HKSAR v. TANG KA MAN

CACC 9/2025 [2025] HKCA 935

On appeal from [2024] HKDC 1890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 9 OF 2025

(ON APPEAL FROM DCCC NO 6 OF 2022)

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REASONS FOR JUDGMENT

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1.  On 26 November 2024, the applicant was convicted after trial before Deputy District Court Judge Amy Chan (the judge) of one charge of riot, contrary to section 19(1) and (2) of the Public Order Ordinance (Cap 245) (Charge 1), and one charge of conspiracy to wound with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Cap 212) and sections 159A and 159C of the Crimes Ordinance (Cap 200) (Charge 2). On 23 December 2024, the applicant was sentenced to concurrent terms of 4 years and 1 month’s imprisonment on each charge.

2.  On 15 January 2025, the applicant filed a notice of application for leave to appeal his convictions.

3.  In the Amended Perfected Grounds of Appeal filed on 18 March 2025, Mr David Boyton, who represented the applicant at trial and on appeal, advanced the following four grounds of appeal[1]:

“1. Whether it is permissible in law for a tribunal of fact to consider the facts of an appellate judgment (of a co-conspirator or co-defendant), which may or may not have been covered in the evidence at trial.

Particulars

Immediately before delivering the verdict, the Court informed the parties that she had studied the facts in HKSAR v. TANG Wai-sum and others, CACC 171/2021, relating to the same incident/riot.

2. In relation to Charge 2, whether it is correct in law to convict a person with ‘conspiracy to wounding with intent’ when the intention and/or the foresight of that intention, is only limited to cause grievous bodily harm, particularly when that foresight and/or consequence would not cause necessary cause grievous bodily harm.

Particulars

At paragraphs 95 and 96 where the Court below[2] found that, ‘D had the specific intent for wounding with intent. I find that D foresaw grievous bodily harm as an inevitable consequence of hitting with wooden pole or rattan stick’.

DPP v. Smith [1961] AC 290.

3. In relation to Charge 2, the Court erred in law and/or on the facts as the route to conviction was, inter alia, (1) by reason of the Applicant being an ‘accessory’ to the substantive offence; (2) on the belief that the hypothetical jury would find the necessary mens rea.

Particulars

At AB page 41-P [94] the Applicant, took part in the riot as ‘an accessory’.

At AB page 42-D [96] ‘believed’ that a jury would conclude that the specific intent for wounding which would be accepted by a jury.

4. By reason of the above, the convictions are unsafe and unsatisfactory.”

4.  Mr Boyton amended Ground 2 at the leave hearing in the following terms:

“In relation to Charge 2, whether it is correct in law to convict a person with ‘conspiracy to wound with intent’ when the foresight is to cause grievous bodily harm.”

5.  Mr Boyton purported to frame the grounds of appeal as involving only questions of law, but it was clear that they concern issues of fact, essentially questioning whether the judge correctly applied a legal principle in her approach or findings under consideration.

6.  During oral submissions, Mr Boyton abandoned his challenge of the applicant’s conviction on Charge 1, properly accepting that he could not sustain his argument under Ground 1. He focused his submission on challenging the applicant’s conviction on Charge 2, the conspiracy to wound, based on the amended Ground 2 and Ground 3. He advanced his arguments, accepting that the applicant participated in a riot in Yuen Long at around midnight on 22 July 2019 (Charge 1).

7.  At the conclusion of the hearing, and after considering the submissions from the parties, I was not satisfied that the grounds of appeal against the convictions were reasonably arguable and leave to appeal was refused. I indicated that I would give my reasons for my judgment in due course, which I now do.

The case at trial

8.  This case concerned a riot that occurred on 22 July 2019 in the area of Long Wo Road and MTR Yuen Long Station (YL Station), Yuen Long, New Territories, where a serious clash occurred between two groups of people. One group wore white tops and was armed with wooden poles or rattan sticks (the White Tops), and the other wore black tops, holding umbrellas, wearing caps and facemasks (the Black Tops). The charges alleged that the applicant, together with Tang Wai-sum, Ng Wai-nam, and other persons (members of the White Tops) took part in the riot (Charge 1), and conspired to unlawfully and maliciously wound others (members of the Black Tops) with intent to cause them grievous bodily harm (Charge 2).[3] 

9.  Most of the evidence at trial was not in dispute and was adduced as admitted facts as follows:

(1)  The riot took place around midnight on 22 July 2019, when two groups of people gathered at the entrance of Ying Lung Wai near Long Wo Road and YL Station, namely one group of at least 20 people, mostly in white tops and holding wooden poles and rattan sticks (the White Tops), and another group of about 40 people, mostly in black tops, caps and facemasks, and holding umbrellas (the Black Tops).[4] 

(2)  Between 00:03 and 00:05 hours, as more White Tops arrived, a dispute broke out during which the White Tops verbally abused and physically scuffled with the Black Tops.[5]

(3)  Between 00:05 and 00:07 hours, the situation escalated into a violent confrontation between the two groups, forcing the Black Tops to retreat towards YL Station.[6]

(4)  The White Tops pursued and attacked the Black Tops with wooden poles and rattan sticks inside the concourse near Exit J before leaving at around 00:16 hours.[7]

(5)  The police seized from the platform and concourse of YL Station various items[8], including iron poles (Exhibit P21), rattan sticks (Exhibits P38-P42), wooden rods (Exhibits P43-P46), umbrellas, and foam boards written with Chinese characters that read, “Defend Yuen Long. Defend our Home”.

(6)  The applicant was arrested on 26 September 2021, which was about 2 years and 2 months after the riot[9] and remained silent under caution.

(7)  Immigration movement records showed that the applicant departed Hong Kong at 21:52 hours on 22 July 2019 and returned on 28 July 2019, confirming his presence in Hong Kong at the time of the riot.[10]

(8)  CCTV footage seized from YL Station and video clips from open sources captured the riotous events (the footages).[11]

(9)  Photographs of the applicant were taken by police upon his arrest on 27 September 2021, and by the Immigration Department during his identity card application on 5 July 2019, which was 17 days before the riot (the photographs).[12]

10.  It was the prosecution case that the applicant was depicted in the footages as being one of the White Tops, actively taking part in the riot. He was captured acting together with other rioters in attacking other people, including the Black Tops, using dangerous weapons such as rattan sticks and wooden poles, which could cause serious bodily injuries.[13]  In particular, the footages allegedly captured the applicant picking up a site light and throwing it at the Black Tops; holding a rattan stick while standing on the front line of the White Tops; and throwing a wooden stick at the Black Tops.[14]

11.  At trial, there was no dispute that a riot took place at the relevant locations and during the material time[15]. The main issue at trial was the identification of the applicant as one of the White Tops. The prosecution relied on the footages and their authenticity was accepted. In order to identify the applicant as one of the White Tops participating in the riot, the prosecution compared the relevant images of the footages with the photographs.[16]

12.  The statements of three prosecution witnesses (two civilian witnesses and one police officer) were admitted under section 65B of the Criminal Procedure (Cap 221).[17]  PW1 (an ambulance officer) and PW2 (a lawyer) observed some of the events before and during the riot. PW3 (DPC 19264) was a police officer who viewed the footages and identified a male referred to as “X”, whom the prosecution alleged to be the applicant. He identified “X” based on the person’s appearance (short black hair) and his distinctive outfit: a white T-shirt with a red rectangular pattern printed with “LEVI’S” in white on the chest, black shoes, black pants, and a black shoulder bag with “VLTN” printed in white all over its strap.[18]

13.  PW1’s evidence was that he arrived at Exit J of YL Station at 00:07 hours on 22 July 2019. He saw a man in a white top lying on the ground with a wooden rod about 3 feet long in his hand. PW1 and his colleague assisted that man and several other injured persons at the scene.[19] 

14.  PW2’s evidence was that at about 22:45 hours on 21 July 2019, he saw about ten people in white tops, holding weapons and yelling as they approached YL Station. PW2 observed ambulance officers guarding a room in YL Station and police officers escorting individuals to that room for treatment. At that time, people shouted at the police, demanding they leave. PW2 later witnessed a clash breaking out at Exit J of YL Station, with the White Tops rushing up toward the exit. Various items were thrown into the concourse, and both groups began shouting at each other.[20]

15.  The footages showed that the applicant, identified as one of the White Tops, took part in the riot and committed a breach of the peace. The following events were captured on the footages[21]. At around 00:00 hours of 22 July 2019, the White Tops gathered near Ying Lung Wai, restraining a male from leaving, and preventing PW1 from assisting him. At around 00:03 hours, the White Tops verbally abused the Black Tops and engaged in physical scuffles. At around 00:05 hours, the applicant joined the White Tops. Between 00:05 and 00:07 hours, the White Tops attacked the Black Tops with wooden poles and rattan sticks. During this time, the applicant was among the White Tops. He picked up a site light (i.e., a construction site lamp) and threw it at the Black Tops. Some Black Tops fled towards Exit J of YL Station. The White Tops chased and attacked the Black Tops to the ground floor outside Exit J of YL Station. Between 00:14 and 00:15 hours, the White Tops gathered at Exit J, moved up the staircase to the first floor, and continued attacking the Black Tops. The applicant held a rattan stick, stood at the front line of the White Tops, and threw a wooden stick at the Black Tops. At around 00:16 hours, the White Tops, including the applicant, left Exit J.

16.  The applicant denied the charges against him. He elected not to testify but called Madam Wong Wing Yan (DW) to give evidence in support of his alibi that he was in her restaurant in Wong Uk Tsuen in Ying Lung Wai, Yuen Long, from 21:00 hours on 21 July 2019 to 00:30 hours on 22 July 2019. DW testified that she recognised the applicant as her regular customer and that the person depicted in the photographs was not the applicant. She said it took five minutes to walk from Exit J of YL Station to the restaurant.[22]

The reasons for verdict

17.  In her reasons for verdict, the judge reminded herself to consider each charge separately. She carried out a comprehensive review of the evidence and noted that the only evidence against the applicant was the footages. She also noted that the applicant’s departure from Hong Kong on the night of the offences would not be treated as evidence of flight, and that neither the outfit nor the bag seen on X was found at the applicant’s residence.

18.  In assessing the credibility of DW, the judge noted that while DW claimed she would have noticed if the applicant had left her restaurant that night, DW was not with the applicant throughout the three and a half hour period and might have been distracted while serving other customers or attending to other matters. She considered DW’s alibi evidence to be unhelpful to the defence case.

19.  The judge found that the identification evidence given by DW was not credible. She found it implausible that the applicant would consistently wear glasses and maintain an all-back hairstyle whenever visiting DW’s restaurant, but appeared differently in the photographs taken by the Immigration Department and the police. She also found that DW’s evidence was untruthful and unreliable, and gave it no weight. However, she made clear that she would not convict the applicant on this basis as the burden of proof remained on the prosecution.[23]

20.  The judge noted that PW3 identified “X” to be the applicant in the footages by his general appearance and outfit, but without reference to facial features.

21.  The judge then considered whether the applicant was in fact “X” in the footages. The judge exercised caution in making this determination and gave herself a full Turnbull [24] warning to guard against the risk of mistaken identification. She reviewed the footages, paying attention to hairstyle (short hair parted on the right), facial features (thick eyebrows, eyes, nose, lips and long ears) and body build (chubby build with a belly). She observed that “X” wore a white T-shirt with a red rectangular pattern printed with “LEVI’S” in white and carried a black shoulder bag with “VLTN” printed on the strap. Based on the cumulative effect of the hairstyle and outfit of “X”, she was satisfied that “X”, as identified by PW3 in the footages, was consistently depicted as the same person throughout.[25]  Comparing these distinctive features with the photographs of the applicant taken at the Immigration Department on 5 July 2019 and at the police station upon arrest on 27 September 2021, she concluded that the applicant’s appearance was identical to that of “X” in the footages and she was sure that “X” was in fact the applicant. She found that the applicant deliberately changed his hairstyle and wore glasses to make himself look different from his appearance in both the footages and the photographs.[26]

22.  As for Charge 1, the judge properly applied the legal principles in HKSAR v Lo Kin Man [27] regarding the evaluation process in determining whether a riot had taken place and whether a person had participated in it. Having considered the relevant evidence and circumstances of the case, she found that a riot took place at the relevant time and location, and that the applicant was one of the participants in the riot. By throwing a site light and a wooden stick at the Black Tops and pointing a rattan stick towards them, she found that the applicant was a principal offender and that he also encouraged others to attack the White Tops. The judge found that the applicant had the participatory intent to take part in the riot, and that the applicant was guilty of Charge 1.[28]

23.  As for Charge 2, the judge properly applied the legal principles in HKSAR v Lai Kam Fat [29] and HKSAR v Chung Chi Fai [30], stating that proof of specific intent was required for the substantive offence of wounding. While there was no direct evidence of an agreement between the applicant and others, she considered that a conspiracy could be inferred from the conduct of those persons involved. Based on the proven facts, she found that there was an agreement between the White Tops to wound the Black Tops by rattan sticks and wooden poles and that the applicant was a party to the agreement. The fact that the White Tops brought rattan sticks (hard and rigid objects capable of attacking at a distance and causing grievous bodily harm) to the scene of the riot indicated prior planning. She considered that it was not necessary to show that the applicant actually inflicted grievous bodily harm on others, as conspiracy was an inchoate offence which did not require proof of the substantive offence having been committed. The judge found that the applicant had the specific intent for wounding with intent and that the applicant was guilty of Charge 2.[31]

Ground 1:Whether the judge impermissibly considered facts in a related court judgment

24.  The applicant complained that the judge’s consideration of the facts in the Court of Appeal’s judgment in HKSAR v Tang Wai Sum [32]potentially prejudiced him, because those facts “may have been” different from the facts found by the judge.

25.  During the trial[33], the judge referred to the Tang Wai Sum judgment solely for the purpose of clarifying the stage of the riot alleged by the prosecution in the present case. The judge first noted that the Court of Appeal divided the riot in Yuen Long on the evening of 21 July 2019 and early morning of 22 July 2019 into three distinct stages based on time and location.[34] The judge then sought confirmation from the prosecution that the riot in the present case ended at 00:16 hours on 22 July 2022. This was accepted by the defence.

26.  The judge referred to the Court of Appeal judgment to simply note the stage of the riot under consideration as the Court of Appeal had divided the rioters’ conduct into three distinct stages based on time and location. The prosecution case was focused on the riot that ended at 00:16 hours on 22 July 2022. There was no dispute that the riot occurred at the relevant time and location. The sole issue at trial was whether the applicant could be identified as one of the White Tops during this riot.

27.  Significantly, the applicant had not identified any facts from the Tang Wai Sum judgment that the judge had relied upon in her reasons for verdict. As already noted, Mr Boyton accepted he could not substantiate this complaint, and the challenge to Charge 1 was abandoned.

28.  This ground of appeal failed.

Ground 2: Whether the judge found an intent to wound and to cause grievous bodily harm

29.  The applicant contended that there were insufficient primary facts to infer that the White Top rioters had specific intent to wound and cause grievous bodily harm under Charge 2.[35]

30.  Ms Karen Ng, for the respondent, submitted that the judge properly applied the legal principles relating to the offence of conspiracy and correctly found that the prosecution was required to prove that the applicant had the intent to wound and to cause grievous bodily harm.

31.  Ms Ng noted that the judge examined the rattan sticks in question, which were 80 cm in length and 1cm in diameter, hard and rigid in nature. The judge correctly pointed out that while rattan sticks were not lethal weapons, their use could cause grievous bodily harm, including bruises and bleeding. In this context, bruises were merely one example cited by the judge to illustrate potential injuries caused by rattan sticks. This did not detract from her finding that hitting or striking others with wooden poles or rattan sticks would cause grievous bodily harm and was an inevitable consequence of using such weapons to inflict injuries on others.

32.  Charge 2 alleged that the applicant conspired with Tang Wai-sum, Ng Wai-nam and other persons unknown to unlawfully and maliciously wound other persons with intent to do them grievous bodily harm. The judge had to be satisfied that there was evidence of the conspiracy to commit the crime of wounding. She found that the White Top rioters, including the applicant, attacked the Black Tops, armed with rattan sticks that would cause harm and injury when hitting a person with them. The judge found that hitting a person with rattan sticks would cause grievous bodily harm, such as bruising and bleeding, resulting in laceration of the skin.[36] This group attack with weapons was clearly with the intent to wound and to cause really serious bodily harm.[37]  The conspiracy offence was proven by an agreement to commit the crime of wounding and did not require proof of actual harm.

33.  On the proven facts, the applicant armed himself with a rattan stick and acted in concert with other White Tops to attack the Black Tops. Such conduct clearly demonstrated that he had the intent to wound and to cause grievous bodily harm.

Ground 3: Whether the judge correctly addressed the elements of conspiracy to wound

34.  The applicant submitted that the judge failed to address the actus reus of the conspiracy, namely, the agreement to wound other persons. The judge found that the applicant was a party to the conspiracy to wound the Black Tops, and that he also acted as an accessory by encouraging the White Tops to wound the Black Tops.[38]

35.  Notwithstanding the judge’s remarks about the applicant also acting as an accessory, she specifically found that there was an agreement between the White Tops to wound the Black Tops using rattan sticks and wooden poles, and that the applicant, based on his conduct, was a party to the agreement.

36.  Ms Ng rejected the applicant’s complaint that the judge’s reference to accessorial liability in paragraph 94 of the reasons for verdict indicated confusion as to the basis of conviction. She pointed out that the conspiracy was carried out and the substantive offence of wounding with intent was committed when the White Tops attacked the Black Tops with rattan sticks and wooden poles. By arming himself with a rattan stick and throwing a wooden pole towards the Black Tops, the applicant acted in concert with other White Tops in the form of a joint enterprise in committing the substantive offence. At the same time, he also acted as an accessory, encouraging the other White Tops to commit the offence by his conduct.

37.  I agreed with Ms Ng’s submission that there was no confusion regarding the basis for conviction.

38.  In his oral submissions, Mr Boyton concentrated his argument against the applicant’s conviction on Charge 2 by reference to the judge’s concluding remarks in the following paragraphs:

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

95. Conspiracy to wound is an inchoate offence. It is unimportant whether D did actually inflict grievous bodily harm on other[39].

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

39.  Regarding the above paragraphs of the judge’s reasons, Mr Boyton took issue with her use of the word “believe” in paragraph 96. He argued that she failed to apply the requisite criminal standard. However, this argument overlooked the context in which the word was used. The judge was merely observing that, given the facts and circumstances of the case, a reasonable tribunal of fact would conclude that the mental element of a wounding charge had been sufficiently proved.[40]  Furthermore, the judge explicitly directed herself that the prosecution was required to prove each element of each charge “beyond reasonable doubt”.[41]

40.  Mr Boyton argued that, for the following reasons, the judge erred in finding the applicant guilty on Charge 2. First, the judge’s remarks that the applicant also acted as an accessory by encouraging the White Tops to commit the intended offence to wound showed that she confused a finding of guilt for the offence of conspiracy to wound with accessorial liability. Secondly, the judge’s finding that the applicant foresaw that grievous bodily harm would be an inevitable consequence when hitting a person with a wooden pole or rattan stick was wrong, as she had to be satisfied that the applicant intended to cause grievous bodily harm.

41.  As for the first matter, the judge made it clear that she was satisfied that the applicant was a party to a conspiracy to wound the Black Tops and that he also encouraged other White Tops to commit the intended offence of wounding. These remarks reflected the observations of the Court of Final Appeal in Chan Kam Shing [42], of the overlap between a joint enterprise and an accessory to commit the intended offence. The judge found that there was an agreement between the White Tops to wound the Black Tops with rattan sticks and wooden poles, and the applicant was a party to the agreement to wound.[43]

42.  As for the second matter, the judge accepted Mr Boyton’s submission regarding the mental element of the offence of conspiracy to wound with intent. She stated:[44]

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

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

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

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

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

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

43.  Mr Boyton argued that the judge omitted the first sentence of the passage quoted from R v Saik[45] in Lai Kam Fat, which referred to the mental element of the offence, but was subsequently explained in the quoted remarks.[46] This complaint lacked merit, as the judge correctly identified and cited the key portion of the passage.

44.  As noted by Mr Boyton, the Court of Appeal in Chung Chi Fai [47] cited, with approval, the English Court of Appeal’s decision in R v Belfon [48]. In that case, it was held that recklessness and foresight could not be equated with the intention required to constitute an offence of wounding. He made the same submission to the judge, which she accepted. She applied this principle when assessing the evidence, making it clear that a conspiracy to wound required an intention to wound, with the intent of doing grievous bodily harm.[49]  The judge repeatedly noted and addressed the particulars of Charge 2 in her reasons, namely that the applicant conspired with others “to unlawfully and maliciously wound other persons with intent to do them grievous bodily harm”.[50]

45.  The judge addressed the defence’s argument in detail, which asserted that rattan sticks could not cause grievous bodily harm when used to hit a person. She rejected this argument and noted that for the inchoate offence of conspiracy to wound, it was not necessary to prove that grievous bodily harm was actually inflicted.[51]

46.  The judge found that the applicant had the requisite intent for a section 17(a) wounding offence (to wound and to cause grievous bodily harm) and that he would have foreseen that hitting a person with a wooden pole or rattan stick would cause grievous bodily harm. This finding addressed the defence argument that rattan sticks could not cause grievous bodily harm when used to hit someone, and the applicant would have been aware of this, given the sticks’ length, thickness and rigidity. A clear reading of the judge’s reasons as a whole shows that she did not conflate “intent” with “foreseeability” to cause grievous bodily harm.

47.  Finally, Mr Boyton suggested that the judge did not consider each charge separately or, alternatively, that the riot charge was duplicitous, as it covered elements of the conspiracy to wound charge. They were clearly separate offences, and while there were common factual matters, the judge considered the charges separately, as shown in her reasons for verdict.[52]

48.  I was not persuaded that the grounds of appeal regarding Charge 2 were reasonably arguable.

Ground 4: Unsafe or unsatisfactory

49.  Given my rejection of the grounds of appeal, I did not consider the applicant’s convictions on Charge 1 and 2 to be unsafe or unsatisfactory.

Conclusion

50.  For the reasons I have given, I was not satisfied that the grounds of appeal against the convictions were reasonably arguable and leave to appeal was refused.

51.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal. However, he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal if the Court finds no justification for the renewal of his application.