HKSAR v. TANG KA MAN

DCCC 6/2022

[2024] HKDC 1890

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 6 OF 2022

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REASONS FOR VERDICT

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INTRODUCTION

1.  This case involves a riot that took place on 22 July 2019 around midnight at Long Wo Road and Yuen Long MTR Station[1]. A serious clash broke out between two groups of people whom mainly wore black and white tops.  The two groups attacked each other.  Some of the white tops were armed with wooden pole or and rattan stick. Most of the black tops held umbrellas, wore caps and facemasks[2].

2.  Police seized, inter alia, wooden poles, rattan sticks, umbrellas and  foam boards written with Chinese characters “Defend Yuen Long. Defend our Home.[3]” from the scene of the riot.

3.  Police arrested defendant (“D”)  on 26 September 2021, 26 months after the riot occurred.  The police charged D with (i)  Riot;[4] and (ii)  Conspiracy to wound with intent to do grievous bodily harm.[5]  D pleaded not guilty to both charges.

4.  In this case, there was no direct evidence to prove that D had committed acts related to the charges.  D made no admission either.

5.  Prosecution relies on CCTV footages seized at the Yuen Long MTR Station and video clips from open sources (collectively referred as “Footages”)  that showed what happened during the riot, and based on D’s photos taken at the police station and Immigration Department(collectively referred as “Photos”), and then compared the two to conclude that D took part in the riot.  

6.  The Footages include:-

(i)  CCTV footages of Yuen Long MTR Station (P5 & P6);

(ii)  Video clips from open source (P7- P14, P16 & P17);

(iii)  A screen capture from Ming Pao website (P15);

(iv)  Highlights of incidents at Ying Lung Wai (P18); and

(v)  Highlights of which Prosecution alleged that D was present (P19).

7.  Screen captures of the Footages are marked as P5a-P19a.

8.  The Photos include:-

(i)  D at the Immigration Department when he made his HKID card application on 5 July 2019 (P50); and

(ii)  D at the police station after he was arrested on 27 September 2021 in which a total of 24 photos were taken at different angles (P48).

LOCATION OF RIOT

9.  According to the prosecution case, an incident started at the entrance of Ying Lung Wai (英龍圍), where a green arch (綠色牌坊)  is erected, in Long Wo Road (朗和路). Yuen Long MTR Station (“YL Station”)  is located in Long Wo Road.  There is a staircase and an escalator in Long Wo Road connecting G/F of YL Station to the concourse of Exit J on 1/F of YL Station[6].

ISSUES

10.  The above Footages and Photos are admitted to be accurate. The defence does not challenge their authenticity. 

11.  The defence does not dispute that a riot took place. The main issue is whether the man alleged by prosecution in the Footages can be identified as D in the Photos. 

Charge 1: Riot

12.  In relation to Charge 1, whether the court can infer that D together with other people took part in the riot.

Charge 2: Conspiracy to wound with intent

13.  In relation to Charge 2, whether the court can infer that there was an agreement between D and others to unlawfully and maliciously wound with intent to do others grievous bodily harm.

ADMITTED FACTS

14.  Around midnight on 21 July 2019, a group  of not less than 20 persons, mostly wearing white tops (“White Tops”)  and holding wooden poles and rattan sticks, gathered outside Ying Lung Wai in Long Wo Road and YL Station.  At that time, a group of around 40 persons mostly in black tops (“Black Tops”)  and some reporters were also at the scene.

15.  Around 0003-0005 hours, more White Tops joined in.  The White Tops (not less than 40 persons)  had a dispute with the Black Tops (not less than 40 persons).  Some White Tops scolded the Black Tops and engaged in physical scuffles with them.

16.  Around 0005-0007 hours, the situation intensified and turned into a violent confrontation between the White Tops and the Black Tops. Some Black Tops ran towards YL Station.

17.  The White Tops chased the Black Tops to the area near the entrance of Exit J of YL Station.  They went up to the 1/F of YL Station.  They attacked the Black Tops with wooden poles and rattan sticks inside the concourse near Exit J.

18.  Around 0016 hours, the White Tops left Exit J.

19.  According to the Immigration Department’s movement record (P49), D was present in Hong Kong when the riot took place.

THE PROSECUTION’S CASE

20.  Prosecution relied on three witnesses for its case, two of which are civilian witnesses.  Their evidence was admitted under Criminal Procedures Ordinance, section 65B[7]. The other witness is a police officer who viewed all the Footages and identified a man whom the prosecution alleges was D.  D was at the scene and he took part in the riot and conspired with others to wound.

21.  PW1 (A)  is an ambulance officer.  At 2300 hours on 21 July 2019, he learnt via radio that someone was injured in YL Station.  At 0000 hours on 22 July 2019, he saw a man surrounded by White Tops outside the green arch, the entrance of Ying Lung Wai (see screen captures at P7a(1)).  They refused to let PW1 to assist this person.  At 0007 hours on 22 July 2019, PW1 went to Exit J of YL Station.  He saw a man in white top was lying on the ground with a wooden rod of about 3 feet long in his right hand (P11a(4)).  PW1 and his colleague assisted this man.  On that night, he also gave assistance to several injured person.

22.  PW2 (B)  is a lawyer.   At 2245 hours on 21 July 2019, he was on his way to YL Station.  He saw about 10 White Tops, holding weapon in their hands, yelling and walking towards YL Station.  In YL Station, PW2 saw some ambulance men guarding a room.  About 15 minutes later, police officers arrived.  They brought the people from that room to receive treatment.  However, men who dressed in different colours started to scold and shout at the police officers. They demanded the police officers leave. The police officers left the YL Station under pressure.  The scene was calm again. After a while, PW2 saw a clash broke out at G/F of Exit J of YL Station.  The White Tops rushed upstairs and dashed to Exit J of 1/F ( P9a (4-5)). PW2 tried to persuade them not to do so but failed (P8a(1)).   

23.  DPC 19264 (“PW3”)  spent 150 hours viewing the Footages in late March 2024 to August 2024 upon instruction from his senior.

24.  PW3 identified a male (thereafter referred as “X”).  He circled X with red on screen captures (P19a).  PW3 said X has the following features and outfits:

(i)  He has short black hair.

(ii)  He wore a white T-shirt with a red rectangular pattern printed with “LEVI’S” in white on the chest.

(iii)  He wore black shoes and pants.

(iv)  He had a black shoulder bag with “VLTN” in white printed all over the strap.

25.  Defence did not dispute X circled by PW3 on P19a was the same person.

26.  P18a and P19a are screen captures of highlights of the Footages showing the situation of Ying Lung Wai, Long Wo Road and Exit J of YL Station at the material time in sequence ( Asterisk * is used in showing a repetition of incident but taken at different angles).  The following table described what had happened on 22 July 2019 at the material times:-

Exh. no	Time (hr)	Location	Description
P18a (1)	00:00:40	Outside entrance of Ying Lung Wai near the green arch in Long Wo Road	The White Tops gathered near Ying Lung Wai, restrained a male from leaving and prevented an ambulance officer (PW1)  from assisting the male.
P18a (2)	00:03:43	-ditto-	The White Tops scolded  the Black Tops and had physical scuffles with the Black Tops.
P19a(1)	00:05:17	-ditto-	X walked from the direction of Ying Lung Wai and joined the White Tops.
P18a (3)	00:05:40	Outside Ying Lung Wai, Long Wo Road	The White Tops attacked the Black Tops by wooden poles or rattan sticks.
P19a(2)	00:06:26	G/F of Exit J of YL Station in Long Wo Road	The White Tops attacked the Black Tops.  X was among the White Tops.
P18a(6)	00:07:02	-ditto-	A White Top attacked a person with orange helmet by wooden pole.
P19a(4)	00:07:05	-ditto-	X picked up a site light and threw it at the Black Tops.
P18a(7)*	00:07:09	-ditto-	The White Tops attacked the Black Tops.  X was among the White Tops.  He picked up a site light and threw it at the Black Tops.
P19a(5)*	00:07:13	-ditto-	The White Tops attacked the Black Tops.  X was among the White Tops.
P18a(8)	00:07:54	-ditto-	A White Tops collapsed onto the ground with a wooden rod holding on right hand.
P18a (9)	00:08:50	-ditto-	The White Top chased and attacked the Black Tops to ground floor outside Exit J.
P19a(6)*	00:09:05	-ditto-	The White Tops gathered at ground floor outside Exit J.  X was among the White Tops.
P18a(10)*	00:14:21	G/F of Exit J of YL Station, Long Wo Road	The White Tops and X gathered at ground floor outside Exit J.
P18a(11)	00:15:05	Staircase leading from G/F of YL Station  to 1/F of Exit J	The White Tops went up the staircase to the entrance of Exit J and attacked the Black Tops.
P18a(12)	00:15:29	Outside Exit J of 1/F of YL Station	X held a rattan stick and stood among the front line of the White Tops.  X also threw a wooden stick at the Black Tops.
P19a (7)	00:15:33	-ditto-	The White Tops attacked the Black Tops outside Exit J.  X held a rattan stick and stood among the front line of the White Tops.
P19a(8)*	00:15:37	-ditto-	The White Tops attacked the Black Tops at the entrance of Exit J.  X threw a wooden stick at the Black Tops.
P19a(9)*	Around 00:15	-ditto-	The White Tops attacked the Black Tops outside Exit J.  X held a rattan stick and stood among the front line of the White Tops.
P18a(13)	00:16:07	Escalator outside Exit J of YL Station leading to Long Wo Road	X and the White Tops left Exit J.

THE DEFENCE’S CASE

27.  At the closing of the prosecution’s case, there was no halfway submission by the defence.  I ruled that there was a case to answer in respect of the two charges.  D elected not to give evidence and called an alibi defence witness, Madam Wong Wing Yan (DW).

28.  DW was a restaurant owner in Wong Uk Tsuen (黃屋村)  in Ying Lung Wai in Yuen Long.  It took five minutes to walk from Exit J of YL Station to get to the restaurant.

29.  DW started her the restaurant with her husband since 2014.  It was closed down in 2023.  Apart from DW, her husband and a waiter assisted in serving the customers.

30.  The restaurant was operated in a typical village house consisted of G/F, 1/F and 2/F.  It measured about 700 ft² on each floor.   There were 16 tables on G/F, two big tables on each of 1/F and 2/F.

31.  DW said she had always allowed regular customers to hang around to chat and drink even after the restaurant closed its business.  She would then leave the restaurant and ask the customers to close up the restaurant for her.

32.  DW recognized D as a regular customer.  He used to visit her restaurant about three times a month.  He often came to the restaurant for meal with his friends at nighttime.

33.  At about 9pm on 21 July 2019, D visited her restaurant with 8 to 10 of his friends to eat.  He stayed on 2/F of the restaurant.  DW said she had particular recollection because a riot and fight happened in Yuen Long during that night.

34.  At 12:30am on 22 July 2019, DW and her husband left the restaurant after D paid the bill.  She allowed D to continue to stay in the restaurant with his friends.

35.  DW closed down the restaurant in 2023. She held a closing party with her regular customers.  D attended that party.

36.  In all her time knowing D, DW said D had always worn glasses and an all-back hairstyle as he did in court.

37.  During cross-examination, DW said she was busy with the customers as it was a Sunday night on 21 July 2019.  She went to the upper floors to serve the customers every 15 minutes to see if any help was required.

38.  The prosecution questioned that D left the restaurant when she did not pay attention.  DW denied it.  She insisted that she would definitely see D had he left the restaurant.  Customers on the upper floors had to leave by the staircase within the restaurant.  She would have noticed if D left.

39.  The prosecution showed the following photos to DW and asked if she confirmed the man shown is D.  The photos include:

(i)  a screen capture from the website of Ming Pao (P15);

(ii)  photos taken by the police at the police station (P48); and

(iii)  a photo from the Immigration Department (P50).

40.  DW replied that she did not know the man on the above photos and she had never met him before.  She insisted D always wears glasses and an all-back hairstyle.  It has always been the same in the past years.  The man shown in the photos is not D.

ANALYSIS OF EVIDENCE

41.  I direct myself that the burden of proof is on the prosecution.  It is for the prosecution to prove each element of each charge against D beyond reasonable doubt.  D bears no burden of prove.  He is not required to prove his innocence.

42.  D elected not to give evidence.  It is his rights and no adverse inference would be drawn against him.  However, this means that there is no evidence to undermine, contradict or explain the evidence presented by the prosecution.

43.  I also direct myself that I have to consider the case against D on each charge separately.

44.  I note from D’s movement record (P49)  that D left Hong Kong on the very same day at 2152 hours on 22 July 2019 and returned to Hong Kong on 28 July 2019.  I will not take it as D’s flight after the crime.  There are many innocent reasons why he left Hong Kong.  This is not evidence of guilt.  I would not take this evidence as a way to support the prosecution’s case.  I will not make any adverse inference by the mere fact that D left Hong Kong on the same night.

45.  I also take notice that outfit wore and the black bag carried by X could not be found at D’s home.

46.  The only evidence against D on each charge comes from the Footages.

47.  In the defence case, DW was an alibi witness for D. 

48.  The defence submitted that DW testified in a straightforward manner and her evidence is full of particulars.  She remained firm during cross-examination.  I consider the submissions in full and take the following matters in consideration.

49.  In assessing DW’s credibility, I bear in mind her criminal record was 20 years ago.  I consider her evidence on the basis that she is a person of clear record.  This is relevant to her credibility when she testified.

50.  DW said D was in her restaurant at 9pm on 21 July 2019 and he stayed until 12:30am on 22 July 2019.  She was certain because she would have noticed D had he left through the staircase within the restaurant.   In my view, I find that DW cannot make such a conclusion.  Firstly, DW was not with D during these 3.5 hours.  Secondly, she might have been to the toilet.  Even if not, she needed to serve customers on different floors.  D could have left the restaurant without her knowledge.  I find her alibi evidence to be not helpful to the defence case.

51.  According to DW, she had known D for years.  D had always visited her restaurant three times per month since 2014.  D even came to the party in 2023 when her restaurant closed down.  She said that D always wears glasses and his hairstyle is all-back.  During cross-examination, she was shown Photos taken by police (P48)  and Immigration Department (P50).  She was also shown a screen capture (P15)  from the Ming Pao website which showed that X was holding a rattan stick in front of the Black Tops.  She insisted that the man in P48, P50 and P15 is not D.  She explained that the man of the above photos did not match with D’s appearance.

52.  In this respect, I do not find DW to be credible. It is undisputed and non-disputable that the man shown in P48 and P50 is D.  D’s hairstyle in the photos is obviously different from that of D in the court hearing.  However, hairstyle can easily be changed.  The same applies to wearing of glasses.  DW cannot base her recognition by reference to the hairstyle and glasses only.

53.  DW emphasized that for all the times that she met D, D wore glasses with his all-back hairstyle.  His look is the same as he appeared in the court hearing.  There is no evidence to disprove DW’s testimony.  However, it is inconceivable that D wore glasses and had his all-back hairstyle whenever he visited the restaurant.  Then due to reasons unknown, D changed his usual look when he took his ID card on 5 July 2019 and on 26 September 2021when he was arrested by the police.  He did not wear glasses and has his hair parted on the right.  I find it inherently impossible and unthinkable why D would have changed his usual look on these two particular two occasions.  It is unreasonable that D would change his hairstyle and wear glasses only when he visited the restaurant.

54.  Under such circumstances, I find DW to be untruthful and unreliable.  I find that I cannot give her evidence any weight on D’s look in this respect.

55.  Even though I find that DW had been dishonest, I do not convict D upon this.  D has nothing to prove. 

IDENTIFICATION

56.  This case depends wholly on the correctness of the comparisons between the Footages with the Photos.

57.  Prosecution alleges that D’s appearance matches with X in the Footages.  They are to prove that D was present at the crime scene.

58.  Defence does not dispute that the man circled by PW3 in P19a being the same person.

59.  I notice that the identification of X in the Footages by PW3 was only by reference of his outlook and clothing without any reference to X’s facial features.

60.  Due to this shortcoming, I would carry out the exercise of comparison myself.  It is not that PW3 had made the wrong identification of the same man.  On the contrary, I am satisfied that PW3 identified the same person, X, in the Footages.  I have this finding due to the following reasons.  There were many men wearing white tops in the Footages. However, the men in White Tops differed in their age, shoes, pants, hairstyle and body build.  Some of them were wearing caps and most of them did not.  Some of them were wearing glasses and some did not.  Some of them carried shoulder bags as X did, but the size and color of the bags were different.  By making comparison of the men circled in P19a, I am sure, that they are all the same man.  The most distinctive feature is the pattern on his T-shirt with a red rectangular shape with characters of LEVI’S in white and the unique characters of VLTN over the whole strap of his shoulder bag. The cumulative effect of the outfits and hairstyle makes me sure; the man circled by PW3 is the same person.

61.  Being a tribunal of fact, I now turn to whether I can reach a conclusion that D is X in the Footages.  

62.  In R v Dodson & Williams [1984] 79 Cr App R220, the court  held that, “juries are called upon to do no more than the average person in domestic, social and other situations does from time to time, namely, to say whether he is sure that a person shown in a photograph is the person he is then looking at or who he has seen recently.”

63.  D wore a surgical mask during the course of the 3 days’ trial. He wore glasses and his hairstyle was all-back. Therefore, I do not have the opportunity to make the visual comparison of D’s facial features in court with the Footages.  I have to rely solely on comparing the Photos with the Footages.

64.  When making identification and comparison, I understand that the need for caution before convicting D in reliance on the identification evidence.  I can only convict D only when I am sure that he is X.  I consider the authority of HKSAR v Tagao Saudee Abad CACC 366/2015 and gave myself a full Turnbull warning when comparing the appearance of D on the Photos with X shown in the Footages.

65.  The Photos taken at the police station (P48)  and Immigration Department (P50)  are of high clarity with excellent resolution.  They show the appearance of D before and after the riot occurred. 

66.  P50 is an application to Immigration Department for HKID card dated on 5 July 2019.  It was 17 days prior to the riot took place. I find this photo (P50)  truly reflected how D’s hairstyle looked like in July 2019.  P48 is photos taken at the police station on 27 September 2021, which was 26 months from the riot.  D’s hairstyle in 2021 remained the same except that the hair was a bit longer. Based on the two sets of photos in P48 and P50, I find that D did not habitually wear glasses.  He had a short hairstyle parted on the right in 2019. He kept the same hairstyle even to 2021.

67.  Due to the better lighting conditions, the Footages acquired indoors were of better clarity than the ones in outdoors.  However, the Footages enable the court to observe the appearance of X with no difficulty.  Besides, I find the actual images shown on the Footages were of much better resolution than that of the printed screen captures (P5a-P19a)  of the Footages.  I believe it is due to the quality of the printer used by the prosecution was not high enough.  I would rely on the viewing of the actual Footages myself.  The screen captures (P5a-P19a)  of the Footages are just used for easy reference.

68.  Prosecution extracted still photos from the Footages with enlarged appearance of X (P55-P60)  for  comparison.

69.  Now I turn to decide if X shown in the Footages is D.

70.  I have viewed the Footages repeatedly with normal and slow speed on X, in particular examined the still image obtained from Ming Pao website (P15).  I paid attention to his hairstyle, facial features, including shape and size of his eyebrows, eyes, nose and lips (P55-P60).   I noticed that X has distinctive thick eyebrow and big long ears.  He is chubby with a belly.  His hair is short with hair parted on the right.

71.  I pay special attention to the Photos in relation to D’s facial features, including shape and size of his eyebrows, eyes, nose and lips.  They show that D has a distinctive thick eyebrows and big long ears.  I also pay attention to his hairstyle and body build.  The photos (P48)  taken by police was on 27 September 2021 showed that D was of chubby build with a belly. He had short hair with his hair parted on the right.

72.  I fully appreciate that resemblance in appearance was not sufficient to convict.  I have to be sure D and X are the same person.  I remind myself the potential risks and dangers of mistaken identification.

73.  Upon comparison, I find that D’s appearance, in particular his facial features, was identical to that of X depicted in the Footages.  I am sure that X was D.  I find that D deliberately changed his hairstyle and wore glasses in the court hearing to make him look different from the Footages and the Photos.

Charge 1 -Riot

74.  In HKSAR v Lo Kin Man (盧建民) (2021)  24 HKCFAR 302, the Court of Final Appeal said the offence under s19 of the Public Order Ordinance built on that of unlawful assembly.  Its starting point was that an unlawful assembly existed.  When any person taking in the unlawful assembly committed a breach of the peace, the assembly became a riot.  The actus reus of this offence was committed when any person ‘takes part’ in the riot.

75.  Defence does not dispute a riot took place at the material time, day and place. For completeness, I still make the ruling as to whether there was a riot.

76.  In the present case, obviously, there were three or more participants remained actively engaged in the criminal assembly.  Their taking part in the assembly committed breaches of the peace.  I find that there was a riot took place on 22 July 2019 during the time at the place.

77.  Based on the above finding that X is D, I find that D was one of the participant in the riot. I find that X had thrown a site lamp, a wooden stick and pointed a rattan stick towards the Black Tops.  His presence was more than encouragement to other participants.  I find that he had taken part in the riot. He was one of the principal and provided encouragement by action.

78.  Now, I turn to the mens rea for taking part in the riot. 

79.  Mr Boyton submitted that the prosecution failed to prove that D had the common purpose of inflicting serious bodily harm.  With respect, I reject Mr Boyton’s submission.  No extraneous common purpose has to be shown in the offence of riot. The proof of a defendant’s participatory intent is sufficient (see paragraph 47 &48 of Lo Kin Man).

80.  From the admitted facts and the Footages, I can draw an only irresistible inference that D intended to take part in the riot along with other participants in the riotous assembly.

81.  Due to the above reasons, I find that D guilty of the offence of riot.

Charge 2 - Conspiracy to wound

82.  As to the nature of conspiracy charge, in HKSAR v Lai Kam Fat(2019)  22 HKCFAR 289, the Court of Final Appeal said:

“36. In satisfying the requirement that a course of conduct, if carried out in accordance with the parties’ intentions, will necessarily amount to or involve the commission of an offence, it is important that both the actus reus and the mens rea elements of the underlying offence are satisfied. Thus, in Saik, Lord Nicholls emphasized that under the English equivalent of section 159A (1):

‘…The conspirators must intend to do the act prohibited by the substantive offence. The conspirators’ state of mind must also satisfy the mental ingredients of the substantive offence. If one of the ingredients of the substantive offence is that the act is done with a specific intent, the conspirators must intend to do the prohibited act and must intend to do the prohibited act with the prescribed intent.’ ”

83.  In the present case, the substantive offence of s17 wounding requires proof of a specific intent: see HKSAR v Chung Chi Fai CACC 497/2012.

84.  Mr Boyton submitted that for the charge of conspiracy to wound with intent, the prosecution must prove the conspirator’s state of mind, satisfying the mental element of the substantive offence.

85.  I accept Mr Boyton’s submission.  I find that for the offence of conspiracy to wound, the prosecution must prove that the defendant had a specific intent to wound and to cause serious body injury.  The general intent and recklessness to commit is not enough to establish guilt.

86.  I find that D held a rattan stick before the Black Tops.

87.  In the prosecution case, there is no direct evidence that there was an agreement between the parties.  However, the conspiracy can be proved by inference from conduct.  An inference can only be drawn from the proved facts.

88.  Based on the admitted facts, the Footages and statements from the 2 civilian witnesses, I find the following facts are proved beyond reasonable doubts:-

(i)  The White Tops came from Ying Lung Wai, Long Wo Road near the green arch. Many of them held wooden poles and rattan sticks. They gathered outside Ying Long Wai and YL Station. D was in white T-shirt. He was among the White Tops.

(ii)  At that time, the Black Tops and some reporters were also at the entrance (the green arch)  of Ying Lung Wai. Most of the Black Tops wore caps and facemasks.

(iii)  The White Tops scolded the Black Tops and both engaged in physical scuffles.

(iv)  The White Tops attacked the Black Tops with wooden pole or rattan sticks.

(v)  The Black Tops ran towards YL Station along Long Wo Road. The White Tops chased after the Black Tops. The Black Tops defended themselves with umbrellas[8].

(vi)  The White Tops chased the Black Tops and went to the area near G/F of Exit J of YL Station. There were about 100 people at the place[9].

(vii)  D picked up a site light and threw it at the Black Tops.

(viii)  Both the Black Tops and the White Tops went up to Exit J on 1/F of YL Station.

(ix)  Some of the White Tops attacked the Black Tops with rattan sticks[10]. The Black Tops, who wore cap and facemask, opened their umbrellas to guard the attack[11].

(x)  D held a rattan stick and stood among the front line of the White Tops. D also threw a wooden stick at the Black Tops.

(xi)  D left Exit J by the escalator with the White Tops.

89.  Having considered the proved facts above, I find by drawing an irresistible inference that:-

(i)  The White Tops and the Black Tops attacked each other.

(ii)  There was an agreement between the White Tops to wound the Black Tops by rattan sticks and wooden poles.

(iii)  D was wearing a white T-shirt and holding a rattan stick. I find that D was one of the White Tops. He was a party of the agreement to wound.

90.  I have examined the rattan sticks closely.  They are of about 80cm in length and 1 cm in diameter.  They are hard and rigid in nature.  On one end of the rattan stick, it is wrapped with thin white rattan strips as handle. The length of the rattan stick makes it easy to attack someone at a distance.

91.  I do not accept defence’s submission that the rattan sticks were picked up from the vicinity.  Given the specific nature of the rattan sticks and the number of White Tops holding rattan sticks during the riot, I find that the rattan sticks must have been brought to the scene of crime deliberately.  There must be prior planning. 

92.  Defence further submitted that there is no evidence of any wounds (cutting of the skin)  inflicted on anyone.  It diminishes the irresistible inferences that there was an intent to wound.  This also reduces inference that the participants were able to foresee an intention to wound with intent.

93.  I disagree with the above submission.  I find that the rattan sticks are not lethal in nature.  However, the hitting by which will bring grievous bodily harm like bruises and even bleeding, resulting in laceration of skin.

94.  It is undisputed that the Footages showed that the White Tops attacked the Black Tops with wooden poles or rattan sticks.  There was no evidence that D had himself done any act causing injury to those people.  However, D armed himself with a rattan stick and took part in the riot.  He also acted as an accessory, encouraging the White Tops to commit the intended offence to wound: see HKSAR v Chan Kam Shing (2016)  19 HKCFAR 640, paragraph 100.  

95.  Conspiracy to wound is an inchoate offence. It is unimportant whether D did actually inflict grievous bodily harm on others[12].

96.  In a usual wounding case involving a direct attack with weapon, as the present case using of wooden poles or rattan stick, I believe that any reasonable jury would conclude that the “intent” required under section 17 had been sufficiently proved.  I find that D had the specific intent for wounding with intent.  I find that D foresaw grievous bodily harm as an inevitable consequence of hitting with wooden pole or rattan stick. 

97.  For the above reasons, I find that D is guilty for the offence of conspiracy to wound.

VERDICT

98.  I find that prosecution has proved every elements of the two charges against D to beyond reasonable doubt. Therefore, I convict D for both charges.