HKSAR v. FU CHI ON AND OTHERS

[English Translation – 英譯本]

HCMA 460/2021

[2022] HKCFI 1895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 460 OF 2021

(ON APPEAL FROM KTCC 1146 OF 2020)

___________________

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JUDGMENT

Table of Contents

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I.  Background

1.  There were originally seven defendants in this case. They were jointly charged with the following offences:

(1)  two counts of taking part in an unlawful assembly[1] (charges one and three) (“the offence involved”); and

(2)  two counts of knowingly taking part in an unauthorized assembly[2] (charges two and four, which were respectively alternative charges to charges one and three).

2.  Each of them pleaded not guilty to the charges. After trial, the magistrate[3] convicted the four appellants, the first defendant at the trial (hereinafter referred to as the first appellant, “D1”), the fifth defendant (hereinafter referred to as the second appellant, “D2”), the sixth defendant (hereinafter referred to as the third appellant, “D3”) and the seventh defendant (hereinafter referred to as the fourth appellant, “D4”), of charges one and three. The four of them appealed against conviction.

II.  Prosecution case

3.  The incidents involved in charges one and three actually occurred at the same place in the same evening, though they were related to two different periods of time with 8:26 p.m. being the dividing line between them. The unlawful assembly in respect of charge one, as alleged by the prosecution, started at about 7:51. The alleged unlawful assembly in respect of charge two lasted until about 8:40 when the police took action.

4.  In respect of charge one, the prosecution alleged that from about 7:51 to 8:26 that evening, some 100 people assembled inside Telford Plaza, and the situation was as follows:

(1)  The persons assembled started off on the ground floor of Phase I of Telford Plaza near Exit C of the MTR station and proceeded in the same direction along the passageway of the mall. They walked in circles on the ground floor of the mall first, then walked up to the first floor, and then returned to the ground floor and walked in circles, passing by a number of shops;

(2)  In the meantime, the persons assembled shouted slogans including “Black cops OT, wives of the cops 3P”, “Black cops, may your whole family die”, “May the husband’s family and the wife’s family die one after the other, may your father and mother die one after the other, we laugh out loud” and “May Hong Kong police commit suicide by shooting themselves”;

(3)  The persons assembled also chanted slogans targeting shops, including “He who eats at Genki has no backbone” and “He who eats at Maxim’s is heartless”;

(4)  When passing by Genki Sushi (“Genki”), they vilified its food as containing worms, told diners not to eat it and used foul language to curse the shop, saying words to the effect of “may the shop close down” and “don’t open the door if you have the guts”. Genki immediately lowered its shutters and closed its doors.

(5)  The persons assembled would stop walking and form a circle singing “Glory to Hong Kong” at times, and some of those assembled would make a speech, touching on matters relating to the Anti-Extradition Law Amendment Bill Movement; and

(6)  At about 8:26 p.m., when the persons assembled reached the outside of the electrical appliance store Fortress on the ground floor of the mall, someone claimed that police officers were coming to the scene, and some of those assembled stopped moving forward and made a U-turn.

5.  In respect of charge three, the prosecution alleged that after the persons assembled had left for a short while, some people gathered outside Fortress again and proceeded in the same direction along the passageway of the mall towards Phase II via the ground floor and podium of Phase I of Telford Plaza in a manner similar to the one described earlier. In the meantime, the persons assembled conducted themselves in a manner similar to what was referred to in paragraphs 4(2) ‑ (5) above. At about 8:40 p.m., when the persons assembled reached the podium near Phase II of Telford Plaza, the police arrived at the scene. The persons assembled then scattered.

6.  The prosecution alleged that each of the appellants had taken part during both periods of time mentioned above.

III.  Defence case

7.  At trial, none of the defendants gave evidence or called any witness.

8.  The issues raised by the defence are, by and large, as follows:

(1)  Whether the relevant conduct fell within the protection of the right to freedom of speech;

(2)  Whether the prosecution had proved that the defendants were the persons alleged to have done or participated in the acts;

(3)  Whether the conduct of the persons concerned amounted to disorderly, insulting or provocative conduct (“the prescribed conduct”);

(4)  Even if it did, whether the conduct was likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace (“the stipulated fear”);

(5)  Whether the conduct caused “the stipulated fear”; and 

(6)  Even if there had been an unlawful assembly at the scene, whether the defendants had taken part in it.

IV.  Evidence at trial

9.  At trial, the prosecution called nine witnesses:

(1)  PW1 – security manager of Telford Plaza;

(2)  PW2 – sergeant 51369;

(3)  PW3 – sergeant 33624;

(4)  PW4 – police constable 12373;

(5)  PW5 – police constable 50321;

(6)  PW6 – woman police constable 11997;

(7)  PW7 – police constable 9760;

(8)  PW8 – police constable 23262; and

(9)  PW9 – police constable 19720.

10.  The prosecution also produced the following video footage and relevant screenshots:

(1)  video footage from the internet (exhibits P3(1) - (11));

(2)  video footage taken by the police (exhibit P4);

(3)  CCTV footage of Telford Plaza (exhibits P5(1) - (38));

(4)  video footage from the internet dated 28 December 2019 (exhibit P20A-B); and

(5)  the relevant screenshots (exhibits P6, P7, P26A, P26B and P20C).

11.  The defence agreed that the above footage and screenshots accurately reflected what had happened at the material times.

12.  There were also facts admitted by both sides[4]. Matters of significance are as follows:

(1)  The arrest of D1 to D3 and their clothing, appearance and personal belongings at the time of the arrest;

(2)  D4 was intercepted at Phase I of Telford Plaza on 28 December 2019 for enquiry and the particulars of his identity were recorded by the police. He was subsequently arrested on 19 June 2020;

(3)  The chain of evidence and authenticity of the aforesaid footage, screenshot albums, plans and photo albums showing the defendants’ clothing, appearance and personal belongings[5]; and

(4)  D2 to D4 had a clear record.

13.  The evidence of each of the prosecution witnesses can be summarized as follows.

PW1: security manager of Telford Plaza[6]

14.  The salient points of his testimony are as follows:

(1)  On the day in question, he was informed by his superior that according to information on the internet, some people would come to Telford Plaza to stage a petition or protest on that day. He deployed additional manpower but could not remember how much more he had deployed.

(2)  He recalled that there was a heavy flow of people on that day, and he deployed six persons to stand guard.

(3)  He agreed under cross-examination that Telford Plaza was a popular mall in Kowloon East and that many people would go there during holidays or Christmas.

(4)  On that day, he instructed some security guards (himself included) to follow the participants in the procession so that the security guards could mediate in case of dispute.

(5)  Under re-examination, upon viewing the CCTV footage of the mall[7], PW1 said that what was shown in the footage was the situation that he referred to as orderly and peaceful under cross-examination.

PW2: sergeant 51369[8]

15.  The salient points of his testimony are as follows:

(1)  At 7:00 p.m., he was on standby outside the Circle K convenience store at Telford Plaza. At about 8:38, he saw the platoon commander giving warning to about 100 people inside Telford Plaza and a police officer displaying a blue flag, which read “This meeting or procession is in breach of the law. Disperse or we may use force.” However, instead of coming out of the mall, the 100 or so people inside the mall remained inside.

(2)  At about 9:00 p.m., they entered the mall to make arrests or disperse the crowd.

(3)  When he entered the mall, he noticed that some people had been subdued by police officers and there were also police officers giving chase to those who tried to escape. Having ensured that it was safe, they advanced.

(4)  At 9:52 p.m., together with D1, six people were arrested for the offence of unlawful assembly.

(5)  He said under cross-examination that he did not know where D1 was at 8:38, nor did he know whether he had heard the warning.

(6)  He agreed that the 100 or so people inside Telford Plaza might include passers-by.

PW3: sergeant 33624[9]

16.  The salient points of his testimony are as follows:

(1)  At 6:00 that evening, he went on instructions to the outside of the Circle K convenience store at Telford Plaza to conduct a high-profile patrol. At 7:00 p.m., he was instructed to be on standby at the outside of the Circle K convenience store at Telford Plaza where there were about 100 people gathering and shouting.

(2)  At about 8:38, the platoon commander issued a verbal warning to the 100 or so people inside Telford Plaza through a loudspeaker and the orderly displayed a blue flag. The crowd started to disperse. Most of the people went into Phase I of Telford Plaza.

(3)  At about 9:00 p.m., the platoon commander instructed them to go into Telford Plaza. He entered through the upper level of Telford Plaza. He saw many people running as soon as he entered the mall. As there were people assembling, he and his colleagues went to Men Wah Restaurant to disperse them.

(4)  At about 9:20 p.m., sergeant 53457 asked them to go to a shop called “Mobile Phone” at Shop F18 for reinforcement as the police had intercepted 10 males and 6 females.

(5)  He was responsible for making enquiries of D1. He found a purple face scarf from the jacket D1 was wearing. When he asked D1 what he was doing at Telford Plaza, D1 replied that earlier at about 7:40, he and his friend D2 came to Telford Plaza for window-shopping. He saw a group of people demonstrating and he took part in the procession out of curiosity. After demonstrating for about an hour, he saw the police entering the mall. Therefore, he ran with his friend but was intercepted by the police outside the shop “Mobile Phone”[10].

PW4: police constable 12373[11]

17.  He entered Phase I of Telford Plaza at 9:00 p.m. Prior to that, he was on standby outside the Circle K convenience store on the podium of Telford Plaza. He entered through the upper level of Phase I of Telford Plaza and saw more than 50 people wearing black upper garments, black trousers and masks yelling and demonstrating. They turned round and ran upon seeing the police.

PW5: police constable 50321

18.  His testimony was of little significance to this appeal.

PW6: woman police constable 11997[12]

19.  The salient points of her testimony are as follows:

(1)  At 9:05 p.m., she arrived at the podium between Phase I and Phase II of Telford Plaza. She saw 30 to 40 people yelling, hurling abuse at the police (with, inter alia, the wording “black cops”) and heckling on the podium. The uniformed team leader told the people to leave and not to gather through a loudspeaker.

(2)  She saw D2 (the fifth defendant at trial), who was among the people yelling and heckling, pointing the camera of his mobile phone at the police.

(3)  She agreed under cross-examination that she did not see D2 before 9:05 p.m.

PW7: police constable 9760[13]

20.  The salient points of his testimony are as follows:

(1)  After 9:00 p.m., he arrived at the podium between Phase I and Phase II of Telford Plaza. He saw 30 to 50 people yelling and hurling abuse at the police at the staircase leading from Phase I of Telford Plaza to the mall at Phase II, as well as people filming the police with their mobile phones.

(2)  He was charged with filming at that time.

(3)  Some people pointed at the police, calling them dogs, and telling them to leave. The uniformed senior inspector next to him gave them a verbal warning and asked them to disperse. Moreover, a uniformed police officer raised a blue flag. The crowd did not disperse. Instead, they shouted insults all the more fiercely. Eventually, the police intercepted several of them.

(4)  He arrested D3 (the sixth defendant at trial) for the offence of unlawful assembly, and D3 was one of the people who yelled at, hurled abuse at and filmed the police.

PW8: police constable 23262[14]

21.  On 28 December, three days after the incident, he obtained from D4 (the seventh defendant at trial) his personal particulars at Telford Plaza. At that time, D4 was wearing a black jacket, a pair of black trousers, a pair of black shoes and a black mask. D4 was carrying a black rucksack, and the hood attached to the black jacket was pulled over his head. On that day, he found upon search from D4’s black rucksack a black speaker (about the size of a palm or about 3 to 4 cm in width) and a microphone (black in colour, with a black ball-shaped sponge attached to its end).

PW9: police constable 19720[15]

22.  The salient points of his testimony are as follows:

(1)  At 10:53 p.m. on 18 May 2020, he arrived at Room 2919, Ying Hong House, Choi Ying Estate for conducting a search.  

(2)  Three items were found in the topmost plastic box of a pile of plastic boxes placed near the right side of the living room of the flat, including a black rucksack[16] (at the bottom right hand corner of the front of the rucksack, there was a white logo consisting of three lines of words in English, namely “BEYOND” “THE +” and “BASIC”), a pair of black arm sleeves[17] and a pair of black trousers[18]. Beside the plastic boxes, there was a table, on which there was a shoe box containing a pair of black and white striped sneakers[19].

V.  The magistrate’s findings

23.  The magistrate took the view that PW1 was an unbelievable and unreliable witness and rejected his testimony that the situation at the material time was orderly and peaceful.

24.  As to the other prosecution witnesses, the magistrate took the view that they were all credible and reliable witnesses and accepted their testimonies as true.[20]

25.  The magistrate also found that all of the four appellants were the persons as alleged by the prosecution.[21]

26.  The magistrate found that chanting the slogans in question in the procession was conducting oneself in a disorderly, insulting or provocative manner, thereby constituting “the prescribed conduct”.[22]

27.  The magistrate was of the view that section 18 of the Public Order Ordinance[23] and article 16 of the Hong Kong Bill of Rights[24], when read together, indicate that the exercise of the right to freedom of expression in a procession does not include wantonly insulting or cursing others, denigrating customers of businesses and tarnishing the reputation of businesses during the procession, which are sufficient to constitute “the prescribed conduct”.[25]

28.  The magistrate also pointed out:

(1)  If D1, D2 and D3 were merely exercising their civil rights or expressing their views or demands, it would not be necessary at all to cover anything up. However, if they intended to chant slogans for insulting or cursing others during the procession, that would naturally be a different matter.

(2)  From the clothing and conduct of these three persons during the procession, an inference can be drawn that they and other participants had the “common purpose” of chanting the aforesaid insulting and imprecatory slogans during the procession.[26]

(3)  D4 played the role of leading the participants in the procession in chanting the slogans. As can be seen in the footage, exhibit P5(26), he had already started making preparations before the procession began at about 7:51 p.m. Certainly, he and other participants had the “common purpose” of chanting the aforesaid insulting and imprecatory slogans during the procession.[27]

29.  The magistrate further found that the relevant conduct might cause “the stipulated fear”. Accordingly, the magistrate found D1 (the first defendant at trial), D2 (the fifth defendant at trial), D3 (the sixth defendant at trial) and D4 (the seventh defendant at trial) guilty of charges one and three.[28]

VI.  Grounds of appeal

30.  D1 was represented by Mr Mike Lam of counsel, who put forword the following grounds of appeal:

(1)  The magistrate erred in finding that the persons present at the scene (perhaps including D1) had “conducted themselves in the prescribed manner”, namely having conducted themselves in a disorderly, insulting or provocative manner;

(2)  Even if D1 had “conducted himself in the prescribed manner”, the magistrate erred in finding that his conduct was likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace; and

(3)  In respect of charge one, even if there had been an unlawful assembly, the magistrate erred in finding that D1 had taken part in it.

31.  D2 and D3 were represented by Mr Kin Lau of counsel and Mr Henry Leung of counsel. They put forward on behalf of D2 and D3 the following grounds of appeal:

(1)  The magistrate erred in finding that those slogans chanted by the participants in the procession did not fall within the protection of article 16 of the Hong Kong Bill of Rights[29] and that they caused “the stipulated fear”;

(2)  In finding that the relevant slogans would cause any person to have “the stipulated fear”, the magistrate relied upon a wrong or non-existent factual basis;

(3)  The magistrate erred in finding that D2 and D3 had a participatory intent for the offence of unlawful assembly; and

(4)  The convictions were unsafe and/or unsatisfactory.

32.  D4 was represented by Mr Jonathan Ip of counsel and Mr Jay Koon of counsel. They put forward on behalf of D4 the following grounds of appeal:

(1)  In making his own identification of D4 from the video footage, the magistrate erred in principle (including relying on hearsay evidence and opinion evidence as the basis for admitting the video evidence; and/or admitting into evidence video footage which was not sufficiently clear) and failed to give the appropriate warning/direction; and/or there was no sufficient evidential basis to find that the person alleged to be D4 in the video footage was D4;

(2)  The magistrate erred in finding that in the evening in question, the words and conduct of the participants in the procession were likely to cause any person reasonably to fear that at the scene of the offence, “family members, relatives or friends of police officers and/or supporters of Genki Sushi or Maxim’s Restaurant would come into physical conflict with the participants in the procession by reason of being wantonly insulted, cursed, vilified and harassed as mentioned above” and there would therefore be a breach of the peace, rendering D4’s conviction unsafe;

(3)  In all the circumstances of the case, D4’s conviction was unsafe and unsatisfactory.

VII.  Submissions from both sides

VII.1. Submissions of counsel for D1

33.  Mr Lam made it clear right at the outset that D1 would not dispute the magistrate’s finding on the identification of him.

34.  Mr Lam pointed out that as none of the police witnesses was present at Phase I of Telford Plaza at the time of the offence, under the circumstances that the magistrate had rejected the great majority of PW1’s testimony, the remaining prosecution evidence consisted of merely the various video clips[30].

Ground of appeal (1): The magistrate erred in finding that some people had “conducted themselves in the prescribed manner”

35.  Mr Lam made submissions on two aspects:

(1)  The magistrate erred in finding that the slogans chanted during the procession did not fall within the protection of constitutional rights (the constitutional issue); and

(2)  The magistrate erred in finding that D1 had conducted himself in a disorderly manner (the factual issue).

36.  In respect of the aforesaid first point, the constitutional issue, Mr Lam relied on the right to freedom of speech under article 16 of the Hong Kong Bill of Rights[31]. He made it clear that he was not challenging the constitutionality of the offence involved and that he was merely criticizing the magistrate for wrongly finding that the slogans chanted during the procession did not fall within the protection of constitutional rights.

37.  He criticized the magistrate for putting the cart before the horse in coming to a finding[32] which is wrong and arbitrary.

38.  Citing the Court of Final Appeal case of Leung Kwok Hung v HKSAR[33], Mr Lam criticized the magistrate for wrongly considering that the acts of insulting or vilifying businesses, cursing or (tarnishing) their reputation did not fall within the protection of freedom of expression[34].

39.  Mr Lam also submitted that by considering that only expressing “views” could be counted as freedom of expression and automatically categorizing the utterances of the participants in the procession as cursing, inciting hatred against the police and blackening the reputation of others and further deducing therefrom the actus reus of “the prescribed conduct”, the magistrate overlooked the fact that the right to freedom of expression could be exercised through any media of one’s choice[35] and that any restriction and restraint on fundamental human rights and freedoms should be minimal[36].

40.  In respect of the second point, the factual issue, Mr Lam submitted that the prosecution had no direct evidence capable of showing that at the material time, there were police officers who were present inside Phase I of Telford Plaza and felt harassed, frightened or distressed at the same time. No police officer was captured on the footage produced in court and all the police officers who did testify were on guard outside Phase I of Telford Plaza.

41.  Citing Campbell v Adair[37] and HKSAR v Chan Ka Chuen Raymond[38], Mr Lam submitted that certain less than civilized behaviour (e.g. using foul language) or street obstruction in itself is not “disorderly” in law unless something further occurs.

42.  Mr Lam further criticized the magistrate for misjudging the circumstantial evidence at that time and drawing wrong inferences consequentially.

Ground of appeal (2): There was no sufficient evidence to show any person reasonably feared that the persons so assembled would commit a breach of the peace

43.  Citing R v Howell[39], Mr Lam submitted that mere disturbance might not necessarily constitute a breach of the peace. In assessing whether the conduct of the protesters is reasonable, diligent or blameworthy, the factual background of the case should be taken into consideration. In the present context, all the relevant utterances were merely slogans, which would not go so far as to give rise to an inference that someone at the scene might be in fear that there would be a breach of the peace, especially when there were no people with opposing views coming out to have a verbal dispute at the scene, and there was never any sign that a physical conflict would ensue. Under the circumstances, asserting that there would be an immediate danger of the outbreak of violence or use of force is tantamount to prohibiting all those who had taken a stance, to which someone might object, from expressing their stance verbally. When examining the effect of “the prescribed conduct” (if any), there is a need to balance it against the impact freedom of expression would otherwise bring about[40].

44.  Mr Lam submitted that even if certain less than civilized behaviour (e.g. using foul language) or street obstruction might arise in the course of the event, and even if there might be police officers and people holding opposing views present at that time, the magistrate overlooked the following circumstantial evidence, and what was more, there was no objective evidence to suggest that something further might occur:

(1)  The procession or event was held in an orderly manner throughout, and the crowd was merely chanting some slogans and singing;

(2)  Inside the mall, the flow of people was as usual, people went window-shopping, entered and left Kowloon Bay MTR Station as usual and customers of eateries had their meals as usual;

(3)  No security guard was ever required to intervene. He criticized the magistrate for putting the cart before the horse in his consideration by making the following observation:

‘… Therefore, in my view, the fact that no security guards intervened could not exclude the possibility that the people present reasonably had “the stipulated fear”. Conversely, the fact that the security guards themselves reasonably had “the stipulated fear” might constitute the reason why no security guards dared to intervene’[41];

(4)  When Genki lowered its shutters at about 7:54 (within the period covered by charge one), the relevant participants in the procession only stood outside or near the entrance shouting slogans while holding no other tools in their hands. There was no evidence to suggest that they might make a further move;

(5)  Marks & Spencer remained open for business as usual at all material times; and

(6)  Although some shops such as Broadway also lowered their shutters at the time of charge three, such shops did not do so at the time of charge one. At the beginning of the period covered by charge three, there was news that police officers were about to enter the mall. It can be inferred from the relevant footage that shops lowered their shutters perhaps simply because they were concerned about the chaos that might result from the police action.

Ground of appeal (3): The magistrate erred in finding that D1 had participated

45.  Mr Lam stressed that it was incumbent on the prosecution to prove that D1 had a participatory intent[42], and yet the magistrate wrongly considered that whether D1 was present when Genki lowered its shutters was not a material point[43]. In any event, there was no sufficient evidence to support the magistrate’s finding that D1 was present at the scene and participated in chanting slogans as well.

VII.2. Submissions of counsel for D2 and D3

46.  Mr Lau pointed out that the two police witnesses relevant to the cases of D2 and D3 only arrived at the scene or saw D2 for the first time after the material time of the case and they did not see D3 hurling abuse at the police, thus having little bearing on the present case, and that PW1’s testimony was rejected by the magistrate. Therefore, the evidence upon which the magistrate relied to convict D2 and D3 would simply be the relevant video footage.

47.  Mr Lau also stressed that during the demonstration on that day:

(1)  There was no clash, confrontation, vandalism, threat to use force or actual use of force or vandalism whatsoever; 

(2)  There was no counter-demonstration whatsoever; or

(3)  No one present at the scene actually responded in an agitated manner because of the protesters’ slogans.

Ground of appeal (1): The magistrate wrongly considered that those slogans did not fall within the protection of the Hong Kong Bill of Rights and overlooked the fact that they were chanted against the background of the demonstration, thereby failing to properly examine whether chanting those slogans could be regarded as conducting oneself in the prescribed manner and/or whether it would cause “the stipulated fear”

48.  Mr Lau submitted that the magistrate misinterpreted the judgment of the Court of Final Appeal in Fong Kwok Shan Christine[44] and wrongly considered that expressing or chanting the relevant slogans did not involve freedom of speech or expression, nor was it an expression of views, and should be excluded from freedom of speech or expression. Thus, the magistrate failed to properly consider and determine whether the incident constituted an unlawful assembly against the background of the demonstration and in the context of an environment which was reasonable, tolerated demonstrations and expressions of rights and accommodated pluralistic views, and disregarded the fact that chanting slogans is one of the ways of expressing views or discontent.

49.  Mr Lau cited the following cases:

(1)  HKSAR v Ng Kung Siu[45];

(2)  Leung Kwok Hung v HKSAR[46];

(3)  Redmond-Bate v Director of Public Prosecutions[47]; and

(4)  HKSAR v Tsui Ping Wing[48],

and submitted that:

(1)  As a matter of law, a slogan should not be excluded from the scope of freedom of speech or expression merely because it carries insulting or negative connotations;

(2)  The essence of freedom of speech or expression includes not only the content of expression but also the means of expression, and further, it encompasses not only the mainstream views or means of expression but also some non-mainstream, heretical, offensive or even unpopular views and means of expression; and

(3)  Having recognized as a matter of fact that the case involved freedom of speech or expression, the court should further explore whether the restrictions imposed thereon (based on law or government policy) are consistent with the principle of proportionality.

50.  Mr Lau also cited the European Court of Human Rights case of Gul v Turkey[49] and submitted that the fact that some highly offensive or aggressive words are used does not mean that such words, in essence, have to be categorically excluded from freedom of speech or expression because such seemingly aggressive words can purely be one of the forms of rhetoric or expression. Therefore, the court has to take into consideration the context in which the words are uttered or the slogans are chanted in order to properly understand the substantive meaning of those slogans.

51.  Mr Lau also submitted that from a protester’s utterance, which was audible in one of the video clips[50], it can be seen that by shouting attention-seeking slogans, the protester was trying to convey to the public or draw the public’s attention to his/her concern and discontent over the relevant issues.

52.  In HKSAR v Chow Nok Hang[51], Ribeiro PJ pointed out that once a demonstrator commits a breach of the peace, that demonstrator crosses the line and goes beyond the constitutionally protected rights. The same applies where the demonstrator crosses the line by unlawfully interfering with the rights and freedoms of others[52]

53.  Another submission made by Mr Lau is about the difference between the provision of section 17B(2) of the Public Order Ordinance [53] and the provision of the Ordinance relevant to the present case. Mr Lau stressed that section 17B(2) deals with words while the offence involved in this case is concerned with conduct and that, having regard to this difference, merely chanting slogans should not amount to the conduct aimed at by the offence involved in this case, otherwise it is inexplicable why different formulations were adopted at the time of enactment. Having carefully considered the formulations of those two provisions, I am of the view that they do not support Mr Lau’s argument.

54.  As to the meaning of disorderly conduct, citing the judgment of Tang PJ in Chow Nok Hang[54], Mr Lau submitted that while this was a minority opinion, in assessing or considering whether the conduct for the purpose of expressing demands or views in a procession or demonstration constitutes disorderly conduct, reference could be made to Tang PJ’s observation.[55]

55.  Mr Lau contended that, as shown in the footage, while the participants in the procession were walking through the passageway of the mall, other mall users all went past the procession peacefully. Despite the fact that there were people among the participants chanting slogans which were considered questionable by the magistrate, the procession only shouted the “five demands” or sang most of the time. In the meantime, no confrontation, threat of vandalism or act of using violence had occurred. Without giving sufficient regard and thus proper weight to the background and situation surrounding the participants’ chanting of those slogans and the people present when those slogans were being chanted, the magistrate was wrong to directly consider those slogans to be outside the protection of the Bill by reason of their negative connotations, and thus erred in finding that chanting those slogans constituted the prescribed conduct.

56.  Mr Lau stressed that even if someone “conducted himself in the prescribed manner”, having regard to the background of this case, i.e. a demonstration, the slogans some people chanted in the course of it and that, on the evidence, there was no clash, confrontation or counter-demonstration activity at the material time, under the circumstances that the appellants were exercising the right to demonstration and merely chanting slogans which carried negative connotations during the demonstration, it would not cause people reasonably to have “the stipulated fear”. In assessing whether there was the objective “stipulated fear”, the court should not take into consideration some people’s unreasonable reactions, nor should it unduly impair the ability to exercise such constitutional rights of peaceful assembly and demonstration.

57.  Mr Lau cited the following evidence:

(1)  As can be seen from the footage, people inside the mall did not fear the protesters at all, and there was even a family pushing a pushchair when they came out from a shop.

(2)  In respect of the time during which some shops had their doors closed after 8:27 (within the period covered by charge three):

(i)  There was no evidence as to why the shops closed their doors, and the court had no way of knowing whether the shops closed their doors as a result of independent commercial decisions unrelated to the demonstration;

(ii)  While some shops had their doors closed, quite a number of shops remained open for business as usual, and there were other mall users who continued to weave their way through the procession of protesters or continued to patronize shops which remained open for business as usual; and

(iii)  Marks & Spencer remained open for business even though the protesters formed a circle singing in its vicinity.

Ground of appeal (2): In considering whether the conduct caused any person present to have “the stipulated fear”, the magistrate relied upon a wrong or non-existent factual basis

58.  In respect of this ground of appeal, Mr Lau made criticisms on two fronts:

59.  First, he criticized the magistrate for taking the view that there might be relatives, family members, friends, etc. of police officers at the scene in Telford Plaza and that they would perhaps come into physical conflict with the participants in the procession as a result of being insulted without factual basis. The second criticism was about the magistrate’s assessment that the reason why the security guards did not intervene was that there was fear on their part[56]. Mr Lau stressed that there was never any evidence at trial that the security guards themselves had any “stipulated fear” or indeed any fear and, therefore, even though the magistrate only used the word “might”, his assessment was not supported by any evidential or factual basis at all and was sheer speculation on his part. In any event, on the evidence, the situation was such that it was by and large peaceful and there was no physical conflict, which was not capable of supporting the magistrate’s finding in relation to “the stipulated fear”.

Ground of appeal (3): In considering D2 and D3’s participation in the case, the magistrate overlooked their respective participatory intent

60.  Mr Lau cited the following cases:

(1)  HKSAR v Lo Kin Man （盧建民）[57];

(2)  Secretary for Justice v Tong Wai Hung（湯偉雄）[58]; and

(3)  R v To Kwan Hang[59],

and submitted as follows:

(1)  One’s right of lawful demonstration would not vanish because other people assemble unlawfully in the vicinity.

(2)  The prosecution had to prove that when the accused participated in the procession chanting those slogans, they were already aware that the procession was an unlawful assembly.

(3)  In different contexts or situations, an action or act may give rise to different interpretations or consequences. While the same action or words shouted may be regarded as causing people reasonably to fear that a breach of the peace will be committed in a previous context, it does not mean that the same action or words shouted will have the same effect in the next context.

(4)  At trial, there was no evidence capable of supporting the magistrate’s finding as to when the procession degenerated into an unlawful assembly, for example, whether it was at the time of the assembly at Genki, and if it was, there was no evidence that D2 and D3 were present at that time. Further, whether the unlawful assembly was continuing or ended after the procession had left Genki had to be assessed based on the evidence. Such an assessment would be of significance because there was evidence at trial that at 8:08 (within the period covered by charge one), D2 and D3 were present, and the situation at that time would have a bearing on their knowledge of whether the assembly had degenerated into an unlawful assembly. (As shown in the footage, the procession of protesters started to disperse at 8:37). Thus, the stretch of time the court should take into consideration would be from 8:08 to 8:37. Mr Lau pointed out that at that time, the situation at the scene was very peaceful, the mall was being used as usual, and what was more, none of those present threatened to use force or confronted with or yelled at the police officers. At the time when D2 and D3 took part in the procession, there was essentially no way of knowing that the procession was an unlawful assembly. Thus, the prosecution failed to prove that the two of them had the relevent participatory intent.

61.  Although the magistrate found that D2 and D3 were among the participants in the procession, acting in concert, walking in the same direction, forming a circle and singing together with others, there was a lack of analysis and assessment as to whether the two of them had the requisite knowledge that the assembly was unlawful.[60]

Ground of appeal (4)

62.  This is a general and conclusory ground of appeal.

VII.3. Submissions of counsel for D4

Ground of appeal (1): The magistrate’s finding in respect of the identification was erroneous

63.  Mr Ip pointed out that, at trial, there was no direct identification evidence against D4 from the prosecution witnesses, and on this issue, the magistrate made an assessment as to whether the subject person shown in the video footage was D4 by scrutinizing the footage himself. However:

(1)  The magistrate did not make a direct comparison between the person depicted in the prosecution video evidence and D4, who was in the dock at trial, by adopting the general approach referred to in AG’s Reference (No 2 of 2002)[61]. Instead, he made a comparison of the video evidence dated 25 December 2019 (namely the day of the offences) and that dated 28 December 2019[62] (namely three days after the offences had taken place) so as to make a finding as to whether the subject person in the video footage was D4;

(2)  In admitting into evidence the video footage dated 28 December 2019, the magistrate wrongly relied on hearsay evidence and opinion evidence;

(3)  The video footage dated 25 December and 28 December 2019 was insufficient to constitute sufficiently clear identification evidence, and the magistrate erred in admitting the video footage of the said two days as evidence of identification of D4[63];

(4)  In making his own identification based on the footage, the magistrate failed to give the appropriate warning/direction in respect of the risks involved; and

(5)  The footage was insufficient for establishing beyond reasonable doubt that the subject person was D4.

64.  At trial, despite objections from the defence, the magistrate ruled that the video recording dated 28 December was admissible in evidence. One of the bases was the testimony of PW9. He said that there was sufficient basis for him to believe that the items (exhibits P21 ‑ P24) he seized from D4’s home belonged to D4[64].

65.  Mr Ip submitted that it was wrong for the magistrate to find that the relevant items belonged to D4 based on PW9’s testimony and accordingly ruled that the video footage was admissible in evidence because:

(1)  an important basis for PW9 to form that belief was that he was told by D4’s mother that there were only two persons living there, and the magistrate overlooked the fact that this was hearsay evidence;

(2)  another basis for forming that belief was that the items appeared to be for the use of young males, which was a tenuous basis; and

(3)  in any event, this was merely PW9’s belief, which could not be used to prove that the items actually belonged to D4.

66.  If the video footage dated 28 December was wrongly admitted into evidence, the magistrate’s finding in respect of the identification based on the comparison of the two video recordings would definitely be unsafe.

67.  Mr Ip also submitted that as the footage dated 28 December was of such poor quality that the face of the person alleged to be D4 by the prosecution was not clearly visible, it was impossible for the magistrate to make an assessment or identification by comparing this footage with D4 he saw in the flesh.

68.  As regards identification by comparison of the two video clips, citing Tagao Saudee Abad[65], Mr Ip submitted that under the circumstances that the face of the person in the video footage could not be clearly seen, that the clothing of the subject person was not particularly distinctive and that he did not possess some unusual bodily features, it was insufficient to make the court sure of the identity of the person in the footage.

69.  Regarding the issue of the magistrate giving himself the warning, Mr Ip pointed out that in respect of the identification of the other accused, the magistrate directed himself[66] in accordance with the principles in R v Turnbull[67]，whereas in dealing with the issue of identification of D4, he failed to do so. Further, regarding the identification of D4, the risks involved in dealing with it was completely different to those concerning the other appellants, and therefore it was all the more necessary to remind himself.

70.  All in all, it was the submission of Mr Ip that the magistrate erred in finding that D4 was the person shown in the footage as alleged by the prosecution.

Ground of appeal (2): The magistrate erred in finding that the conduct would cause “the stipulated fear” and thus a breach of the peace

71.  The main points of Mr Ip’s submissions are as follows:

(1)  The magistrate wrongly drew a distinction between “views” and specific “slogans” and erred in finding that freedom of expression affords protection to the former only, thus failing to give proper weight to the protection of freedom of assembly and freedom of expression;

(2)  The magistrate wrongly rejected the testimony of PW1, the security manager;

(3)  When the magistrate found that Genki’s “lowering of its shutters” indicated that the person in charge of Genki had “the stipulated fear”, his observation was self-contradictory and illogical;

(4)  In finding the utterances of the persons assembled caused “the stipulated fear”, the magistrate not only failed to consider that a reasonable person would definitely not fear utterances which fall within the protection of freedom of expression, but also took into account a large number of irrelevant factors and made a lot of baseless and/or irrelevant presumptions and speculations; and

(5)  The magistrate wrongly found that chanting a specific slogan at Telford Plaza would cause “the stipulated fear” and, worse still, it was wrong for him to find specifically that merely chanting the slogan “He who eats at Genki has no backbone” was sufficient to cause “the stipulated fear”; such findings were without sufficient evidential basis, and would constitute a disproportionate restriction on freedoms of assembly and expression.

72.  Mr Ip also pointed out that according to the Guidelines on Freedom of Peaceful Assembly[68], it would be illegitimate to impose any content-based restrictions. Any restrictions on assemblies should not be based on the content of the message(s) that they seek to communicate. He submitted that even if there was tension or even heated exchange between opposing groups during an assembly, it would not necessarily mean that the assembly should be prohibited, otherwise society would be faced with being deprived of the opportunity of hearing differing views on any issue which might offend the sensitivity of the majority opinion[69].

73.  Mr Ip also criticized the magistrate for wrongly rejecting PW1’s testimony. As PW1 testified that the procession was peaceful and orderly, regard should be had to this testimony.

74.  Another criticism by Mr Ip concerns the magistrate’s finding on the issue of “the stipulated fear”. Mr Ip submitted that the magistrate’s finding was illogical and self-contradictory. He pointed out that the magistrate, on the one hand, stated that the utterances of the participants in the procession affected the reputation of businesses such as Genki and Maxim’s Restaurant, hindered normal promotional or publicity activities of these businesses and had an adverse effect on their business operations and profits[70], but on the other hand, found (to the standard of beyond reasonable doubt) that Genki’s “lowering of its shutters” indicated that the person in charge of Genki had “the stipulated fear”[71]. These two statements were not only self-contradictory and illogical, they also indicated that the latter was merely a finding based on presumptions and speculations without evidential basis and without excluding any other reasonable possibilities that might lead to Genki’s “lowering of its shutters”.

75.  He submitted that the finding that the person in charge of Genki had “the stipulated fear” was not the only reasonable inference supported by evidence.

76.  Mr Ip further submitted that the magistrate had regard to matters to which he should not have had regard in his consideration, for example:

(1)  The noise of the participants in the procession affected the “normal operation” of the businesses[72];

(2)  The fact that no security guards intervened could not exclude the possibility that the people present had “the stipulated fear”. Conversely, the security guards did not intervene possibly because of “the stipulated fear” on their part[73];

(3)  When chanting slogans, the participants in the procession would not care about whether there were family members, relatives or friends of police officers or people who were supporters of the police force or dissatisfied with the participants in the procession among the citizens present. Thus chanting the aforesaid slogans would cause “the stipulated fear”[74];

(4)  “Genki’s sushi contained worms” were the words used by the participants in the procession for vilifying Genki[75]; and

(5)  The commercial considerations Genki might take into account and the measures it might take when deciding whether to do business with the participants in the procession[76].

77.  Mr Ip also submitted that the magistrate did not have an exact grasp of the distinction and relationship between the relevant slogans and “the stipulated fear” and was therefore wrong in his judgment.

78.  Mr Ip also criticized that in the reasons given by the magistrate, apart from the slogans used by the participants in the procession, there was never any mention of any other factors which would cause “the stipulated fear”.

79.  He also made reference to the situation at the scene, to which other counsel also referred, and submitted that the evidence did not support the magistrate’s findings on “the prescribed conduct” and “stipulated fear”.

Ground of appeal (3)

80.  This is a general and conclusory ground of appeal.

VII.4. Submissions of the respondent

81.  The respondent was represented by Mr Wilson Lam, Public Prosecutor. The main line of Mr Lam’s submissions on the issue of “the prescribed conduct” is: whether the slogans fall within the protection of the Bill of Rights is not a crucial issue because section 18 of the Public Order Ordinance[77] has set clear boundaries for freedoms of speech and assembly. Where a protester’s conduct constitutes “the prescribed conduct” and causes “the stipulated fear”, he shall be guilty of an offence; therefore, the magistrate did not adopt wrong principles of law in his consideration. Under the legal principles mentioned above, whether or not there is “the prescribed conduct” is a finding of fact, and it is not necessary to further consider the proportionality test in the course of consideration as submitted by the appellant(s).

82.  Regarding the issue of “the stipulated fear”, citing Secretary for Justice v Leung Kwok Wah[78] and Leung Chung Hang Sixtus[79], Mr Lam stressed that the offence of unlawfully assembly is preventive in nature. There is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fears that it would occur if no action is taken in the meantime to prevent it. On the other hand, conduct which is peaceful in itself might, if persistently pursued, provoke others to violence, and if a violent response could be considered the natural consequence of such persistent conduct, it would constitute a breach of the peace[80].

83.  Mr Lam also cited decided cases and made submissions on the relevant law. He also supported the magistrate’s findings of fact on various matters and submitted that the magistrate was correct in making a finding of guilt against each of the appellants.

VIII.  Discussion and consideration

84.  Discussion and consideration, in my view, can be divided into the following two parts:

(A)  Whether the circumstances in this case constituted an unlawful assembly; and

(B)  If yes, whether each of the appellants participated in the two parts of the unlawful assembly involved.

IX.  Whether the circumstances in this case constituted an unlawful assembly

IX.1.  The offence of unlawful assembly

85.  The offence of unlawful assembly (“the offence involved”) was created under section 18(1) of the Public Order Ordinance[81]. It is in these terms:

“When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.”

86.  The Court of Final Appeal in Lo Kin Man[82] made a determination on the elements of the offence involved in this case and the matters that have to be proved. By the time of the trial of this case[83], the Court of Final Appeal had not heard that case yet[84]. The determination in that case, which applies to this case, is as follows[85]:

(1)  The constituent elements of an unlawful assembly were:

(i)  where three or more persons;

(ii)  assembled together;

(iii)  conducted themselves in a disorderly, intimidating, insulting or provocative manner;

(iv)  intended or likely to cause any person reasonably to fear that the persons assembled would commit, or would by such conduct, provoke other persons to commit, a breach of the peace.

(i) to (iv) together are described below as “the constituent offenders” and (iii) and (iv) together are described below as “the prohibited conduct”.

(2)  The actus reus was “taking part”. This included acting in furtherance of the prohibited conduct by facilitating, assisting or encouraging the performance of such conduct by other participants in the assembly. In doing so, the defendant may attract liability either as a principal offencder or an aider and abettor. The defendant need not be one of the constituent offenders and could “take part” in the unlawful assembly by joining in later.

(3)  Unlawful assembly was a “participatory offence”. To be guilty as a principal, the defendant must be shown to have acted as part of an assembly with others who were also participants, being aware of their related conduct and with the intention, while assembled together with them, to engage in or act in furtherance of the prohibited conduct.

(4)  Mere presence was not enough to constitute either “taking part” or aiding and abetting; there must be some intentional activity by the defendant in furtherance of the unlawful assembly or riot. However, it did not take a great deal of such activity to move the case from “mere presence” to circumstances qualifying as “encouragement”, thus attracting liability.

(5)  It was not necessary for the prosecution to prove the defendant shared a specific extraneous common purpose as distinct from the requisite participatory intent, but it was necessary to prove the requisite participatory intent, which reflected the participatory nature of the offence.

(6)  The joint enterprise doctrine (in its basic form) was not applicable because the statutory language rendered that doctrine otiose and liable to cause confusion regarding the central actus reus element of “taking part”.

87.  The respective counsel for the four appellants all submitted that the magistrate erred in finding that the conduct of the persons involved in the assembly constituted “the prescribed conduct” and was likely to cause “the stipulated fear” and, therefore, it was also wrong for the magistrate to find that the circumstances of the case constituted an unlawful assembly.

88.  Counsel adopted such formulations as “the prescribed conduct” and “the stipulated fear”, which I had also adopted in other cases. The purpose of my adopting such formulations was to use them to represent the following for the sake of brevity: 

(1)  conduct themselves in a disorderly, intimidating, insulting or provocative manner;

(2)  fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace.

89.  It was apparent from the submissions of counsel that the issues in relation to “the prescribed conduct” and “the stipulated fear” involved both issues of law and fact.

IX.1.A The issue of law

90.  The issue of law involved the constitutional right of freedom of speech.

91.  Article 27 of the Basic Law provides that Hong Kong residents shall have freedom of speech, of assembly, of procession and of demonstration. Other persons in Hong Kong shall also enjoy such rights and freedoms.[86]

92.  It can be seen from article 39 of the Basic Law that the relevant rights and freedoms may be restricted as prescribed by law. However, such restrictions shall not contravene the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions, and shall not be restricted unless as prescribed by law.

93.  Article 42 of the Basic Law also provides that the persons referred to in paragraph 91 above shall have the obligation to abide by the laws in force locally.

94.  Article 16(2) of the Hong Kong Bill of Rights[87] provides that everyone shall have the right of freedom of expression. However, article 16(3) also provides that:

(1)  the exercise of such rights carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(i)  for respect of the rights or reputations of others; or

(ii)  for the protection of national security or of public order (ordre public), or of public health or morals.

95.  Article 17 of the Hong Kong Bill of Rights also provides that:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

96.  Freedom of speech is a constitutional right guaranteed by both the Basic Law and the Hong Kong Bill of Rights. However, both the Basic Law and the Hong Kong Bill of Rights expressly state that such rights may be subject to restrictions as prescribed by law.

97.  In Ng Kung Siu[88], the Court of Final Appeal pointed out: Freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong’s system and way of life. The courts must give a generous interpretation to its constitutional guarantee. This freedom includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticise governmental institutions and the conduct of public officials.[89] Only when a demonstrator becomes involved in violence or threat of violence[90]，will that demonstrator cross the line of constitutionally protected peaceful demonstration, and may therefore be subject to legal sanctions.[91]

98.  In Chow Nok Hang[92], the Court of Final Appeal emphasized the importance of freedom of speech and attached importance to tolerance of different views. However, the Court of Final Appeal also pointed out that any person exercising such rights cannot go beyond the constitutional limits of those rights.[93] The point is that in exercising those rights, one cannot commit a breach of the peace or infringe the rights and freedoms of others.[94] Chan Ag CJ[95] pointed out that the right to freedom of speech may be subject to restrictions as prescribed by law in the interest of public safety and for the protection of the exercise of the same rights by others.[96]  However, any law which has the effect of restricting the constitutional rights must be necessary to achieve the legitimate aim and the restriction must satisfy the test of proportionality. In construing the relevant statutory provisions, they must be narrowly interpreted while provisions concerning rights should be given a generous interpretation.[97] His Lordship also pointed out that those who exercise the right to freedom of speech must also respect the rights of others and must not abuse such rights.[98]

99.  In Leung Kwok Hung[99], the Court of Final Appeal pointed out: Freedom of peaceful assembly is a fundamental constitutional right. It is closely associated with the fundamental right of freedom of speech. The resolution of conflicts through open dialogue and debate is of the essence of a democratic society, and procession is a rather effective means of expression. The courts must give such a fundamental right a generous interpretation so as to give individuals its full measure; on the other hand, restrictions on such a right must be narrowly interpreted.

100.  In Chow Nok Hang[100], Tang PJ cited and adopted the following passages[101] from the guidelines on Freedom of Peaceful Assembly 2^nd edition[102] published by OSCE/ODIHR (Organisation for Security and Co-operation in Europe / Office for Democratic Institution and Human Rights)[103] dated 25 October 2010:

‘25. Peaceful assemblies: Only peaceful assembly is protected by the right to freedom of assembly. The European Court of Human Rights has stated that “[i]n practice, the only type of events that did not qualify as ‘peaceful assemblies’ were those in which the organizers and participants intended to use violence.” Participants must also refrain from using violence (though the use of violence by a small number of participants should not automatically lead to the categorization as non-peaceful of an otherwise peaceful assembly – see para 164). An assembly should, therefore, be deemed peaceful if its organizers have professed peaceful intentions, and this should be presumed unless there is compelling and demonstrable evidence that those organizing or participating in that particular event themselves intend to use, advocate or incite imminent violence.

26. The term “peaceful” should be interpreted to include conduct that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote, and even include conduct that temporarily hinders, impedes or obstructs the activities of third parties. Thus, by way of example, assemblies involving purely passive resistance should be characterized as peaceful. Furthermore, in the course of an assembly, “an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour”.’

101.  There are clear authorities that the essence of freedom of speech or expression includes not only the content of expression but also the means of expression, and further, it encompasses not only the mainstream views or means of expression but also some non-mainstream, unpopular, offensive or even heretical views and means of expression.

102.  One criticism of the magistrate from counsel for the appellant(s) was that the magistrate took the view that freedom of speech only includes the freedom to express views. I agree that the magistrate’s view in this regard was too harsh or narrow.

103.  Some of the magistrate’s observations about the incident, such as what was referred to in the preceding paragraph, might not be correct, but the point is, whether the circumstances revealed by the evidence were sufficient to make the court sure that what was taking place there and then was an unlawful assembly. As submitted by counsel for the appellant(s), given that the magistrate had rejected PW1’s testimony, the evidence concerning the circumstances surrounding the incident in this case only came from the video footage produced in court. On the premise that a magistracy appeal is conducted by way of rehearing, I am entitled to make a judgment based on the footage. As this exercise does not involve the assessment of the credibility of the witnesses, the magistrate and I are on an equal footing and there is no question of the magistrate having the advantage of hearing and seeing the witnssses give evidence.

104.  Counsel raised the issue of “proportionality”, which would generally be touched upon in the course of consideration of constitutionality. In assessing whether the restrictions on the constitutional rights are necessary, the court has to take into consideration whether the relevant restrictions have struck a balance between the constitutional rights of the individual and the general interest of the community, and whether the restrictions imposed in pursuit of a legitimate aim go further than is necessary to achieve that aim.

105.  Clearly, the offence involved has satisfied all the conditions of the test of constitutionality, including “proportionality”.

106.  In my view, it is the duty of a tribunal of fact to assess on the evidence whether the prosecution has proved “the prohibited conduct”[104], having regard to the background, nature and overall circumstances surrounding the case in the course of consideration, in particular, to assess whether “the stipulated fear”, if any, is reasonable, and to assess whether a balance in safeguarding the rights of the parties when “the prohibited conduct” arises has been struck.

107.  It must be noted that the Court of Final Appeal in Lo Kin Man[105] expounded on the two elements of the offence, which were described by parties in the present case as “the prescribed conduct” and “the stipulated fear” and collectively referred to as “the prohibited conduct”. Although the prosecution has to prove “the prescribed conduct” and “the stipulated fear” separately, what constitutes an unlawful assembly is “the prohibited conduct”, which is a combination of the aforesaid two elements. Thus, in considering whether there is an unlawful assembly, it has to be considered on the basis of “the prohibited conduct”. If it can be proved beyond reasonable doubt that there was “the prohibited conduct”, then it is proved that there was an unlawful assembly. The submisssions of one or two counsel for the appellant(s) overemphasized the argument that even if certain conduct has gone too far, it can still be regarded as the exercise of the relevant constitutional rights. Such an argument is inconsistent with what is articulated in the authorities.

108.  In Chow Nok Hang[106], Ribeiro PJ pointed out: Once a demonstrator becomes involved in violence or the threat of violence (namely a “breach of the peace”), that demonstrator crosses the line separating constitutionally protected peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints. The same applies where the demonstrator crosses the line by unlawfully interfering with the rights and freedoms of others[107].

109.  In Leung Chung Hang Sixtus[108], the Court of Final Appeal also held that where the assembled persons, acting in concert, “conduct themselves in the prohibited manner” with the objectively likely consequence of causing “the stipulated fear”, their behaviour would inevitably take them outside the scope of constitutional protection in respect of peaceful assembly.[109]

110.  In To Kwan Hang[110], the Court of Appeal held that the offence involved is not inconsistent with the right of peaceful assembly[111] and that article 17 of the Hong Kong Bill of Rights[112] does not confer a right of assembly on those who will “conduct themselves in the prohibited manner”.[113]

111.  In Leung Kwok Wah[114], Lam JA[115] pointed out[116]:

(1)  The exercise of the right to freedom of speech is not absolute;

(2)  The offence of unlawful assembly is preventive in nature and for the avoidance of the deterioration of the event into an actual breach of the peace;

(3)  While protecting the right to freedom of speech, the court must have regard to the rights of others who are affected;

(4)  The court has to strike a balance between the parties’ rights and apply a test of reasonableness in assessing whether the person exercising the right to freedom of speech has crossed the line;

(5)  In the assessment and balancing exercise, sufficient weight must be given to the constitutional right of freedom of speech;

(6)  When it is assessed as having crossed the line, provided all the elements of the offence can be proved, even if one is exercising his right to freedom of speech, he has committed the offence involved.

112.  In Leung Kwok Hung v Secretary for Justice (No 2)[117], which was cited on behalf of the appellant(s), the Court of Appeal pointed out: The proportionality assessment has to be applied on two levels[118]:

(1)  the systemic proportionality: concerning the constitutionality of the ordinance; and

(2)  the operational proportionality: concerning whether the implementation or enforcement of the relevant ordinance in the specific circumstances is compatible with the principle of proportionality.

113.  In that case, there was no need for the Court of Appeal to actually deal with the application issue in item (2) above. Nevertheless, the Court of Appeal gave the following example: If it is only a small number of participants deviating from the approved route of procession without any conduct or behaviour causing serious disruption to public order, an order for the stop or dispersal of the gathering will not be compatible with the principle of proportionality on an operational level, and the authorities will need to consider whether there are any other measures which are compatible with the principle of proportionality to deal with the situation.

114.  In Kudrevicius v Lithuania[119], the European Court of Human Rights pointed out that the court has to strike a proper balance between the following[120]:

(1)  the public authorities have to show a degree of tolerance; and

(2)  those exercising their rights have to comply with the regulations in force.

115.  In the present case, there is evidence that the participants in the procession intensified the prescribed conduct from time to time, showing a total disregard for the rights of others, and the situation persisted. The police gave a number of warnings and the participants were clearly aware of the deployment of the police. They once dispersed after getting wind that the police would take law enforcement actions, but gathered again subsequently. The police entered the mall for law enforcement only after the procession had been going on for about an hour. If it was said that the police misjudged the nature of the procession, it would be a matter of evidence. If the court also found that the prohibited conduct was proved, it would not be justified to say that the police made a misjudgment. In my view, taking action to enforce the law under those circumstances will not fail the proportionality test.

116.  Further, in his/their submissions, counsel for the appellant(s) made a comparison of section 17B(2) with section 18, the section relevant to the offence involved, and submitted that the wording used in the latter is “conduct” instead of “words”, which indicates that what section 18 is concerned with does not include sheer words. I am unable to agree with this submission. First, generally speaking, “conduct” includes “words” as well; second, as pointed out by Mr Lam, section 17B(2) is, in fact, aimed at not only words but also other conduct.

IX.1.B “The prescribed conduct”

117.  In the present context, “the prohibited conduct” of the offence involved was: “conducting oneself in the prescribed manner” which was likely to cause any person reasonably to have “the stipulated fear”. The prosecution did not allege any of the appellants to have intended to cause “the stipulated fear”.

118.  “The prescribed conduct” means conduct which is disorderly, intimidating, insulting or provocative.

119.  As to the meaning of disorderly conduct and insulting, Ribeiro PJ pointed out in Chow Nok Hang[121] that it should be left to the tribunal of fact to determine by applying the ordinary meaning of the words to the time, place and circumstances of the conduct in question.[122]

120.  In Leung Kwok Wah[123], Lam JA[124] pointed out that the conduct which might constitute disorderly conduct was less aggressive or specific than that would be required to constitute a breach of the peace, and was not dependent on the reaction of others who were present or whether the person conducted himself in such a manner was exercising his right to freedom of assembly, but dependent on whether his conduct amounted to disorderly conduct.[125]

121.  As regards the word “insulting”, in Chow Nok Hang[126], the Court of Final Appeal adopted the construction in the English case of Brutus v Cozens[127]: whether or not certain behaviour constitutes an “insult” is a question of fact for the fact-finding tribunal to determine and that should be determined by applying the ordinary everyday meanings of the word “insult”. And the word “insult” should be construed to include treating with insolence or contempt or indignity or derision or dishonour or offensive disrespect. Many things otherwise unobjectionable may be said or done in an insulting way. An ordinary sensible man knows an insult when he sees or hears it[128].

122.  As to the word “provocative”, the observations made by the Court of Appeal in Secretary for Justice v Chung Ka Ho[129], a sentence review case, are of reference value:

“64. … Whether or not certain behaviour is provocative also depends on the possible reactions resulted among the protesters and those present with different views. In fact, since law enforcement officers ought to be professional and restrained, whether or not people of the latter two types would be incited or further incited is a much more important consideration. If the protesters would or might be incited or further incited, and strong reactions would be or might be aroused among people having different views, then the risk of having violent clashes would increase and so would the overall seriousness of the unlawful assembly. Even if there was nobody from the opposite side or opposite camp at the scene, and only the protesters themselves were being incited or further incited, the risk of violence would still increase, and the only difference would be the degree of escalation. It all depends on the actual circumstances of the case.”

123.  Whether or not certain conduct is intimidating should be left to the tribunal of fact to determine by applying the ordinary meaning of the aforesaid words to the time, place and circumstances of the conduct concerned.

IX.1.C “The stipulated fear”

124.  As stated in paragraph 107 above, apart from proving “the prescribed conduct”, the prosecution also has to prove that such conduct was likely to cause someone reasonably to have “the stipulated fear”.

125.  Fear of what? Fear of a breach of the peace.

126.  In the past, the courts in Hong Kong had all along adopted the relevant decision in R v Howell[130]. The Court of Final Appeal in Lo Kin Man[131] took the view that the formulation of the decision in that case was too narrow and pointed out that the following situations could constitute a breach of the peace: committing or threatening an act of violence against another person or another’s property; or committing an act against another person or another’s property so that such violence may reasonably be apprehended. If the act causes actual harm or is likely to cause such harm, it constitutes a breach of the peace. If such an act is likely to arouse resentment or anger in the persons to whom or whose property harm is done or who are subjected to the threat of such violence, and hence a desire to take instant revenge, it also constitutes a breach of the peace.[132]

127.  Previously, Bokhary[133] JA[134] pointed out in To Kwan Hang[135] that someone commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which puts someone in immediate danger of injury or property in immediate danger of damage. On the other hand, conduct which was peaceful in itself might, if persistently pursued, provoke others to violence, and if a violent response could be considered the natural consequence of such persistent conduct, it would constitute a breach of the peace.[136]

128.  It is a well-established principle of law that the offence involved is preventive in nature. There is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fears that it would occur if no action is taken in the meantime to prevent it[137].

129.  In Lo Kin Man[138], Ribeiro PJ[139] pointed out that the essence of the concept of breach of the peace is to use actual violence or threatened violence on another person or his property[140], or to cause people reasonably to fear that violence will occur.[141]

130.  As far as threatened violence is concerned, where the harm is anticipated, there must be a real risk and the anticipated harm must be imminent (namely likely to occur such that it is precluded from being overtaken by events) but need not occur in the next few seconds or next few minutes[142]. Whether or not it is imminent should be determined based on the relevant overall circumstances. In my view, a situation in which [violence] is on the verge of breaking out of course satisfies this condition. Where an imminent breach of the peace is apprehended, under certain circumstances, it can also satisfy this condition.

131.  “The stipulated fear” can be the following two aspects of fear:

(1)  The persons assembled themselves will commit a breach of the peace: this involves two different categories of people: the original group of people who are “the persons so assembled” (there must be three or more of them), and a third person or group of persons who harbour(s) the fear; or

(2)  The persons assembled will by their conduct provoke other persons to commit a breach of the peace. This involves three different categories of people: the original group of people who are “the persons so assembled” (there must be three or more of them), a second group (there may only be one person) who is/are provoked by the first group and may respond by actions which amount to a breach of the peace, and a third person or group of persons who harbour(s) the fear.

132.  Lam JA[143] pointed out in Leung Kwok Wah[144]:

(1)  The person having the fear must be a person present at the scene;

(2)  His fear has to be reasonable; and

(3)  The prosecution is required to prove that an objective bystander would reasonably fear that:

(i)  things might go for the worse and the persons assembled would continue to behave so badly or rowdily to become a breach of the peace; or

(ii)  other persons present at the scene would be provoked by the persons assembled and respond by actions which amount to a breach of the peace.

133.  As to who would be the persons having “the stipulated fear”, apart from the ordinary bystanders, victims of the incident or the persons targeted could also be the third parties having “the stipulated fear”[145], and so could be the security officers and members of the press present at the scene[146], and even those in the assembly but not in favour of taking such action could also have “the stipulated fear”[147].

134.  It was not necessary for the prosecution to call those third parties to prove that they actually had “the stipulated fear”[148].

135.  In Leung Kwok Wah[149], Lam JA[150] agreed with the observations in Yeung Kin Ping[151] and Kamara[152]. In Yeung Kin Ping, Stock[153] J[154] had the following observations[155]:

(1)  If the incident takes place in a public place, the presence of others can be assumed; and

(2)  The crucial point is whether the overall circumstances show that it is likely that others will be present at the relevant place.

136.  Fok PJ[156] pointed out in Leung Chung Hang Sixtus[157]:

(1)  “The stipulated fear” must be objectively reasonable on the part of any person, and not just a few overly-sensitive persons;

(2)  The “prescribed conduct” of the persons assembled in the case must provide a substantial basis for regarding a breach of the peace as likely.[158]

137.  Such fear must be objectively reasonable. In other words, if the person having the fear is just overly-sensitive, it does not constitute reasonable “stipulated fear”.

138.  In Chow Nok Hang[159], Ribeiro PJ[160] pointed out that in assessing the likelihood of a breach of the peace, the court will take account of the nature of the behaviour involved and all the circumstances in which such behaviour occurred[161].

139.  As stated in Leung Kwok Wah[162], the person’s fear is not fear as to his own safety or security. Rather, it is a fear that a breach of the peace will occur. It is sufficient that the person fears that a breach of the peace will occur if such behaviour is not stopped.

140.  The likelihood of a breach of the peace is assessed as a matter of fact based on the circumstances revealed by the evidence, taking account of the nature of “the prescribed conduct” and the overall circumstances in which “the prescribed conduct” occurred.[163]

141.  One of the submissions advanced on behalf of the appellant(s) is that protesters have the right to exercise their rights through any location or means of expression of their choice, and these are themselves constitutionally guaranteed rights. It is true that the aforesaid right to choose is a constitutional right[164], however, such a right to choose is not absolute.

142.  In Mayor of London v Hall[165], Lord Neuberger MR pointed out:

(1)  The court cannot ignore that the exercise of the aforesaid right may at the same time give rise to the risk of interfering with the rights of others[166];

(2)  The court should take into consideration the specific circumstances of each case and may have regard to the following factors:

(i)  the importance of staging a protest there to the persons exercising their rights;

(ii)  the duration of the act; and

(iii)  the impact of the act on the various rights of others, including the exercise of the right of property or the public’s right of use there[167].

143.  In the present case, since it is not disputed that the offence involved is constitutional, the key issue is whether what occurred has crossed the line or amounted to “the prohibited conduct”.

144.  Lam JA [168] pointed out in Leung Kwok Wah[169] that the essence of the offence involved is as follows, and that this is the approach to be taken by the court in its consideration:

(1)  There is no absolute right to demonstrate even at public places or premises of a public nature;

(2)  The offence involved is to address situations which, unless preventive actions are taken, are likely to develop into a breach of the peace;

(3)  Breach of the peace involved harm to other persons or damage to properties of others or a fear of such consequences. The constitutional rights to protection of persons and properties are therefore engaged. These must be weighed in the balance in drawing the legitimate lines for the exercise of the rights of peaceful assembly and demonstration;

(4)  In the assessment of whether the conduct of the defendants would cause a reasonable person to fear that they would commit a breach of the peace, one must not apply that objective test in a manner that would unduly impair the ability to exercise the constitutional rights of peaceful assembly and demonstration; and

(5)  However, when that line has been crossed, the offence involved has to be applied to stop a deterioration of an often highly emotionally charged assembly into a serious disruption of law and order.[170]

145.  Lam JA[171] also pointed out[172]:

(1)  “The prescribed conduct” is aimed at the the character of the conduct rather than the legality of the purpose behind the conduct[173].

(2)  The offence involved is for preventive purposes. Therefore, even if a breach of the peace does not actually occur, it will be sufficient if it is proved that the person “conducting himself in the prescribed manner” has intended to cause “the stipulated fear”, or a person present at the scene reasonably has “the stipulated fear” if no preventive action is taken[174].

(3)  Even if the innocent third party present at the scene is a trained person, he can still fear that the accused will commit a breach of the peace[175].

(4)  In assessing whether there is “the stipulated fear”, the court must take into consideration the protesters’ constitutionally[176]protected rights of freedom of expression, peaceful assembly and demonstration. The court will definitely not adopt an objective test which will unduly restrict the constitutional rights of peaceful assembly and demonstration[177].

146.  In Leung Kwok Hung (No 2)[178], the Court of Appeal pointed out that in construing and applying the provisions of the Public Order Ordinance[179], the court is required to adopt a manner which is compatible with the rights of demonstration and assembly[180].

147.  The Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council[181] pointed out that a peaceful demonstration does not lose its character as such because of an outbreak of isolated violence.[182]

148.  In Leung Chung Hang Sixtus[183], the Court of Final Appeal held that the purpose of the formulation of “likely” is to prevent any behaviour which creates an objective risk of causing “the stipulated fear” and is not linked to whether the assembled persons do or do not foresee such reasonable apprehension as the consequence of their acts.[184]

IX.2.  Did anyone “conduct himself in the prescribed manner” in the case?

149.  I shall first consider whether or not the act or acts done in the case amounted to “the prescribed conduct” based on the aforesaid legal principles.

150.  The magistrate enumerated the following words shouted by someone in the procession:

(1)  “Black cops OT, wives of the cops 3P”[185];

(2)  “Black cops, may your whole family die”, “May the husband’s family and the wife’s family die one after the other”, “May your father and mother die one after the other, we laugh out loud”[186];

(3)  “He who eats at Genki has no backbone”[187]；

(4)  “He who eats at Maxim’s is heartless”[188]; and

(5)  Words to the effect of “Genki’s food contained worms, don’t eat it”, punctuated with swear words[189].

The magistrate took the view that all these were words for wantonly insulting or cursing others, tarnishing the reputation of businesses and denigrating customers of businesses[190], which constituted “the prescribed conduct”[191].

151.  Apart from the aforesaid slogans, people also shouted “Hongkongers, come out” and “Make every effort to resist” from time to time. Some people used the wording “revenge” and “martyr”, and some shouted abusive words containing references to the mothers of the police officers. At the entrance to Genki, there were also chants of “Don’t open the door if you have the guts” or words to that effect, which were often punctuated with swear words.

152.  Having taken into account the background of demonstration of the case, the overall circumstances surrounding the case and the submissions from both sides, I agree with the magistrate’s assessment that all of those slogans were insulting. I am also of the view that some of the slogans had the effect of provocation as well.

153.  There were people shouting the aforesaid slogans during different periods of time in the entire course of the procession in the evening in question. I agree with the magistrate’s conclusion that over the two alleged periods of time in the evening in question, up until the police took action, there were people in the procession “conducting themselves in the prescribed manner”.

IX.3.  Did anyone reasonably have “the stipulated fear”?

154.  The mere fact that someone “conducted himself in the prescribed manner” would not turn the procession into an unlawful assembly. The prosecution must also prove that “the prescribed conduct” was likely to cause someone reasonably to have “the stipulated fear”.

155.  The main points of the submisssions of counsel for the appellants can be summarized as follows:

(1)  There was no physical conflict at the scene, the persons assembled were not holding weapons, tools or flags in their hands, and the slogans were nothing but slogans and so on[192];

(2)  There was no evidence capable of proving that there were relatives or friends of police officers or supporters of the police or the shops targeted present at the scene[193];

(3)  There was no evidence as to the reason why Genki lowered its shutters. Under the circumstances, one should not presume the reason to be fear[194];

(4)  The fact that the security guards did not intervene might not necessarily reflect that they had “the stipulated fear”[195];

(5)  PW1 said that it was orderly at the scene[196], whereas the magistrate wrongly rejected his evidence;

(6)  Some shops lowered their shutters possibly because of their fear that police action might cause chaos rather than their fear of the persons assembled[197];

(7)  During the entire period of time, quite a few shops remained open for business, customers continued to go window-shopping and have their meals, and passers-by did not show any signs of panic[198];

(8)  The persons assembled did not ignore police warnings[199]；

(9)  The protesters acted in a reasonable, diligent and socially unblameworthy manner[200]; and

(10)  If a third person or group of persons reacted in an unreasonable or overly-sensitive manner, the peaceful protesters should not be held responsible.

156.  In his submissions, Mr Lam pointed out:

(1)  The situation was such that it would be sufficient to cause someone reasonably to fear that the persons assembled themselves would commit a breach of the peace:

(i)  Any third person or group of persons, including ordinary passers-by in the mall, staff members or customers of the victims targeted, namely the eateries Genki/ Maxim’s, reporters, security guards and so on would have such fear;

(ii)  When the procession surrounded the eateries Genki/ Maxim’s, cursing and shouting words to the effect of “don’t open the door if you have the guts”, the staff members and customers of Genki/ Maxim’s would fear that the persons assembled would resort to acts which would cause injury to persons or damage to property. Such concerns were logical and reasonable;

(iii)  When people were shouting slogans targeting the police such as “Black cops, may your whole family die” and “May your father and mother die one after the other”, the relatives of police officers would necessarily be frightened should they be present at the scene;

(2)  The situation would also cause people reasonably to fear that the second group of people (could be the relatives or supporters of the police, the staff members and customers of the eateries Genki/ Maxim’s and so on) would be provoked by the persons assembled and respond by committing a breach of the peace.

157.  Mr Lam also submitted that the following factors could assist the court in inferring that the conduct of the persons assembled was likely to cause “the stipulated fear”:

(1)  Over one hundred people assembled inside the mall. Even though they were not holding weapons in their hands, most of them were wearing facial coverings and black or dark-coloured outfits;

(2)  This large crowd of people kept circling around on various floors and packed the narrow passageway of the mall. Ordinary passers-by or customers were required to make a detour and walk on the two sides;

(3)  The action of those assembled was quite large in scale. Their slogans repeatedly emphasized “taking revenge” and were clearly hostile to some particular shops or people, giving rise to concerns that they would commit acts of breach of the peace involving injury to persons or damage to property;

(4)  The aforesaid acts took place on a festive occasion in a mall which was open for business. In light of the rather heavy flow of people and cramped conditions, it would not be easy to evacuate in case of emergency. This gave rise to concerns that it would pose greater risk to personal safety and property damage;

(5)  When passing by various shops, the persons assembled would shout loudly and even target some shops (Genki, Maxim’s, etc.) by stopping outside the shops, chanting slogans, cursing and yelling at the customers and staff members inside the shops;

(6)  Such acts continued for nearly 50 minutes. In the meantime, even though the persons assembled learnt that the police were comimg to the scene for law enforcement, they gathered again and proceeded after a brief dispersal;

(7)  Having heard that the police had come to the scene for law enforcement, the persons assembled continued to assemble. This would necessarily be stopped by the police. Any reasonable man would fear that their continued action would probably lead to a certain degree of conflict, hence a breach of the peace; and

(8)  Obviously, this case occurred against the background of the Anti-Extradition Law Amendment Bill Movement. At the time of the offence, Hong Kong was going through a series of incidents involving violence and the social unrest was ongoing. Many peaceful demonstrations could easily degenerate into violent confrontations. Activities such as “Shop with you” held in similar large malls often sparked other incidents[201]. Therefore, as far as the objective test is concerned, when compared with similar processions that took place at other times, bystanders would more easily have “the stipulated fear” of the acts of those assembled.

158.  The magistrate stated:

‘In my view, objectively speaking, chanting the aforesaid imprecatory and insulting slogans at Phase I of “Telford Plaza” was likely to cause any person reasonably to fear that the persons assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace (“the stipulated fear”) because it was likely that, among the citizens at Phase I of “Telford Plaza”, there were family members, relatives or friends of police officers or supporters of Genki Sushi or Maxim’s Restaurant coming into physical conflict with the participants in the procession by reason of being wantonly insulted, cursed, vilified and harassed as mentioned above.’[202]

159.  The magistrate also pointed out that what people in the procession chanted before Genki lowered its shutters and the result of Genki lowering the shutters indicated that the person in charge of Genki had “the stipulated fear” and that it was reasonable to have such fear.[203]

160.  I have carefully viewed the footage produced in court so as to determine whether “the prescribed conduct” occurred in the incident caused people reasonably to have “the stipulated fear” and therefore constituted an unlawful assembly based on the relevant legal principles and the observations stated in the aforesaid cases, and having regard to the submissions from both sides.

161.  Notwithstanding the absence of testimony from the relevant person(s), the point is not whether anyone actually had “the stipulated fear”, the point is, objectively speaking, whether “the prescribed conduct” was likely to cause those present at the scene reasonably to have “the stipulated fear”. In my view, the evidence as a whole was sufficient to support the inference that Genki lowered its shutters in response to the conduct of the participants in the procession and that Genki did so simply because of the fear that these people would commit a breach of the peace.

162.  Counsel for the appellants all stressed that on the day in question, the demonstration was held peacefully and, from beginning to end, no one used force or brought along any weapon, equipment, flag or placard, with the implication that no one should have “the stipulated fear”, and even if anyone had, he/she did not reasonably have the fear.

163.  Although what counsel referred to in the preceding paragraph was true, I fully agreed with the magistrate’s finding that the persons in Genki, whether it be the person(s) in charge, staff members or customers, were likely to have “the stipulated fear” and it was reasonable to have “the stipulated fear”. I am sure that the situation created by the procession at that stage was still likely to cause someone reasonably to have “the stipulated fear”, even if those present at the scene appreciated that those people were demonstrating and showed proper tolerance towards them.

164.  The reason why the magistrate specifically referred to the “Genki incident” was clearly because Genki was one of the shops targeted by the procession on this occasion. The procession had stayed and yelled outside the shop, targeting not only the shop itself but also the customers who patronized the shop. Nevertheless, this does not mean that the conduct of the participants in the procession during other periods of time in the course of the procession did not cause someone reasonably to have “the stipulated fear”. Further, the participants in procession gathered outside Genki not only once. In the course of the procession, the participants went there once more and chanted slogans. At that time, Genki’s shutters remained closed.

165.  Counsel for the appellants all contended that the people inside the mall behaved just as usual and did not appear to have fear and most of the shops were open for business as usual.

166.  As can be seen from the footage, at the early stage of the procession, in the mall, there were many people who were unrelated to the procession and no one showed any obvious sign of fear in his/her response or facial expression. Subsequently, more and more people participated in the procession and packed the passageway. There seemed to be fewer and fewer people who were unrelated to the procession. However, many shops remained open for business. People showed up sporadically also showed no obvious sign of fear in their response or facial expression.

167.  While I agree that all these are circumstances ought to be taken into account, they are only some of the matters which ought to be taken into account in considering the issue of “the stipulated fear”. As can be seen from quite a lot of news footage concerning many other incidents, even if a breach of the peace had obviously occurred, there would still be a third person or group of persons who stopped to watch. Further, this case took place at a mall which was connected to a MTR station and there were housing estates in its vicinity. It can be reasonably expected that someone would necessarily go somewhere via the mall. The situation in the present case would not necessarily make people look panicky or run away in panic. Even though those present at the scene did not show any obvious sign of abnormality, whether or not they had “the stipulated fear” is another matter. Furthermore, the court cannot simply place too much emphasis on those people who appeared perfectly normal. As can be seen from the footage, when the procession passed by, some people stepped back and stood aside and some quickened their pace to leave. There were fewer and fewer people who were not participants in the procession (it was then the relatively busy hours before 9 p.m.). Some people looked tense. Some shops closed their doors one after another. Some security guards cordoned off the area where there were large Christmas decorations with plastic straps[204]. Someone once hurled insults at “the blue ribbon” by using foul language. These are circumstances the court should also take into account.

168.  In addition, objectively speaking, some of the slogans the procession chanted[205] actually had the connotation of using force or at least reasonably suggested that someone would use force.

169.  Furthermore, the fact that there were vastly divergent views among members of the public at that time speaks for itself. It would be self-deceiving to say that there was no one with opposing political views or stances present at the scene. In any event, the point is that if there were people with opposing views present at the scene, would they reasonably have “the stipulated fear”? These people would certainly respect the rights of other participants in the procession. However, judging from the content of the slogans the procession chanted, especially what some slogans were targeted at, inevitably, people with opposing political views would have reasonable concerns.

170.  All counsel submitted that the demeanour of the security guards present at the scene did not support the conclusion that they had “the stipulated fear”, and what was more, PW1’s testimony[206] was plainly inconsistent with the suggestion that they had “the stipulated fear”. However, the magistrate wrongly rejected his testimony.

171.  The magistrate did not accept PW1’s testimony because he considered that he was hiding something and that his description that the situation at that time was orderly and peaceful was unreasonable.[207]

172.  The magistrate had the advantage of having seen and heard the witnesses giving evidence. I can see no sufficient justification for interfering with the magistrate’s assessment of the credibility of PW1’s testimony. The magistrate explained that the reason why he considered it unreasonable for PW1 to describe the situation as orderly and peaceful was that PW1 had nothing to supplement or add as a footnote to his description.

173.  As shown in the footage, the procession involved no violence or vandalism, and this was very likely the reason why PW1 described it as peaceful. Whether it was orderly or not was a matter of point of view, but at least no one went on the rampage. As counsel submitted, the procession could be regarded as remaining in formation all along.

174.  Even if the part of PW1’s testimony in which he described the situation as orderly and peaceful ought to be taken into account, it would have limited effect on the assessment of the issue of “the stipulated fear”. The security guards were required to perform their duties. Their presence at the scene does not mean they did not have “the stipulated fear”. Instead, a closer look at why they were present at the scene should be taken. As a matter of fact, PW1 also said that:

(1)  He had deployed additional manpower[208]; and

(2)  He had instructed the security guards to follow the participants in the procession so that the security guards could mediate in case of dispute[209].

175.  Furthermore, the security guards present at the scene were not acting at ease. Moreover, as can be heard from the footage, when someone claimed that police officers were about to enter the mall, someone else shouted words to the effect of “don’t let anyone in” and made reference to the previous incident of allowing people (judging from the situation at that time, that should be referring to police officers) to enter a mall[210]. These words were apparently directed at the staff members of the mall. Judging by the content and the manner in which they were uttered and the atmosphere at the scene, these words had a frightening effect.

176.  This incident occurred in December 2019. The social unrest had been going on for many months by then. Violence broke out every now and then. The clothing of the participants and the main theme of the slogans chanted from time to time in those events were the same as those of the participants in the procession in the present case. For those present at the scene, this would necessarily have an effect on their views about the incident and their reaction to it. From the conduct of the participants in the procession, it can be seen that they hardly showed any respect to the rights of others and that emotions were running high from time to time. They used considerably powerful amplifiers in the passageway of the mall, thereby enhancing the intimidating effect.

177.  Having carefully viewed what was shown in the footage and examined the evidence, I am of the view that the only reasonable inference supported by evidence was that during the entire course of the procession, even if those present at the scene appreciated that this was a demonstration and showed proper tolerance, in the context of the overall circumstances at that time, it would be logical and reasonable for someone to fear that there would be an imminent breach of the peace.

IX.4.  Whether the incident constituted an unlawful assembly?

178.  In my view, regard can be had to the situations referred to by both sides. All in all, I agree with the magistrate’s conclusion that during both periods of time particularized in charges one and three, there were people “conducting themselves in the prescribed manner”, and that such conduct was likely to cause someone to have “the stipulated fear”, namely to worry that the persons assembled themselves would commit an imminent breach of the peace. The magistrate also took the view that the conduct of these people was likely to cause someone reasonably to fear that such conduct would provoke other persons to commit a breach of the peace. I also agree with this conclusion. In the context of the overall circumstances at that time, it was reasonable to have “the stipulated fear” as mentioned above. I agree that the incident constituted an unlawful assembly.

X.  Whether each of the appellants participated?

179.  Since I agree that the magistrate was correct in finding that there had been an unlawful assembly at the scene, I now proceed to consider whether each of the appellants participated in the unlawful assembly.

180.  In separately dealing with the case of each appellant, I had regard to the following observations of the Court of Final Appeal in Lo Kin Man[211]:

(1)  For the participants, “the prescribed conduct” performed by each of them need not be the same.[212]

(2)  If the defendant is a constituent part of the assembly[213], by engaging in “the prohibited conduct”, he himself will have taken part in the unlawful assembly by conduct (depending on whether or not the other elements of the offence have been made out).[214]

(3)  The defendant need not be an original constituent part of the assembly. He can join in after the unlawful assembly has been brought into being. By engaging in “the prohibited conduct”, he will have taken part in the unlawful assembly.[215]

(4)  Even if the defendant himself does not perform “the prohibited conduct”, by facilitating, assisting or encouraging[216] the performance of “the prohibited conduct” by others participating in the assembly, such acts in furtherance of “the prohibited conduct” by others may also amount to “taking part” by conduct.[217]

(5)  An important issue in relation to this offence is whether the defendant has participated[218], and whether he is part of the assembly. In considering this issue, the defendant’s conduct has to be assessed to see if a sufficient nexus with other participants exists.[219]

(6)  Further, the prosecution is also required to prove that the defendant has a participatory intent, namely:

(i)  The defendant knows of or is aware of[220] the conduct of other participants;

(ii)  With such knowledge, he has the intent to take part in the unlawful assembly, thus engaging in or acting in furtherance of “the prohibited conduct”.[221]

(7)  What was set out in paragraph 86(2) - (4) above.

X.1.  Whether D1 participated

181.  Mr Lam contended that D1 did not participate on the following main grounds:

(1)  There was no evidence that he was present at the time when Genki lowered its shutters; and

(2)  The magistrate was wrong to draw the inference that he had participated in chanting the slogans[222].

182.  Regardless of whether the magistrate was wrong in individual findings of fact, as set out in paragraph 103 above, I am entitled to make my own assessment based on the overall evidence at trial, especially what was shown in the footage, and on the principles governing a rehearing.

183.  The evidence against D1 was twofold:

(1)  D1’s admission; and

(2)  It was shown in the footage that D1 was once in the procession. However, the first time he was seen in the footage was after the procession left Genki following its first assembly outside Genki. According to the magistrate’s finding, D1 could be first seen in the footage at 8:09.[223]

184.  I agree that there was no concrete evidence in this case for finding that the appellant personally chanted the slogans.

185.  As regards D1’s admission, Mr Lam submitted that it was not sufficiently clear and unambiguous and was unable to show that he was present at the material time (when Genki lowered its shutters), thus it was not capable of showing that D1 had participated in the unlawful assembly involved.

186.  The content of D1’s statement of admission was as follows[224]:

(1)  At about 7:40, he and his friend (the second defendant at trial) arrived at Telford Plaza for window-shopping;

(2)  He saw a group of people demonstrating and he joined in out of curiosity;

(3)  After demonstrating for about an hour, he saw the police enter the mall;

(4)  Therefore, he ran with his friend but was intercepted by the police outside the shop “Mobile Phone”

187.  Mr Lam submitted that it was wrong for the magistrate to consider that whether D1 was present during the period of time when Genki had its shutters lowered was not a material point[225]. Instead, the circumstances when Genki had its shutters lowered were in fact crucial. Therefore, if the prosecution failed to prove that D1 was present at the material time, according to the considerations set out in paragraph 180 above, it would be difficult to be sure that he:

(1)  knew of or was aware of[226] the conduct of other participants; and

(2)  with such knowledge, had the intent to take part in the unlawful assembly, thus engaging in or acting in furtherance of “the prohibited conduct”.[227]

188.  If D1’s admission suggested that he first joined the procession at 7:40, he would necessarily be in the procession when Genki lowered its shutters at about 7:54. However, he also said that he saw the police officers entering the mall after he had been demonstrating for about an hour. The police officers entered the mall at about 9:00[228]. It can be worked out from this that it was not until about 8:00 that D1 joined the procession. If that was the case, he would not know what had happened during the period when Genki had its shutters lowered (at about 7:54).

189.  I agree that even if one could be sure that D1’s admission was true, given the content of his admission, it would indeed be difficult to safely exclude the possibility that he joined the procession after Genki had lowered its shutters, notwithstanding that the times referred to were estimates and ballpark figures.

190.  Regarding the issue of whether D1 participated, I shall consider it based on what was stated in the preceding paragraph.

191.  It should be noted that, as I set out in paragraphs 164 -177 above, although the Genki incident would necessarily cause someone reasonably to have “the stipulated fear”, it does not mean that “the prescribed conduct” subsequently occurred did not cause anyone reasonably to have “the stipulated fear”. In my view, people at the scene continuously and reasonably had “the stipulated fear”.

192.  There is no doubt that when D1 was in the procession, he would necessarily know of the conduct of other participants, and it was with such knowledge that he participated in the procession. Notwithstanding that there was insufficient evidence to prove that he himself had performed any “prescribed conduct”, he must have consciously, by his presence, acted in furtherance of “the prohibited conduct” by others with a participatory intent.

193.  The conduct of the participants in the procession, objectively speaking, would necessarily be likely to cause someone reasonably to have “the stipulated fear”. There are clear authorities that it is immaterial whether the participants in the procession do or do not foresee the person(s) present at the scene would have “the stipulated fear”. The Court of Final Appeal also pointed out in Lo Kin Man[229] that what has to be proved is whether the defendant knows of or is aware of the conduct of other participants.

194.  Therefore, I agree with the magistrate’s conclusion that D1 participated in the unlawful assembly during the two periods of time involved.

X.2.  Whether D2 and D3 participated

195.  Ground of appeal (3) advanced on behalf of D2 and D3 by Mr Lau was concerned with the issue of whether the two of them participated.

196.  Apparently Mr Lau did not dispute that both D2 and D3 were in the procession, but he criticized the magistrate for overlooking the issue of whether the two of them had the “participatory intent”. He challenged the magistrate on:

(1)  his failure to point out when the procession degenerated into an unlawful assembly;

(2)  his failure to canvass whether the assembly ended or continued when the procession left Genki; and

(3)  his failure to analyse whether the two of them knew that the procession was an unlawful assembly. There was only a discussion on the observation, as stated in Leung Chung Hang Sixtus[230], that proof of each defendant’s knowledge or recklessness as a mental element was not required[231].

197.  Likewise, as set out in paragraph 103 above, individual findings of fact made by the magistrate were not crucial.

198.  One of the focuses of Mr Lau’s submissions was that the evidence could only show that the two of them were in the procession after 8:08. Under the circumstances, there was no evidence capable of showing that they knew about what had happened prior to that time, especially the “Genki incident”. The situation after the said incident was peaceful. It could not be proved that the two of them, with such knowledge of the incident, had the participatory intent[232] as set out in Lo Kin Man[233].

199.  Mr Lau also criticized the magistrate for failing to analyse the issue of “participatory intent”. In analysing the mental elements of the two of them, the magistrate did not use such wording as “participatory intent”. However, it can be seen from the Statement of Findings that it was in fact not the case that the magistrate did not consider matters in this regard[234]. In any event, whether they had the participatory intent, in the context of this case, is a matter of whether the evidence was capable of supporting an inference of the requisite intent, and it is open to me to make my own judgment.

200.  In respect of D2 and D3, the magistrate found that they were among the participants in the procession, acting in concert, walking in the same direction, forming a circle and singing together with others[235]. Mr Lau did not challenge these findings of fact, and I do not differ with the magistrate’s observations.

201.  Having carefully looked at the relevant evidence, I am of the view that D2 and D3 had undoubtedly participated in the unlawful assembly during the two periods of time involved. Even if the two of them joined in only after the Genki incident, they would necessarily know of or be aware of[236] the conduct of other participants after they had joined in, at least they themselves had proceeded and formed a circle together with others. In my view, the evidence was capable of supporting the inference that the two of them, with the aforesaid knowledge, by their presence, acted in furtherance of “the prohibited conduct” by others, and had an intent to engage in “the prohibited conduct”.

X.3.  Whether D4 participated

202.  In considering the issue of whether D4 participated in the unlawful assembly on that day, the first thing to decide is whether D4 was the the subject person in the footage in question. D4 was not arrested at the scene and he made no admission. At the time of the offence, he was wearing a mask over his face, leaving only his eyes and forehead uncovered. The prosecution alleged that D4 was the subject person in the footage in question (the footage dated the 25^th).

203.  The subject person in the footage was wearing a facial covering. Therefore, by relying solely on “the footage dated the 25^th”, one could not be sure whether he was the alleged person in the procession. It could only be determined by making a comparison with the “the footage dated the 28^th”. On 28 December, several days after the day of the incident, there was also a procession. The prosecution produced the video footage taken on that day (the footage dated the 28^th) and alleged that the subject person was also D4.

204.  “The footage dated the 28^th” can be divided into two parts:

(1)  the footage covering the time when two participants in the procession were intercepted (“the interception footage dated the 28^th”); and

(2)  the footage covering the period during the procession (“the procession footage dated the 28^th”).

205.  Mr Lam submitted that the court could ascertain that D4 did participate in the unlawful assembly involved on 25 December along the following line of reasoning:

(1)  The person in black in the interception footage dated the 28^th was D4;

(2)  The subject person in the procession footage dated the 28^th was D4 as well;

(3)  By comparing “the procession footage dated the 28^th” with “the footage dated the 25^th”, it could be ascertained that the subject persons were the same person, namely D4;

(4)  The exhibits found upon search from D4’s home were helpful in ascertaining that the subject persons in the footage relating to the two dates were D4.

206.  Mr Ip criticized the magistrate for not correctly adopting the approach established in cases such as AG’s Reference (No 2 of 2002)[237] in making the identification, and submitted that the relevant footage simply should not be relied upon by the tribunal of fact in making the identification for the reason that the footage failed to satisfy the sufficiently clear condition as set out in the authorities.

207.  Having carefully viewed the relevant footage, I am of the view that the images of the footage were of high clarity and what was shown could be seen clearly. The question is, whether the content of the footage was sufficient for the tribunal of fact to make a judgment as to the identity of the subject person. This is relevant to probative weight rather than admissibility. Mr Ip challenged the magistrate on his failure to adopt the general approach established in AG’s Reference (No 2 of 2002) in making the identification. On this issue, I agree with Mr Lam’s submissions that the approach to identification in this case was merely an application of the approach referred to in AG’s Reference (No 2 of 2002): The magistrate first identified D4 from “the procession footage dated the 28^th” based on the undisputed “interception footage dated the 28^th”; and then further identified D4 from “the footage dated the 25^th” based on those two clips. Each step was based on the principle that “a jury may make its own identification from the video footage”. In any event, in my view, cases such as HKSAR v Kwok Kin Ming, Timothy[238] are capable of supporting the approach that the tribunal of fact may determine the identity of the person in the footage based on a comparison of the footage. Of course, if the probative effect of the evidence is weak, the prima facie test will not be met.[239] However, I am of the view that this is not the situation in the present case.

208.  Therefore, I also carefully viewed the footage myself so as to determine whether the magistrate’s finding that the subject person in the footage was D4 was correct or not, having regard to the relevant evidence and submissions.

209.  The footage for comparison with “the footage dated the 25^th” was mainly “the procession footage dated the 28^th”.

210.  The subject person in “the procession footage dated the 28^th” was also wearing a mask, leaving only his eyes and eyebrows uncovered.

211.  The relevant submissions of Mr Lam are as follows:

(1)  The person in black in “the interception footage dated the 28^th” was D4;

(2)  The subject persons in the two clips dated the 28^th were the same or similar in a number of ways. It could be ascertained that the subject persons in the two clips were the same person;

(3)  The items found upon search from D4’s home also supported the conclusion that the subject person in the footage was D4.

212.  First of all, was the person in black in “the interception footage dated the 28^th” D4?

213.  Mr Lam said that this was not in dispute at trial while Mr Ip contended otherwise.

214.  Having gone through the transcript of the trial proceedings[240], I agree that, as revealed in the course of the trial, the prosecution and defence conducted their cases on the common ground that the identity was not in dispute.

215.  Mr Ip was not counsel who represented D4 at trial. It was possible that, by putting forward this contention, he was making use of the gap left by the prosecution as a result of the absence of the relevant admitted facts, or that he was expressing his own understanding of the matter, and it was only that his understanding was not accurate.

216.  In any event, it was shown in the footage that only one of the two persons intercepted was dressed in black[241]. PW8 said that he had inspected the identity card of the person intercepted and found that his name was LAU Ka-ho (namely the name of D4), and that he was wearing a black jacket, a pair of black trousers and a pair of black shoes and carrying a black rucksack, with the hood of the black jacket pulled over his head.

217.  Taken together, I agree these showed that the black-clad person intercepted must be D4.

218.  If it could be ascertained that the subject persons were the same person by comparing “the procession footage dated the 28^th” with “the interception footage dated the 28^th”, then the subject person in “the procession footage dated the 28^th” would be D4 since the person in black shown in “the interception footage dated the 28^th” was D4.

219.  In my view, a mere comparison of the appearance of the subject persons in the two clips was insufficient to ascertain that the two of them were the same person.

220.  Apart from that, I also took into consideration the following two aspects of the evidence:

(1)  the items seized when D4 was intercepted; and

(2)  the items found upon search from D4’s home.

221.  According to PW8’s testimony[242], apart from the items referred to in paragraph 216 above, he also found upon search from the rucksack of the black-clad person intercepted a black speaker (about the size of a palm or about 3 to 4 cm wide) and a microphone (black in colour, with a black ball-shaped sponge attached to its end).

222.  The magistrate pointed out that he observed from “the procession footage dated the 28^th” that the subject person was holding a palm-sized black object, which in his view was a speaker, in his hand while chanting slogans and that he subsequently put it back into his jacket or trouser pocket[243]. I agree with this observation.

223.  The magistrate also said that it could be seen from the same footage that the subject person spoke into a small black spherical object, which in his view was a microphone, from time to time[244]. I also agree with this observation.

224.  It can also be seen from “the procession footage dated the 28^th” that there was a square white pattern at the bottom right hand side of the black rucksack the subject person was carrying[245] and that the sports shoes he was wearing were mainly black with white soles and a small portion of the tongue of the shoes was white, with white stripes at the side[246].

225.  The magistrate was of the view that these two items matched the relevant exhibits found upon search by the police from D4’s home[247]. For the purpose of comparison alone, I agree with this observation.

226.  Whether or not the exhibits found upon search from D4’s home could assist the court in its consideration depends on whether it could be proved that the exhibits belonged to D4.

227.  All these items had some characteristics, but they were not very rare or identifiable characteristcs that could in any event make one sure that these were the same item.

228.  In his evidence, the police officer said that D4’s mother had told him that only she and D4 lived in the flat in question.

229.  It is not permissible to rely on what the police officer heard to prove that only D4 and his mother lived in the flat in question as it is hearsay evidence.

230.  Mr Lam contended that be that as it may, there was sufficient circumstantial evidence in the case for the court to infer that the relevant items belonged to D4. Such evidence was:

(1)  The defence did not dispute that the location where the house search was conducted was D4’s residence;

(2)  It was already 10:53 p.m. when the house search was conducted[248]. Apart from D4 and the lady who claimed herself to be his mother, there was no one else in the flat;

(3)  It could be seen from the sketch P25[249] that there were no separate rooms in the flat and that there was only one bed in the living room. There was nothing else to suggest that it could accommodate any third person;

(4)  After PW9 had conducted the search, excluding some items intended for women, there were only some items which appeared to be intended for young men left in the flat[250];

(5)  All those items were seized in the presence of D4[251];

(6)  Exhibit P24, the pair of black sports shoes with white soles, were men’s shoes in terms of design and size[252];

(7)  Given that D4 did not give evidence or call any witness, there is no need for the court to imagine various possible defences of which there is no evidence for this defedant[253]. Having regard to the space and layout of the flat, the possibility that there was a third person who happened to be a young man living there and in possession of exhibits P21 - P24 can be safely excluded; and

(8)  The tribunal of fact may also make its own comparison of the physical objects of (1) exhibit P21, the rucksack, and exhibit P24, the black sports shoes with white soles, and (2) what the subject person in “the footage dated the 28^th” donned.

231.  In considering this matter, I bore in mind that there was no direct evidence in the case as to how many people actually lived in the flat in question.

232.  The items found upon search by PW9 were[254]:

(1)  a black rucksack with a white logo at its bottom right hand corner (exhibit P21); the logo consisted of three lines of words in English: the one at the top was “BEYOND”, the one in the middle was “THE +” and the one at the bottom was “BASIC”;

(2)  a pair of black arm sleeves (exhibit P22);

(3)  a pair of black trousers (exhibit P23); and

(4)  a pair of black and white striped sports shoes (exhibit P24).

233.  Having carefully looked at the exhibits, I agree that the conclusion that the trousers and sports shoes belonged to a man was reasonable.

234.  I also took into account that exhibit P25, the sketch, was not drawn to scale and that it was merely a simple sketch. The flat in question was a public housing unit. The sketch showed that there was only one bed in the flat, and there was no direct evidence in the case as to the number of tiers of bunks made up of the bed and the number of people who could sleep in it. Nevertheless, to say that the bed could be used by D4, his mother and another man who wore trousers and sports shoes in the size mentioned above for sleeping in on a long-term basis, in the absence of such evidence in the case, is an extremely unreasonable speculation.

235.  I agree with Mr Lam’s submissions that there was sufficient evidence in the case to support the conclusion that the relevant exhibits belonged to D4 was the only reasonable inference supported by the evidence as a whole.

236.  The magistrate took the view that the aggregate effect of the above was sufficient to make him sure that the subject person in “the procession footage dated the 28^th” was D4, with which I do not differ.

237.  I now turn to the key issue: whether it could be ascertained that the subject person in “the footage dated the 25^th” was D4 by comparing the footage relating to the two dates.

238.  The magistrate said that he had taken into account matters including the following:

(1)  As can be seen from the footage relating to charge one, the subject person was holding an object which appeared to be a mobile phone in his right hand and a black palm-sized rectangular object in his left hand[255]. As can be seen from “the procession footage dated the 28^th”, D4 was holding a mobile phone in one hand and a black palm-sized rectangular object in the other[256].

(2)  In “the footage dated the 25^th”, at one point, the subject person was holding in his left hand a black palm-sized rectangular object, on which there was a dot of blue and white light. At another point, when the subject person pressed that object with his hand, a dot of blue and white light appeared on the object. In “the procession footage dated the 28^th”, it can be seen that when D4 pressed the black palm-sized rectangular object he was holding, a dot of blue and white light appeared on the object[257].

(3)  In both “the footage dated the 25^th” and “the footage dated the 28^th”, the subject person was seen to have had a small black ball fixed to the front of his black mask with wires and frames[258];

(4)  As can be seen in both “the footage dated the 25^th” and “the footage dated the 28^th”, the subject person seemed to be holding a microphone in front of the black mask with his left hand when he was chanting slogans or making a speech, while at the same time holding an object which seemed to be a mobile phone in his right hand, and he appeared to be reading the content of the screen[259];

(5)  The rucksack the subject person in “the footage dated the 25^th” was carrying matched the one in “the footage dated the 28^th” and the one found upon search by the police from D4’s home[260];

(6)  The sports shoes the subject person in “the footage dated the 25^th” was wearing matched those found upon search by the police from D4’s home[261];

(7)  The pair of black arm sleeves the subject person in “the footage dated the 25^th” was wearing matched those found upon search by the police from D4’s home[262];

(8)  The gaits of the subject persons in the various clips were consistent with one another[263].

239.  Having carefully viewed the relevant clips, I agree with the magistrate’s observations. Further, I am also of the view that the demeanour and the way of walking of the subject persons in the two clips were very similar to each other.

240.  If the prosecution evidence in the case depends solely or mainly upon the identification of the offender, the tribunal of fact must exercise extra caution in examining the evidence in order to determine whether it can be ascertained that the accused is the offender. There are also clear authorities[264] that even if the quality of the identification evidence is unsatisfactory, provided that there is circumstantial evidence capable of supporting the inference that the accused is the offender in the case, the tribunal of fact may take that into account. If the evidence as a whole is sufficient to prove that the accused is the offender, the conviction is safe.

241.  This is a situation akin to assessing the evidence so as to consider whether or not an inference of guilt can be drawn. The crucial point is whether the circumstantial evidence as a whole is sufficient to make the tribunal of fact sure that the accused is the offender. As to how to deal with circumstantial evidence, the Court of Appeal in HKSAR v Tsang Chi Wai (transliteration)[265] made the following observations after a careful study of several cases:

(1)  Whether or not an inference of guilt can be drawn depends on the cumulative weight of the circumstances. An inference of guilt beyond reasonable doubt may not be able to be drawn where the facts relied on to establish the inference are few in number. But where more facts are relied on to found the inference of guilt, it may be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard[266].

(2)  An analogy can be drawn between drawing inferences from circumstantial evidence and the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. There may not be a single piece of evidence capable of supporting a safe conviction in the case, but a number of pieces of evidence, taken together, may come to a conclusion of guilt with certainty[267].

242.  It was pointed out in the English case of Turnbull[268] as well as Phipson on Evidence[269] that where the evidence shows that there is an odd coincidence, it can be something capable of supporting the identification.

243.  The above considerations are applicable in the present case.

244.  The magistrate found that the subject person in “the footage dated the 25^th” was D4. Upon careful consideration, I agree with this finding.

245.  In his submissions, Mr Ip criticized the magistrate for failing to properly direct himself on the issue of identification of D4. This criticism is untenable and of no avail. First, the magistrate was a professional tribunal of fact. In dealing with the issue of identification of the other accused, he properly directed himself right at the outset, and was clearly aware of the need to approach identification evidence with caution. Obviously, the issue of identification of D4 was more strongly disputed than that of the other accused, and the number of points of dispute involved in D4’s case was more. Besides, the defence had made detailed submissions. There was no reason to query that the magistrate failed to properly and fully consider and assess the matter. Even if he did not say right at the outset that he had given himself the direction, it would not at all arouse suspicion that he had overlooked the risks involved and failed to exercise extra caution. In fact, what the magistrate said in his Statement of Findings indicates that he was very careful when dealing with this issue and he assessed and considered the relevant evidence with caution.

246.  Further, a magistracy appeal is conducted by way of rehearing. I assessed the evidence with a full grasp of the issues and risks involved, and the conclusion I reached is consistent with that of the magistrate.

247.  Mr Lam also cited the Australian case of Bulejcik v R[270] and invited me to make a comparison of the voices of the subject persons in “the footage dated the 25^th” and “the footage dated the 28^th”. He also pointed out that the defence had made submissions on voice comparision to the magistrate at trial and that such an approach did not cause injustice.[271]

248.  In my view, even without making a comparison of the voices, it would be sufficient to ascertain that D4 was the subject person in “the footage dated the 25^th”.

249.  Nevertheless, since such evidence was available, I also took it into consideration.

250.  In considering this evidence, I had regard to the following matters:

(1)  Where an identification is based on facial appearance, there is a risk of mistaken identification and the evidence has to be assessed with extra caution; 

(2)  Voice comparision involves greater risk and one has to be especially cautious when making the assessment;

(3)  I am not familiar with D4’s voice and have never heard him utter anything in person;

(4)  The circumstances surrounding the scene where the two sound recordings were made were similar, namely both were made at the scene of demonstration;

(5)  Some utterances had the same content/ wording[272], including “black cops”, “support the yellow economic circle”, “black cops OT”, “he who eats at Maxim’s, he who eats at Genki” and “seven two one, eight three one, the first of October, double eleven”;

(6)  As the voice of the speakers came out through a loudspeaker before it was picked up by a camcorder, there would be distortion;

(7)  No one familiar with D4’s voice testified; and

(8)  The subject person in “the footage dated the 25^th” was the person who uttered the words set out in footnote 50. His voice at the time when he uttered those words was different to that when he chanted the slogans in the same footage.

251.  Without the assistance of expert opinion, suppose I rely solely on listening carefully to the audio recordings of the two clips to make a comparison and conclude that both the subject persons in the two clips were D4, I cannot safely say that it is safe to do so. Nevertheless, judging from quite a number of slogans chanted by the subject persons in the two clips, their intonations indeed had a high degree of consistency with each other. Thus, in my view, the audio recordings of the subject persons in the clips could have the effect of strengthening the identification.

252.  Since I agree with the magistrate’s finding that the subject person in “the footage dated the 25^th” was D4, the remaining issue is whether D4 participated in the unlawful assembly during the two periods of time on that day. Undoubtedly, the answer is “yes”, and what is more, he played the role of a leader. D4 was at the forefront of the procession all along. In chanting the slogans, he would invariably chant one slogan first, and then other people would echo what he chanted. He was the one who uttered the passage set out in footnote 50. He also led in singing.

XI.  Conclusion

253.  None of the grounds advanced on behalf of the appellants is sufficient to overturn the convictions. Having examined the evidence as a whole, I am of the view that the convictions of the four appellants are safe, supported by sufficient evidence and consistent with the law. The arrest and conviction of each of them are in line with the approach of striking a proper balance between the exercise of constitutional rights and other interests of the community. Accordingly, the appeals against conviction are dismissed, and the convictions of the four appellants are affirmed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.