律政司司長 訴 林卓廷及另二人

On 9 October 2026, the Court of Appeal (Pang JA, Yeung JA and Cheung J) handed down judgment in CACC 12/2023 and CACC 29/2023, [2026] HKCA 1775, dismissing the Secretary for Justice's case-stated appeal against the acquittals of Lam Cheuk Ting (D1), Tsang Chun Hei Ronnie (D3) and Chung Hoi Yin Aggie (D4), but partially allowing the HKSAR's costs appeal. Mr Shum Shi Man acted for D1; Mr Wong Yu Yat acted for D4; D3 appeared in person. Assistant DPP Cheung Cheuk Kun appeared for the Secretary for Justice.

The case arose from a confrontation outside Tuen Mun Police Station on 6 July 2019. A civilian X was surrounded by a hostile crowd demanding he surrender his phone. D1 and D2 (both former legislators) attempted to mediate; D4 (a social worker) was handed the phone and examined it; D3 (a citizen journalist) addressed X during the mobbing. D1 faced one count of perverting the course of public justice; D3 faced perverting the course of public justice and unlawful assembly; D4 faced dishonest access to a computer and criminal damage. The trial judge acquitted D1, D3 (on the perverting charge) and D4 of all charges, and awarded costs to D1 and D4.

The Secretary for Justice challenged the acquittals by way of case stated, raising errors in the trial judge's approach to the "discernible link" requirement under the perverting offence, D1's mens rea, the dishonest access elements, and various other matters.

The Court of Appeal agreed the trial judge had erred in several respects. On the perverting charge, he was wrong to treat factors such as whether police knew of the alleged 1 July footage, whether X would have cooperated, or whether there was any police mechanism to seek evidence as relevant to the "discernible link" requirement (§54). As the authorities make plain (_Wong Shing Yim Peter_, _Egan_, _Rogerson_, _R v Rafique_), an act that tends to deflect police from prosecuting or adducing evidence can constitute perverting the course of justice, even where the police investigation has not begun. The trial judge also mistook motive for intent regarding D1's conduct, given his express statements linking the photographs to potential criminal liability for the demonstrators (§52).

The Court nevertheless upheld the acquittals. For D1 and D3 on the perverting charge, the prosecution failed to establish beyond reasonable doubt that the alleged 1 July photos or videos had actually existed on X's phone: the digital forensic expert could not locate or recover them, and X's claim that he had never downloaded Instagram was not investigated (§58-60). The actus reus of the offence, a clear tendency to pervert, was therefore not made out. For D4 on the dishonest access charge, although the trial judge erred in equating motive with intent, there was a proper basis to find she honestly believed she had X's consent to view the phone (§66). For D4 on criminal damage, the evidence could not establish the existence of the deleted material, and the statutory definition of property stored on the phone was not engaged (§68-69).

On costs, the failure of D1 and D4 to call police was significant. As to D4 and the dishonest access charge, this omission was consistent with self-incrimination and could not be reconciled with her acquittal, so the costs order on that charge was set aside. The remaining costs orders stood: the prosecution had never had sufficient evidence to support the allegations.

For practitioners: in mobile phone evidence prosecutions, expert evidence establishing the existence of the data is essential. The _Lew Mon Hung_ framework lowers the bar for the "discernible link" requirement but does not relieve the prosecution of proving the actus reus.