HKSAR v. LI KWAN HO AND OTHERS

[English Translation - 英譯本]

CACC 31/2022

[2022] HKCA 1710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 31 OF 2022

(ON APPEAL FROM DCCC 720/2020)

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REASONS FOR JUDGMENT

Hon Pang JA (giving the Reasons for Judgment of the Court):

1.  The present case originated from the District Court. The three applicants (D1, D2 and D3) were convicted after trial for an offence of “conspiracy to commit criminal damage”. The trial judge (HH Judge Yiu) sentenced each of them to 18 months’ imprisonment while D4 in the case was acquitted. D1 to D3 were aggrieved; they applied for leave to appeal the convictions. In addition, D2 sought to appeal his sentence. All applications have been directly put before the Court of Appeal for disposal.

Salient facts

2.  On 5 September 2019, at 0145 hours, the police noticed that a private car (“the Car”) was parked on Wu Shan Road, Tuen Mun, near the Castle Peak Wholesale Fish Market. At that time, D1 was at the driver seat with D2 and D3 at the rear passenger seats.

3.  From the search which followed, items such as gloves (three pairs in total), hoods (four in total), goggles (three pairs in total), swimming goggles (one pair in total), sun-glasses (one pair in total), arm sleeves (two pairs in total), face masks (three in total, one in a pocket of D3’s trousers), 3M mask with filter (one in total), T-shirts and shorts (two sets in total) and one cap were found in the three applicants’ rucksacks. In D1’s rucksack, the police also found one hammer, one screwdriver, one wrench, one pair of pliers and one lighter.

4.  The police arrested the three applicants for the offence of “possession of instrument fit for an unlawful purpose”, and D4 was arrested later.

Basis of the charge

5.  The prosecution charged D1 to D4 with the offence of conspiracy, alleging that they had agreed to damage the “facilities of Light Rail Stations” because the drive recorder (“the Recorder”) on the Car had taken video and audio recordings en route the Car ride, the scene outside along the journey in that evening as well as the conversations among the three men and one woman on board[1], from which it was considered that an irresistible inference could be drawn that the above four persons had agreed to commit a crime. At the time of the police interception, D1 to D3 were the only ones left because D4 got off some time before[2].

Material evidence

6.  In the present case, the scope of the issue in dispute is narrow; therefore, it was not necessary to refer to a lot of details here and a brief explanation of the following evidence suffices.

(Custody of the Car)

7.  According to the trial judge’s recount in his Reasons for Verdict, after the police had put the scene under control, among the three persons, D1 was the first one being demanded to get out of the Car for investigation, and the key to the Car was surrendered at the same time. The time of his arrest was 0152 hours[3].

8.  It was only when the reinforcement arrived later that D2 and D3 were allowed to get out for the purpose of investigation, which was at 0206 and 0212[4] hours respectively. Subsequently, they were also arrested one after the other.

9.  Finally, the trio in question were taken away while the Car remained there until the officers concerned arrived (0431 hours) and finished taking photos (0434 hours), and it was only after that that it was driven by the police to the Castle Peak Police Station (arriving at 0440 hours)[5].

10.  It was necessary to point out the following: the Car key produced by D1 had been kept by PW1[6], PW3, PW4 and PW5 at the scene at different stages. PW5 was the police officer who had driven the Car to Castle Peak Police Station[7]. At Castle Peak Police Station, PW5 passed the Car key to the duty officer for it to be kept within D1’s prisoner’s property (“prisoner’s property”)[8].

(Custody of the memory card)

11.  At 1718 hours on 5 September, i.e. about twelve hours after the Car had arrived at Castle Peak Police Station, PW6 took D1 out from the duty officer and searched the Car, as witnessed by D1.

12.  According to PW6’s testimony: When searching the Car, he did not need to open the tamper evident property envelope to use the car key kept inside it to unlock the anti-theft device of the Car. He removed the memory card (“the Memory Card”) from the Recorder on board and put the Memory Card into a tamper evident property envelope numbered B2713509[9]. At 0110 hours on 6 September, he handed B2713509 together with the Memory Card to PW9[10].

13.  What PW9 said was different. He only said that he had seized the Recorder, and the time was the same, that is, after 1:00 am on 6 September. In his testimony, he did not mention any memory card[11].

14.  A third version was given by PW7: At 2115 hours on 5 September, she received B2713509 from a police officer PC45079. At 0725 hours on 6 September, she cut open B2713509 with scissors and checked the content of the Memory Card for about five minutes. After confirming that the content was relevant to the present case, she put the Memory Card and the cut-opened B2713509 into a new tamper evident property envelope numbered B1858850, sealed it and put her signature on it. At 1448 hours on 6 September, she handed over B2713509 together with the Memory Card to PW8, who was responsible for digital forensic examination, and viewed the content of the Memory Card together with PW8. Subsequently, PW8 burnt four CDs from the Memory Card, which are the exhibits produced in the present case[12], and passed them to PW7.

15.  In other words, there were discrepancies and gaps in the evidence as to on which day and by what means the Memory Card was given to PW7.

(Content of the Memory Card)

16.  As to the content of the recordings in the Memory Card, it was only in the course of the trial that a recording of 13-second discontinuous video images (“discontinuous footage”) was discovered. The video images appeared only when the recording was played with the software used by the defence but not with that used by the police[13].

17.  Chief Inspector Chan Kiu Chui did not testify in court, but his written record was produced as evidence. He had examined the Recorder and content of the Memory Card. He found it was in a loop recording mode and the length of each recording was set at one minute by default[14].

18.  PW10 had been attached to Tuen Mun District for over ten years and was very familiar with the roads in the district. According to the video images in the Memory Card, he marked the route of the Car on the map. Based on the audio recording in the Memory Card, he could also confirm that the discussion among the people on board was about various locations within the Tuen Mun district, such as Siu Hong, Leung King, Sun Tuen Centre (i.e. Sun Tuen Mun Centre) and Tuen Mun Ferry Pier Light Rail Transit (LRT) Stations and the Light Rail Depot. He said that the images showed that the place where the Car finally arrived was Castle Peak Police Station[15].

19.  PW10 said that he had never seen the discontinuous footage mentioned above before the trial began, and the highway shown in that footage seemed to be leading to Tin Shui Wai[16].

20.  Apart from the Memory Card, there was also footage retrieved from the CCTV recordings in communal areas, which could be used for cross-reference to the movement of the Car and even of the four defendants at the time of the offence[17].

(Admitted facts)

21.  Quite a lot of facts were admitted in the case, and those more crucial are as follows: the registered owner of the Car was D1’s father[18]; D1 to D3 resided in Tuen Mun, at Yoho Midtown, Pierhead Garden at Wu Chui Road and Sun Tuen Mun Centre[19] respectively; D2 and D3 were captured by CCTV cameras at different locations in the district over the night from 4 September to the small hours of 5 September[20].

Defence case

22.  D1 to D4 did not give evidence or call any witness. In defence, they challenged the chain of evidence in respect of the Memory Card[21] and also queried whether it had been tampered with. The four contended that even on the content of the Memory Card, they were only discussing and had yet to reach any agreement. D4 even disputed whether she had ever been on board the car[22].

Verdict of the trial

(Tampering with exhibits was ruled out)

23.  The trial judge found that there was no problem with the safekeeping of the Car and the Memory Card and also the discontinuous footage[23]:

“42. In respect of the above allegations, the prosecution basically suggested the following:

(i) In any event, after PW6 had completed the seizure of the memory card, it was properly sealed.

(ii) PW7 eventually took over the sealed memory card which was not tampered with in the course of it.

(iii) PW7 cut open the exhibit envelope with scissors to check the memory card for the sole purpose of examining the content swiftly to see if it was relevant to the case so as to hand it to the identification division. After that, she immediately resealed the exhibit and handed it over to the identification division without making any deletion or tampering with it in the course of it.

(iv) After the car was driven into the police station, the car key was given to the duty officer and sealed properly such that when PW6 retrieved the car key from the duty officer, he expressed that he did not need to open the envelope in order to open the car (door), showing that the car had been locked.

…

45. However, it was important that at 1740 hours on 5 September, the memory card was seized and sealed in the envelope B2713509 by PW6, as witnessed by D1, and at 0725 hours on 6 September PW7 WDPC 7733 had to cut open B2713509 with scissors; this shows that the memory card had been properly sealed during that period. After it had been put into a new envelope, both PW7 and PW9 signed on the envelope for confirmation, and there was no interference in any way in the course of it. In my view, even if there was anything unclear in the handover of the memory card, no interference was caused to the chain of exhibits, in particular to the memory card.

46. Secondly, although it was not proper that PW7 WDPC 7733 cut open the exhibit envelope for seizure and checking in D1’s absence, she did reseal the exhibit within five minutes and there was no allegation or evidence that she had tampered with the memory card in any improper way. Besides, upon watching the recording of the whole car journey, namely the footage of two hours odd from 22:57 on 4 September to about 01:48 on 5 September, one would find that it was coherent and smooth all along; it was hard to point out any interference caused by anybody.

47. Of course, the defence specifically raised questions about the 13-second video images which seem to be discontinuous. In respect of such exceptional circumstances, the video images did not appear either when the recording was played in court by the prosecution with the police software, or when it was played from the main CD retrieved from the cut-opened exhibit envelope. It was only when it was played by the defence with other software that the 13-second footage consisting of completely different video images appeared in the file ALC01143 (00:03:18 - 00:04:05) [see screenshots MFI-3 (1-4)].

48. Given such exceptional circumstances, the prosecution asked for an adjournment for at least six weeks for analysis and processing, which was strongly objected to by the defence. I also thought that as it had been over two years between the arrests of the defendants and the current trial, it would be, overall speaking, unfair to all the parties if the case was further adjourned or the defence would thereby need to call other experts, causing further adjournment for months. Besides, the prosecution had basically finished their case. I therefore think that it was not appropriate to further adjourn the case. Moreover, that 13-second footage showed completely different road sections which were irrelevant to the case. With the exception of the date 05/09/2019 appearing in the first second, over the remaining 12 seconds, the date of the previous day, namely 04/09/2019, was shown. I am therefore of the view that in respect of admissibility of the exhibit, there was no unlawful or improper interference.

49. Further, according to the witness statement given by Chief Inspector CHAN Kiu Chui (P66), he had examined the drive recorder and the footage, and pointed out that it was in loop recording mode (paragraph 10 in the statement), and the default setting for each recording was one minute. The 13-second footage mentioned above is obviously a recording of the day before, and from ALC01143 (00:03:18 - 00:04:05), 47 seconds afterwards, the car already stopped outside Tai Hing Commercial Complex (see PW10’s witness statement MFI-1, video no. 18, screenshot MFI-4, no. 18), and then the recording at 01:09:06 hours showed that the car started off again from the original position and left (ALC01144).

50. In addition, in comparing with the CCTV footage outside Sun Wah Noodle, outside Tai Hing Commercial Complex (P54) (3 minutes ahead of the real time), the car arrived around 2359 hours on 4 September (i.e. around 0002 hours in real time), after which the persons suspected to be D1 to D4 got off. Subsequently, at 0105 hours on 5 September (i.e. 0108 hours in real time), the persons suspected to be D1 to D4 were back and reappeared (screenshots P55 AE97-101). After that, according to the drive recorder, it started again at around 0109 hours. The whole process could definitely show that the 13-second footage suddenly emerged at 00:04:05 of the above ALC01143 when the car came to a halt was not a continuous footage of that day. It obviously resulted from the loop recording mode when some parts were not overwritten. Even if this was not the case, with reference to the above comparison, I do not think that this 13-second footage was the result of any unlawful or improper interference. Further, if it was said to be deliberate additions or deletions, it would be hard to imagine that, as said by the prosecution, they could be done during such quick successive handovers of the exhibit as described above. Besides, I cannot see how this 13-second footage can cause any impact to any party.

51. Furthermore, the defence also said that it could not be proved with certainty that the footage was something that happened between 4 and 5 September 2019. However, apart from comparing with the footage recorded outside Tai Hing Commercial Complex on that day, comparison might also be made with other undisputed recordings of that day, such as the footage of Yiu Man Carpark in Kai Tei, Yuen Long (P51) which showed VR2451 departing (screenshot P55, AE88), and the footage of Miami Beach Towers (P53) which showed VR2451 running past on that day (screenshot P55, AE96). Undoubtedly, the footage shown in P44B is from the day of the offence.”

(Reaching an agreement to commit a crime)

24.  The trial judge quoted extensively from the transcript of the conversations in the Car. According to his analysis, the incident can be divided into two stages. The first stage was the time before the woman got off, and it can be said that no decision had been made by that time. After she had left, the remaining three men became sure that damage was to be made to the Tuen Mun Ferry Pier LRT Station[24]:

“54. Undoubtedly, on 4 September 2019 at around 2257 hours, the car passed Wu Chui Road and was parked outside Miami Beach Towers. Afterwards it started off and continued until they stopped to get off to have a meal. After that, they went on board again until the woman got off (on 5 September 2019, around 0121 hours, ALC01155, Disc 3, Items 268 to 288) (screenshots MFI-4 No. 25). The above clearly showed that they had gone past various LRT stations on the way, and they together discussed and planned which LRT station facilities they would damage, where they would park the car, how to avoid being captured by cameras and the route of escape and so on.

55. However, up to the time when the woman got off, objectively, it seemed to be still in the stage of having a heated discussion without reaching any agreement or decision as to whether any action would really be taken, or at which station, and or where to park and escape and so on. During the previous period, although that woman had very actively taken part in the discussion and suggested which station they could damage, and even said that she could join them again later at around two o’clock, she seemed to hesitate by the time she eventually got off. The group seemed to indicate that they had to consider further and unsure whether they would really take action and whether it would be on that night, so on and so forth. However, after the woman had got off, more crucial conversations took place among the people on board:

…

56. Undoubtedly, after the woman had got off, up to the time of their arrests, the three persons’ conversations showed initially there was still hesitation in putting things into action, but afterwards they obviously decided to target Tuen Mun Ferry Pier LRT Station. Position 24 was circled on the map P59 as the location of the said LRT station, and the car was parked at position 27 or 28 at that time. They even decided the route of returning to the private car after making damage, and also planned to use the podium of Pierhead Garden (next to Tuen Mun Ferry Pier Station, position 24 as circled on the map) to change their outfits. Finally, they even checked the gears, calculated the time needed and so on.

57. From the above conversations, it was already clear that one of them resided at Pierhead Garden (Items 41, 50, 67, 68 and 116 of Disc 4), who would be responsible for being a lookout; another one would also join in to look out (Items 67, 68 and 93 of Disc 4); one person would be responsible for taking action (Items 76, 117 and 127 of Disc 4); and finally one of them further suggested that another person might join in to cause damage together and so on (Item 156 of Disc 4).”

(Confirming the identities of persons in the conversations)

25.  According to the trial judge’s conclusion on the stance of the defence, only D4 contended if she had ever been on board the Car[25]. Nevertheless, the judge ruled that all the four defendants were identified.

26.  According to the trial judge: the footage of the Recorder showed that from the time the woman got off (0121 hours) to the time when the Car was intercepted (0145 hours), the Car was running all the way until it finally reached the outside of the Wholesale Fish Market at Wu Shan Road and was parked there. Therefore, the three male voices in the conversations in the Car must be from D1 to D3 who were found by the police in the Car[26].

27.  As to the circumstances before the woman got off, the trial judge referred to various materials below and indicated that, from the cross-corroboration among various evidence such as the clothing of D1 to D3 at the time of their arrests, video recordings obtained from different places in Tuen Mun district, admissions made by D2 and D3 that they had been captured in the recordings at some of the places mentioned above, conversations in the Car and the scene outside the Car and so on, the court could be sure that D1 to D3 were the three men who had all along been on board the Car[27].

28.  The trial judge also suggested that similar evidence could prove that the woman’s voice in the conversations was D4’s.

(Trial judge’s conclusion)

29.  Below is the trial judge’s verdict in respect of the whole case[28]:

“71. To sum up, as described above, the conversations among D1 to D3 after D4’s departure could obviously confirm that they had reached an agreement with a clear intent to damage the facilities of the Tuen Mun Ferry Pier LRT Station, to the extent of including even the place for changing outfits and the route of escape. From D1’s rucksack on the car, a hammer, a screwdriver, a wrench and pliers were even found and seized, and there were also goggles, hand gloves, a T-shirt and hoods. In D2’s rucksack, there were also arm sleeves, trousers and a short-sleeved top for changing into. In D3’s rucksack, there were similarly a short-sleeved T-shirt, shorts, hoods and goggles, etc. for changing into. Under such circumstances, the prosecution has already proved that D1 to D3 jointly committed this offence beyond reasonable doubt. Therefore, D1, D2 and D3 are found guilty and convicted of the charge of conspiracy to commit criminal damage.

72. As to D4, although she had proposed and discussed how to damage LRT stations, up to the time she left midway, the group had not clearly agreed on the time, location and whether it would be done and the way to do it. Therefore, the prosecution has failed to prove beyond reasonable doubt her commission of this offence. D4 is acquitted in respect of the said charge.”

Application regarding conviction

(Grounds of appeal)

30.  Mr Chan acting for D1 and Ms Tsang for D3 both represented the respective defendants at the trial, while Ms Ng now acting for D2 did not appear for D2 in the court below. The grounds of appeal advanced by them have a high degree of overlap and basically do not differ from the defence at the trial, which are now summarised below.

31.  Ground 1 is that the trial judge had erred in ruling out the possibility that the Memory Card might have been tampered with and had also erred in admitting it as an exhibit[29]. The main points of the submissions are that over the twelve hours from the arrival of the Car at Castle Peak Police Station to PW6’s seizure of the Memory Card, anyone who got hold of the car key could have caused interference, and the car key which had originally been put with the prisoner’s property was transferred into a tamper evident property envelope for no good reason; since there were irreconcilable conflicts among the respective evidence of PW6, PW7 and PW9, for the whole period from the time PW6 seized the Memory Card to PW7’s receipt, there were doubts as to the day on which and the person by whom the Memory Card was kept and whether it had been kept properly; PW7 violated the Police General Orders by cutting open B2713509 with scissors with no authority, casting suspicion on her motive; and the 13-second discontinuous footage should have been, but was not, given to the expert for explanation; conversely, based on his own visual inspection and the loop recording of the Recorder, together with the comparison made with the CCTV recordings of shoddy image quality obtained from the communal area, the trial judge jumped to conclude that there had been no interference on the Recorder recordings which had yet been proved to be real time recordings. This was definitely unreliable and even pointless.

32.  Ground 2 is that the trial judge erred in finding that the three applicants were the participants of the conversations on board[30]. The main points of the submissions are as follows: the audio and video recordings of the Recorder consisted of a number of files with gaps in time between them and the prosecution therefore could not prove that individual applicants had been on board all the time; even if the audio recording showed that there were three men’s voices and D1 to D3 were in fact on board, the prosecution were still unable to prove that a particular applicant had actually uttered which specific words, and therefore could not prove any particular applicant had participated in and had the actual intent to carry out the conspiracy concerned.

33.  Ground 3 is that the trial judge erred in finding that the conversations in the Car amounted to conspiracy[31]. The main points of the submissions are that the conversations were not complete, not focused, and/or not serious; an exploration of feasibility does not mean that an agreement has been reached, regardless of how detailed it was.

(Discussion and analysis)

34.  The discussion on the question of how the exhibit was kept may be divided into two stages.

35.  The first stage is the time before the Memory Card was seized. The applicants added in the hearing that the police had left the Car unattended at the carpark of the police station for twelve hours without conducting any search, which was by itself very suspicious, but this Court does not agree. As a matter of fact, the three applicants’ rucksacks all contained clothing commonly used by radical protestors. If all other things were put together, there would be sufficient hoods, goggles, masks, hammer, screwdriver and wrench for each person to cover his face and carry out unlawful activities. Moreover, the police had already arrested them for the offence known as “possession of instrument” in short; therefore, it is hardly surprising that it did not immediately come to them to search the Car or that they had to go through various formalities and did not have the time to do a car search. As to the car key which should have been kept with the prisoner’s property but was subsequently found inside a tamper evident property envelope, in this Court’s view, it was at most an enhanced step of keeping an exhibit without being recorded or proven by the prosecution. Otherwise, by common sense, a person who had secretly used the car key to tamper with the exhibits on board would only stealthily put the car key back to the prisoner’s property rather than to keep it in an even more formal way. In any event, according to PW6’s testimony, the car key was not put aside casually, and it had to be retrieved from the prisoner’s property purposefully for searching the Car.

36.  Another reason that the applicants’ challenge cannot stand proper reasoning is that the police simply had no idea, at least could not be sure, of the four defendants’ previous whereabouts within the relevant twelve hours. It was therefore unimaginable that the police would have invented out of nothing a so-called screenplay which included a woman getting off on the way and even added dialogues. Facing such difficulty, the applicants further suggested that the interference might be merely altering the original item. However, surprisingly, the relevant audio recording was not turned more incriminatory than the present state, hence the suggestion was unconvincing. Finally, as this Court pointed out at the hearing, the police officers who intercepted the Car were uniformed officers patrolling on board a police vehicle in the streets. One of them was even an auxiliary police officer[32]. Therefore, the allegation that they had the incentive, time, space and the technique and equipment necessary for tampering with the Memory Card is undoubtedly, in view of the available evidence, speculative and without basis at all. It would be even more so if they were alleged to have asked for internal assistance from the police force or there was active intervention by any technical team.

37.  The second stage where the applicants suggested there were problems was the time after the seizure of the Memory Card. In this regard, this Court is of the view that unless there is evidence to prove that the tamper evident property envelope has been unlawfully duplicated, keeping things into a tamper evident property envelope is the best evidence to prove proper custody. This point would not change even if the police records of handing over the exhibit were not made in an orderly way. As to PW7’s violation of the Police General Orders by opening the first tamper evident property envelope, she has explained in her testimony that it was to make sure the Memory Card was relevant to the present case. This explanation was accepted by the trial judge. Further, since the trial judge was satisfied with the testimony of PW7, as well as those of PW6 and PW8 (merely on the proper custody and duplication of the Memory Card but not on the date and time), he ruled out the possibility that the Memory Card had been tampered with during the second stage. The loop recording function of the Recorder provided a possible inherent cause, which at least seemed reasonable, to explain the discontinuous footage, and the findings of the facts mentioned was not shaken because of the discontinuous footage. Coupled with the analysis on the content of the video recording in paragraph 36 above, the conclusion concerned would appear to be even more solid.

38.  Next are the questions of the identities of the people taking part in the conversations and whether any agreement was reached.

39.  The trial judge, basing on the footage showing the car journey, found that after the woman had got off, the Car kept travelling all the way and reached the wholesale fish market where it was intercepted outside. After carefully reading the relevant transcripts, this Court also finds that the conversations recorded during this period are coherent: there were coherent topics, frequently seeing one single sentence crossing over two files, and besides, there was no exchanges such as saying hello or goodbye to signify that someone was going on board or getting off. Therefore, the trial judge’s finding that the three applicants were the persons taking part in the conversations during such period was completely reasonable.

40.  The applicants asserted that although there were audio recordings, the court just could not be certain as to who had said what or who had not said what. This is certainly true. However, this Court also noted that after the woman had got off, the Car remained outside the wholesale fish market for a much longer time than that it had spent travelling, no one had requested to get off or to be driven home during this period. The conversations during this period showed that all three applicants were participants of the conversations, and they all took part in the discussion, which was particularly obvious after the file ALC01174 when all possible actions to be taken were explored. The conversations during the period showed that while the three applicants were still going on and on in discussion and suggestions, none of them indicated any intention to leave or withdraw from the group.

41.  Following the previous paragraph, what the three applicants discussed over and over again were the details of their action, such as whether it would be done that night, whether it was to be done immediately or later at night, when and where to change their outfits, whether there was sufficient time and how to cause the biggest damage, and whether any routes to escape from the scene would work. It did not mean that they had not reached any agreement to damage any LRT station. On the contrary, having regard to the tools, the things for covering their faces and the changes of clothing brought along, the three applicants had obviously reached a relevant agreement and intended to put the agreement into action depending on the actual situation that night. As to which particular LRT station was to be damaged, it was not identified in the charge itself and not a crucial element of the charge. Nevertheless, this Court agrees with the trial judge that the three applicants finally decided on the LRT station at Tuen Mun Ferry Pier to be their target. However, if the trial judge thought that the agreement was not reached until the exact location was decided (which was indeed the impression given by his analysis), he was in fact going beyond what the charge required.

42.  To conclude, the trial judge’s findings that the Memory Card had not been tampered with, that the persons involved in the conversations on board were the four defendants, and that the three applicants had reached an agreement to cause damage to an LRT station were all supported by solid evidence and had a logical basis. Conversely, that the three applicants were found on board a stationary car late at night was consistent with what the audio recording showed, namely, that there were three men and one woman, but somehow only the three men remained, and they had no particular route in mind. Furthermore, the tools and clothing brought along by each of the three applicants were in line with the discussion in the Car as recorded. Therefore, if the three applicants wanted to argue that the content of the Memory Card was not true, or there was any possible misunderstanding, or even that they were not the persons involved in the conversations, the three applicants must give evidence and be subject to relevant cross-examination; otherwise, it would be hard to defeat the strong and solid inference drawn from the prosecution’s evidence.

43.  The three applicants’ applications for leave to appeal against convictions are refused, and their appeals are dismissed with the convictions upheld.

Application in respect of sentence

(Mitigation)

44.  D2 was aged 27 at the time of sentence. He was a university graduate, single and living with his parents. He was a wine consultant and part-time tennis coach before the arrest. He had a clear record.

45.  Several defence counsel put forward the following reasons for mitigation, which were applicable to all applicants: there was no person injured and no actual damage caused in the case; the case was impromptu by nature with no long term planning; the case did not happen during a riot or an unlawful assembly, but rather, the applicants purposefully chose to commit the offence late at night, thus there was an extremely low chance of inciting others to join in and causing injury or fear to passers-by, and the gravity of the present case were not serious compared with other cases of the same nature. The sentences in similar cases are generally four to eight weeks. The sentence of a case involving damaging Mongkok Station was only eight months’ imprisonment upon a guilty plea.

46.  D2’s counsel stressed that D2 was sick on that night, and he came out merely wearing slippers and was to be a lookout only; the letters written by his family members, teacher(s), schoolmate(s), employer and colleague(s) indicated that he was polite, kind-hearted, passionate about life and obliging, and he was just blinded by the atmosphere in society and had a rush of blood to the head; D2 wrote in his letter for mitigation that he had deeply reflected on the matter and definitely would not re-offend in the future.

(The original sentence)

47.  The trial judge sentenced the defendants giving the following reasons[33]:

“8. Conspiracy to commit criminal damage is a serious offence which carries a maximum sentence of 10 years’ imprisonment. There has been no specific tariff on sentencing, and the sentence depends on the gravity of the facts in individual cases. The present case is serious because it happened during the occurrence of the social events when public order was seriously undermined. Different places and public facilities were damaged, seriously affecting the safety and peace of the public. The citizens in the entire community felt great inconvenience. In this case, had the police not intercepted them at an early stage, the ticket gates at the Tuen Mun Ferry Pier LRT Station would have been serious damaged already. Even if it would happen in the small hours of the day, unimaginable inconvenience and chaos would be caused to the citizens who were hurrying to work or school the next morning. In fact, they had actually prepared and brought along a hammer, a screwdriver, a wrench and pliers, made observations and chosen routes when passing various LRT stations that night and planned the place for getting changed and the route for escape and so on. Finally, six routes of and up to 30 ticket gates at Tuen Mun Ferry Pier Station would be involved. It can be said that the facts involved were very serious, calling for a term of at least two years’ imprisonment.

9. That being said, they were intercepted by the police before finally putting things into action. D2 and D3 both had clear records. The defendants have agreed quite a lot of the facts of the case, saving the time and resources of the court. However, in any event, they acted jointly and hence their culpability were the same. I have considered all the facts and the detailed submissions advanced by counsel for mitigation, it is appropriate to reduce the starting point to a term of imprisonment of 18 months. The defendants are all convicted after trial and there is no other ground for mitigating the sentence. Therefore, in respect of this charge, D1, D2 and D3 are each sentenced to 18 months’ imprisonment.”

(Grounds of appeal)

48.  Mr Ma acts for D2 in the application in respect of his sentence. He has put forward two grounds of appeal for D2.

49.  Ground 1 is that the trial judge, knowing that D1 had a criminal record while D2 (and D3) had none[34], failed to explain why D2 (and D3) were sentenced in the same way as D1.

50.  Ground 2 is that the sentence in the present case, compared with cases of similar nature, was manifestly excessive and/or wrong in principle.

(Discussion and analysis)

51.  D1 has a previous record in 2016. It was of a completely different nature from the present case, and for that case he was only put on probation for 12 months. Having regard to the provisions of the Rehabilitation of Offenders Ordinance, coupled with his own judgment, the trial judge did not consider it necessary to take the said previous record into account[35]. The trial judge was entitled to make such decision with his discretion, and this Court does not see any reason for intervention. In any event, whether and how D1’s conviction record affected D1’s sentence is not relevant to D2, and therefore D1’s record cannot be a ground of D2’s appeal. The trial judge cannot be criticised for adopting the same starting point of 18 months in sentencing D1, D2 and D3.

52.  D2 has cited the following three cases for comparison: 吳兆軒[36]; Tai Chi Shing[37] and莫嘉濤[38]. Nevertheless, except 莫嘉濤, the other two are only magistracy appeals, the trial and sentencing both having been carried out in the magistrates’ courts. That is to say, the sentence was set at a lower level at the outset. Concerning these two magistracy appeals, this Court is not going to repeat the details but would only point out the noteworthy points. For example, in 吳兆軒, the two defendants pleaded not guilty and were each sentenced to 4 weeks upon being convicted. The sentence was upheld on appeal. However, the Court of First Instance did not set out the condition of the damage caused to the station under attack but mentioned that the attackers somehow withdrew upon being shouted at by the staff and were arrested in the streets nearby. Neither did the Court of First Instance give detailed explanation on whether the sentence was affected and how it should be affected by the fact that it happened during the occurrence of the social events in September 2019.

53.  The case of Tai Chi Shing happened in November 2014. In that case, the defendants wrongly believed that the Legislative Council was discussing the so-called “Internet Article 23” and hence attacked the external glass curtain wall on the ground floor of the complex. The initial sentence for the charge of criminal damage (among others), i.e. community service order, was eventually replaced by three months’ imprisonment upon review, and such review was completed at the original magistrates’ court[39], followed by the appeal lodged by the defendants. The Court of First Instance, in dismissing the appeal, mentioned that a term of three months was really too lenient and a starting point of six months was more appropriate, but there was no further explanation. In other words, the observation concerned is in fact made as a side note, which is unhelpful to subsequent cases. In fact, in that case, the external glass curtain wall of the Legislative Council Complex was extensively damaged, and hence there is still room for discussion on whether six months is a proportionate term of sentence.

54.  The case of莫嘉濤was related to the riot in Mongkok in 2016, involving a number of different charges. The charge of criminal damage, among others, involved the siege of and repeated throwing of bricks at a police vehicle by Mok (transliteration) and ten odd other persons. After trial, Mok was sentenced to a term of 16 months. The Court of Appeal, in dismissing Mok’s appeal, pointed out that the trial judge correctly determined that Mok’s conduct in the whole course of the riot was inducing, capable of stimulating others in the gathering crowds. The Court of Appeal also pointed out that since Mok was aged only 17 at the time of the offence, a reduction of the starting point by six months to 18 months was appropriate. The trial judge gave Mok a further reduction of two months for his clear record, and the final sentence for the offence of criminal damage became 16 months. That is to say, if Mok were an adult, the starting point of that offence would have been 24 months (18+6 months).

55.  It can be seen from the above analysis that the cases cited by D2 does not help him at all and cannot show in the slightest that the sentence in the present case is excessive. As pointed out by the trial judge, the present case happened during the time when public order was in serious disarray. Therefore, any relevant violent or damaging conduct did not only provoke the crowds at the scene but would also highly likely motivate others to imitate, making the situation even worse. This point cannot be offset by the late night commission of a sabotaging event. If the target was a mass transportation system such as the Mass Transit Railway and LRT, in particular stations, interchanges or even any transport interchange where several means of transport meet, the atrocity of the damaging behaviour would multiply. This is because the greater the chaos caused, the more the people will be affected, and the more things they will need to deal with in their journeys, including urgent matters waiting to be attended to in the first place. That is to say, it is definitely not as simple as stopping people from going to work or to school.

56.  The agreement to commit a crime in the present case was plainly already reached. They were going to put it into action any time in the night in question; otherwise, it could not be explained why the three applicants had the tools with them. Among these tools, there were various items for concealing identities, changes of clothing and even the Car to be used for escaping from the scene. It would not be difficult for one to find the plan to be comprehensive with location to be the only outstanding matter. Finally, the three applicants decided Tuen Mun Ferry Pier to be the target for the obvious reason that there were “six routes” at that LRT station, which would “bring great effect” i.e. cause more confusion and inconvenience. In view of this, coupled with the considerations mentioned in the preceding paragraph, this Court thinks that a term of 18 months’ imprisonment after trial is certainly not excessive, and may even be on the lenient side. The conspiracy in the present case required the three applicants to play different roles in a co-ordinated way, and therefore the imposition of the same sentence on them cannot be criticised.

57.  D2’s application for leave to appeal against sentence is refused. His appeal is dismissed with the original sentence upheld.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.