraid of hitting the wrong people, so he tried hard to persuade the white-clad men to exercise restraint, which did not mean that he did not have the intention to attack the black-clad men. These possibilities would readily come to mind when one considered the circumstances at the material time. Moreover, D7 did not do anything concrete to stop the violence, so this could not have constituted any doubt. 54.On the evidence available, the trial judge could not be criticized for finding that D7 “participated in the riot as an encourager”. The authoritative term applicable pursuant to Lo Kin Man was that of acting in furtherance of a riot by encouraging a breach of the peace. On the basis of our analysis of the evidence, this decision must also include the intent required for the offence of riot. 55.Eventually, the trial judge found that D7 “wounded others with an intent”. It was merely the case that his wording was not as exact as it should have been. Such a finding must mean wounding with intent to inflict grievous bodily harm, which was the offence under the charge. In the light of the evidence in the case, including the extent of the injuries sustained by the victims, this finding cannot be criticized either. G.4 Judgment 56.We refuse D7’s application for leave to appeal against his conviction and dismiss his appeal at the same time. The convictions on Charges 1 and 2 are upheld. H. D6’s appeals against convictions 57.D6’s appeals were not complicated either, except that it involved more factual disputes. He was found guilty of Charges 3 and 4 involved in Stage 2. H.1 The original verdict 58.With regard to D6’s verdict, on an issue-by-issue basis, we shall summarize the trial judge’s analysis one by one in the order in which they were presented. 59.Whether D6 was neutral[15]:
60.From where D6 got the pole[16] :
61.Whether D6 spoke to Aunt Kitty[17] :
62.Whether D6 attacked the man in the orange helmet and whether it was for self-defence[18] :
63.Whether D6 was acting in self-defence when he swung his pole at a black-clad man[19]:
64.Whether other white-clad men participated in violence during the same period[20]:
65.The next issue is whether D6 and D5 communicated with each other[21]. As the trial judge analysed the relevant visual evidence in great detail, we shall cite his original text below[22]:
66.Similarly, we shall quote the conclusions of the trial judge[23]:
H.2 Grounds of Appeal 67.Ms Fanny K H Wong who was not the counsel for the defence at trial, raised six grounds of appeal on behalf of D6. They concerned certain findings of facts at trial and the ultimate question of whether there could be an inference of “joint enterprise” and “conspiracy” on the part of D5 and D6, i.e. the requisite elements of the two relevant charges. 68.The six impugned factual findings and the reasons for criticisms put forward by Ms Wong are broadly set out below:
H.3 Analysis and discussion 69.The trial judge made his analysis with more details not only because he considered that much of D6’s evidence was inconsistent with the video footages and needed to be rebutted point by point, but also partly because of the arguments put forward by the defence counsel at trial. The best example of this was the question of whether D6 was on the side of the villagers from the outset. In our view, one must distinguish between, on the one hand, whether there was an intention to carry out a violent attack right at the beginning, and, on the other hand, whether D6 took the side of the villagers from the outset. Based on D6’s evidence and the picture presented in P230 (D6 was rather forceful and ferocious from the outset), it was difficult for the defence to portray him as a neutral peacemaker. At the very least, D6’s purpose was to deter and drive away the black-clad men. As to the trial judge’s query as to whether D6 would go straight to the front line of the conflict because of Aunt Kitty’s remark, we consider that the query was justified. This is because if D6 was really just passing by and did not know anything about the background of the people who came to demolish the ancestral hall and what had happened before, his normal reaction would have been to ask for clarification and/or to report it to the police. The more urgent the situation was, the more quickly he would have reported it to the police. Moreover, the lack of video records of the alleged conversation between D6 and Aunt Kitty (a point which Ms Wong could not positively refute) made D6’s claim that he was just passing by all the more dubious. 70.On the question of whether an attempt was made to ask the black-clad men what their intentions were, D6’s version was that the black-clad men rushed in before he had a chance to do so. However, what does one see from P230? It was a shot of D6 pushing his hands in front of him as soon as he arrived at the scene and pointing his finger at the nose of a person of the other side at a close distance and ordering him to leave. This is not to say that those in black were very passive or polite. On the contrary, the black-clad men in the front row were also cursing and pushing back the white-clad men, resulting in a lot of so-called crossed-hands in front of the camera, but it was an indisputable fact that D6 never tried to make any effort to defuse the situation. For example, instead of holding his hands up and shouting for everyone to calm down and/or back off (as had been done by someone before D6’s appearance), he turned around and gestured for the men in white to move off-camera when the pushing and shoving naturally diminished, which was what Ms Wong called a successful segregation. The problem was that at the same moment, although the black-clad men seized the opportunity to retreat to the opposite side of a road as wide as a two-lane carriageway, the white-clad men, who were holding more rattan-like objects than before, quickly returned to their original position, took the initiative to cross the road, clashed with the black-clad men who had retreated to the other side of the road, and even fought with them. 71.The above observation was important because it showed that the white-clad men, with more weapons, took the initiative to start a fight. They could have taken but did not take a defensive position; as a unified action, they chose to go on the offensive. This does not mean that the white-clad men started the actual violent confrontation, which was not clear from P230, but the white-clad men must have crossed the road in order to achieve something that the black-clad men would not readily accept (e.g. to drive the latter to the MTR station), which means going on the offensive. In any case, what happened after the actual outbreak of a violent conflict? The white-clad men fought and attacked the black-clad men without holding back, while the black-clad men gradually fell back while fighting back. The above was the context to the appearance of D6 and the man in the orange helmet. As to other specific issues, i.e. how D6 obtained the pole, whether he attacked the man in the orange helmet, and whether the attack on the man in the orange helmet and the swinging of the pole at the man in black constituted self-defence, etc., we are of the view that the trial judge’s analyses were correct (including the assessment of the clarity of the video recordings), which in turn were highly consistent with the background mentioned just now, and were even supportive of each other. Before reaching this conclusion, we have not forgotten that D6’s nose was injured (the video footages showed that he touched his nose many times), and that a person who struck first may also be acting in self-defence or needed to act in self-defence afterwards (this has long been established by law). However, taking into account all the evidence now available, we consider that the trial judge’s conclusion was still correct. 72.Even if the court did not accept D6’s account, the court could not be sure that D6’s behaviour was not personal and had nothing to do with anyone else: that was Ms Wong’s last line of defence. However, such a statement was completely divorced from reality. By the latest the moment the white-clad men crossed the road, it was an overwhelming inference supported by evidence that they, including D5 and D6, were acting in concert, for by and large the same reasons as those of the trial judge. As to the two contacts between D5 and D6 (the first being the white-clad men moving out of the field of view), we confirm, after reviewing the relevant video footage, that the trial judge’s findings were supported by a sufficiently clear visual record and that he was entitled to reach the conclusion from what he saw. The trial judge was also entitled to reach the relevant final verdict on the basis of the entirety and totality of the evidence. H.4 Judgment 73.This Court refuse D6’s application for leave to appeal against his conviction and dismiss his appeal at the same time. The convictions on Charges 3 and 4 are upheld. I. D5’s appeals against convictions 74.D5 was found guilty not only of Charges 3 and 4 of Stage 2, but also of Charges 5 and 6 of Stage 3. I.1 Verdict on Charges 3 and 4 75.As noted above, D5 denied that he was the offender as alleged by the prosecution. Instead, he claimed that the ambulanceman misidentified him. However, having heard the ambulanceman’s evidence that he might have been constrained by his sight and angle of view and that he had mistakenly stated in his witness statement that the man wore a pigtail, the trial judge accepted that his identification was accurate. In addition, as the face of the offender was clearly shown in the video recording and the relevant screenshots, the trial judge also found that the person in the image was the D5[24] in the courtroom. 76.The trial judge went on to point out that the relevant on-site video and screenshots showed (in the text “<D5?>” and “Witness M” were the relevant offender and ambulanceman)[25]:
77.For the verdict on Charges 3 and 4, see paragraphs 65 and 66 above. Those two paragraphs also apply to D5. I.2 Verdicts on Charges 5 and 6 78.Given that the video recordings at the scene and the related screenshots relevant to both Charges 5 and 6 clearly showed the appearance, hair style, body shape and upper and lower body clothing and shoes of the relevant offenders, and that persons with the same features and clothing combinations appeared in the video recordings at the scene and related screenshots relevant to both Charges 3 and 4, the trial judge concluded that the two were the same person, i.e. D5[26] in the courtroom. 79.In terms of specific behaviours, the trial judge ruled that[27]:
80.Finally, the trial judge concluded that[28] :
I.3 Grounds for appeal 81.D5 was represented principally by his counsel, Ms Priscilia Lam. Ms Lam, who was not the defence counsel at trial, raised four grounds of appeal on behalf of D5. 82.Ground 1 was gross incompetence on the part of trial counsel.
83.Ground 2 was that the prosecution failed to fulfil its duty of disclosure, resulting in a denial of a fair and just trial.
84.Ground 3 was that the trial judge failed to give due consideration to the background of the case and wrongly relied on prosecution evidence that showed a fragmented picture to find D5 guilty of participating as a principal in the riot (Charge 3) and of conspiracy to wound with intent (Charge 4).
85.Ground 4 was that the trial judge failed to give due consideration to the background of the case and wrongly relied on prosecution evidence that showed a fragmented picture to find D5 guilty of participating in a riot as a principal (Charge 5) and of conspiracy to wound with intent (Charge 6).
I.4 Related motion 86.In support of his grounds of appeal, D5 moved that this Court admit four affirmations and various enclosed documents (mainly the written instructions at various stages and the screenshots of the four unused clips) produced by him. In response, defence counsel at trial (Mr Ma) and his instructing solicitor (Mr Ng) also filed their affirmations and enclosed documents. All the motions, affirmations and various documents were admitted in this application for leave to appeal. I.5 Analysis and discussion 87.D5 was involved in the charges of two stages, Stages 2 and 3. The two stages lasted 16 minutes (00:00 to 00:16 hours) and 6 minutes (00:26 to 00:32 hours) respectively, i.e. they were separated by only about 10 minutes and covered a period of about half an hour. This was a rather short period of time. As for D5’s account, according to his original, i.e. the first written instructions (TWS-3[29]), it was self-defence in Stage 2 and it was alibi in Stage 3 (arriving at the “podium” at Exit J ten minutes later than the white-clad men who had stormed into Yuen Long Station and staying at the “podium” only for a few minutes before returning to his barbecue shop on the ground level). He maintained the above assertion about Stage 3 at trial and did not waver. However, what was clearly captured in the prosecution’s Stage 3 video recording? It was a man with the same build, hair style and clothing as D5’s at Stage 2 walking back and forth and making gestures at Yoho Mall I. (See paragraph 12 above for the multiple concurrence of clothing which could not be by coincidence), and this was used as evidence to charge D5 with Charges 5 and 6. By way of background, the above was the situation in which the trial counsel found himself in. 88.Back to this application. Unlike at trial, D5’s position on Stage 3 has changed completely. Ms Lam, counsel for D5, took over this case and she no longer insisted that the person in the video recording was not D5. On the contrary, she said that even if the person in the video recording was D5, he was only a bystander and nothing more, implying that the trial judge’s interpretation of the video-recorded evidence was wrong. This was a complaint with a strong implication of a retrial. However, even if we put aside the nature of the complaint, Ms Lam’s submission could hardly be substantiated. The reason was that the video recording showed that there were at least two or three black-clad men in different locations being beaten up, and D5 and a number of other white-clad men moved towards these locations one by one, so it could not have been any so-called passive and neutral bystander behaviour (say, passing by), but rather a deliberate approaching. As to the purpose of D5’s conduct, the trial judge’s finding was not open to criticism, having regard to D5’s hand movements at the time and the fact that he was clearly advancing and retreating together with the actual participants in the attack. This is the conclusion of this Court. We are of the opinion that the guilty verdicts on Charges 5 and 6 are safe and must be upheld. 89.In paragraph 10 of his affirmation, Mr Ma stated the following: by that time, he had already gone through the four unused footages of OS25, OS55, OS19 and OS66:
We accept that if the sentence, “If D5 engaged in any behaviour involving active assault on another person at any point during the whole period of time, the defence of lawful self-defence would be untenable” (“the sentence in question”) was to be singled out, it would be quite debatable, for the reasons we gave at the end of paragraph 71 above. Nevertheless, we simply do not think that the sentence in question can be dealt with in a vacuum. 90.As we have just pointed out, by the time Mr Ma made the above statement, he had already watched the four unused clips. Prior to that, in paragraphs 7, 8 and 9 of the same affirmation, he also pointed out that: before the trial, D5 had personally confirmed that the prosecution’s video footages reflected the actual situation at that time; that the timing and position of the prosecution’s video footages were in fact similar to the four unused clips; and that the four unused clips also captured D5’s actively taking the offensive on a number of occasions (as well as examples). On the basis of the above, putting the sentence in question into the context of paragraph 10 as a whole, the true meaning of the sentence in question must be that, although the four unused clips did contain images of D5 being attacked, as long as D5’s overall behaviour throughout the whole period of time did not amount to lawful self-defence, those individual shots could not have turned the situation around. This is legally correct. Of course, as Ms Lam emphasised, it was not the job of this Court to rule on the issue of self-defence at this stage; it was only for this Court to decide whether D5 was deprived of a fair trial, and the crux of the matter was whether Mr Ma’s advice that self-defence could not validly be relied upon as a defence, which he gave without having examined the four unused clips, was an error of sufficient proportion and consequence which was unacceptable or whether it was only a mere error of judgment: Chong Ching Yuen and HKSAR (2004) 7 HKCFAR 126 at 143B to 145B. 91.In our view, the answer to this question is not the former in any event. We have, in paragraphs 70 and 71 above, referred to the fact that the black-clad men at Stage 2 did not swallow the bitter pill, not at the archway outside Ying Lung Wai, nor after more white-clad men armed with rattan cane-like objects had crossed the road. They not only shouted, but they also fought back. It is not even clear from the video-recorded evidence which side started the fight. However, the point is that once the actual violence started, the white-clad men, who were the least attempting to drive the black-clad men away, fought unreservedly and attacked without restraint, while the black-clad men fought and retreated. Under such circumstances, it would be extremely difficult to convince the court that D5, who had been pushed or punched but whose targets were not just confined to his attacker, was acting in self-defence. On the contrary, if all the necessary evidence was available, the fact that the black-clad men fought back would not prevent D5 from being convicted of riot and conspiracy to wound. Finally, there is one point which even Mr Ma has not mentioned. That is, because of the high degree of concurrence inbuild, hair style and clothing (see paragraph 87 above), it would be difficult for D5 to deny his presence and relevant conduct in Stage 3 if self-defence were the defence at Stage 2, i.e. he would not be able to cohesively defend against the two separate sets of offences. Challenging identification evidence as a unified defence to the two stages would be free of that difficulty, 92.For the above reasons, we do not agree that D5 was deprived of a fair trial on the basis of counsel’s legal advice based solely on the prosecution’s video footages, or on the fact that the prosecution failed to provide D5 with the four unused clips and other relevant allegations. We are of the view that the video-recorded evidence at Stage 2 was clear and unambiguous and the trial judge was fully entitled to find D5 guilty of Charge 3 and 4 on the basis of his observations. I.6 Judgment 93.This Court refuses D5’s application for leave to appeal against his convictions and dismisses his appeal at the same time. The convictions on Charges 3, 4, 5 and 6 are upheld. J D8’s appeal against convictions 94.The last person we shall deal with is D8. He was found guilty of Charges 1 and 2 at Stage 1. J.1 What the prosecution relied on 95.The prosecution relied solely on identification evidence[30] . 96.The prosecution argued that the video footages and screenshots taken at the material time clearly showed the appearance of the offender (whole face; teeth (upper rows were not aligned, the upper left incisor was obviously in a back position compared to the upper right incisor)), clothing (white short-sleeved T-shirt with a print of jeans on the front; black shorts; black shoes tied with white laces) and gait (small and quick steps). The above facial features matched perfectly with the APS photographs taken of D8 by the police one year after the offences, i.e. on the day of his arrest, 32 other photographs taken from different angles (“non-APS photographs”) and the D8 seen by the trial judge, which were obviously the same person[31]. 97.The so-called APS and non-APS photographs are photographs taken by the Arrest Procedure System (APS) computerized photography (colloquially known as “prisoner photographs”), and those taken by the police of the arrested person other than the APS photographs. In two of the non-APS photographs, D8 was required to show his teeth (P200(24) and (25)). 98.D8 as seen by the trial judge: the trial judge asked each of the defendants, one by one, to remove their glasses, masks and blazers, to stand still in front of the dock, to turn around, to take a few paces, to look up and to look to the right and left in order to observe their appearance and build (“requested by the court to move”); and the trial judge allowed the prosecution to specifically ask D8 to open his mouth and to show his teeth as if he were laughing (“requested by the prosecution to show his teeth”). 99.Both instances where D8 was requested by the court to move and requested by the prosecution to show his teeth occurred during the prosecution’s playing of the “clip highlights”, i.e. during the period when the prosecution case was about to be, but had not yet been, closed[32]. J.2 Verdict 100.The trial judge, having viewed the video footage of Stage 1 and having repeated the behaviour of the relevant offender (“<D8?>”)[33] , found as follows[34]:
J.3 Grounds of appeal 101.Mr Jeremy Cheung was not defence counsel at trial. 102.He complained that D8 was deprived of the right against self-incrimination. After two related amendments, the complaint can be summarized as follows:
J.4 Analysis and discussion J.4.1 Requested to demonstrate with movements and to expose one’s teeth 103.Mr Cheung’s complaint about the trial judge requiring the defendants to move and to show his teeth at the request of the prosecution relied mainly on the Scottish case of Beattie v Scott[36] (High Court of Justiciary). The issues in that case are very similar to the present case. Specifically, the prosecution witness who was giving evidence identified the defendant while saying that he would feel more confident in the identification if he saw the defendant standing, so that the prosecution proposed and the court granted permission for the defendant to stand up for identification by the prosecution witness. 104.The judgment in the case was written mainly by Lord Justice-General Hope (as he then was), and the following is the key part of it (page 322 of the Judgment):
105.In other words, there is a difference between trial and pre-trial procedures; before trial, for the sake of investigation and the handling of the case, the defendant may be asked to do various acts to facilitate investigation, and it is a matter of degree whether or not it is appropriate to do so. Once the trial has begun, the defendant may not be required to assist the prosecution in proving its case howsoever, whether by speaking, moving his body, or adjusting his appearance, unless he has first engaged in some positive behaviour designed to prevent justice from being done; for example, by covering his face. Finally, the court and the prosecution not allowed to trespass the above boundaries has nothing to do with the defendant’s right not to incriminate himself, as the defendant is not being asked to answer questions or to testify against himself; he is being asked to assist the prosecution in proving the case in violation of the defendant’s most fundamental right to have his guilt proved by the prosecution. 106.If Lord Justice-General Hope’s analysis is correct, Mr Cheung was wrong when he said that D8 had been asked to incriminate himself, but D8 could have complained that he was asked to assist the prosecution in adducing evidence. Either way the prosecution benefitted. Thus, the complaint applied as much to the trial judge’s initiative in asking D8 to make movements as it did to allowing the prosecution to ask D8 to show his teeth. 107.In response to the complaint, the respondent, represented principally by Mr. Derek Lai, SADPP, conducted research on a wider range of case law. The cases cited by Mr Lai were mainly from the United States (Holt v United States[37], Schmerber v California[38], United States v Wade[39], United States v King[40], United States v Statterfield[41], State of Michigan v Markley[42], Urquhart v State of Arkansas[43], Kessler v Cupp[44], Rutherfird v State[45] ), and also from Canada (Marcoux v The Queen[46], The Queen v Nielsen[47], The Queen v Cyr[48], R v Ermineskin[49] ) and Australia (R v Kirby[50], Sorby v Commonwealth[51], Bulejcik v The Queen[52] and Evans v R[53] ). 108.Many of the above cases are from the highest courts of the countries concerned, or from provincial, state or even federal appellate courts, but because of the number of them, myriads of facts involved, and some discussions in interpretations of constitutions and legal instruments with constitutional endorsement, we do not think it would be helpful to analyse each one here. We shall only make the crucial point that, where the very issue is dealt with by the courts, the distinction between testimonial/communicative evidence (e.g. answering questions) and real/physical evidence (e.g. showing physical characteristics) is determinative whether the defendant’s right against self-incrimination has been violated (it has been violated in the former situation, but not the latter[54]). That is, these authorities expound on what constitutes self-incrimination as narrowly interpreted by Beattie v Scott without the sensitivity displayed by Beattie v Scott as to when the matter arises – before trial or during trial. 109.The right not to incriminate oneself is derived from common law. Depending on the words used, the protection arising from a constitution or legal instruments with constitutional endorsement in relation to a trial may be broader and not necessarily subject to the narrow interpretation at common law. The Provincial Court of Alberta made an instructive observation in Ermineskin on specific provisions of the Canadian Charter of Rights and Freedoms. See also the discussion of the Court of Final Appeal in Lee Ming Tee[55]. In any event, no matter how it is defined, be it by way of testimonial/communicative or real/physical evidence, the basic principle remains that an accused should not be required to assist the prosecution in proving its case at trial, and this is the starting point for any discussion. 110.We are of the view that the boundary laid down by Beattie v Scott is the correct one. As obiter, this division was also confirmed by the Judicial Committee of the Privy Council in Holland v HM Advocate[56] . The trial judge overstepped the line by asking D8 to make movements on his own initiative before the prosecution had closed its case and by allowing the prosecution to ask him to show his teeth. J.4.2 Non-APS photographs were taken 111.Unlike the current position, D8 objected to both the APS photographs (the three in which headshots were taken) and the non-APS photographs (thirty-two in total) at trial[57] on the following basis[58]:
In particular, D8 did not complain that photographs had been taken of him without being cautioned by the police (which was not disputed by the prosecution) because he adopted D5’s position at the time[59] that the police had the power to take photographs of arrested persons[60] under section 59 of the Police Force Ordinance, Cap 232. D8’s argument was that it was unfair[61] for the prosecution to adduce the photographs which he had not known that they would be used as evidence, i.e. he had not been voluntary in having photos taken of him. D8 confirmed that when photographs were being taken, his was “co-operative”[62], “He was compliant when the police told him to have photos taken” and “He did whatever he was told to do by the police”[63]. 112.This was followed by the oral ruling of the trial judge after hearing submissions of the prosecution and the defence[64]:
It is worth noting that Leung Tin Kei and Others [2018] HKCFI 2752 was described by the trial judge as “identical” to the present case, except that because none of the defendants were cautioned, consulted as to whether they were willing, told that they could refuse, nor informed of the purpose of the photographs, and they simply posed for photographs at the police’s request[65]; there was no allegation and evidence to show that the police had any ulterior motive and/or had used force or other means of coercion or inducement[66]. On the basis of the above facts and an analysis of section 59 of the Police Force Ordinance, the Court of First Instance finally ruled that: the police had the power to take APS and non-APS photographs, including photographs of a person wearing specified clothing; the purpose of the photographs could include the investigation of crime; the defendant had not been unwilling to co-operate; it would have been “more desirable” for the police to have given him a caution first; and the photographs were relevant to the subject matter of the case and had greater probative value than the prejudicial effect arising from the photographs, notwithstanding the absence of a caution, and there was no reason to exclude the photographs on discretion. In other words, the question of fairness was considered comprehensively. 113.The above analysis was set out point by point and in clear detail in the decision in [2018] HKCFI 2752. The trial judge indicated that the ruling was of very high referential value and D8 did not point out “what is unreasonable” and “what is refutable” in the ruling, which clearly meant that it was considered to be fully applicable to D8’s three APS photographs and 32 non-APS photographs. We do not consider that there was any ambiguity. Of course, a more common practice would be to discuss the relevant issues in some paragraphs in the Reasons for Verdict, but the fact that the trial judge did not do so does not mean that his approach was unclear and/or that his conclusion was wrong. As a matter of fact, even Mr Cheung was in the same position as the trial defence team of D8, i.e. he never specifically raised any criticism against [2018] HKCFI 2752. All that Mr Cheung kept repeating was the empty submission that “it was not fair to allow the photographs to be adduced”, citing cases (R v Director of Sections Fraud Office, Ex parte Smith [1992] 3 WLR; Lee v R (2014) 253 455; R v Seller 89 NSWLR 155; Li Shu-ling [1988] 3 WLR 671) that are wholly irrelevant to the issue at hand. 114.In the absence of specific and targeted assistance, we do not consider that a definitive judgement on the merits of [2018] HKCFI 2752 can be made in this case with immediate effect. We shall only point out that: (i) Unlike a case reconstruction which was much relied on by Mr Cheung and the trial defence team as example, the mere taking of photographs, even posed photographs showing a certain angle, posture or body parts should only be categorised as real/physical evidence according to the case law, and are not of a testimonial/communicative nature (see paragraph 108 above); (ii) whether they are APS or non-APS photographs, they are all taken during the investigation of the case, and are entirely different from the defendant being asked to assist the prosecution in proving its case at trial, and according to the case law, the court should be guided by a more flexible approach (see paragraph 105 above). Having said that, if we look at the trial judge’s identification of D8, he did not touch upon [2018] HKCFI 2752 because he did not use the APS and non-APS photographs of D8 for identification purpose. The trial judge recognised that they were the same person by comparing the screenshot of the video recording of the offender cursing at the scene (showing his protruding teeth) with the face of D8 making that expression in court (showing his teeth)[67]. In other words, on the one hand, the trial judge wrongly asked the defendant to assist the prosecution in proving its case, and on the other hand, he used this wrongly obtained evidence as the basis for comparing and ultimately identifying D8 as the offender. J.4.3 Whether proviso is applicable 115.In the circumstances described above, the safety of D8’s conviction must be in doubt, leaving only the question of the applicability of the proviso. In other words, but for the errors mentioned above and in the face of all the evidence properly adduced for identification, whether a properly instructed jury would have inevitably identified D8 as the offender. 116.Assuming that [2018] HKCFI 2752 was correctly decided, the evidence that could properly be used to compare D8 and the offender was the APS and non-APS photographs of D8, and all the video recordings and screenshots of the offender. The third item of evidence, namely D8’s normal movements and appearance during the trial (which did not go beyond the boundaries of Beattie v Scott), could not be considered because we are not the trial judge. In other words, the question for this Court is whether any trier of fact would have been sure that D8 was the person at the scene on the basis of the first two items of evidence. 117.It is not without some hesitations we answer the above question. In other words, we are of the opinion that D8 in the APS and non-APS photographs was definitely the same person as the perpetrator of the crime as video-recorded at the scene. This is not simply because of the protruding teeth in common (D8 did not in fact fully open his mouth when the non-APS photographs were taken), but because of the exact match between the two in terms of build, head shape, hair style, face shape, their eye-brows, eyes, ear, nose and mouth, as well as the facial geometry. However, identification is ultimately subjective and different people can come to different conclusions, so we are not of the view that it is possible to conclude any jury would have necessarily concluded so. J.5 Judgment 118.We allow D8’s appeal against conviction allow his appeal. His conviction and sentence on Charges 1 and 2 are quashed. K. Potential spillover effect 119.We have mentioned above that it was not just D8 but all the defendants who were called out of the dock to make the movements[68] . In other words, all of them had been asked to assist the prosecution in adducing evidence. However, as D6 and D7 did not dispute that they were present at the scene of the crime, this error had no effect on their convictions. As to D5 who denied his presence at the scene, we have carefully examined the other evidence, including that of Witness M (the ambulanceman), which could properly have been used for comparison and identification at trial, and consider that it is not an issue for D5 either. All the more so since D5 knew, but chose not to follow D8 in his appeal on the boundary of Beattie v Scott. L. Sentence appeals L.1 Sentence 120.The trial judge began the critical part of the judgment by stating the seriousness of the case as a whole as follows[69] :
121.This is followed by. sentencing on Charges 1 and 2 (Stage 1)[70] :
122.Then there are the two sets of sentences for Stages 2 and 3 i.e. on Charges 3, 4 and 5, 6 and the final sentence for D5 (6 years)[71]:
L.2 Appeal by D5 123.Complaints by Ms. Lam:
124.Key submissions:
L.2.1 Analysis and discussion 125.As with the arguments against conviction, the complaints made by Ms Lam in relation to sentence all suffered from the fault of emphasising on certain details in the course of events and avoiding the big picture. Taking the issue of false imprisonment as an example, it is true that D5 had argued with black-clad men about the man concerned, but according to the evidence of the ambulanceman (witness M), there were about 10 to 20 white-clad men who besieged the man and one of them “grabbed” him tight by the shoulders to make him lose his balance.[73] Moreover, regardless of the cause of the incident (D5 made an affirmation for his appeal against conviction that it was because the man took a photograph), the nature of the behaviour of D5 and of the other white-clad men was what made the whole case so serious as pointed out by the trial judge at the outset, namely that the men in white chose to “enforce the law by themselves”. To put it in a more formal way, it was to rob the law of its function and undermine the rule of law. To attribute the whole thing to the black-clad men not listening to advice was another example of fixing the focus on a particular detail. As we have already pointed out in the context of the appeal against D6’s conviction (paragraphs 70 to 72 above), there is no doubt that the white-clad men were the provocateurs from as late as the time when more white-clad men returned to their original location and crossed the road towards the black-clad men who had retreated there. Though not a large number of them, they brought in more rattan canes, and as D5 and D6 had already been convicted of conspiracy with others to wound, the seriousness of the matter was by no means as trivial as Ms Lam suggested. On the contrary, regardless of whether D5 himself had initially brought with him any rattan canes or other weapons, his actions and those of the other white-clad men were in uniformity, and were still in the nature of taking the law into their own hands, i.e. what the case law refers to as a “private settlement”. The above situation had remained unchanged up to the time at Yoho Mall I. Regardless of whether D5 entered the above site at a later stage or even on his own, his conduct (including the act of raising his hand to indicate to the other white-clad men) can by no means be explained away by the phrase “looking into the matter as a bystander”. Taking all relevant considerations into account, D5’s two sentences are not light, but they are by no means wrong in principle or manifestly excessive. The same is true of his total sentence. L.2.2 Judgment 126.We refuse D5’s application for leave to appeal against sentence and at the same time dismiss his appeal. The sentences on Charges 3, 4, 5 and 6 are upheld. L.3 Appeal of D8 127.As D8’s appeal against conviction is allowed, his sentence is quashed. M. Judgment of the whole case 128.Except for the appeals of Secretary of Justice and D8, which are allowed, the appeals of all other applicants are dismissed.
CACC 132/2021 Mr Lai Kim Wah, Derek, Senior Assistant Director of Public Prosecutions, Department of Justice and Ms Chan Wing Sum, Crystal, Senior Public Prosecutor, Department of Justice, for the Appellant Mr Kwan Tong Lee, instructed by Messrs. Lee & Co., for the Respondent CACC 171/2021 Mr Derek Lai, Senior Assistant Director of Public Prosecutions, Department of Justice and Ms Crystal Chan, Senior Public Prosecutor, Department of Justice, for the Respondent Ms Priscilia T Y Lam and Ms Karen Li, instructed by Messrs. Cheung & Liu, Solicitors, assigned by the Director of Legal Aid, for 1st Applicant (D5) Ms Fanny K H Wong, instructed by Messrs. Solomon C. Chong & Co., Solicitors, assigned by the Director of Legal Aid, for 2nd Applicant (D6) Mr James Y K Tze, instructed by Messrs. Damien Shea & Co., Solicitors, assigned by the Director of Legal Aid, for 3rd Applicant (D7) Mr Jeremy Cheung, instructed by Messrs. K. M. Tang & Co., assigned by the Director of Legal Aid, for 4th Applicant (D8) Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor. [1] D3 and D4 were not required to stand trial as they pleaded guilty to Charge 1 and Charge 2 was ordered to be left on Court’s file. [2] ‘Black-clad men’ and ‘white-clad men’ are generic terms, with members mainly, but not exclusively, dressed in black or white, and clearly opposed in conduct. [3] The content is extracted from paragraph 96 of the Reasons for Verdict. [4] The content is extracted from paragraph 144 of the Reasons for Verdict. [5] The content is extracted from paragraph 255 of the Reasons for Verdict. [6] The prosecution’sWritten Closing Submissionat trial: AB 650-655. [7] The prosecution’sWritten Closing Submission at trial: AB 660-661. [8] The prosecution’sWritten Closing Submission at trial: AB 662-665. [9] The prosecution’s Written Closing Submission at trial: AB 670 and 677-678. [10] The prosecution’s Written Closing Submission at trial: AB 680-681. [11] The prosecution’s Written Closing Submission at trial: AB 701-703. [12] Reasons for Verdict, paragraph106. [13] Reasons for Verdict, paragraphs 132 and 133. [14] The relevant Amended Perfected Grounds of Appeal are layered with textual complexity and need not be reproduced here. [15] Reasons for Verdict, paragraphs 214 and 215. [16] Reasons for Verdict, paragraphs 217 to 219. [17] Reasons for Verdict, paragraphs 220 to 222. [18] Reasons for Verdict, paragraphs 223 to 231. [19] Reasons for Verdict, paragraphs 232 to 235. [20] Reasons for Verdict, paragraphs 236 and 237 [21] The trial judge’s use of ‘D5’ to describe the man in question was partly discussed in the light of the prosecution’s account, and the rest of the time the man had been recognized as D5, depending on the context (same as below). In contrast, D6’s account was that he knew who D5 was but that the man in the video was not D5. [22] Reasons for Verdict, paragraphs 238 to 240. [23] Reasons for Verdict, paragraphs 241, 242, 243, 244 and 252. [24] Reasons for Verdict, paragraphs 159 to 164, 167 to 169 and 176 to 180 (in particular paragraph 180). [25] Reasons for Verdict, paragraph 181. [26] Reasons for Verdict, paragraphs 272 to 274. [27] Reasons for Verdict, paragraphs 275. [28] Reasons for Verdict, paragraphs 276 to 277. [29] 30 June 2020. [30] The Admitted Facts at trial also showed that D8 was in Hong Kong at the time of the offence. [31] Reasons for Verdict, paragraphs 134 and 135. [32] Appeal bundle pp. 346H to 347J. [33] Reasons for Verdict, paragraph 136. [34] Reasons for Verdict, paragraphs 137 to 141. [35] See paragraph 111 below. [36] Beattie v Scott 1990 JC 320. [37] Holt v United States 218 US 245. [38] Schmerber v California 384 US 757. [39] United States v Wade 388 US 218. [40] United States v King 433 F 2d 937. [41] United States v Statterfield 572 F 2d 687. [42] State of Michigan v Markley 99 Mich App 658. [43] Urquhart v State of Arkansas 621 SW 2d 218. [44] Kessler v Cupp Or App 502 P 2d 281. [45] Rutherfird v State 121 SW 2d 342. [46] Marcoux v The Queen [1976] 1 RCS 763. [47] The Queen v Nielsen (1984) 16 CCC (3d) 39. [48] The Queen v Cyr 6 CR (5th) 75. [49] R v Ermineskin 2020 ABPC 40. [50] R v Kirby [2000] NSWCCA 330. [51] Sorby v Commonwealth (1983) 152 CLR 281. [52] Bulejcik v The Queen (1996) 185 CLR375. [53] Evans v R [2007] HCA 59. [54] A better example of where the debate lies is mandatory polygraph testing. [55] HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133. [56] Holland v HM Advocate [2005] UKPC D1 (paragraph 37 of the judgment). [57] This at least shows that Mr Cheung accepted the taking of APS photographs and their use in identification. [58] Written grounds of objection for D8: Appeal bundle, p.798. [59] D5 objected to his APS photographs being submitted to court at trial but eventually withdrew the objection (Appeal Bundle p.818P). [60] Appeal bundle p.810B to D (D5) and p.814S to T and p.816R to T (D8). [61] Appeal bundle p.806D to F (D5) and p.813N to Q (D8). [62] Appeal bundle p.815D to E. [63] Appeal bundle p.815Q. [64] Appeal bundle pp. 818V to 819G. [65] At the time of D8’s objection, the police officer who took the photographs had not yet given evidence, but the prosecution never disputed that the photographs had been taken under a series of ‘no’s. [66] For D8, it is only at this stage that Mr Cheung raised the allegation that the taking of the APS photographs was sandwiched between two sessions of taking non-APS photographs, and that the practice was misleading, whereas there was no such allegation at trial. In any event, this allegation cannot be substantiated solely on the basis of the order in which the photographs were taken, and there could have been many innocent reasons for such a situation to arise. [67] See paragraph 139 of the Reasons for Verdict extracted at paragraph 100 above. [68] See paragraphs 98 and 99 above. [69] Reasons for Sentence, paragraphs 89 and 90. [70] Reasons for Sentence, paragraphs 91 to 95 and 98. [71] Reasons for Sentence, paragraphs. 99 to 106. [72] HKSAR v Leung Tin Kei [2020] 4 HKLRD 428 (paragraphs 79 and 80 of the judgment). [73] Reasons for Verdict, paragraph 155. |
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