HKSAR v. LEUNG CHUN HEI AND ANOTHER

[English Translation – 英譯本]

HCMA 166/2022

[2024] HKCFI 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 166 OF 2022

(ON APPEAL FROM STCC 1386 OF 2021)

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BETWEEN

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REASONS FOR JUDGMENT

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A. Introduction

1.  The 1^st Appellant (D6 in the trial) was charged with one count of obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong. The 2^nd Appellant (D7 in the trial) was charged with one count of incitement to commit criminal damage, contrary to sections 60(1) and 63(2) of the Crimes Ordinance, Cap 200, and punishable under section 101I(2) of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong.[1] Both appellants denied the respective charge they faced, and were convicted after trial by Stephanie TSUI May-har, Magistrate of the Shatin Magistrates’ Courts (hereinafter called the Magistrate). The 1^st Appellant was sentenced to 5 months’ imprisonment and the 2^nd Appellant to the Training Centre. Both appellants appealed against conviction. The 2^nd Appellant appealed against sentence as well.

2.  I will continue to describe the two appellants as D6 and D7.

3.  At the appeal hearing on 17 March 2023, D7 was admitted to the hospital due to illness and was unable to attend the hearing. Therefore, I adjourned his appeal and only dealt with D6’s appeal.

4.  I dismissed D6’s appeal on 16 May 2023, and the details may be seen from the judgment.[2]

5.  D7 on his own initiative raised the abandonment of his appeal against sentence on 16 June 2022. However, on 25 May 2023, Mr James LW WONG who represented D7 sought to reinstate the appeal against sentence with a series of fresh evidence. I dealt with D7’s appeal on 14 March and 2 April 2024. After the hearing, I dismissed D7’s appeal against conviction. However, I allowed D7’s appeal against sentence, set aside the Training Centre order and commuted it to 4 ½ months’ imprisonment suspended for 24 months. These are my reasons for judgment.

B. Facts of the case, points in dispute and reasons for verdict

6.  Miss LO Wing-shan Stella, Senior Public Prosecutor, for the respondent succinctly stated the points in dispute of both sides and the Magistrate’s reasons for verdict in her written submission. I basically adopt the relevant parts here.

B.1. Summary of the prosecution case

7.  On 13 May 2020 at about 2020 hours, there was an unauthorized assembly called “Sing with you” in New Town Plaza, Shatin (hereinafter called the Plaza). The police patrolled inside the Plaza. At around 1930 hours, two police officers (PW3 and PW4) were in the Plaza, where hundreds of people were shouting anti-government and anti-police slogans.

8.  PW3 and PW4 were conducting surveillance inside a shop called “Heytea” in the Plaza. At about 2049 hours, people clad in black suddenly stormed into the shop and criminally damaged the facilities therein.

9.  PW3 and PW4 immediately went up to identify themselves and tried to subdue three men (namely D1, D2 and a man referred to as D4 by the prosecution). However, D2 succeeded in breaking away. D1 was subdued by PW3 and was subsequently arrested by PW4.

10.  PW4 tried to subdue D4 who, however, put up fierce resistance, and the crowd (including D5 and D6) rushed up from the atrium of the Plaza and surrounded PW4 and D4 who were on the floor. PW4 felt getting kicked on the back with pains and felt someone grabbing his back. PW4 saw (and the CCTV captured) that D5 opened an umbrella beside PW4 with kicking motions towards PW4. The CCTV captured the whole process and D6 was standing next to D5. Afterwards, D5 pulled D4 up with his hands and eventually enabled D4 to escape successfully. The duo together with 10-odd people (including D6) ran away from the scene.

11.  D5 and D6 were intercepted and arrested by the police outside the Plaza at 2210 hours on the same day.

12.  D3 and D4 were subsequently arrested by the police at their residences.

13.  Afterwards, the police found on the mobile phones of D1 and D4 a WhatsApp chat group named “Bike Squad”/“Bike Your Bike”[3], of which group members included D1-D4 and the registered subscriber to phone number 51164458 (the prosecution’s position was that he was D7). The messages therein were also related to the above criminal damage case.

B.1.a Summary of the messages concerned

14.  The relevant messages in the chat group in the early hours of 13 May 2020 are summarized as follows[4]:

02:52	51164458	[Put up a poster of “Sing with You” that night]
	51164458	Is anyone going to be out to this one tomorrow
	D4	Have to think about it
02:53	51164458	Renovate as far as possible if you people can
	51164458	Don’t fucking sing
02:54	51164458	You aren’t really going to go there to sing, are you…
02:55	51164458	Because it’s easy to be rounded up if going in.
	51164458	I’ll find a way outside
02:56	D3	It’ll be fucking over no matter what in two and a half hours if it is “shop with you”
02:57	51164458	It’s better not to be rounded up
	51164458	Not planning to renovate? [emoji of pondering]
02:59	51164458	Standing by the statement
03:00	51164458	Here is the schedule
	51164458	There is no way that the black cops are not on their guard
	51164458	Bring the stationery along carefully
	51164458	Don’t die before the victory
03:01	D3	Fear of getting busted once there is a strike
03:02	D3	There are dogs once there is a strike; beasts are trapped and struggle upstairs, but are unable to escape in time downstairs
	51164458	Most fucking afraid of the peaceful, rational and non-violent who will look at you in a strange way and not even help by opening an umbrella, but fuckingly sell you out on seeing the dogs approach
13:38	D2	So going out tonight?
	D3	Yes
13:39	D2	Bringing stationery along?
	D3	Not so good
	D2	Ok
13:40	D3	Treat it as chit-chatting, hanging around, and jogging [emoji of a smile]
13:41	D4	Shall be ok
13:42	D3	You use a mask respirator in the shopping mall?
13:43	D4	Toys are even more useful 🔨
13:45	D2	You guys, what time?
	D3	No idea
13:46	D3	Will go after playing football and having a meal
	D3	7:30, be punctual, may have a chance
13:51	D2	Dammit
	D2	Really can’t find my pair of fucking labour gloves
13:52	D3	Can you give a full account of what you have first [emoji of laugh-out-loud]
13:56	D3	Are there a whole set of neat and beautiful black bloc, practical yet unflashy stationery, and toys which are so funny and fucking addictive
14:25	D2	I find them out all in one go
18:50	51164458	1842, there were probably nearly 20 dogs altogether inside and outside the two exits at Shatin Railway Station
	51164458	Hundred-step staircase, 8 dogs
	51164458	Shatin Park, 5 dogs
	51164458	All started to enter and garrison sometime after 6 o’clock
18:51	D4	Came to Sha Kok first
	D4	Shing Mun Riverside
18:51	51164458	Sunshine City, there are fellows, there are dogs
	51164458	But very few
19:01	51164458	Certainly you all know you have to bring the ID card
20:06	51164458	Renovate again if it can’t be seen
	51164458	Besides there are not many people
20:51	51164458	The valiant got arrested!!!

B.1.b Admitted Facts

15.  The facts admitted by both sides included the following:

(a) 53251722 was the phone number[5] of the mobile phone seized from D1;

(b) On 22 September 2020 at around 1015 hours, PC 21169 arrested D7 at his residence. Between 1016 hours and 1020 hours on the same day, on a bedside cabinet in a bedroom of the residence, PC 21169 seized a mobile phone which, together with two SIM cards, was listed as Prosecution Exhibit P7(1)[6];

(c) Prosecution Exhibit P7(1) included two SIM cards. The SIM card number of one of them was 8985200060730038342. It was the SIM card for phone number 51164458[7].

16.  In addition, Prosecution Exhibit P13 showed that the registered subscriber to phone number 97615178 was D3[8], while Prosecution Exhibit P14 showed that the registered subscriber to phone number 97615278 was D4[9].

17.  The prosecution alleged that D7 was the user of the WhatsApp account registered with the phone number 51164458, that is to say, D7 was the sender of the inciting messages in question.

B.2. Summary of the defence case

18.  Both D6 and D7 elected not to give evidence or call any defence witnesses.

B.3. Disputes raised by D7

19.  D7 took issue with the following[10]:

(a) As to the admissibility and weight of the messages in the “Bike Squad”/“Bike Your Bike” WhatsApp chat group, it was not D7’s stance that he objected the prosecution adducing the relevant messages as evidence for non-hearsay purpose. D7 submitted that if the information relating to the senders and the sending times and dates of the group messages were relied upon to prove the identities of the senders and that the relevant information was sent out at the times and dates shown, the evidence would become hearsay and inadmissible.[11]

(b) As to whether the contents of the messages in the “Bike Squad” / “Bike Your Bike” WhatsApp chat group appertained to words related to incitement to criminal damage, the defence disputed that utterances 14-101 in MFI1-6 did not contain elements of incitement, nor was there any evidence indicating that D7 had directly or specifically sent out any messages about damaging other people’s property. The defence contended that the term “renovation” could be interpreted differently.[12]

(c) As to whether D7 was the holder of the mobile phone number 51164458 at the material time and whether D7 must be the person who sent out the material WhatsApp group utterances, the defence argued that D7 was only 16 years old at the time of the offence, residing with his family and was a full-time student. It was highly likely that he had no financial means to purchase a mobile phone. Moreover, P7(1) (the phone seized at D7’s home) allowed two SIM cards to be put in, and one of the SIM cards was numbered 51164458. According to Prosecution Exhibit P15, the registered subscriber to that phone number was D7’s mother.[13]

B.4. Magistrate’s rulings

20.  The Magistrate found that the prosecution relied on the relevant messages as direct evidence to prove the incitement to criminal activities, and according to the prosecution, the evidence for proving matters such as phone numbers, phone registrants, identities of the group members, etc, would be relied on the facts admitted by both sides and the other exhibits. Having considered the evidential basis of the WhatsApp messages, the Magistrate held that the WhatsApp messages in question were admissible as evidence for non-hearsay purpose.

D7 was the sender of the WhatsApp conversation recorded

21.  The Magistrate took into account that Exhibit P16 showed that D7’s contact phone number was 51164458; that P16 was the form of “Application for a Permanent Identity Card / an Identity Card by a person from the age of 11 years to 17 years”[14] completed by D7’s mother on 5 October 2019; and that the contact phone number written down by herself was another number (55110079) in P17 (namely the form of “Application for a Permanent Identity Card / an Identity Card by a person of the age of 18 years [or] over”[15] completed by D7’s mother for herself on 7 April 2016). The Magistrate found that P16 was completed only 7 months from the date of the offence, which was not a long lapse of time. The Magistrate reckoned that D7’s mother had intentionally written down the contact phone number 51164458 in D7’s application form for a Hong Kong Identity Card (Exhibit P16) instead of leaving it blank or writing down her own phone number (55110079) or a residential landline phone number, indicating that she was aware that 51164458 was the phone number used by D7.

22.  The Magistrate also took into account the contents of the messages in question, and found that it was highly unlikely that the messages had been sent out by D7’s mother, in particular that it was inherently improbable for D7’s mother to have known D1, D3 and D4 and transmitted the messages in question mutually with them. The defence’s suggestion that it could have been done by other family members was a speculation without any evidential basis.

23.  The Magistrate accepted PW10’s evidence. PW10 testified that upon arriving at D7’s residence for a search on 22 September 2020, P7(1) was found upon search at the bedhead in D7’s room. D7 confirmed with PW10 that the room in which he was found sleeping was his room and that P7(1) was his phone. Upon analysis, the Magistrate accepted that D7 had made the relevant response to PW10.

24.  The Magistrate found that by relying on other evidence, even placing no reliance on D7’s responses given to PW10, including that the room and the phone belonged to him, one could still arrive at the only reasonable and irresistible inference that P7(1) and the SIM card were used by D7 who was the sender of the messages in the “Bike Squad”/“Bike Your Bike” WhatsApp chat group through 51164458.

Whether the contents of the messages in the WhatsApp chat group contained incitement to criminal damage

25.  The Magistrate had considered the contents of the conversations in the WhatsApp chat group as a whole, including the context, as well as individual messages sent out from 51164458.

26.  Upon detailed analysis of the information, including D7 having asked others to bring stationery and to beware of being arrested, and the information of police deployment and D1’s arrest, etc, the Magistrate came to the view that D7, when sending the messages, clearly intended to cause others to commit criminal damage upon his incitement, and found D7 guilty as charged.

C. Grounds of appeal

27.  Mr James LW WONG who represented D7 put forward three grounds of appeal and submitted that the conviction was unsafe and unsatisfactory:

(1) The charge faced by the appellant is an offence unknown to the law, the conviction of which is a nullity, and/or involves material irregularity;

(2) The Magistrate has misconceived and/or misapplied the elements of the offence of “incitement” and, on insufficient evidential basis, has drawn an adverse and improper inference against the appellant and erroneously found that the appellant must have had the mens rea of the offence of “incitement”;

(3) The Magistrate has erred in finding that the documentary evidence from the computer records, namely the “WhatsApp” messages, was intact, accurate, untampered and having a complete chain of evidence, and has erred in admitting the “WhatsApp” messages as evidence and/or has erred in applying the “WhatsApp” messages as hearsay evidence, and has erred in inferring that the appellant must be the one who disseminated the messages in question.

D. Ground of appeal 1

D.1. Appellant’s submissions

28.  It was emphasised on his behalf that D7 was facing a common law offence. However, in the statement of offence, the conviction form, and the Statement of Findings and Sentence, it was merely alleged that D7 had contravened sections 60(1) and 63(2) of the Crimes Ordinance, Cap 200, and section 101I(2) of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong. D7 was facing the statutory offence of criminal damage and therefore the charge was not correct.

29.  It was contended that the conviction of D7 was a nullity and/or involved a material irregularity. Even though the court might amend the charge under section 27 and/or section 119(1)(d) of the Magistrates Ordinance, Cap 227, it was not appropriate to do so because D7 was facing an offence unknown to the law.

D.2. Respondent’s reply

30.  The respondent cited the guidelines given by Stock J in Attorney General v Wong Lau[16] on how to draw a distinction between informations that are “defective” and those which are “nullities”:

[An information will be a nullity if]

(1) the statutory provision creating the offence has been repealed and not re-enacted; [or]

(2) the statement and particulars of offence cannot be seen fairly to relate to, or be intended to charge, a known and subsisting criminal offence; [or]

(3) in some other way, it is so defective that it cannot be cured.

31.  Besides, as Stock J pointed out, if the particulars of offence adequately describe an offence known to the law, the information is not a “nullity” by reason only that the statutory provision creating the offence is wrongly stated or is omitted.

32.  As Stock J also pointed out, an information which is a “nullity” cannot be amended, but a “defective” information may be amended.

33.  The respondent contended that since the appellant concurred that the court might amend the charge under the Magistrates Ordinance, it meant that he agreed the information in the present case was not a “nullity”, and at most “defective”.

34.  In addition to citing five English cases[17] to show that in similar circumstances, such information was not a “nullity” but only “defective”, the respondent also referred to two Hong Kong cases[18] in which the Court of Appeal ruled that where a charge involved in a case was a common law offence but the statement of charge incorrectly stated it as a statutory offence (whereas the relevant provision only provided for the penalties for the common law offence), the charge was not a fatal defect if it did not cause unfairness to the appellant.

D.3. My considerations

35.  I wholly agree with the argument submitted by the respondent. While the offence involved in the case was a common law offence, it was plainly wrong to state it as a statutory offence in the statement of offence. Nevertheless, the prosecution, the defence and the Magistrate were fully aware of the charge against D7 and the elements of the offence that the prosecution must prove. In such circumstances, the mistake did not bring D7 any unfairness. The mistake was only a “defect”, and the charge was neither a “nullity” nor a material irregularity.

36.  In exercise of the powers conferred by section 119(1)(D) of the Magistrates Ordinance which the Magistrate could have exercised under section 27, I now amend the charge as follows:

“The offence of ‘incitement to commit criminal damage’, contrary to the Common Law and sections 60(1) and 63(2) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong, and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong.”

37.  This ground of appeal does not stand.

E. Ground of appeal 2

38.  The appellant referred to the elements of the offence of “inciting others to commit criminal damage”, which the prosecution must prove as set out by Alex Lee J in the case of HKSAR v Ng Man Yuen Avery[19]:

“(1) The inciter, in a communication to the incitee by words or by conduct, incites the incitee to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the incitee;

(2) The inciter intends or believes that the incitee, if he acts as incited, will do so with the mens rea required for the offence or offences concerned.

(3) Even though the crime is never committed by the incitee, the inciter will still commit the offence of incitement (Mak Sun-kwong v R[20]). Even though the incitee does not intend or is not prepared to commit the crime, the inciter may still be convicted for his act of incitement (HKSAR v Jariabka Juraj[21]).

Besides, in criminal law, ‘incitement’ generally refers to encouragement, persuasion, advice, and even threatening of others, or pressuring of others.”

39.  The appellant quoted what the Magistrate said in paragraph 52 of the Statement of Findings and Sentence:

“The defence agreed that in respect of the offence of incitement, the prosecution did not have to prove that any person had committed the incitement described but only that the defendant had stated or communicated the incitement.”

40.  The appellant alleged that the Magistrate in the present case had failed to correctly and adequately deal with the elements of the offence of incitement.

E.1. My considerations

41.  In my view, this area can be dealt with expeditiously. Obviously, what the Magistrate said in paragraph 52 was a brief statement pointing out that the prosecution did not have to prove that the incitee had actually performed the criminal act which he was incited to do. Even if the incitee did not eventually commit an offence, the inciter was still guilty of incitement (see Mak Sun-kwong), and the prosecution was only required to prove “communication”.

42.  Having considered and analysed the evidence, in particular the context of the conversations and messages in the Whatsapp group that were related to the “Sing with you” activity in New Town Plaza on the day when the case occurred, the Magistrate said in paragraph 86:

“The defence argued that there was no evidence reflecting that D7 had directly and specifically sent any message relating to damaging others’ property. I do not agree with the defence. D7 sent out ‘Renovate as far as possible if you people can’ which was an instruction and suggestion that an act of damage be carried out, and it definitely meant damage to property. This proves that he spoke, encouraging others to commit criminal damage, and evidently sent out the message with the intention of causing others to commit criminal damage upon his incitement. I am of the view that if D7 had not had the above intention and had just been a young man making a joke, he would not have continued to send out messages including bringing tools, bewaring of getting arrested, information about the police deployment, and reporting the arrest of the D1 after a round-up and so on.”

43.  It is clear from the above paragraph that the Magistrate grasped all the elements of the offence of incitement and, unlike the appellant’s contention, she did not fail to deal with the relevant elements correctly or adequately.

44.  This ground of appeal does not stand.

F. Ground of appeal 3

45.  The appellant pointed out that the WhatsApp messages relating to the offence of incitement against D7 came from D1’s mobile phone. The admitted facts showed that the above exhibit had been properly kept under police custody all along from the time of seizure to the time it was produced to the court without being unlawfully interfered or tampered with in any way and the meaning of the term hash value[22] was also shown. However, it could only prove whether, from the very moment of the seizure of D1’s mobile phone, the computer-recorded documentary evidence of the WhatsApp messages contained in D1’s mobile phone was intact, accurate and not interfered with and had a complete chain of evidence. In the present case, there was no evidence to prove whether, before the moment of the seizure, the computer-recorded documentary evidence contained in D1’s mobile phone was intact, accurate and not interfered with and had a complete chain of evidence.

46.  The appellant invoked section 22A of the Evidence Ordinance, Cap 8 of the Laws of Hong Kong to argue that there was no evidence in the present case to show that D1’s mobile phone, before the moment of its seizure by the police, had been used to store, process or retrieve information and so on for the purpose of the personal activities carried out by him (namely the conditions set out in 22A(2)). The appellant complained that the Magistrate had not adequately dealt with the issue in this respect.

47.  The appellant argued that the Magistrate, without a sufficient basis to analyse the overall content of the conversation, proceeded to rule that the prosecution had proved beyond reasonable doubt that the relevant WhatsApp messages must have contained the element of inciting criminal damage and that D7 must have had the intention of inciting criminal damage.

48.  The appellant cited the case of DPP v Stirland[23] to argue that although no objection in this respect had been raised by counsel for D7 at trial, it was immaterial.

49.  Regarding the case of HKSAR v Milne John[24] cited by the respondent, the appellant submitted that the facts of that case were totally different from those of the present case in that the messages involved in that case had been retrieved from the mobile phone of the defendant, whereas in the present case, the messages allegedly sent out by D7 were simply not found or retrieved from the mobile phone allegedly belonging to D7.

50.  The appellant quoted the remarks made by Fok PJ in the abovementioned case of Milne John:

“The hearsay rule never makes a document as such inadmissible. It is only inadmissible for a particular purpose, namely, as evidence that a statement which [it] contains is true. If it is relevant to an issue in some other way, it is admissible for that purpose.”

51.  The appellant contended that if the WhatsApp messages were not used as hearsay evidence but only for showing that the messages had been sent out from somewhere and the person who provided these messages would be tendered for cross-examination, section 22A of the Evidence Ordinance did not apply.

52.  The appellant contended that although the Magistrate had ruled that the messages were admissible in court as non-hearsay evidence, in the Magistrate’s analysis of the WhatsApp messages, materials including the sender’s information and other message-related data were used to prove that the messages had been sent out by D7 (namely the set of digits [51164458] above the messages must be a phone number, and the corresponding messages must have been sent out from a phone with a SIM card containing digits in such combination). It has in fact gone beyond the purpose of non-hearsay evidence. There was no expert evidence in support.

53.  The appellant cited a finding made by Deputy High Court Judge Bruce (as he then was) in the case of HKSAR v Ko Wai Kit & Anor[25]:

“that [phone] number is usually but not always the number of the SIM card… The manner in which the WhatsApp system operates in terms of the means by which it operates on an individual phone and then provides a facility to communicate with another phone is also not susceptible to judicial notice.”

54.  The appellant submitted that one could see that the combination of digits [51164458] above the messages from which the messages had allegedly been sent was not necessarily a phone number; and even if it was, it did not necessarily mean that the corresponding WhatsApp messages must have been sent from the phone number [51164458]. The appellant argued that such an assumption was in fact making use of the data relating to the messages to prove, directly or indirectly, that the messages were sent from the phone number [51164458]. Such an inference was directly or indirectly making use of the WhatsApp messages as hearsay evidence.

F.1. Respondent’s reply

55.  In respect of the appellant’s complaint that there was no evidence in the present case to prove that the evidence of the computer records contained in D1’s mobile phone was intact, accurate and not tampered with and having a complete chain of evidence before the moment of its seizure by the police, the respondent argued that the prosecution placed no reliance at all on the condition of D1’s or D4’s mobile phone prior to their seizure by the police. The respondent emphasised that the police or the prosecution could never know the state of the exhibits prior to their seizure, and the prosecution could only rely on the state of the exhibits at the very moment of seizure in producing it as evidence in court.

56.  Regarding the circumstances after the seizure, the respondent stated that, according to the admitted facts, D7 agreed that the prosecution had proven its case. Further, the evidence before the Magistrate included the testimonies of PW11 and PW12. Their evidence showed that there was no interference throughout the process of receiving the mobile phones concerned as well as examination and retrieval of their contents. The information under their forensic examination was very close to the state of the same at the very moment when the phones were seized.

57.  The respondent argued that there was another piece of strong evidence: although there were differences between the contents of P20/20A and that of P23/23A, there were also a lot of duplications in their contents (in particular in the period other than the time in question, namely from January to May 2020). The court therefore had the basis to draw the inference, which was the only reasonable one, that the contents of P20/20A and P23/23A were both reliable and credible, and they each was an intact, accurate and untampered exhibit having a complete chain of evidence. It would be highly improbable for two phones containing messages of the same content simultaneously for a period up to five months to have been interfered with.

58.  The respondent emphasised that at trial, the prosecution only relied on the WhatsApp messages found by the police in D1’s and D4’s mobile phones to prove that D7 had sent the messages concerned, rather than relying on the truthfulness of the content, and therefore no hearsay evidence was involved. Section 22A of the Evidence Ordinance was simply inapplicable.

59.  The respondent cited the principles set out in the case of Milne John, arguing that when considering the issue of whether the WhatsApp messages concerned were admissible, the Magistrate should consider the relevance of the messages and whether the standard of authenticity for “prima facie evidence” was met.

60.  In respect of relevance, the prosecution produced the content of the WhatsApp chat group “Bike Squad” retrieved from D1’s mobile phone at trial for the purpose of proving that D7 had incited others to commit criminal damage by sending messages in that WhatsApp chat group. It was obviously the evidence on which the prosecution’s case mainly relied to prove D7’s criminal act and was relevant to the present case. The purpose for which the prosecution produced the content of the chat group “Bike Your Bike” retrieved from D4’s mobile phone was to prove the authenticity of Exhibit P20/20A, even though the messages sent out by D7 to incite others to commit criminal damage no longer existed in the WhatsApp messages in that exhibit.

61.  Regarding the “prima facie evidence” in terms of authenticity, the respondent submitted that the court must consider:

1. the source of the evidence;

2. the previous background prior to the presentation in court;

3. whether there was any interference with or alteration to the content; and

4. whether there was any mishandling of the evidence so that the content became incomplete.

62.  The respondent reiterated that the evidence of PW11 and PW12 (and PW13 who assisted in the retrieval of relevant data from D4’s mobile phone) had clearly shown both (1) and (2) above. The Magistrate could also rely on a series of circumstantial evidence, including the thousands of messages retrieved from the mobile phones of D1 and D4 covering a span of five months and mostly same in content. The messages appeared to form a natural and coherent chain of communication with coherent logics in the context. More importantly, the messages in the chat group “Bike Squad” on 13 May 2020, including those, as alleged by the prosecution, sent out by D7 to incite others to commit criminal damage, tallied with what happened in New Town Plaza on 13 May 2020.

F.2. My considerations

63.  I agree with the argument in the respondent’s submission. The prosecution never relied on the authenticity of the WhatsApp content concerned, but only relied on the relevant WhatsApp messages found by the police from the mobile phones of D1 and D4 to prove that D7 had sent out those messages concerned. The Magistrate was well aware of the prosecution’s position. The evidence concerned was not hearsay evidence. Section 22A of the Evidence Ordinance does not apply.

64.  The Magistrate’s analysis of the reliability of the forensic examination software, Cellebrite, is as follows:

“36. I have considered the steps and methods used by the prosecution witnesses, PWs 11, 12 and 13, for retrieving the relevant data from the seized phones and SIM cards. The evidence of the witnesses referred to the existence of anti-interference steps and methods for retrieving the relevant data. These included the procedures and measures for checking the sealing of exhibits every time, verifying the information in search warrants, the hash values of the relevant data and the use of intranet in the examination room which could not be interfered with from the outside. From their evidence, there is no basis to challenge that there was an error in the correction software, or that ‘error code’ has appeared at any time during the retrieval of the data. According to each of the witnesses, the tools were functioning normally and each computer user had his own password and could only access his own files. The software in the computers had anti-virus software and firewalls to ensure that the system was safe, secure and free from interference. Having considered the relevant evidence, I am of the view that there is no evidential basis to support that there was interference when the witnesses were retrieving the data.

37. On the issue of whether PWs 11, 12 and 13 had accurately and completely exported the retrieved data in the form of spreadsheets, the defence challenged that the three witnesses’ spreadsheets were in different formats and set out such differences. The attached table reflected that the ‘numbers of rows’ on the three spreadsheets were not the same. From the evidence of the witnesses, PWs 11, 12 and 13, it appeared that the department did not require spreadsheets to be in standardised format. Under such circumstances, it is not unreasonable to have individual spreadsheets in different formats. Ideally, spreadsheets in a standardised format could give readers a clearer impression. However, in my view, the most important consideration is the integrity of the data on the spreadsheets at the time of compilation. There is no evidence reflecting unlawful interference with the data concerned by PWs 11, 12 and 13. I note that in individual cases, there are deviations in background colours or inconsistencies in the display of messages such as ‘admin/owner’ and so on, but having considered the content of Annex 1 and the evidence of PWs 11, 12 and 13, I do not see any basis reflecting any unlawful interference with or deletion or alteration of the data which affects the completeness and accuracy of the retrieved data. Despite individual mistakes in the English wording, the overall accuracy of the data is not affected.”

65.  Both PW11 and PW12 are police officers who had been trained to retrieve data from mobile phones by using forensic examination software. Although they did not testify as expert witnesses, they could testify by their personal experience.

66.  Upon reading the evidence of PW11 (namely the police officer who retrieved data from D1’s mobile phone), I can see that he used the software Cellebrite to retrieve data from D1’s mobile phone. As for the forensic examination software concerned, he had previously conducted tests on certain phones (for example, phone A) to ensure that the data retrieved from phone A was the same as those originally in phone A itself. Nonetheless, he had not conducted any further tests on the forensic examination software concerned at the moment right before he retrieved data from D1’s mobile phone.[26]

67.  PW11 pointed out that the use of Cellebrite might not be able to retrieve data for various reasons, for instance, the phone had been hacked, had a security system been in place, and so on. Cellebrite could only extract retrievable data as far as possible and might not be able to extract 100% of the required data.[27]

68.  However, PW11 said that he had successfully obtained the data concerned when retrieving data from D1’s mobile phone.[28] He saved the data on a server. After going through the data concerned, the investigating officer asked PW11 to copy and paste the data required into spreadsheet format (excel) and then burn the spreadsheet onto a compact disc (P20).

69.  Having considered the context of PW11’s testimony, I can see that his testimony shows that he had previously tested the accuracy of Cellebrite and the results showed that the data retrieved from a certain phone was the same as what was displayed on the phone itself. Although PW11 was not an expert witness, he could testify by his personal experience. According to his evidence, when he retrieved data from D1’s mobile phone, nothing that could cause any interference to the mobile phone happened. In my view, his evidence has shown that he did accurately retrieve the retrievable data stored in D1’s mobile phone by using Cellebrite. It is true that the presentation of the data in the form of a [spread]sheet is different from the way in which the data was originally displayed on the mobile phone. Given that PW11 used the copy-and-paste method, the possibility of error was minimal.

70.  I understand that even if the data retrieved by using Cellebrite was consistent with the data stored in the mobile phone, it was still possible that some of the data could not be retrieved or messages might have been deleted. However, in my view, having considered the context of the messages concerned, despite the possibility that the data might not be retrieved in full or messages might have been deleted, the fact that the content of the messages concerned was an incitement to commit criminal damage is not affected.

71.  I do not agree with the appellant’s contention that the Magistrate had directly or indirectly used the WhatsApp messages as hearsay evidence. In conducting the analysis, the Magistrate took into account the fact that a mobile phone containing two SIM cards was found in D7’s room. The phone number of one of them was 51164458, which D7 admitted to the police officer as belonging to him. D7’s mother was the subscriber of the phone number 51164458. D7’s mother wrote 51164458 as D7’s phone number when filling in the form Exhibit P16, and she wrote down another phone number for herself. She also wrote down another phone number of hers in P17. I agree that the content of the communication concerned does not appear to have been sent by D7’s mother.

72.  It is well known that a person who wishes to use a communication software such as WhatsApp must register with a phone number before being able to use it. There were messages from “51164458” in the “Bike Squad” chat group found in D1’s and D4’s mobile phones. I am of the view that the set of digits concerned (namely 51164458) was obviously a phone number. According to the evidence in court, 51164458 was a phone number used by D7. It is inconceivable that a combination of digits identical to D7’s phone number was unrelated to it.

73.  I understand that the messages appearing in WhatsApp may not necessarily be sent from the phone with the SIM card of that phone number, and may be sent from a computer or another phone. However, messages will only appear after authentication with the phone number concerned. Under normal circumstances, the messages should be sent out by the holder of the phone number concerned (no matter from his mobile phone, another mobile phone or a computer). In the present case, there is no information or evidence showing that someone else might have used a computer or another phone to send out messages by using D7’s phone number. Even more so, there is no information or evidence showing that someone else might have sent out any message with D7’s mobile phone.

74.  I agree with the analysis and findings made by the Magistrate. Based on the testimonies and evidence in the present case, the only reasonable inference is that D7 was the person who sent out the messages concerned.

75.  I totally agree with the Magistrate that the messages concerned sent out by D7 had the element of incitement to commit criminal damage and that it was not a joke but was intented to cause others to be incited by him to commit criminal damage.

76.  This ground of appeal does not stand.

G. Conclusion of appeal against conviction

77.  For the above reasons, I dismiss D7’s appeal against conviction.

H. Reasons for sentence

78.  The Magistrate’s reasons for sentence are set out as follows:

“D7

88. Before sentence, the court obtained a background report, a report of detention order to Detention Centre (DC report) and a report of detention order to Training Centre (TC report). It was stated in the DC report that because of D7’s physical condition, he was not suitable for detention in a Detention Centre, while the TC report recommended that the defendant was suitable for detention in a Training Centre.

89. As revealed by the background report, D7 was born in the mainland. He came to Hong Kong with his mother on a one-way permit in 2008 and resided with his father thereafter. The defendant’s mother works as a beautician as well as a domestic helper. His father is currently serving a prison term in the mainland. The defendant resides with his mother in Hong Kong. He [re]peated his studies in Form One and is now preparing for the coming Hong Kong Diploma of Secondary Education Examination. The defendant was diagnosed as having depression in 2019 and is followed up by the Prince of Wales Hospital in Shatin.

90. D7 admitted in the background report that there was discussion in the group in relation to the unauthorised assembly to be held in Shatin. The defendant explained that his suggestion to the people in the group of “renovating” the shops was merely a joke. He did not expect those classmates to go along with his suggestion. I have already expressed in my verdict that I do not accept D7 was kidding in disseminating the message in question.

91. There is no sentencing guideline regarding the charge against D7. I am obliged to consider the facts specific to the case.

92. D7 was aware that there would be an unauthorised assembly in New Town Plaza on the day in question. He suggested to the people in the group to “renovate as far as possible”, and reminded the participants of bringing along tools and beware of police arrest. Such acts of his are very serious in nature. The place in question was a high-traffic shopping mall with lots of members of the public, including children, walking around, not to mention the unauthorised assembly to be held on that night. Nonetheless, D7 incited the people in the group to equip themselves with tools for criminal damage and cause destruction “as far as possible” to the shops inside the shopping mall having high traffic of people. The incitement carried out by D7 not only caused great losses to the victimised shops but also provoked uproars among the people assembling there and then, who obstructed and attacked the police officers and caused injuries to PW4. The facts of the case are serious.

93. I have taken into account the defendant’s young age and given full considerations to the issue of suitability of imposing a rehabilitative or punitive sentence. As far as the circumstances at the material time are concerned, the facts that D7 incited others to vandalise the shops are serious. In the absence of any exceptional personal circumstances, and as reflected in the report, D7 still maintains that he was kidding, which means that the defendant in fact had no insights into what he did and showed no remorse. Therefore, I am of the view that a deterrent sentence is appropriate even for a first offender.

94. Having considered the contents of all the reports and the submission for mitigation put forward by the defence, I do not see any factor that warrants sentence reduction. The defendant was convicted after trial. In the circumstances, I sentence D7 with a detention order to Training Centre.”

H.1. Ground of appeal

79.  It was submitted that D7’s pre-existing mental health problem deteriorated tremendously after his sentence was imposed, which rendered Training Centre no longer an appropriate option for sentence.

H.2. Application for adducing fresh evidence

80.  To support the above ground of appeal, D7 applied by motion for adducing fresh evidence by producing to the court two psychiatric reports of D7 prepared by a psychiatrist Dr LEUNG Kwan Keung on 10 July 2023 and 8 January 2024 respectively, and the “Registration Card for People with Disabilities” held by D7.

Relevant law

81.  Section 83V(1) - (2) of the Criminal Procedure Ordinance provides that:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

….

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if—

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

82.  As to the circumstances under which an appellate court may accept fresh evidence, the Court of Final Appeal in Mohammad Mahabobur Rahman v HKSAR[29] has already set out clearly the conditions to be satisfied before receiving such evidence:

(1) the fresh evidence is likely to be credible;

(2) it would have been admissible in the courts below;

(3) it is relevant to an issue in the appeal;

(4) there is a reasonable explanation for the failure to adduce it in the courts below; and

(5) the court is satisfied that it would afford a ground of appeal.

83.  In his affirmation, D7 pointed out that his post-sentence mental health condition was far worse than that at the time when the suitability report for Detention Centre/Training Centre were called for by the trial court. Prior to his hospitalisation for treatment in the Psychiatric Department of Tai Po Hospital for about one and a half months, D7 had never been admitted to hospital because of his mental health. Apart from that, a “Registration Card for People with Disability” was issued to him by the HKSAR government in May 2023, with the type of disability specified as “mental illness”.

84.  D7 went on to say that the above situation was unlooked-for during the hearing at the magistrate’s court. Besides, the evidence concerned had not yet existed at that time, so he was then not in a position to adduce and produce it. D7 believed that serving his sentence in a Training Centre would aggravate the condition of his mental problem and the risk of relapse would increase, which was detrimental to his mental health.

85.  The appellant submitted that the fresh evidence satisfied the conditions stipulated by law.

H.3. Respondent’s response

86.  In respect of the application for adducing fresh evidence, the respondent agreed to the legal principles concerned and accepted that D7 had already satisfied the first four conditions set out in Mohammad Mahabobur Rahman. However, whether D7’s circumstances fulfilled the fifth one was disputed. The respondent was of the view that even if such evidence was accepted by the court, they in no way afforded a ground of appeal.

87.  The respondent referred to Dr LEUNG’s reports in which D7’s diagnosis was updated as bipolar affective disorder. D7 was in a habit of abusing drugs, leading to his hospitalisation for treatment. D7’s condition had improved after receiving treatment. D7 also failed to attend his follow-ups on a number of occasions. The respondent pointed out that D7’s condition deteriorated while he was on bail. Two reports were called for while he was serving time in a Training Centre. None of them indicated significant deteriorations in D7’s mental health problem after the imposition of his sentence.

H.4. My considerations

88.  My view was that even if D7 was hospitalised for treatment because of abusing drugs, his present mental condition might possibly affect his ability to serve the sentence in a Training Centre. Hence, I allowed the application for adducing fresh evidence.

H.5. Appellant’s submissions

89.  It was stressed that D7 had been suffering from mental problem for a long time. The two reports compiled by the doctor as well as the “Registration Card for People with Disability” indicated the significant changes in D7’s mental condition after he had been sentenced, and Training Centre was no longer a suitable option.

90.  It was submitted on his behalf that D7 had already spent 133 days in the institution before he was granted bail. In striking a balance between the sentence to a Training Centre and the deterioration of D7’s mental health problem, there was still some room for the court to exercise leniency out of mercy. The appellant thus asked this court to allow his appeal against sentence.

H.6. Respondent’s response

91.  The respondent submitted that a post-sentence change in health was not a ground justifying the appellate court to intervene in a sentence which had been properly imposed. Although the court had the discretion to impose a more lenient sentence within an appropriate range on account of the exceptional background of individual defendants, the court was still obliged to take into consideration the seriousness of the facts of the case. While looking into the defendant’s background, it was required to focus on whether there was the necessary deterrent effect and the issue of public interest. The court could not possibly purely focus on the defendant’s background factors but ignore the other sentencing considerations and the significance of the facts of the case.

92.  Before sentence, the Magistrate had already given full consideration to all the factors that should be taken into account, including D7’s mental condition. In the Detention Centre/Training Centre Suitability Report, the clinical psychologist, having assessed D7’s condition, formed the opinion that D7’s condition was seen to have improved one month after initiation of medication in mid-2019 and that he had normal mental status and was suitable for detention in a Training Centre and a Detention Centre. The Correctional Services Department (CSD) would definitely make the necessary arrangements for D7 regarding his mental and health conditions during his time in the institution, including the arrangements for D7 to continue to receive regular treatment at the premises managed by the Hospital Authority or the Department of Health.

93.  The respondent submitted that the fresh evidence did not demonstrate any deterioration in D7’s mental condition. Quite the contrary, according to Dr LEUNG’s observation, the symptoms of D7’s bipolar affective disorder were relieved upon treatment even though he had failed to attend the follow-ups on a number of occasions. Dr LEUNG stated that D7’s hospitalisation in March 2023 was due to abuse of drugs. If D7 was detained in a Training Centre, the CSD would certainly ensure that he would continue to attend follow-ups so as to prevent his condition from getting worse, and any chance of D7’s abuse of drugs would be eliminated for sure. As such, a detention order to Training Centre would be more conducive to the recovery of D7’s health condition as compared to a non-custodial sentence.

H.7. My considerations

94.  I totally agreed to the Magistrate’s reasons for sentencing D7 to a Training Centre. The appellant was not complaining that the Training Centre order was wrong in principle or manifestly excessive. The appellant merely wanted to draw the court’s attention to D7’s mental health condition which deteriorated after sentence and made him unsuitable for a term in a Training Centre.

95.  In my view, what the respondent said was not unreasonable. However, I found that a safer approach was to obtain a new Training Centre suitability report so that the professional concerned could, having considered Dr LEUNG’s reports and reassessed D7’s condition, offer his/her professional advice as to whether D7 was still suitable for serving time in a Training Centre.

96.  For the above reason, I adjourned the case for further Training Centre Suitability Report.

I. Further Training Centre Suitability Report

97.  To protect D7’s privacy, I shall not recount the whole content of the report. Above all, in the light of D7’s mental problem and psychological condition, a sentence to Training Centre is not recommended.

98.  Thus, I have to reconsider the appropriate sentence.

I.1. Appellant’s submissions

99.  Referring to 香港特別行政區 訴 馮楠迪[30], it was submitted on his behalf that D7’s behaviour showed positive improvement upon his release on bail. He studied hard and succeeded in getting admitted to year one of a university. He subsequently quitted his studies only because of his mental problem. The circumstances of D7 were similar to those of Fung Nam Dik. The court may exercise leniency out of mercy.

100.  The appellant relied on HKSAR v Yeung Kwai Kuen[31] which was quoted in the above authority, where Stock JA (as he then was) stated as follows:

“... there will be cases where a court will be moved to take action in an appellant’s favour by reason of post-sentence events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest ... There was every reason in each of those cases ... not to require the re-incarceration, of the offenders. To do otherwise, to delay and leave the matter to the executive, would have resulted in obvious injustice, a reversal of accrued benefit, and actual damage to the appellants, and to their prospects of rehabilitation.”

101.  The appellant strove to say that in the present case, in addition to his positive behaviour, D7 also had the issue of his mental condition. This court was urged to exercise leniency out of mercy by releasing D7 instantly. If the court was minded to impose a custodial sentence, it was hoped that the sentence could be suspended.

I.2. Respondent’s response

102.  The respondent reiterated the severity of the facts of the present case. Be that as it may, in the light of D7’s mental condition, if the court decided to exercise leniency out of mercy, the respondent would have no objection.

I.3. My considerations

103.  In respect of the facts of the present case, the Magistrate’s decision of sentencing D7 to a Training Centre was appropriate. However, since D7’s mental condition did not allow him to continue his sentence in the Training Centre, I am therefore obliged to consider other options in sentencing D7.

104.  D7 incited others to “renovate as far as possible” during unlawful assembly by vandalising the shop facilities. The facts of the case are so serious that they necessitate the due considerations of deterrence and punishment (see Secretary for Justice v Poon Yung Wai[32]). If D7 were an adult when he committed the offence, he would surely have been sentenced to a prison term. As D7 was 18 years old at the time of the offence, section 109A of the Criminal Procedure Ordinance therefore applies:

“109A.

Restriction on imprisonment of persons between 16 and 21 years of age

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”

105.  Under the present circumstances, I do not find any other suitable options to deal with D7. Hence, I shall consider the option of imprisonment.

106.  Having considered D7’s age and culpability at the time of the offence, I am of the view that a sentence of ten and a half months’ imprisonment is appropriate. Since D7 has already served 133 days in a Training Centre, I consider that imposing a sentence of four and a half months’ imprisonment on D7 at the present stage can sufficiently reflect his culpability.

107.  Mindful of D7’s mental condition, I am of the view that the court can consider a prison term which is not to be served immediately by way of a suspended sentence, so that D7 will stay alert and be deterred from committing any offence again during the suspension period.

J. Conclusion of appeal against sentence

108.  For the above reasons, I allow D7’s appeal against sentence with the Training Centre order set aside and substituted with four and a half months’ imprisonment suspended for 24 months.

12ated by the Court Language Section of the Judiciary and vetted by Mr Richard K L Man, Barrister-at-law.