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DCCC 536/2020
[2021] HKDC 392
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 536 OF 2020
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HKSAR |
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LAI CHEE YING |
(D1) |
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LEE CHEUK YAN |
(D2) |
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NG NGOI YEE MARGARET |
(D3) |
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LEUNG KWOK HUNG |
(D4) |
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HO SAU LAN CYD |
(D5) |
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HO CHUN YAN |
(D6) |
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LEE CHU MING MARTIN |
(D8) |
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Before: Her Honour Judge A J Woodcock in Court
Date of Hearing: 16 to 17 February 2021
Date of Ruling: 17 February 2021
Date of Reasons for Ruling: 1 April 2021
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REASONS FOR RULING
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RULING ON ADMISSIBILITY OF EXPERT EVIDENCE
1. This trial was transferred to the District Court with the first hearing set down on 30 July 2020. When ready, on 18 September 2020 it was set down for trial to begin on 16 February 2021 with 10 days reserved. There was a pre-trial review on 5 January 2021.
2. On the first day of trial the 6th and 8th defendants applied to adduce an expert report and evidence. There was an application to adduce the expert’s oral evidence via video conference link as the expert was in the United Kingdom. All other defendants subsequently supported this application.
3. The prosecution objected to this evidence and report. The report was only made available after the first day of trial. I heard submissions on the second day and I refused leave to adduce such expert evidence. I said I would hand down my reasons at a later date. These are my reasons.
The Charges
4. The defendants are all jointly charged with organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance Cap. 245, Charge 1 and knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance, Charge 2. The 7th and 9th defendants pleaded guilty before trial.
5. The particulars of Charge 1 are that all defendants on 18 August 2019 organised a public procession which took place in contravention of section 13 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
6. The particulars of Charge 2 are that all the defendants on 18 August 2019 without lawful authority or reasonable excuse, knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.
Background
7. On 12 August 2019 the Civil Human Rights Front, hereinafter known as “CHRF”, submitted a Notification of Intention to hold a public meeting and procession, “the notification”, informing the police of the intention to hold a public assembly on 18 August 2019 in Victoria Park between 10 am and 6 pm, a public procession starting from Victoria Park and ending at Chater Road, Central between 3 pm and 7 pm and a 2nd public assembly at Chater Road itself between 5 pm and 11:59 pm (Exh 2).
8. There was a liaison meeting between CHRF and the police on 14 August 2019. After it and on the same day the CHRF submitted an amended notification to the police specifying the proposed route of the public procession from Victoria Park to Chater Road. (Exh 4)
9. On 15 August 2019 the police issued a letter to CHRF to inform them that the police did not object to the holding of the public assembly in Victoria Park on 18 August 2019, (Exh P5). However, having regard to the interests of public order and public safety and for the protection of the rights and freedoms of others, the police objected to the public procession from the Park to Chater Road and the 2nd public assembly to be held there upon arrival.
10. The CHRF appealed against the police decision and after an appeal hearing convened by the Appeal Board on 16 August 2019, the Board upheld the police decision and dismissed the appeal lodged by CHRF.
11. The CHRF held a press conference on 17 August 2019 where amongst other things, they said the police had not arranged for the dispersal of crowds from Victoria Park so pro-democracy legislators and influential people would be assisting the crowds to disperse safely to nearby MTR stations. They urged as many people to come to fill up Victoria Park the following day.
12. On 18 August 2019 during the public assembly at Victoria Park and at about 3 pm, all bar one of the defendants, the 3rd defendant, carried a long banner out of Victoria Park Gate 17 and led a procession of people to Chater Road, Central. The 3rd defendant joined them in Causeway Bay and helped to carry the banner. The route taken followed the previously proposed route of the banned public procession. The procession finished at Chater Road with the defendants laying the long banner down on the road. It was declared that the public procession had ended there and no police permission was required.
The issues
13. Did the defendants organise and knowingly participate in an unauthorised public procession or were they only assisting the organisers to disperse the crowds from Victoria Park in a safe and orderly manner? Were they leading the crowds away from immediate danger by implementing a dispersal plan in a water flow manner? Did they have lawful authority or a reasonable excuse to take part in an unauthorized public procession?
14. The defence say there was implied consent given by the police to the organisers to assist in this manner for the purpose of dispersing crowds, to prevent overcrowding in Victoria Park.
15. What is not in issue is the merits of the decision of the Commissioner of Police to ban the public procession and 2nd public assembly. What is not in issue is the identity of all the defendants either carrying the banner or walking in front of the banner shouting slogans through a megaphone. What is not in issue is the police Operational Order, P49 and all the very extensive news coverage and footage of the day as well as press conferences and interviews from the days before.
16. There are also constitutional challenges on a systemic and operational level launched by all defendants.
The Application by D6 and D8
17. After the pre-trial review and additional police officers witness statements given to the defence, related mainly to the constitutional challenges, the 6th and 8th defendants requested further disclosure from the police on 29 January 2021, this included police force operational orders.
18. On 5 February 2021 the police complied with their request. They then decided to seek an expert’s opinion from Professor Clifford Stott. He was engaged on 9 February 2021. His report was ready at the end of the 1st day of trial. It was titled “Report on an analysis of policing and crowd action in and around Victoria Park on 18 August 2019”.
19. He was engaged to answer 2 questions. These were to firstly comment, from the perspective of crowd psychology, crowd management and public safety, on the operational decisions and/or actions (including omissions) made by or on behalf of the Commissioner of Police in respect of the safe and orderly conduct of the public event on 18 August 2019, in particular as to the ingress, egress and dispersal of the attendees.
20. Secondly, he was engaged to comment on the defendants’ actions at the public event on 18 August 2019 in terms of the need to maintain public safety. He concluded, based on the evidence and his analysis, that the police failed to implement an effective contingency plan for the safe and orderly ingress, egress and dispersal of the attendees that day. He then critiqued the police force actions, policy and operational order. He also gave an opinion of the defendants’ intentions behind their actions.
21. There were written submissions on the application to adduce expert evidence by video conferencing facilities, marked MFI-1 with the expert’s report and its annexes marked MFI-1A.
22. It was submitted this professor was an expert on crowd psychology, crowd control and management who would give evidence on the policing issues. It was submitted these policing issues only arose from belated disclosure made by the prosecution after the pre-trial review.
23. The report and application to adduce it was late but the defendants acted “as soon as practicable” in accordance with section 65DA (1) of the Criminal Procedure Ordinance Cap 221. It was put alternatively that if I did not accept that the defendants sought to adduce this evidence as soon as practicable then leave from this court was sought to adduce expert evidence under section 65DA(5).
24. In addition, leave was sought for the expert to give evidence by way of live television link under section 79I of the same Ordinance. The time for making such an application was 42 days after the order of transfer to the District Court made on 15 July 2020. The defendants therefore had to seek an extension of time for making such an application.
25. The blame for this late application was laid at the door of the prosecution. It was suggested that the defendants had indicated in September 2020 they would mount a challenge on the basis of “operational proportionality”. The prosecution should have disclosed evidence relating to operational decisions and/or omissions much sooner, certainly not after the pre-trial review.
26. The relevance of the evidence related to the operational proportionality challenge. An expert was required to indicate whether on the day the continued objection by the police to the public procession to Chater Road was proportionate and whether the subsequent enforcement actions taken against the defendant was proportionate. His evidence was also relevant to whether the defendants had a reasonable excuse for their actions on the day.
27. His evidence would shed light on the police operations that day; the decisions made by the police for that public event was highly relevant to the operational challenge. The safety risks that emerged from their planning went to proportionality.
28. Such expert evidence was relevant to the proportionality analysis relating to the decision of the police to arrest the defendants later and prosecute them in light of what the expert would say were the operational failures of the police.
29. It was suggested that the court will have to look at what the police did or didn’t do that day and why. Why was nothing done and if they did nothing on the day why did they later arrest and prosecute the defendants. It was submitted that his expertise on these questions were necessary to counter the evidence from the police witnesses. It was relevant to the planning and operation run by the police on that day.
The stance of the prosecution
30. The prosecution’s main objection was that the expert evidence sought to be adduced was irrelevant. Their objections were set out in submissions, MFI-2. They pointed out that the substance of Annex 1 was a criticism of the guidance on crowd psychology of the Hong Kong police force. This is wholly irrelevant to the issues in this trial and it was submitted they were gratuitous. In fact, most of the report itself was also a critique of the police action on the day.
31. This was in light of the fact Professor Stott was one of the 5 overseas experts engaged by the Independent Police Complaints Council (“IPCC”) for a short period of time advising the IPCC about the public order events arising from the Fugitive Offenders Bill since June 2019. He withdrew from the investigation because of concerns about its limited powers. He went on to publish his own report into Hong Kong policing and how the force handled the unrest in 2019.
32. The prosecution submitted that the expert’s report was not relevant to the question of proportionality of the enforcement actions taken against the defendants. There were no enforcement actions taken against the defendants on the day. And even if the question of the subsequent arrests and prosecutions could be subject to a proportionality analysis, this could not be answered by this expert.
33. It was said this expert could not answer whether the police should have continued to object to the public procession even if this was a valid argument or submission.
34. The prosecution also disputed the defendant submissions that they sought an expert opinion as soon as practicable. The defendants partly sought his advice and opinion to provide justification for their conduct. The suggestion that the defendant’s action was a dispersal plan was not new nor arose from disclosure by the prosecution in January 2021, the police operational orders. The defence should have instructed him much earlier.
35. The defence of reasonable excuse is only relevant to charge 2. The prosecution say the contents of the reports do not assist the defendants where such a defence has been raised. The report sought comments on the need for and effectiveness of the defendants’ actions to implement and orderly dispersal of the participants from Victoria Park.
36. The question of whether they knowingly participated in an unauthorised procession or whether they were only engaged in facilitating an orderly dispersal of the crowd is a question of fact. Their purpose for leading the crowd out of Gate 17 of Victoria Park is a question of fact. An opinion from an expert as to a question of fact is not admissible in this case.
37. The prosecution relied on Fu Kor Kuen Patrick v HKSAR (2012) 15 HKCFAR 524 where the Court of Final Appeal held that the purposes with which the defendants committed the acts (in the context of a defence under section 295(7) of the Securities and Futures Ordinance that the purpose of the trading was not the creation of a false or misleading appearance of active trading in securities) was a question of fact on which experts should not give their opinions. Experts did not possess the expertise of a kind that qualified them to express an opinion about somebody’s state of mind or intentions. Opinions about the purpose of defendants actions were inadmissible. Questions of facts are to be decided by the trial judge.
38. The prosecution added that if the circumstances which arose on 18 August 2019 were relied upon to provide justification for the defendant’s conduct then the materials disclosed by the prosecution in January and February 2021 were not necessary for the defence of reasonable excuse.
39. I was reminded by the prosecution of the principles which govern the admission into evidence of opinions by an expert as set out in paragraph 14 of HKSAR v McCall, Howard Kenneth and another, HCCC 446/2016. I quote:
“14. The principles which govern the reception into evidence of opinions by an expert are as follows:
(1) the evidence is relevant to the issues before the court.
(2) The subject matter is some recognised fields of science, art or learning which is capable of being made the subject of study, experience or research and in which a person can by study, experience or research become expert or skilled.
(3) The person proposing to give the evidence is sufficiently qualified or expert in his field.
(4) The area for consideration is one that the tribunal requires the assistance of an expert.”
40. The prosecution submitted that this application by the 6th and 8th defendant did not meet the first and last principle set out in that paragraph.
41. In addition, it was submitted that this expert from the United Kingdom was to comment on public safety in relation to a public event in Causeway Bay and Victoria Park with no obvious or evident local or locality knowledge.
42. It was also suggested he was not entirely impartial with reference to an article published with this expert as the lead author into the “Patterns of “Disorder” During the 2019 Protests in Hong Kong: Policing, Social Identity, Intergroup Dynamics and Radicalisation.” It was submitted this article was very biased against the police and did not indicate impartiality.
REASONS FOR MY RULING
43. I agreed with the prosecution. I found the purpose and comments in the experts report irrelevant to this case. I also did not find that the defendant acted as soon as practicable to seek and adduce expert evidence.
44. Comments on the operational decisions and/or actions, including omissions made by the police force were a critique of the police operations. I did not need his comments when what action was taken on the day was a question of fact to be decided from the operational order, evidence of the police officers and video footage from many news media outlets of the circumstances in and around Victoria Park. Whether or not the police should have done this or that was not relevant to the elements of the charges.
45. His comments as to the defendant’s intentions would be inadmissible. An expert cannot say on their behalf that what they intended to do was because they had safety and an orderly dispersal in mind. He certainly could not comment on their knowledge. He could not comment on the intentions of the organisers, CHRF either.
46. It was gratuitous for him to say in his opinion he agreed with the defendants that leading participants to safety was necessary at the time. That is not an expert opinion but a question of fact for this court. In short, I agreed with the prosecution that the facts to be proved, the defences available in charge 2 and the constitutional arguments did not require expert evidence.
47. The operational challenge does not require an examination of all the police action taken on the day or rather the pros and cons of all their actions in order to critique it. There was no enforcement on the day so no expert assistance is required. As to whether the subsequent arrest and prosecution was proportional, if it is subject to a proportionality test, it is not within the ambit of Professor Stott’s expertise.
48. Obviously there are cases in which the state of mind of an offender may be the subject of an expert opinion such as an expert in psychiatry or some other field of behavioural science but not in this case. This expert was not qualified to express, for the information or to assist the court, an opinion about the state of mind of any of the defendants here. The 2 charges require decisions on knowledge, intention and purpose which are all states of mind. Professor Stott’s expert opinion is not required to assist the court to form a judgement about each of them.
Conclusion
49. The report written by Prof Stott and the proposed evidence to be given by him I found inadmissible. In addition, I find the defendants did not act according to section 65DA(1) of the Criminal Procedure Ordinance, they did not act as soon as practicable when they engaged an expert and did not furnish the prosecution with an expert report until after the trial had commenced.
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( A J Woodcock ) |
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District Judge |
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