HKSAR v. LAU CHI FUNG

[English Translation - 英譯本]

CACC 50/2022, [2023] HKCA 975

ON APPEAL FROM: [2021] HKDC 1208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 50 OF 2022

(ON APPEAL FROM DCCC NO 770 OF 2020)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.  At the trial of this case, there were twelve defendants (D1 to D12), each charged with one count of “riot”, of whom eleven were convicted. Seven of them (D4, D5, D7, D8, D9, D10 and D11) then applied for leave to appeal against conviction and/or sentence. Afterwards D4, D5, D7, D8, D9, and D10 withdrew their applications, and D11 became the only applicant in the case. His application for leave to appeal against conviction was put directly before the Court of Appeal for consideration.

The charge

2.  The charge alleged that on 1 October, 2019, D1 to D12, along with Kwok, Cheung, Ho, Wan, Mak (all named) and other unknown persons, participated in a riot which took place in the area of Lung Cheung Road, Wong Tai Sin.

The prosecution case

3.  On the day of the offence, the police issued a Notice of Objection to an assembly planned to be held at Wong Tai Sin Shopping Centre in Kowloon, but a multitude of protesters still gathered around Wong Tai Sin Square and blocked the road. The subsequent riot was framed between 16:15 hours (when the police arrived and witnessed the breach of the peace) and 16:55 hours (when all defendants were intercepted or subdued) on the same day. It took place on the section of Shatin Pass Road between Tung Tau Tsuen Road and Lung Cheung Road, as well as the section of Lung Cheung Road between Shatin Pass Road and the footbridge linking Temple Mall North and Temple Mall South at Wong Tai Sin Shopping Centre[1] (the two sections together were roughly in the shape of a “7”).

4.  According to the summary by District Judge Edmond Lee, the trial judge of the case, this riot was of a considerably large scale. Police witnesses involved at different times and locations estimated the number of participants they observed as ranging from hundreds to thousands. Most of the rioters were dressed in black and wearing face masks, goggles, helmets, gas masks and the like, and simply ignored the verbal and various flag warnings issued by the police. When the police advanced in their direction, released tear gas and even fired rubber bullets, the rioters responded and retaliated by means of umbrella formations, glass bottles, bricks, petrol bombs, and setting fire to barricades on the roadways. Although the rioting crowd continued to be subdued, the rioters kept fighting while running at the same time, as they continued to resist and even counterattacked for quite a while.

5.  According to the combined evidence of multiple police officers including PW3 to PW14 from the same team “the Raptors”, D1 to D12 were arrested in the following manner[2]:

“25. At 16:50 hours, they cut open the iron chain that locked the gate at Exit D1 of Wong Tai Sin MTR station and the entire team ascended to the ground level and reached the pavement of westbound Lung Cheung Road where they advanced towards Lok Fu. They bypassed the bus(es) parked on the road and at that juncture saw some two to three hundred people assembling 100 metres ahead on Lung Cheung Road. All those people were dressed in black, and some of them were wearing face masks, goggles, gas masks and helmets. The police officers kept moving forward, during which time some protesters threw things like bricks and miscellaneous items at the officers. As a result, some of the officers fired rubber bullets at the protesters. At last, under the footbridge between Temple Mall North and Temple Mall South at Wong Tai Sin Shopping Centre, on westbound Lung Cheung Road, they intercepted, subdued and/or arrested D1 to D12 near the barricades of railings there, either in front of them or behind them. As to how and where they pursued and subdued the defendants, reference can be made to P119 16:50 to 16:54; P118 16:51 to 16:57 and P120, the nearly one minute long video clip in full, along with all relevant screenshots.”

6.  The specific circumstances of D11[3] are as follows:

“41. PW13, PC 22649, was the officer who subdued and arrested D11. While he was on Lung Cheung Road advancing towards Lok Fu, he saw many protesters fleeing in the direction of Lok Fu on the westbound lanes. After that, in front of the barricades of railings in the middle of the roadway, he saw that D11 was blocked by the railings and unable to go forward. At that juncture, D11 was facing him with his arms put up high, so he stepped forward and overpowered D11 on the ground. At that time, D11 was wearing a blue short-sleeved shirt, an orange reflective vest, khaki trousers, and black and green trainers while shouldering a grey backpack. When D11 was subdued, he had on his person a black helmet with goggles, a pink gas mask, an orange first-aid vest with ten tubes of saline solution and sixteen packs of sterile gauze pads inside, a black bumbag containing nineteen blue gloves, a blue plastic box of first-aid adhesive plasters and a canister of spray plaster. In the backpack he was shouldering at that time, there were 87 tubes of saline solution, a dressing set, five rolls of bandage, two packs of haemostatic dressing, a warm quilt, a bag of cable straps, two gas mask filters, a tub of Vaseline, a black bumbag and a white T-shirt. (Marked as exhibits P71 to P97). Regarding D11's outfit and personal belongings, the relevant photos are P112. The video clips of D11 being subdued are P118, 16:52:35 to 16:53:07 and P120, the entire video about one minute long. The relevant screenshots are P118_PW13_1 and P120_PW13_1 to 5.”

Defence stance

7.  There was not much dispute from the defence on the testimony of police witnesses, the multiple on-site videos taken at the time of the offence, or the outfit and equipment of the defendants when they were arrested.

8.  Besides, all defendants elected not to give evidence.

9.  The only defence witness in the case is Mr Au, the head of Wong Tai Sin Division of St John Ambulance, called by D11. Mr Au testified that D11 was a member of Wong Tai Sin Division, but St John Ambulance did not deploy any member anywhere on the day of the offence. He did not know why D11 was there at the crime scene in Wong Tai Sin[4]. The certificate produced in court shows that D11 was indeed a qualified first-aider.

The verdict at trial

10.  The trial judge made detailed analysis of the case, with both facts and relevant precedents in place. In sequence, his key findings can be summarized as follows.

11.  He was satisfied that the prosecution evidence was sufficient to prove that the riot took place on the relevant date and at the relevant time and location[5].

12.  He pointed out that the defendants were subdued under the footbridge between Temple Mall North and Temple Mall South at Wong Tai Sin Shopping Centre, very close to the large barricades erected by the rioters and a big heap of bricks that had been dug up. That spot was undoubtedly a “stronghold” for the rioters battling with the police[6].

13.  Even if the time and location to be considered are respectively narrowed down to the last eighteen minutes of the riot and only the road surface of Lung Cheung Road[7], he believes that it is “extremely unusual” for the defendants to be found there at such a time[8]:

“93. ...Putting aside the fact that there was no evidence from any of the defendants themselves, even if the analysis is based purely on common sense, in the situation and circumstances specific to the instant case as mentioned above, at the approximately 250 metre section of Lung Cheung Road, from 16:37 to 16:55 hours, it was like a small battlefield where a riot was taking place, and that section of the road was well connected with various other places. No innocent passers-by would ever go in or choose to stay there. Any normal and rational adult who did not want to get involved in the riot would, for their own safety and that of others, simply stay away from that section of the road and not go in at all. Even if they did go in, they would just leave immediately to avoid any harm or themselves being implicated under that intense and dangerous situation.”

14.  The trial judge also mentioned the defendants’ outfit and equipment, and he was of the view that they “enlarged the room for and extent of inference that can be drawn”[9]. In terms of outfit, this is what he said[10]:

“100. It can be seen from the admitted facts and the relevant photographs that all the defendants, except D11, were dressed in black from head to toe. Under normal circumstances, wearing black, be it all over, is a personal choice which is not to be criticised. However, if someone participating in a protest or assembly deliberately chooses to wear black from tip to toe, and at a certain stage when he or she becomes aware that an unlawful assembly or riot is there and then taking place, he chooses not to leave but to stay behind to advance and retreat together with the other protesters to fight the police, with himself or seeing other people committing a breach of the peace, he or she must have intended to hold the other protesters as partners and to cause the other protesters to hold him or her as their partner. That way, the people present are connected together for emboldenment, encouragement, and morale enhancement. It increases the actual number of people in the group, helps gather momentum, improves the overall prowess and strengthens the ability of the group to obstruct the police when they are enforcing the law. At the same time, it also lowers the chances of individual protesters being identified by the police.”

15.  Regarding equipment, he had the following view[11]:

“99. The defence or counsel for some of the defendants emphasized that all the equipment of the arrested persons are protective items, and the items are not offensive in nature. I do not think this argument is of any assistance to the defence. To put it aptly, the presence of any offensive item on a defendant’s person will only strengthen the evidence against him or her. For example, if a petrol bomb or any related material is found on a defendant’s person, it will serve as strong evidence that he is taking part in a riot. The absence of offensive items just means that there is no such strong evidence. When only protective items are found on a defendant, depending on their nature, quantity and the particular circumstances, the court would nonetheless have to consider whether inferences can be drawn and what weight is to be attached.

…

113. [Balaclavas, helmets, face masks, goggles, gas masks, gloves, sleeves, arm pads and knee pads] ... are not contrabands per se. They can be used for lawful and normal purposes for work or otherwise. However, if a person who appears at the scene of a riot has all or some of the above items on his person, it would then be evidence from which inferences can be drawn. In my opinion, it is the first two items, namely goggles and gas masks, that are of the highest value in making inferences.

114. The incident took place on 1 October 2019, before the outbreak of the pandemic. At that time, when ordinary citizens were on the go, and even when people took part in peaceful assemblies or protests, they would not, and did not need to wear goggles or gas masks. However, at riot scenes, those items were virtually indispensable for resisting tear gas used by the police and for covering one’s face. Of course, I am not saying that having goggles, gas masks and/or the above equipment on one’s person would make that person a rioter. The quantity of the equipment, together with other circumstances and factors like where and when the person bearing the equipment appears would, to varying degrees, constitute evidence against him or her, which may, when combined with other evidence and in the absence of explanation from the defendant, give rise to inferences against the defendant.”

16.  The above are the major grounds that the trial judge relied on when he convicted D1 to D10[12]. He added that even though there was no direct evidence to prove that D1 to D10 had committed any real acts of violence, as they paid no heed to the police warnings that they should leave the place, and instead chose to stay at the scene for at least 18 minutes where a riot was clearly taking place, “advancing and retreating together” and “connected together” with “a hundred or even over a thousand” people in a crowd wearing the same outfits and having the same equipment, they undoubtedly were “participating” in the riot[13].

17.  As for D11 (hereinafter referred to as “the applicant”), noting the orange vest on him with the words “First Aid”, his status as a member of the St John Ambulance, and the fact that he was carrying numerous first-aid supplies, the trial judge accepted that he was a first-aider. However, having heard and considered the evidence of defence witness Mr Au, he then found that the applicant was only “acting as a first-aider at the time and place in question … in his personal capacity”[14].

18.  On the aforesaid basis, the trial judge further held that the inferences regarding the time and place of arrest also applied to the applicant[15], and the applicant’s outfit and appearance that were different from the other defendants’ only proved even more unfavourable to him[16]:

“129. Although D11’s outfit and appearance were different from those of D1 to D10, that in fact left more room for inferences against him. Judging from his outfit and equipment, there is no doubt that his role on the day in question was one of a first-aider. Appearing in such outfit with the equipment, he certainly could not have been a passer-by or an onlooker. Just as what I have said earlier in my analysis and inference, he was stopped or subdued near the spot which I found to be a stronghold of the rioters when in the preceding 18 minutes or so, in that section of Lung Cheung Road about 250 metres long, a riot was found taking place. In my opinion, even if I likewise adopt a version that is most favourable to him, the only reasonable and irresistible inference in my view is that at least, during the preceding 18 minutes, he was at the scene of the riot on that section of Lung Cheung Road about 250 metres long, and he clearly knew that the riot was taking place. As a matter of fact, the above inference only proves to be stronger than that against D1 to D10. Appearing at the riot scene with the outfit and equipment in the role of a first-aider, D11 was obviously conveying a message to the rioters there that he was able to provide first-aid services. It would otherwise be meaningless for him to attend the scene in such outfit bringing the numerous first-aid supplies with him.”

19.  What follows is the trial judge’s final round of analysis and reasoning in finding the applicant guilty. He especially dealt with the issue of whether the applicant would help and rescue other people who were not in the rioting crowd[17]:

“131. As in the cases of D1 to D10, since there is no direct evidence to prove that D11 had performed any act that is a direct breach of the peace, the question again is whether there is sufficient evidence to prove or draw an inference that he was present and took part in the riot by way of encouragement.

132. In my view, D11’s act of encouragement is different from that of D1 to D10. He did not simply make himself one of the participants to increase the overall number and strength to help confront the police. Rather, he encouraged the other participants by acting as their support or backup, by letting them know that if they were exposed to police tear gas or rubber bullets at the riot scene, or if they got injured or felt sick for any reason, he was there to provide first-aid assistance to them. That way, they would feel reassured about confronting the police, and they would know that during the confrontations, treatment would be available if necessary and they could continue after treatment. In fact, his presence helped boost the confidence of the participants and might actually have heightened the intensity of the riot and made it last longer.

133. The defence submitted that there was no evidence in the case that D11, as a member of the St John Ambulance, would only provide first aid to participants in the riot or assembly, and would not serve the public officers there. In my view, this submission simply ignored the circumstances of the crime scene at the time. As I have described earlier, the scene was like a small battlefield. No innocent passers-by or onlookers would have stayed on that stretch of Lung Cheung Road which was a roadway, and the law enforcing police officers there would not have asked D11 for help. Even if there were journalists or other people working at the scene who happened to request for and did receive assistance from D11, that would only be secondary or peripheral in nature as the target recipients of D11’s service were those who participated in the riot at the time. Let me draw an analogy. If it were a battle, D11’s role would not have been a United Nations or Red Cross rescuer serving civilians. Rather, he would have been a member of the relief troop serving the army of a belligerent country.

134. By providing first-aid services at the riot scene, D11 did not aim at showing his dedication to serving others as claimed by the defence. He was there providing or mainly providing first-aid services to the participants at the riot scene, thereby, by way of encouragement, ‘took part’ in the riot as described in Charge One.”

This application

(Grounds of appeal)

20.  The applicant is represented by Mr Steven Kwan and Ms Pauline Leung of counsel. Mr Kwan was not defence counsel at the trial. He raised the following ground of appeal on behalf of the applicant:

“Although the trial judge correctly ruled that the applicant’s presence at the scene was in the role of a first-aider, he erred in inferring and finding, based on his outfit and equipment, that the applicant, by his presence at the scene, ‘took part’ in the riot as charged by way of ‘encouragement’.”

(Key submissions)

21.  Mr Kwan’s key submissions are as follows.

22.  In addition to his first-aid vest which was orange, the applicant’s shirt, trousers and shoes were in light blue, khaki and dark green respectively, which were completely different from the rioters’ “black bloc tactics” uniform. Although he was carrying or hanging on his head a black helmet with goggles and a pink gas mask, he did not cover his face with anything. When he reached the large barricade, he actually had a way out (the screenshot shows a big opening at the end of the barricade), but he stopped, turned around, raised his hands, quietly waited for the arrival of the police officer and willingly accepted the officer’s control.

23.  Under all the relevant circumstances mentioned above, the trial judge’s counter-argument that the applicant’s outfit and appearance “in fact left more room for inferences”[18] is puzzling. Logically it puts the cart before the horse, and is tantamount to twisting the cogent evidence capable of refuting the prosecution’s case into evidence that is able to strengthen the prosecution’s case.

24.  The fact is, before convicting the applicant, the court must be sure that the applicant’s ultimate intention in acting as a first-aider at the scene was to “encourage” the riot. This is the basis on which the prosecution opened its case[19] and the trial judge found the applicant guilty. However, with as little evidence as mentioned above, the court simply cannot rule out the defence argument put forward at the trial that the applicant only aimed at “providing first-aid services to show his dedication to serving others”[20], which means to give first aid to whoever was injured, no matter if the injured person is a rioter, a journalist or a police officer. The trial judge’s comment that the police officers “would not ask the applicant for assistance” [21]was just arbitrary.

25.  The trial judge erred mainly in simply dividing non-police officers at the riot scene into two groups (a) innocent passers-by or onlookers and (b) rioters. This false dichotomy completely ignored the existence of neutral parties such as first-aiders and journalists. If first-aiders providing non-selective first-aid services should be seen as encouraging riots, then journalists doing live reporting from the scene should by the same token be treated as promoting riots, but that does not make any sense.

26.  Another major reason why the trial judge erred was his failure to correctly understand the law on riot “encouragement”. According to the proposition raised in the English case of R v Caird (1970) 54 Cr App R 499, which was cited by the Court of Final Appeal in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, the relevant encouragement must be “active encouragement”. This is consistent with the Court of Final Appeal’s classic discussion on “joint criminal enterprise” (specifically “aiding” and “abetting”) in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640. However, as both the mens rea and actus reus of the applicant in the instant case were far below this threshold, it is totally inappropriate to place the instant case on a par with those precedents.

27.  In summary, the trial judge’s finding that the applicant was guilty was without evidential or legal basis.

Discussion and analysis

28.  Upon enquiry by this court, Mr Kwan accepted the following as undisputed facts: before the police took action, various acts that met the definition of riot had occurred in the relevant section of the road in the shape of “7”. When the police advanced from the bottom of the “7” and reached the point where the horizontal stroke and the slanting stroke meet, i.e. the junction of Shatin Pass Road and Lung Cheung Road, they had stopped temporarily. Should the police advanced further from the junction to Wong Tai Sin Shopping Centre, it would be what the trial judge referred to as the last 18 minutes and 250 metre stretch of the relevant road surface. Before the police advanced for the second time, the riot was still taking place on this stretch of the road. When the police began to advance for the second time, the rioting crowd thereupon scattered and the applicant was found in a buffer space between the police and the rioters. However, like everyone else, he was actually moving towards the footbridge linking Temple Mall North and Temple Mall South at Wong Tai Sin Shopping Centre. He ran and did not turn around and raise his hands to wait for the police to come forward and control him until he was under the footbridge. The place was the large barricade the trial judge had referred to, and it was erected with a chain of railings and other objects spanning the road. During the relevant 18 minutes, there were no “onlookers” on the 250 metre stretch of the road. All the “onlookers” were at the “shopping mall(s) and piazza(s) next to Lung Cheung Road or on the footbridge”[22]. The applicant was not an “onlooker”. To be present in the riot was his deliberate choice. He could have chosen to leave, but he did not.

29.  Based on the above facts, this Court has the following observations: Wong Tai Sin is in a busy city area. If one is irritated by or choked on tear gas, or suffers any kind of personal injury, the fastest and most guaranteed way to find relief and deal with it is to evacuate from the core area of the riot as soon as possible, and go to the surrounding places and facilities tentatively called the “static zone” where one can seek help, including first aid and sending for an ambulance. To those who took part in the riot, especially rioters dressed all in black and fully equipped, evacuation might bring about the risk or an increased risk of immediate apprehension. However, being arrested and getting help are two different things which should not be lumped together. It means that if you wanted to get help, you could definitely get it in the static zone, and it would not be inferior to the help provided at the core of the riot in terms of speed and quality. Yet, if you wanted to reduce the risk of getting arrested or be able to continue “fighting” after some initial treatment of injuries, staying within the core area of the riot to receive help there would definitely be your first choice. In the event that the injury is so serious that the injured person cannot move or be moved at will, the police must immediately be called on the spot in any event. However, calling 999 can be done by anyone such as a journalist. The above-mentioned are all common sense which most Hong Kong people do not even need to consider.

30.  The focus of observation is now turned to the applicant. At the time of the offence, the social atmosphere was tense, incidents of violence were commonplace, and public order was seriously disrupted. Even if their position is consistent with the organizer or the theme of the assembly, people who preferred relatively moderate actions would not make any appearance in any public assembly which is opposed by the police, and it is utterly impossible for people having opposing views to do so. In the circumstances when St John Ambulance decided not to send any member there and when those people who were not so seriously injured as to being unable to move or be moved could still receive timely help in the static area, the applicant chose to participate in the assembly and stay in the core area of the riot after the outbreak of the riot. He was wearing an orange vest with the words “First Aid”, which was eye-catching and easy to understand. It means that he was able and willing to provide instant medical and first-aid services during the riot while in fact, he was not in any capacity (not about qualification) to do so. Only he himself knows at heart whether he approved of what the rioters did. What is certain is that within the core area of the riot, crowds of rioters dressed in black were everywhere in sight. It is impossible for the applicant to be unaware that those people were his main service target.

31.  Taking an overview of the above points, this Court considers that the adverse inferences drawn against the applicant are strong and even overwhelming. Although he kept a distance from the rioters in front when he retreated to the barricade, and when he reached the barricade, he turned around and raised his hands to surrender, the said inferences nevertheless could not be effectively offset because there were many reasons for him to do so, such as making himself look less suspicious, lack of physical strength, reckoning that he was unable to outrun the police, and/or believing that the first-aider’s outfit is a talisman, etc. Anyway, as he did not testify, the Court cannot and do not need to guess what kind of exculpatory reasons there could be. As this Court has emphasized many times in previous cases, this is not a question of shifting the burden of proof to the defendant. Instead, taking this case as an example, the Court does not understand why, after the outbreak of the riot at the latest, when the “onlookers” had all left, why the applicant, who did not have any duty to perform, chose to stay there and show his clear-cut stance that he was there to provide to the people in the crowd, most of whom rioters, on the spot first aid that can reduce their risk of arrest. He could have told the court that it was out of humanity and the need to attend to a small number of extremely serious cases that might occur before the arrival of the ambulance, and be cross-examined in that regard, but he did not.

32.  This Court takes the view that, given all the relevant evidence, the trial judge did have sufficient grounds for holding that the applicant “encouraged” the riot on that day by, as he said, “acting as…support or backup”, “letting [the rioting crowd] know that…he was able to provide first-aid assistance” and by “providing them the reassurance needed in confronting the police”. He was not wrong either when he said that “[the applicant’s] presence helped boost the confidence of the participants”. Under all the relevant circumstances mentioned above, the applicant must have known and intended that his conduct would produce the effect just mentioned and it was meant to be “encouraging”. Of course, the prosecution and the court could have used other concepts such as “facilitating” or “assisting” as the basis for alleging and finding that the applicant participated in the riot[23], but there is nothing wrong with using “encouraging” as the basis of the case.

33.  Next, we will discuss Mr Kwan’s proposition on “active encouragement”.

34.  The relevant paragraphs in Lo Kin Man (paras 81 to 86) read as follows: (underline added)

“81. It is obviously important to avoid treating innocent passers-by who find themselves caught up in an unlawful assembly or riot as guilty of an offence just because they were present at the scene. Presence at the scene in itself is not enough to constitute ‘taking part’ or aiding and abetting. As the Queensland Court of Appeal held in R v Cook, at common law, mere presence in an unlawful assembly or riot is generally insufficient to found liability. It has traditionally been considered necessary that there be some intentional activity in furtherance of the riot.

82. That is not to say that the bar is set high. It does not take a great deal of activity on the defendant’s part to move the case from the ‘mere presence’ to the ‘encouragement’ category. Thus, in 1810, Mansfield CJ stated in Clifford v Brandon:

‘The law is, that if any person encourages or promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter, and he is liable to be arrested for a breach of the peace.’

83. This was echoed more recently in Caird, where Sachs LJ said:

‘It is the law … that any person who actively encourages or promotes an unlawful assembly or riot, whether by words, by signs or by actions, or who participates in it, is guilty of an offence which derives its great gravity from the simple fact that the persons concerned were acting in numbers and using those numbers to achieve their purpose.’

84. And as Byrne J stated in R v Cook:

‘Generally, mere presence at the scene of a crime does not involve criminal responsibility. But presence to facilitate the commission of an offence by others has every potential to attract criminal responsibility under s 7 [of the Criminal Code (Qld)]. And so those present to ‘lend the courage of their presence to the rioters, or to assist, if necessary’ may be guilty with the active participants.’

85. Whether a defendant has done enough to constitute ‘taking part’, especially if by way of encouragement, is a matter of fact and degree, taking all the circumstances into account.

86. Question 2d contains certain rolled-up propositions. Aiders and abettors or counsellors and procurers may obviously perform acts which are not themselves acts of disorderly conduct or breaches of the peace but which offer encouragement or assistance to others in the commission of such acts, thus founding secondary liability (or, as previously explained, possibly also liability as principals for ‘taking part’). Thus, if the defendant’s presence occurs in circumstances qualifying it as ‘encouragement’ of the prohibited conduct by others, then the answer to Question 2d would be in the affirmative. But mere presence without more is not treated as encouragement, whether for the purpose of ‘taking part’, or accessorial or inchoate liability.”

35.  Quite obviously, “active encouragement” is a term used in only one single case of Caird. We use the word “term” rather than “concept” because, judging from the above six paragraphs in Lo Kin Man taken as a whole, the word “active” does not add to the meaning of the concept of “encouragement” at all. The six paragraphs of the judgment repeatedly emphasized that “mere presence” in itself is not enough to constitute “encouragement”. It is as simple as that. As for whether there is any additional conduct in any particular case which constitutes “encouragement”, it all depends on the specific circumstances, and the threshold is not high. However, such conduct must be accompanied by the relevant intention (“necessary that there be some intentional activity in furtherance of the riot”).

36.  The above is currently the most authoritative exposition on the meaning of “encouragement” in riots. With this authoritative exposition, the court no longer needs to refer to Chan Kam Shing, which helps make clear distinctions between issues. As a matter of fact, although Chan Kam Shing was mentioned in Lo Kin Man, the references to “active” therein are not in the relevant six paragraphs of the judgment in Lo.

37.  Finally, applying the relevant six paragraphs in Lo to this case, the situation of the applicant, who was wearing a first-aid vest and had deliberately placed himself in the core area of the riot, certainly does not fall into the category of “mere presence”. The circumstances have been analysed above in detail and will not be repeated here.

Decision

38.  This Court refuses the applicant’s application for leave to appeal against conviction and dismisses his appeal.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.