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Hksar v Choy Kin Yue (蔡健瑜)

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date16 December 2022
Neutral Citation[2022] HKCFA 27
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFACC3/2022
FACC3/2022 HKSAR v. CHOY KIN YUE (蔡健瑜)

FACC No 3 of 2022

[2022] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 3 OF 2022 (CRIMINAL)

(ON APPEAL FROM HCMA NO 421 OF 2021)

________________________

BETWEEN
HKSAR Respondent
(Appellant)
and
CHOY KIN YUE (蔡健瑜) Appellant
(Respondent)

________________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Hoffmann NPJ

Date of Hearing: 29 November 2022

Date of Judgment: 16 December 2022

________________________

J U D G M E N T

________________________

Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Fok PJ:

3. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Lam PJ:

4. In HKSAR v Lo Kin Man[1], this Court expounded at length on the law relating to the offences of unlawful assembly and riot under Sections 18 and 19 of the Public Order Ordinance (“the POO”) Cap 245. In respect of the “taking part” in an unlawful assembly, it was held that a defendant must have a participatory intent[2]. The present appeal addresses how such requirement is to be applied when a defendant was one of the persons who committed the prohibited conduct specified in Section 18(1) which rendered the assembly unlawful[3].

The incident

5. The relevant parts of the incident leading to the arrest and prosecution of the Respondent were captured on video recordings produced at the trial and there is no serious dispute on the facts. It took place at a time when the doxxing of police officers was a serious problem and the courts had to intervene by granting injunctions against such activities[4].

6. On 8 March 2020, a police officer (“PW1”) was on plainclothes duty near Tai Po Mega Mall. At around 9:40 p.m. he was approached by a person[5] demanding that PW1 reveal his identity as a police officer. PW1 did not reply. Thereafter, that person spoke with a co-defendant, viz the 4th defendant, informing the latter that PW1 was a police officer[6]. PW1 was then tailed by the 4th defendant and several other persons. Some of them came close to PW1 from time to time whilst most of them kept their distance. There were people shouting his name and the names of his wife and daughter. There were also repeated accusations that he had previously beaten up a youngster with a baton. Denigrating and threatening remarks were made against him. PW1 left the mall and walked in the direction of Tai Po Police Station.

7. After PW1 had come out from the mall, four people including the Respondent rushed to where he was and trailed closely behind him. As he did so, the Respondent used a video camera continuously to make a recording. There were other people following a further distance away. Amongst the four who were trailing closest to PW1, two of them flashed their torches at him. At one stage, the flashes aimed at PW1’s head and the Respondent overtook PW1 to film his face whilst the others shouted PW1’s name and accused him of the beating of a youngster. In addition to those four persons, those following behind also came closer and the group of people around PW1 increased.

8. Subsequently, other police officers arrived and arrests were made. The Respondent and four other persons were charged with the offence of unlawful assembly. The Respondent pleaded not guilty. His defence was that there was no unlawful assembly and that he did not participate in any assembly. His counsel submitted that the Respondent only filmed the incident spontaneously without any ill intent on his part.

The proceedings below and leave to appeal

9. After trial, Principal Magistrate Don So (“the magistrate”) found the Respondent guilty and imposed a sentence of 3 months’ imprisonment on him. The magistrate decided the case without the benefit of this Court’s judgment in HKSAR v Lo Kin Man as that appeal was only heard after his decision. Although PW1 was first approached by a person asking if he was a police officer about 6 minutes prior to the commencement of the filming by the Respondent, the magistrate focused on the conduct of the parties, which lasted about 2 minutes, as shown in the recording made by the Respondent. The magistrate found that the Respondent and three other defendants[7] had assembled together[8] and their acts insulted and provoked PW1. Such acts included the Respondent’s filming which targeted PW1 most of the time and were likely to cause other persons reasonably to fear that those assembled would commit a breach of the peace or provoke other persons to commit a breach of the peace[9]. He also found that cumulatively these acts had a greater intimidating effect. He held that the respective act of the 2nd to 4th defendants, and that of the Respondent, constituted prohibited conduct under Section 18(1) of the POO.

10. In rejecting the Respondent’s defence, the magistrate found that he had consciously assembled with the other three defendants. He noted that there was no suggestion that the Respondent was a reporter but that he was able to film the incident without fear of assault or other hostile responses by the 4th defendant. He inferred that there was a consensus between the Respondent and the 4th defendant that the recording would not be voluntarily produced as incriminating evidence. He further found that the Respondent was aware of the harassment, threat and provocation directed towards PW1 at the scene and that he deliberately participated in the assembly[10].

11. On appeal to the Court of First Instance, A Wong J (“the Judge”) allowed the Respondent’s appeal against conviction. The Judge rejected the contention that the filming of PW1 by the Respondent did not come within the scope of prohibited conduct under Section 18(1) of the POO[11]. Having regard to the circumstances surrounding the Respondent’s filming, the Judge upheld the magistrate’s finding that such conduct was provocative.

12. The Judge also agreed with the magistrate in finding that the Respondent was aware of the acts of the other defendants[12] and that the conduct of the Respondent had the effect of procuring or encouraging the other defendants to commit their prohibited acts[13]. He noted that there was an unlawful assembly with more than 3 persons (including the Respondent) committing prohibited conduct and the Respondent’s filming took place against such backdrop when he was “well aware of the actual situation at the scene”[14].

13. The Judge affirmed the finding that the 4th defendant permitted or acquiesced in the Respondent’s filming which recorded the commission of the offence by the 4th defendant. However, he did not accept that the only reasonable inference was that there was a consensus between the Respondent and the 4th defendant. The Judge also declined to assess the matter on the basis that the Respondent had targeted PW1 in his filming though he considered the magistrate was justified in so holding[15].

14. By the time the Judge heard the appeal, this Court had delivered its judgment in HKSAR v Lo Kin Man. The Judge referred to the law set out in that judgment[16] and he discussed the issue of participatory intent in light of it [17]. After considering various matters which he regarded as relevant, the Judge concluded that though it was a reasonable inference supported by the evidence that the Respondent had the requisite participatory intent, it was not the only reasonable inference[18]. He therefore allowed the appeal by quashing the conviction.

15. The prosecution sought leave to appeal against the Judge’s decision. On 11 July 2022, the Appeal Committee granted leave as it was reasonably arguable that the Judge had misapplied this Court’s judgment in HKSAR v Lo Kin Man and that substantial and grave injustice had been done.

Lo Kin Man’s exposition of unlawful assembly

16. Section 18 of the POO codified the offence of unlawful assembly. In HKSAR v Lo Kin Man[19], the elements of the offence were set out as follows:

“[1] When 3 or more persons,

[2] assembled together,

[3] conduct themselves in a disorderly, intimidating, insulting or provocative manner

[4] intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace,

[5] they are an unlawful assembly. [section 18(1)]

[6] It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid. [section 18(2)]

[7] Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly ... [section 18(3)]”

17. The offence-creating provision is Section 18(3) and the essence of the offence is the “taking part” in an unlawful assembly[20]. Such “taking part” may or may not involve the same acts as, and should not be confused with, the prohibited conduct of the constituent offenders referred to in elements [3] and [4].

18. Constituent offenders are those who assemble together and conduct themselves in the manner described in element [3]. Because of their conduct, the assembly is unlawful[21]. For these offenders, their “taking part” is self-evident:

“If the defendant was one of the constituent offenders, by engaging in the prohibited conduct, he or she will (along with other constituent offenders) have taken part in the unlawful assembly that they will together have brought into being.”[22]

“As a matter of textual analysis, it is implicit that if the defendant is one of the constituent offenders...

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