Four people accused of rioting in 2019 must face a retrial after being wrongly acquitted by a lower court, Hong Kong’s Court of Appeal ruled on Friday, saying the original judge was “plainly wrong.”
The appeal hearing concerned two rioting cases and a total of 13 defendants, nine of whom left the city after the District Court judge ruled all 13 not guilty in 2020 and 2021.
The Secretary for Justice lodged an appeal against all the verdicts soon after the District Court’s rulings. But the appeal court dismissed the appeal against the nine overseas defendants since paperwork could not be served on them.
Following a hearing in January, the Court of Appeal said in its judgement released on Friday that the ruling by District Court judge Sham Siu-man was “plainly wrong.” Sham had made mistakes when considering the evidence, “causing grave injustice,” and had “made various speculations in favour of the defence.”
It ordered that the case against social worker Jackie Chen, Lai Pui Ki, Chung Ka Nang and Jason Gung be sent back to the District Court for trial by another judge.
While four years had passed since the charges were brought and “the delay involved may have caused the respondents some anxiety”, the appeal court said that an order for retrial “would not cause unfairness.”
Sham applied for early retirement and emigrated to the UK with his family in 2021, local media reported, the first judge to leave the city after the national security law came into effect in June 2020.
‘Intentionally encouraging’
Chen and seven other defendants were charged with rioting during a protest in Wan Chai on August 31, 2019. Chen was present during several protests that year to liaise between protesters and police.
Judge Sham ruled all eight defendants not guilty in September and November 2020. He said wearing clothing of a certain colour was a matter of personal preference and the court should not arbitrarily treat people in black as rioters.
Sham also accepted the testimony of some defendants that they were present at the scene “to witness a rare historical moment”.
Appeal judge Jeremy Poon said Sham had not considered whether Chen, through her presence, “was intentionally encouraging others to take part in the riot, thereby jointly committing the offence with others.”
Chen said on Facebook on Friday she was “already mentally prepared” after the 2020 ruling. “At my age, I have experienced a lot already. I just feel sorry for the three young people as their starting point in life is delayed again, ” she said.
Another case heard by Sham involved five other defendants accused of conspiracy to take part in a riot or conspiracy to participate in an unlawful assembly from September 28 to October 1 in 2019. The five were acquitted in 2021.
The Court of Appeal said it was wrong for the trial judge to have ruled that if the evidence only related to two defendants, then it was necessary to include one more person to satisfy the definition of an unlawful assembly.
Poon said that as “the offences of riot and unlawful assembly are participatory in nature,” there was no need for the prosecution to prove that the defendants had agreed to get one more person to participate.
Poon also said the trial judge “did not pay sufficient regard to the prosecution case.”
He added: “Some of his findings are even contrary to common sense and detached from reality, rendering the findings not sustainable.”
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
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