HKSAR v. CHAN TUNG SHING

[English Translation – 英譯本]

HCMA 333/2020

[2021] HKCFI 1669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 333 OF 2020

(ON APPEAL FROM WKCC1162/2020)

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JUDGMENT

A.  Original charges

1.  The appellant was originally charged with the following two offences:

(1)  Charge 1: Possession of instrument fit for unlawful purpose, contrary to Section 17 of the Summary Offences Ordinance, Cap 228 of the Laws of Hong Kong. The particulars of offence are that [the appellant] is charged that on 13 November 2019, at Tam Kon Shan Interchange, Tsing Yi, New Territories, in Hong Kong, he did have in his possession hexagon keys, with intent to use the same for unlawful purposes.

(2)  Charge 2: Obstruction of public place, contrary to Section 4A of the said Summary Offences Ordinance. The particulars of offence are that [the appellant, on the aforesaid date and location,] without lawful authority or excuse, together with ten protestors with black outfits, used traffic cones, bricks, bamboo sticks and other objects to block the relevant section of Tam Kon Shan Road, which obstructed vehicles in the aforesaid public place.

2.  The appellant pleaded not guilty to the two charges and was tried before Mr Pang Leung-ting, a magistrate sitting at West Kowloon Magistrates’ Courts (“the magistrate”). At the trial, the appellant was represented by Mr Joey Chan, Barrister-at-law, who also acted for him in the appeal. When the prosecution case finished, the defence made a half-way submission, saying that the hexagon keys on the person of the appellant were not fit for dismantling the facilities on the streets, such as barriers and road signs, and that there was no evidence showing that the appellant could use the hexagon keys for any unlawful purpose on the streets. The prosecution stated that the appellant was charged on the basis that he had in his possession the hexagon keys with intent to use the same for causing injury to others. The magistrate ruled that there was a prima facie case.

3.  After the appellant had exercised his right and elected not to give evidence nor call any witness, the prosecution formally applied to amend Charge 1 before the magistrate delivered his verdict.

A.1.  Amended Charge 1

4.  Charge 1 was amended as follows: Possession of offensive weapon or instrument fit for unlawful purposes with intent to use the same for unlawful purpose, contrary to Section 17 of the said Summary Offences Ordinance. The particulars of offence were that [the appellant, on the aforesaid date and location,] did have in his possession an offensive weapon or instrument fit for unlawful purposes, namely, a set of hexagon keys, with intent to use the same for unlawful purpose.

5.  The defence had no objection to the prosecution’s application for amendment. The magistrate granted the application and plea was taken afresh from the appellant who maintained his plea of not guilty. There was no application from the defence regarding the amendment.

6.  After consideration, the magistrate found that the appellant was guilty of amended Charge 1.

A.2.  Amended Charge 2

7.  In respect of Charge 2, the magistrate amended the particulars of the offence in consequence to the evidence in court to “[the appellant,] together with ten odd protestors with black outfits, used traffic cones, plastic barriers, rubbish bins, water-filled barriers and other objects to block the relevant section of Tam Kon Shan Road, which obstructed vehicles in the aforesaid public place”.

8.  The magistrate found that the appellant was guilty of amended Charge 2.

A.3.  Sentence

9.  The appellant was sentenced to the Rehabilitation Centre in respect of the two charges.

B.  Appeal

10.  The appellant originally appealed against both the convictions and sentences. Subsequently, he withdrew the appeal against the sentences and only appealed against the convictions.

C.  Facts of the case

C.1.  Admitted facts

11.  Both the prosecution and the defence admitted the following facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong:

“1. At 2107 hours on 13 November 2019, police constable 19656 (PW1) declared arrest on the defendant (D) for the offence of ‘Unlawful Assembly’ outside On Ching House, Cheung On Estate, Tsing Yi.

2. At the material time, D was wearing a face mask, dark-coloured zippered outerwear[1], light blue short-sleeved top, black trousers and black shoes and carrying a rucksack.

3. PW1 also searched D and found on his person eight hexagon keys. The hexagon keys in question are collectively produced as Exhibit P1.

4. Later at the scene, PW1 passed D to DPC16154 for his custody, and DPC16154 took D to Tsing Yi Police Station.

5. At 2207 hours on the same day, DPC16154 took a record of interview from D. D’s address was reported to be at Flat G, 35/F, Tower 1, Easeful Court, Tsing Yi, and he was by occupation a private candidate and a part-time shop attendant (7-eleven).

6. At 2320 hours on the same day, inside Tsing Yi Police Station, DPC9403 took photos of D’s clothing and his personal belongings at the time of his arrest. A total of 16 photos are produced as Exhibit P2 (1) to (16).

7. At 2100 hours on 14 November 2019, DPC9403 arrived at the aforesaid residential address reported by D for a house search. Nothing related to the case was found.

8. D has a clear record.”

C.2.  Prosecution case

12.  To put it simply, the prosecution case was that on the night of 13 November 2019, at Tam Kon Shan Interchange, Tsing Yi (the location in question), an incident happened in which the road was blocked by miscellaneous objects. The only prosecution witness was a police officer (that is, PW1) who was deployed to the scene to handle the incident with other police officers.

13.  At the material time, the prosecution witness in standard uniform of the anti-riot squad arrived at the scene by an emergency unit vehicle together with about 30 team members. When the emergency unit vehicle reached Tam Kon Shan Road – a place off Cheung On Estate Bus Terminus, through the windscreen of the emergency unit vehicle, the prosecution witness saw that there were miscellaneous objects on the roadway at a distance of about ten metres ahead of its front, occupying two traffic lanes and blocking the traffic. The emergency unit vehicle was therefore unable to drive forth. In the vehicle, the prosecution witness saw that there were ten odd people in all black near the miscellaneous objects. Some of them were holding some miscellaneous objects and some were moving and putting them on the roadway; there were some other people near the miscellaneous objects. The prosecution witness and other police officers alighted the vehicle. That group of people then dispersed and fled in various directions. The prosecution witness saw two persons, one male and one female, running away right in front of him. They were originally in the “middle” of those ten odd people and near the miscellaneous objects. The male was the appellant of the present case. The prosecution witness chased after the male and the female. After chasing for about 500 metres, the prosecution witness managed to grasp the rucksacks respectively carried by the appellant and the female with each of his “left and right” hands. The prosecution witness said that he scuffled with the two persons outside On Ching House. The appellant kept struggling and tried to push away the prosecution witness, who warned him, but he still tried to flee, trying to push away the prosecution witness’s hand, and he turned round to go into On Ching House. The prosecution witness then pinned the appellant onto the ground and successfully subdued the appellant outside On Ching House. The whole process took about two minutes.

14.  Under cross-examination, the defence showed the prosecution witness the footage of a CCTV installed inside On Ching House. It was shown in the footage that the appellant once went into On Ching House, and that the witness caught the appellant inside On Ching House and pushed / pulled him out of On Ching House. The footage did not show what the prosecution witness had described: namely he was outside On Ching House and grasped the rucksacks respectively carried by the appellant and the female with each of his left and right hands, and that the appellant resisted and was eventually subdued outside On Ching House.

15.  The prosecution witness agreed that the footage did show he had gone into On Ching House and scuffled with the appellant. He agreed that the circumstances shown in the CCTV footage were not mentioned in his written statement. He explained that it was his oversight that he failed to make a detailed and accurate record in the written statement[2].

16.  Under cross-examination, the prosecution witness agreed to the following matters:

(1)  The location in question was a large-scale traffic interchange where people would go there to take public transport and wait for public transport[3];

(2)  There were housing estates on both sides of the interchange[4];

(3)  There was a shopping mall next to the bus-stop[5];

(4)  On that night when the prosecution witness alighted the vehicle, it was approximately sometime after 9 p.m., “there were still kaifongs on the streets”[6].

(5)  The prosecution witness did not see the appellant holding any miscellaneous object or “discarding” any miscellaneous object onto the roadway. The appellant was “in the middle of that group of people” and “behind the miscellaneous objects”[7].

17.  In re-examination, the prosecution witness clarified that the appellant was “right in the middle of” those ten odd people and was “a person’s width” away from the other ten odd people. “People were from each other” at a distance of also “a person’s width”. And the appellant was “less than one metre” away from the miscellaneous objects, “about half a metre” and “very close”[8].

C.3.  Defence case

18.  The appellant exercised his right of not giving evidence or calling any witness. From the line of questioning that Mr Chan representing the appellant cross-examined the prosecution witness, the defence case was that the appellant might merely walk past the location in question, and the prosecution failed to prove that he had participated in blocking the road and also failed to prove that the appellant had had in his possession the set of hexagon keys with intent to use the same for unlawful purpose.

D.  Magistrate’s findings

19.  In arriving at the verdict, the magistrate gave himself directions on the law[9], namely, the burden of proof, the standard of proof, the appellant having no duty to prove anything, the clear record of the appellant and so on.

20.  After consideration, the magistrate accepted the prosecution witness to be a credible and reliable witness. Concerning the discrepancy in his testimony, namely, whether it was outside or inside On Ching House that the appellant was actually subdued, the magistrate considered that it was not crucial and would not undermine his credibility[10].

21.  In respect of Charge 2, the magistrate accepted the testimony of the prosecution witness and held that the appellant appeared on the road of Tam Kon Shan at the time of the offence and mingled with the ten odd people at that place. Some of those people were delivering or moving some miscellaneous objects to block the road. At the time of the offence, the appellant was in all black, which was the same as those ten odd people[11]. On this basis, the magistrate drew the only inference and found that the appellant belonged to that group of ten odd people. Pursuant to the doctrine of joint enterprise, they blocked the two traffic lanes of the road together with miscellaneous objects[12]. The flight of the appellant was also evidence which could support that only inference[13].

22.  In respect of Charge 1, it was an undisputed fact that a set of eight hexagon keys was found upon search in the appellant’s trouser pocket. In the appellant’s rucksack, there were also items such as umbrellas and gloves. He was also wearing a face mask when he was being chased. The magistrate, in holding that the appellant had participated in blocking the road, considered that the appellant had placed the hexagon keys within easy reach and that he must have anticipated that some passers-by or police officers would stop them blocking the road, and he drew the only inference and held that the appellant was in his possession of those eight hexagon keys with intent to use the same for purpose of attacking others if necessary[14].

E.  Magistracy appeal

23.  A magistracy appeal is carried out by way of a “rehearing” on the testimony and evidence before the magistrate (supplemented by any further evidence which the appellate court may admit): see Chou Shih Bin v HKSAR[15]. In respect of the facts of a case, the appellate tribunal must recognize that the trial magistrate does enjoy the advantage of observing and hearing the witnesses giving evidence. In respect of the findings of facts by the magistrate, the appellate tribunal would not interfere unless it was satisfied that they were “plainly wrong”: see HKSAR v Kevin Egan[16].

24.  If the error made by the magistrate in dealing with the case constitutes a “material irregularity”, the appellate court may quash the conviction after considering whether it is “just” for the conviction to be quashed. Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still decide on the evidence adduced by the prosecution whether the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed: see HKSAR v Ip Chin Kei and Ors[17].

F.  Grounds of appeal

25.  Mr Chan representing the appellant put forward four grounds of appeal and contended that the convictions were unsafe and unsatisfactory.

(1)  In respect of the two charges, the magistrate failed to properly analyse the contradiction in the testimony of the prosecution witness and erred in holding that he was honest and reliable;

(2)  In respect of Charge 2, the magistrate wrongly inferred that the appellant acted in concert with the people who blocked the road to commit the crime;

(3)  In respect of Charge 2, the magistrate erred in relying on the evidence of the appellant’s flight;

(4)  In respect of Charge 1, the magistrate wrongly held that the appellant had the intent of causing injury to others by using the hexagon keys.

G.1.  Grounds of appeal 1

26.  Mr Chan emphasized that as the prosecution witness was the only witness in the present case, his credibility was a matter of the utmost importance. In examination-in-chief and cross-examination, the prosecution witness described in detail the process of chasing and subduing the appellant. However, his description was vastly different from the CCTV footage (Defence Exhibit D3) produced by the defence. The contradiction was completely irreconcilable. The magistrate stated that the appellant was seen in the footage for a very short time, a duration of eight seconds which reflected only part of the course of how the prosecution witness chased, subdued and arrested the appellant[18]. It could hardly say that these eight seconds reflected the entire process. Mr Chan submitted that the process as described by the prosecution witness could not have possibly occurred either before or after the footage.

27.  Mr Chan contended that the magistrate never discussed these discrepancies in his statement of findings. He failed to demonstrate in his statement of findings that he had carefully dealt with the facts in issue and made it hard to understand his reasons for verdict.

28.  Since there was material contradiction in the testimony of the prosecution witness, casting doubt on his credibility, with which the court should not be satisfied, coupled with the absence of other evidence in support of the prosecution case, the appellant suggested that the two convictions be unsafe and unsatisfactory.

G.2.  Reply by the respondent

29.  Mr Wayne Lee, Public Prosecutor acting for the respondent, submitted that the magistrate had taken into consideration the case brought up by the defence under cross-examination and the alleged contradiction in the testimony. Mr Lee stated that the magistrate had rightly observed that the CCTV footage failed to capture the whole course of the arrest. As admitted by the prosecution witness, he did not record the relevant particulars in his written statement due to oversight and as a result his testimony did not match what the footage showed. The magistrate made it clear that whether the appellant was subdued outside or inside On Ching House was not crucial. The magistrate mainly relied on the witness’s description of the appellant on the roadway and in the crowd. The prosecution witness’s testimony in this regard was not challenged. The defence did not put to the prosecution witness that the appellant was not in the crowd on the roadway. Therefore, the discrepancy was not sufficient to affect the credibility and reliability of the prosecution witness.

G.3.  Discussion

30.  I have watched the relevant CCTV footage and repeatedly read the process of how the prosecution witness chased after and subdued the appellant. I agree with the appellant that his testimony appeared to have irreconcilable parts. According to his testimony before watching the footage, the appellant had never gone into On Ching House, and he scuffled with the appellant and another female with both the left and right hands and subsequently subdued the appellant outside On Ching House. The prosecution witness explained that he failed to make a detailed record in his written statement due to oversight, and his description therefore did not match what the footage showed. However, the discrepancy in this regard indeed cast doubt on the witness’s testimony as to how the appellant was chased and subdued.

31.  Admittedly, if there is discrepancy or inconsistency in a witness’s testimony, it is possible that other parts of his/her testimony are also unreliable. However, in respect of the facts of the present case, the prosecution witness’s observation of the circumstances before chasing the appellant was not affected despite the doubt in his testimony as to how he chased after and subdued the appellant.

32.  As pointed out by the respondent’s counsel, the defence never put to the prosecution witness that the appellant was not in the “middle” of those ten odd people in all black and was not behind the miscellaneous objects. The defence only put to the prosecution witness that the appellant was not “holding miscellaneous objects”[19] and that he did not see him “discard” miscellaneous objects on the roadway[20]. And it was once put to the prosecution witness that the appellant did not “participate in the acts of blocking the road”[21].

33.  The appellant exercised his right of not giving evidence or calling any witness. The appellant has not adduced any evidence that he was not in the “middle” of those ten odd people in all black. As pointed out by the magistrate, whether the appellant was actually caught up with outside or inside On Ching House was not crucial in the present case. There was nothing improper for the magistrate to accept the testimony of the prosecution witness about the appellant being in the “middle” of those ten odd people in all black before his flight.

34.  It is an undisputed fact that a set of hexagon keys was found in the appellant’s trouser pocket by the prosecution witness. Regarding the appellant’s intent of possessing that set of hexagon keys, the prosecution relied on the circumstances that the appellant was in the “middle” of those ten odd people with black outfits before his flight to ask the court to draw an inference.

35.  In my view, the discrepancy or inconsistency in the prosecution witness’s testimony on how he successfully caught and subdued the appellant after the chase does not establish a ground of appeal to overturn the two convictions.

36.  This ground of appeal cannot stand.

H.1.  Grounds of appeal 2

37.  Mr Chan stated that in respect of Charge 2, the magistrate wrongly inferred that the appellant acted in concert with the people who blocked the road to commit the crime.

38.  Mr Chan emphasized that according to the prosecution witness’s testimony, from the time he made observation in the vehicle to the time he started to chase after the appellant, he did not see the appellant holding any miscellaneous object, nor did he see the appellant discarding any miscellaneous object onto the road. If the prosecution relied on the doctrine of “joint enterprise” to prove the culpability of the appellant, the prosecution had to prove the existence of a common plan and that the appellant had participated in the common plan and borne the requisite mens rea: see HKSAR v Chan Kam Shing[22].

39.  The magistrate wrongly based on the appellant’s black outfits and the brief observation about the appellant’s physical position by the prosecution witness after his arrival at the scene to infer that the appellant acted in concert with the people blocking the road at the location in question.

40.  The evidence adduced by the prosecution was not sufficient to prove beyond reasonable doubt that the appellant had participated in the joint enterprise of blocking the road at the location in question. There were housing estates on both sides of the location in question and there was a shopping mall nearby. There were also kaifongs on the streets. The public could easily walk past where the barricades were and cross the road. The appellant was a resident of that district. He merely “walked past” that location. Without having sufficient factual basis, the magistrate wrongly inferred that the appellant and the people blocking the road were in joint enterprise. The convictions were therefore unsafe and unsatisfactory.

41.  Mr Chan also cited the case HKSAR v Leung Kwok Hung[23] to support his argument that even if the appellant, who appeared at the scene, and the other people knew each other, it was not sufficient to prove that he and the other people at the scene had the common purpose of “blocking the road”.

H.2.  Reply by the respondent

42.  The respondent mentioned that the appellant did not give evidence at the trial; hence, there was no evidence that he merely “walked past”. In the present case, there was no evidence from the defence to contradict, undermine or explain the prosecution case. The court would more readily draw adverse inferences against the appellant: see HKSAR v Tai Chi Wai and another[24] and Li Defan and another v HKSAR[25].

43.  In the circumstances that the appellant did not give evidence, the magistrate was not required to imagine possible defences for the appellant: see The Queen v Chong Kin Cheong[26].

44.  The respondent contended that there was no error of the magistrate to draw the inference, as the only reasonable one, that the appellant blocked the road together with other ten odd people in black.

H.3.  Discussion

45.  At the material time, there were ten odd people in all black (referred to as people in black) moving and discarding miscellaneous objects including traffic cones, plastic barriers, rubbish bins and water-filled barriers onto the roadway of Tam Kon Shan Interchange, blocking two traffic lanes, and the emergency unit vehicle was therefore unable to drive forth. Such acts obviously caused obstruction to the vehicles in the said public place.

46.  The testimony of the prosecution witness was that the appellant was in the “middle” of those ten odd people in black. He was also a person’s width away from other people in black. They were a person’s width from each other. The appellant was behind the miscellaneous objects which blocked the road, “very close” to the miscellaneous objects, about “half a metre”. The prosecution witness did not see the appellant holding any miscellaneous objects or discarding any miscellaneous objects.

47.  The appellant exercised his right, adducing no evidence to show that he “simply walked past”. According to the facts admitted, the appellant provided his residential address under caution. The police went to the address he provided for a search and did not find any evidence related to the facts. Since the police had gone to the reported address of the appellant for a search, if the reported address was not the appellant’s residence, the prosecution should have mentioned the same. In the present case, there was no information indicating that the appellant was not residing at the reported address. There was indeed evidence in the present case showing that the appellant’s residence was in the vicinity of the location where the offences happened.

48.  Although the appellant was residing in the vicinity of the location where the offences happened, it does not necessarily mean that the appellant was on his way home and “simply walked past”. In my view, the court should take into account all the relevant circumstances in order to decide whether the evidence adduced by the prosecution gave rise to the only reasonable inference that the appellant acted in concert with other people in black to perform the act of blocking the road.

49.  Mr Chan particularly cited the case HKSAR v Leung Kwok Hung[27] to support his assertion that the prosecution failed to prove that the appellant had a common purpose with other people who blocked the road.

50.  The appellant in that case and the other 4 appellants (D1 to D5) were convicted after trial for, inter alias, “acting in a disorderly manner at a public gathering for the purpose of preventing the transaction of the business for which the said public gathering was called together” and “behaving in a noisy or disorderly manner with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused”. The incident took place at one of the open forums organized for public consultation on arrangements for filling vacancies in the Legislative Council. The public could register in advance. Walk-in admission arrangements were also available on a limited basis. The facts of the case were that there were about 50 unauthorized “entrants”, including D1 (a Legislative Councillor) and D3 to D5. D2 was one of the “audience” who had registered for admission in advance. D1 and some unknown entrants wearing Guy Fawkes masks were the first to break open the doors and barge into the lecture hall. D3 to D5 went in about a minute later. The incident caused the organizer to suspend the forum. The defendants and other entrants went onto the stage to speak and chant slogans. They left after about 15 minutes. It took another 15 minutes for the organizer to return the situation to normal from mess. The forum resumed after suspending for about half an hour.

51.  Mr Chan cited the ruling made by D Pang J (as he then was) on the doctrine of “joint enterprise”[28] and argued that even if the appellant and other people in black knew one another (but the relevant evidence was absent in the present case), the evidence was still insufficient to show that the appellant acted in concert with other people to commit the crime:

“52. The appellants submit as follows: D1 and some men wearing Guy Fawkes masks were the first to barge into the lecture hall. D2 was a member of the ‘audience’. He had not taken part in breaking open the doors. He just moved around and went up the stage to speak after the government officers went backstage and after adjournment of the forum was announced. Nor was there evidence that D3 to D5 had broken open the doors. The video recordings show that the three of them respectively arrived at the scene one minute, half a minute and two minutes later than D1. At that time the forum was already suspended. What followed was that most of the time D3 and D4 walked around and each chanted slogans. Apart from that, D3 and D5 spoke on the stage, while D4 stood on the stage to protest but did not speak. The appellants argue that the conduct of D2 to D5 was relatively peaceful and that the magistrate had unjustifiably linked them up with the more radical ‘entrants’ by invoking the doctrine of joint enterprise.

[D Pang J had the following discussion after citing the relevant paragraphs of the statement of findings]

Discussion

54. In Sze kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475, Bokhary PJ pointed out:

‘33. “Joint enterprise” is an expression used to denote the conduct of two or more persons who take part together in a course of criminal conduct…

It is significant in that:

34.… Each participant is criminally liable for all the acts done in pursuance of the joint enterprise. And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight…’

And it constitutes and proves the following:

37. … I respectfully agree with the statement in Smith & Hogan: Criminal Law (10^th ed., 2002) at p.161 that

… once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements. Frequently it will be acts of encouragement which provide the evidence of the common purpose. … ’

55. The question is: what was the common purpose in the present case?

56. Judging from its case, the prosecution’s answer to that question can only be what is called ‘stirring up chaos at the forum’ (or purely causing disturbance), that is, acting in a disorderly manner for the purpose of preventing the transaction of the business for which the gathering was called together (section 17B(1)). This is the minimum. Whether or not a breach of the peace was likely to be caused by the act (section 17B(2)) involves an objective test. It is only when the above definition of ‘stirring up chaos at the forum’ is accepted that D2 to D5, whose acts were relatively moderate, can be guilty of the offences on the basis of what other people did, pursuant to the doctrine of joint enterprise. Nevertheless, can ‘stirring up chaos at the forum’ be properly deduced as the common purpose of the appellants? About this I harbor considerable doubts.

57. It was the observation of the magistrate that the appellants knew one another. This might well be the case, but the relevant evidence stopped at that. On the contrary, in light of the arrangements made by the organizer for that evening, it was entirely possible that individual appellants (such as D3 to D5) only intended to initiate the demonstration after being admitted into the lecture hall under the ‘walk-in’ category, or if this did not work out, to shout slogans outside the doors in protest. This is the kind of tactics that protestors often adopt in various public consultation sessions or Legislative Council meetings. If restraint was exercised (without, for example, storming the door, rushing up the stage, stirring up trouble; without putting up resistance when being asked to leave or refusing to leave), then the acts would not be unlawful and would be a far cry from ‘stirring up chaos at the forum’.

58. The magistrate of course also mentioned the possibility of joining in midway. In other words, the appellants did in the end barge into the lecture hall, did they not? And they (including D2) did rush up the stage, did they not? That is to say, they still joined in to lend support in their own way when they witnessed people breaking open the doors, forcibly occupying the stage, messing up the venue and even arguing with one another. The problem with this approach is that it completely disregards the fact that the organizer had in fact announced that the forum was adjourned. If individual appellants had wandered into the lecture hall without being obstructed when the doors had already been broken open by others, and had gone up the stage to protest when there was no officer-in-charge on the stage, then I really do not think the magistrate would have had enough evidence to find that they had acted with the purpose of ‘stirring up chaos at the forum’.

59. In my view, the doctrine of joint enterprise is not applicable to D2 to D5. Nor did their own conduct fall within Charge (2) and Charge (3). As his conduct per se was of the relevant nature, D1’s conviction on Charge (2) cannot be upheld (see paragraphs 23 to 24 above), but his conviction on Charge (3) is safe and satisfactory (see paragraphs 48 to 50 above).”

52.  The ruling that D Pang J gave in that case was on its own facts, which I agreed. It cannot be generalized given that each case depends on its own facts. I must consider in the present case whether the evidence gave rise to the only reasonable inference that the appellant was not an innocent person who “simply walked past” but having a common purpose with other people who blocked the road, which was acting in concert with those people who blocked the road to “physically” block the road together.

53.  The prosecution relied on circumstantial evidence. In regard to circumstantial evidence, Pollock CB stated in R v Exall[29] that:

“ It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in a chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but the whole, taken together, may create a conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”

This is to say, each piece of evidence was described by analogy with a strand of cord. While one strand of the cord might be insufficient to sustain the weight, a few cords stranded together may be quite of sufficient strength.

54.  Moreover, in DPP v Kilbourne[30], the judge stated that:

“ Circumstantial evidence is evidence of facts from which, taken with all the other evidence, a reasonable inference is a fact directly in issue. It works by cumulatively, in geometrical progression eliminating other possibilities…”

It refers to cumulatively, in geometrical progression, eliminating other possibilities.

55.  Before considering all the circumstantial evidence in the present case, I would first point out that the present case occurred on 13 November 2019. Before that day, there had been numerous occasions in Hong Kong where people blocked roads and damaged public property due to the “anti-legislative amendment” incident, and people who engaged themselves in those unlawful acts were mostly in black outfits. This is something well-known to the public. The appellant must have known it well at the time of the offence.

56.  The appellant contended that there were bus-stops, housing estates and a shopping mall in the vicinity of the location in question, that there were other kaifongs on the streets at the time of the offence, and that it was possible that the appellant simply walked past as he was living nearby.

57.  I have pointed out that the appellant must have known that incidents of road blocking and damage of public property had happened in various districts of Hong Kong before 13 November 2019. At the time of the offence, the appellant was not on the pavement, but was in the “middle” of those ten odd people in black – on the roadway. And the prosecution witness saw that some of those ten odd people were moving the miscellaneous objects and some were discarding the miscellaneous objects to obstruct the road.

58.  In my view, there was no reason for the appellant to choose to get near that group of people in black (namely, right in the middle of them) and walk behind the obstructing miscellaneous objects to cross the road when he clearly knew that those ten odd people in black were blocking the road.

59.  I agree with the magistrate that it was not a coincidence that the appellant was in all black, being dressed in the colour identical to those other ten odd people.

60.  Furthermore, the appellant was wearing a face mask at the time of the offence. I also note that 13 November 2019 did not see any outbreak of Coronavirus yet, unlike the times of pandemic when all people had to wear face masks.

61.  Although the police officer did not see the appellant who was wearing a black outerwear and a face mask “physically” take part in blocking the road, I am of the view that his “existence” at the scene and presence in the “middle” of those ten odd people in black already had the effect of assisting and encouraging others who were also in black outfits to carry out the act of blocking the road. It can be said that “a lot of people” makes “a pressing crowd”.

62.  Looking at the various factors individually, such as the appellant wearing black outfits with a face mask, or the appellant being in the “middle” of those ten odd people in black, it might not be sufficient to show that the appellant had the intent to act in concert with other people to block the road. However, if all the circumstances were put together (namely, binding together every strand of the cord or putting every piece of evidence cumulatively in geometric progression), I am of the view that the only irresistible inference would be that the appellant had acted in concert with other people in black blocking the road to block the road at the location in question. The possibility that the appellant “simply walked past” as he contended was eliminated.

63.  The appellant exercised his right of not giving evidence. According to Li Defan, the prosecution case and the inference against the appellant, etc. would be strengthened.

64.  This ground of appeal should fail.

I.1.  Ground 3

65.  In respect of Charge 2, Mr Chan submitted that the magistrate erred in relying on the evidence of the appellant’s flight to convict the appellant. The magistrate failed to thoroughly consider whether the appellant might flee to escape the police due to any innocent reason. The magistrate’s analysis by which he held that the appellant gave no explanation in regard to his “flight” was not persuasive logically.

66.  Mr Chan cited HKSAR v So Tsz Kon[31] and HKSAR v Mo Shiu Shing[32] and said that the appellant’s attempt to flee was not in itself evidence of guilt. There were innocent reasons why a person might do so. Only if it was sure that the appellant did not flee for an innocent reason, but instead did so by reason of his being aware of having committed the offence in question and hence choosing to flee in order to prevent the offence from coming to light, that the magistrate could regard his flight as evidence which supported the prosecution case against the appellant.

67.  The appellant did not have any duty to give evidence. The prosecution had to eliminate the possibility that the appellant fled for an innocent reason before relying on such evidence to prove the appellant’s guilt.

68.  Mr Chan argued that the magistrate’s analysis in regard to the flight appeared to have fallen into a circular reasoning.

69.  Mr Chan contended that the magistrate, by using his previous analysis which gave rise to the conclusion that the appellant had acted in concert with other people to block the road, rejected that the appellant “simply walked past” and held that the appellant gave no explanation in regard to his flight, but went on to support and strengthen his inference that the appellant had participated in blocking the road. Supporting the analysis which gave rise to the conclusion on the basis of such argument was neither persuasive nor logical.

70.  Mr Chan stated that the appellant was only a 17-year-old student at the time of the offence. He was not equipped with any protective gear, but the prosecution witness was “fully armoured”. With no warning given in advance, the appellant was chased after by a fully armoured police officer, an instinctive reaction of fleeing could not be more natural. This was a reason that could not be eliminated. In general, a person might also try to escape from the police for the avoidance of being misunderstood or getting into trouble. In the present case, there was no evidence to prove that the appellant must have fled in fear of crime.

I.2.  Reply by the respondent

71.  The respondent stated that the magistrate mentioned in his statement of findings that he had considered HKSAR v Mo Shiu Shing[33] and HKSAR v Mutengu Johnson Mikali[34]. The magistrate must be aware of the relevant potential risks and legal requirement.

72.  The magistrate did not infer from the appellant’s flight that he had participated in blocking the road. The magistrate made it clear that he first put aside the appellant’s act of fleeing in his consideration and drew the inference from other evidence that the appellant had participated in blocking the road, which was the only inference he could draw. The magistrate made analysis on the appellant’s act of fleeing only subsequently for the sole purpose of supporting the inference that he had already drawn.

I.3.  Discussion

73.  In regard to the aspect of “flight”, the magistrate stated as follows:

“110. The prosecution submitted that they also relied on the evidence of ‘flight’.

111. In regard to the legal principle of ‘flight’, it was already explained clearly by the Court of Appeal in HKSAR v Mo Shiu Shing, CACC 6/1998. That is to say, the mere fact that the defendant fled or absconded does not necessarily mean or indicate that he had committed the crime and hence it could not be taken as evidence of guilt.

112. However, if the defendant fled for no reason or ground, such a ‘flight’ can then support and strengthen other evidence which has been established by the prosecution.

113. In regard to the application of the direction in Mo Shiu Shing, reference may be made to HKSAR v Mutengu Johnson Mikaili, CACC 215/2008, paragraphs 24 to 35.

114. In the present case, the defendant did not give evidence. Nevertheless, I have also considered what his counsel suggested, such as he ‘merely walking past’ or being ‘fear of the police’. I have already rejected the defence’s suggestion in my earlier analysis. Therefore, regarding the matter of ‘flight’, there was no explanation before me.

115. Accordingly, I hold that the evidence of ‘flight’ supports and strengthens my earlier finding on the testimony of the police officer, and it also supports and strengthens the only inference I have drawn from the circumstantial evidence.”

74.  On the face of it, the magistrate was aware of the legal principle of flight, but he failed to independently consider and analyse the evidence in relation to flight; hence, the appellant complained him of having fallen into “circular reasoning”. However, in terms of the evidence of the present case, the appellant indeed provided no evidence to explain why he had fled. I have already pointed out that the only reasonable inference which could be drawn from all the circumstantial evidence was that the appellant acted in concert with other people in black to block the road. Under such premise, it was truly impossible that the appellant fled for other innocent reasons. This discussion upon the appellant’s flight supports the prosecution’s inference against the appellant.

75.  This ground of appeal cannot stand.

J.1.  Ground 4

76.  Mr Chan contended that in respect of Charge 1, the magistrate wrongly held that the appellant had the intent of causing injury to others by using the hexagon keys and that such ruling lacked sufficient ground and opposed to common sense. In considering this issue, the magistrate failed to attach a meaningful weight on the good character of the appellant.

77.  Mr Chan argued that the hexagon keys in question were small in size, light in weight and not sharp in any way. By common sense, this kind of small hexagon keys would be the tools commonly used for electronic products, musical instruments or small-sized furniture. It was not suitable for outdoor structures. Besides, the damage and harm it could bring upon were very minor. Therefore, it was not a suspicious item itself, nor was it suitable to be used as a weapon.

78.  Mr Chan stated that in the present case, there was not any circumstances involving the actual use (or threatened use) of violence by the appellant or other people, nor was there any evidence showing that any protest or public event had been held on that day. Even if the prosecution witness’s testimony was accepted in full, at most the appellant had only pushed away the police officer at the time of his arrest, and he did not have the intent of doing any assaultive act.

79.  It was unjust for the magistrate to infer and find that the appellant was in his possession the hexagon keys with intent to use the same for causing injury to others.

80.  Furthermore, the appellant considered it inadequate that the magistrate gave himself a general reminder on the appellant’s clear record at the beginning of the statement of findings. In particular that in the circumstances of the present case where no violence was involved, in considering whether the appellant had the intent of causing injury to others by using the hexagon keys, the magistrate should have drawn an inference more favourable to the appellant. Therefore, the magistrate failed to attach a meaningful weight on the good character of the appellant.

81.  In a nutshell, Mr Chan contended that there was not sufficient evidence in the present case to prove that the appellant had the intent of causing injury to others by using the hexagon keys. The magistrate wrongly inferred that the appellant had the intent of causing injury to others by using the hexagon keys. The conviction was unsafe and unsatisfactory.

J.2.  Reply by the respondent

82.  The respondent stated that since the magistrate had accepted the facts that, among other things, the appellant had participated in blocking the road, that he was in all black and wearing a face mask, had a set of hexagon keys in his trouser pocket and carried in the rucksack items like umbrellas and gloves at the time of the offence, and that he elected not to give evidence, the magistrate was entitled to convict the appellant by inferring cumulatively in geometric progression: see the case HKSAR v Lo Hung Kwong[35].

J.3.  Discussion

83.  The original Charge 1 was that the appellant had in his possession hexagon keys with intent to use the same for unlawful purposes. In the statement of findings, the magistrate explained why the prosecution amended Charge 1:

“117. During cross-examination, the defence showed the photos to PW1, the purpose of which was to confirm with PW1, by the photos, that the set of hexagon keys found upon search from the defendant was not fit for unscrewing or dismantling items such as barriers and road signs in the vicinity of Tam Kon Shan Road.

118. Hence, the defence made a half-way submission and argued that the prosecution failed to prove the purpose of the defendant for possessing the hexagon keys. The defence also cited several authorities and the Hansard of a meeting dated 21 December 1983.

119. The defence submitted that according to the rule of ejusdem generis, the offence of ‘possession of instrument fit for unlawful purposes’ had to be interpreted as only covering instrument for physically restraining a person, which meant instrument of the same kind as those listed under section 17 of the Summary Offences Ordinance, such as handcuffs and thumbcuffs. Anything that was not of the same kind could not be regarded as falling within the definition under section 17.

120. The prosecution responded to this point of law. The prosecution agreed to the application of the rule of ejusdem generis. However, the prosecution made it clear that the charge was not brought on the basis that the defendant was in his possession the kind of instrument for physically restraining a person, nor that the hexagon keys were fit for unscrewing and dismantling the barriers and road signs of that stretch of road.

121. The basis of prosecution was that the defendant had in his possession the hexagon keys with intent to use the same for causing injury to others, which was an unlawful purpose. That is to say, it was the definition of ‘offensive weapon’ under section 17 that the prosecution relied upon, which required the defendant to have the intent of using the offensive weapon for the offence to be established.”

(Emphasis added)

84.  The basis of prosecution was that the appellant had in his possession the hexagon keys with intent to use the same for causing injury to others. However, when the amended particulars of offence were viewed as a whole, in addition to “offensive weapon”, the appellant was at the same time also accused of having in his possession “instrument fit for unlawful purposes”. Hence, even though the prosecution has made it clear that prosecution was not brought on the basis that the hexagon keys were fit for unscrewing and dismantling the barriers and road signs, etc. of that stretch of road, but on the basis that the hexagon keys were offensive weapon, the element of “instrument fit for unlawful purposes” remains in the particulars of offence. It was not simply an accusation against the appellant of possession of offensive weapon.

85.  Section 17 of the Summary Offences Ordinance provides as follows:

“Possession of offensive weapon, etc., with intent

Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, shall be liable to a fine at level 2 or to imprisonment for 2 years.”

86.  The hexagon keys in question cannot possibly be an instrument made for the purpose of physically restraining a person. However, the set of eight hexagon keys of different sizes can be said to be similar to a “skeleton-key”, which can be used for unscrewing Allen bolts of various sizes.

87.  I am of the view that it is inappropriate to have “instrument fit for unlawful purposes” and intending to use the said instrument fit for unlawful purposes, namely, the hexagon keys, for unlawful purpose, restricted to the barriers and road signs at the location in question. The court should consider the reason why the appellant had put the set of a total of eight hexagon keys of different sizes in his easily reachable trouser pocket and appeared at the scene, and had been in the “middle” of the ten odd people in black with some of them blocking the road. It must be the case that the appellant had already placed the hexagon keys in his trouser pocket before he arrived at the scene.

88.  It is by common sense and out of living experience that people in general would not place a set of hexagon keys in the trouser pocket. My view is that based on all the circumstances in the present case, the only reasonable inference would be that the appellant had in his possession of a set of hexagon keys with the intent to unscrew items tightly fixed with Allen bolts. His intent was to dismantle the items and use such items to block the road or perform acts of criminal damage. Otherwise, I cannot think of any reasons why the appellant has put the set of hexagon keys in the trouser pocket. Although the items (such as barriers and road signs) at the scene did not have hexagonal sockets and the hexagon keys in the appellant’s possession were also not fit for unscrewing the items at the scene, it does not mean that the appellant, whilst having the hexagon keys in his trouser pocket, was not in possession of hexagon keys fit for unlawful purpose, or not having the intent of using the same for unlawful purpose.

89.  I give an example here. If a thief was in his possession certain instrument fit for opening or dismantling door locks with intent to burgle, but he reached the doorway of the premises he intended to burgle, realizing that the instrument in his possession was not fit for opening the door lock of the premises, he would still be in possession of the “instrument fit for unlawful purposes” with intent to use the same for unlawful purpose under such circumstances.

90.  The prosecution amended the particulars of offence and made it clear that charge was brought on the basis that the appellant had in his possession the hexagon keys as an offensive weapon with intent to attack people who obstructed him in blocking the road.

91.  Although there were gloves and two umbrellas[36] in the appellant’s rucksack, I agree with Mr Chan on his submission and take the view that, under all the circumstances of the present case, neither the inference that the appellant had in his possession the hexagon keys as an offensive weapon, nor the inference that the appellant intended to use the same for causing injury to others can be the only reasonable inference.

92.  Although it is my view that all the circumstantial evidence was supportive of the allegation that the appellant was in possession of the “instrument fit for unlawful purposes” with intent to use the same for unlawful purpose, given the prosecution’s position expressly indicated, I consider that it would be unfair to the appellant by convicting him at this stage for possession of an instrument fit for unlawful purposes, namely, a set of hexagon keys, with intent to use the same for unlawful purpose.

J.4.  Ruling

93.  For the above reasons, I allow the appellant’s appeal in respect of Charge 1. The conviction is quashed and the sentence set aside.

94.  In respect of Charge 2, I dismiss the appellant’s appeal. The conviction stands.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.