區域法院（刑事）Deputy District Judge Amy Chan25/11/2024[2024] HKDC 1890
DCCC6/2022
A A
B B
DCCC 6/2022
[2024] HKDC 1890
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 6 OF 2022 E
F F
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G G
HKSAR
H
v H
TANG KA MAN
I I
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J J
Before: Deputy District Judge Amy Chan
K K
Date: 26 November 2024
L Present: Mr NG K C Simon, Counsel on fiat, for HKSAR L
Mr David Boyton, instructed by T K Tsui & Co, for the
M M
defendant
N Offence: [1] Riot (暴動) N
[2] Conspiracy to wound with intent (串謀有意圖而傷人)
O O
P P
Q
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REASONS FOR VERDICT
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S S
T T
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V V
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A A
B B
INTRODUCTION
C C
1. This case involves a riot that took place on 22 July 2019
D D
around midnight at Long Wo Road and Yuen Long MTR Station 1 . A
E serious clash broke out between two groups of people whom mainly wore E
black and white tops. The two groups attacked each other. Some of the
F F
white tops were armed with wooden pole or and rattan stick. Most of the
G black tops held umbrellas, wore caps and facemasks2. G
H H
2. Police seized, inter alia, wooden poles, rattan sticks,
I umbrellas and foam boards written with Chinese characters “Defend Yuen I
Long. Defend our Home.3” from the scene of the riot.
J J
K 3. Police arrested defendant (“D”) on 26 September 2021, 26 K
months after the riot occurred. The police charged D with (i) Riot;4 and (ii)
L L
Conspiracy to wound with intent to do grievous bodily harm.5 D pleaded
M not guilty to both charges. M
N N
4. In this case, there was no direct evidence to prove that D had
O committed acts related to the charges. D made no admission either. O
P P
5. Prosecution relies on CCTV footages seized at the Yuen Long
Q MTR Station and video clips from open sources (collectively referred as Q
“Footages”) that showed what happened during the riot, and based on D’s
R R
S 1 S
See map P2
2
See screen capture at P9a (7)
3
保䘙元朗 保䘙家園
T 4 T
Contrary to section 19(1) and (2) of the Public Order Ordinance, Cap 245.
5
Contrary to section 17(a) of the Offences against the Person ordinance, Cap 212 and sections 159A and
159C of the Crimes Ordinance, Cap 200.
U U
V V
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A A
B B
photos taken at the police station and Immigration Department(collectively
C referred as “Photos”), and then compared the two to conclude that D took C
part in the riot.
D D
E 6. The Footages include:- E
F F
(i) CCTV footages of Yuen Long MTR Station (P5 & P6);
G (ii) Video clips from open source (P7- P14, P16 & P17); G
(iii) A screen capture from Ming Pao website (P15);
H H
(iv) Highlights of incidents at Ying Lung Wai (P18); and
I (v) Highlights of which Prosecution alleged that D was I
present (P19).
J J
K 7. Screen captures of the Footages are marked as P5a-P19a. K
L L
8. The Photos include:-
M M
(i) D at the Immigration Department when he made his
N N
HKID card application on 5 July 2019 (P50); and
O (ii) D at the police station after he was arrested on 27 O
September 2021 in which a total of 24 photos were
P P
taken at different angles (P48).
Q Q
LOCATION OF RIOT
R R
S 9. According to the prosecution case, an incident started at the S
entrance of Ying Lung Wai (英龍圍), where a green arch (綠色牌坊) is
T T
erected, in Long Wo Road ( 朗和路). Yuen Long MTR Station (“YL
U U
V V
-4-
A A
B B
Station”) is located in Long Wo Road. There is a staircase and an escalator
C in Long Wo Road connecting G/F of YL Station to the concourse of Exit J C
6
on 1/F of YL Station .
D D
E ISSUES E
F F
10. The above Footages and Photos are admitted to be accurate.
G The defence does not challenge their authenticity. G
H H
11. The defence does not dispute that a riot took place. The main
I issue is whether the man alleged by prosecution in the Footages can be I
identified as D in the Photos.
J J
K Charge 1: Riot K
L L
12. In relation to Charge 1, whether the court can infer that D
M together with other people took part in the riot. M
N N
Charge 2: Conspiracy to wound with intent
O O
13. In relation to Charge 2, whether the court can infer that there
P P
was an agreement between D and others to unlawfully and maliciously
Q wound with intent to do others grievous bodily harm. Q
R R
S S
T T
6
See photos at P47(63-74) and MFI 1
U U
V V
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A A
B B
ADMITTED FACTS
C C
14. Around midnight on 21 July 2019, a group of not less than 20
D D
persons, mostly wearing white tops (“White Tops”) and holding wooden
E poles and rattan sticks, gathered outside Ying Lung Wai in Long Wo Road E
and YL Station. At that time, a group of around 40 persons mostly in black
F F
tops (“Black Tops”) and some reporters were also at the scene.
G G
15. Around 0003-0005 hours, more White Tops joined in. The
H H
White Tops (not less than 40 persons) had a dispute with the Black Tops
I (not less than 40 persons). Some White Tops scolded the Black Tops and I
engaged in physical scuffles with them.
J J
K 16. Around 0005-0007 hours, the situation intensified and turned K
into a violent confrontation between the White Tops and the Black Tops.
L L
Some Black Tops ran towards YL Station.
M M
17. The White Tops chased the Black Tops to the area near the
N N
entrance of Exit J of YL Station. They went up to the 1/F of YL Station.
O They attacked the Black Tops with wooden poles and rattan sticks inside O
the concourse near Exit J.
P P
Q 18. Around 0016 hours, the White Tops left Exit J. Q
R R
19. According to the Immigration Department’s movement
S record (P49), D was present in Hong Kong when the riot took place. S
T T
U U
V V
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A A
B B
THE PROSECUTION’S CASE
C C
20. Prosecution relied on three witnesses for its case, two of
D D
which are civilian witnesses. Their evidence was admitted under Criminal
E Procedures Ordinance, section 65B7. The other witness is a police officer E
who viewed all the Footages and identified a man whom the prosecution
F F
alleges was D. D was at the scene and he took part in the riot and conspired
G with others to wound. G
H H
21. PW1 (A) is an ambulance officer. At 2300 hours on 21 July
I 2019, he learnt via radio that someone was injured in YL Station. At 0000 I
hours on 22 July 2019, he saw a man surrounded by White Tops outside
J J
the green arch, the entrance of Ying Lung Wai (see screen captures at
K P7a(1)). They refused to let PW1 to assist this person. At 0007 hours on K
22 July 2019, PW1 went to Exit J of YL Station. He saw a man in white
L L
top was lying on the ground with a wooden rod of about 3 feet long in his
M right hand (P11a(4)). PW1 and his colleague assisted this man. On that M
night, he also gave assistance to several injured person.
N N
O 22. PW2 (B) is a lawyer. At 2245 hours on 21 July 2019, he was O
on his way to YL Station. He saw about 10 White Tops, holding weapon
P P
in their hands, yelling and walking towards YL Station. In YL Station,
Q PW2 saw some ambulance men guarding a room. About 15 minutes later, Q
police officers arrived. They brought the people from that room to receive
R R
treatment. However, men who dressed in different colours started to scold
S and shout at the police officers. They demanded the police officers leave. S
The police officers left the YL Station under pressure. The scene was calm
T T
7
Statements at P55 and P54.
U U
V V
-7-
A A
B B
again. After a while, PW2 saw a clash broke out at G/F of Exit J of YL
C Station. The White Tops rushed upstairs and dashed to Exit J of 1/F ( P9a C
(4-5)). PW2 tried to persuade them not to do so but failed (P8a(1)).
D D
E 23. DPC 19264 (“PW3”) spent 150 hours viewing the Footages E
in late March 2024 to August 2024 upon instruction from his senior.
F F
G 24. PW3 identified a male (thereafter referred as “X”). He circled G
X with red on screen captures (P19a). PW3 said X has the following
H H
features and outfits:
I I
(i) He has short black hair.
J J
(ii) He wore a white T-shirt with a red rectangular pattern
K printed with “LEVI’S” in white on the chest. K
(iii) He wore black shoes and pants.
L L
(iv) He had a black shoulder bag with “VLTN” in white
M printed all over the strap. M
N N
25. Defence did not dispute X circled by PW3 on P19a was the
O same person. O
P P
26. P18a and P19a are screen captures of highlights of the
Q Footages showing the situation of Ying Lung Wai, Long Wo Road and Exit Q
J of YL Station at the material time in sequence ( Asterisk * is used in
R R
showing a repetition of incident but taken at different angles). The
S following table described what had happened on 22 July 2019 at the S
material times:-
T T
U U
V V
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A A
B B
Exh. no Time (hr) Location Description
P18a (1) 00:00:40 Outside entrance of The White Tops gathered near
C Ying Lung Wai near the Ying Lung Wai, restrained a C
green arch in Long Wo male from leaving and
D
Road prevented an ambulance D
officer (PW1) from assisting
the male.
E E
P18a (2) 00:03:43 -ditto- The White Tops scolded the
Black Tops and had physical
F F
scuffles with the Black Tops.
G P19a(1) 00:05:17 -ditto- X walked from the direction of G
Ying Lung Wai and joined the
White Tops.
H H
P18a (3) 00:05:40 Outside Ying Lung Wai, The White Tops attacked the
I Long Wo Road Black Tops by wooden poles I
or rattan sticks.
J P19a(2) 00:06:26 G/F of Exit J of YL The White Tops attacked the J
Station in Long Wo Black Tops. X was among the
K Road White Tops. K
P18a(6) 00:07:02 -ditto- A White Top attacked a person
L with orange helmet by wooden L
pole.
M M
P19a(4) 00:07:05 -ditto- X picked up a site light and
threw it at the Black Tops.
N N
P18a(7)* 00:07:09 -ditto- The White Tops attacked the
Black Tops. X was among the
O O
White Tops. He picked up a
site light and threw it at the
P Black Tops. P
P19a(5)* 00:07:13 -ditto- The White Tops attacked the
Q Black Tops. X was among the Q
White Tops.
R R
P18a(8) 00:07:54 -ditto- A White Tops collapsed onto
the ground with a wooden rod
S holding on right hand. S
T
P18a (9) 00:08:50 -ditto- The White Top chased and T
attacked the Black Tops to
ground floor outside Exit J.
U U
V V
-9-
A A
B B
Exh. no Time (hr) Location Description
C P19a(6)* 00:09:05 -ditto- The White Tops gathered at C
ground floor outside Exit J. X
D was among the White Tops. D
P18a(10)* 00:14:21 G/F of Exit J of YL The White Tops and X
E Station, Long Wo Road gathered at ground floor E
outside Exit J.
F F
P18a(11) 00:15:05 Staircase leading from The White Tops went up the
G/F of YL Station to staircase to the entrance of
G 1/F of Exit J Exit J and attacked the Black G
Tops.
H H
P18a(12) 00:15:29 Outside Exit J of 1/F of X held a rattan stick and stood
YL Station among the front line of the
I White Tops. X also threw a I
wooden stick at the Black
Tops.
J J
P19a (7) 00:15:33 -ditto- The White Tops attacked the
K Black Tops outside Exit J. X K
held a rattan stick and stood
among the front line of the
L White Tops. L
P19a(8)* 00:15:37 -ditto- The White Tops attacked the
M M
Black Tops at the entrance of
Exit J. X threw a wooden
N stick at the Black Tops. N
P19a(9)* Around -ditto- The White Tops attacked the
O O
00:15 Black Tops outside Exit J. X
held a rattan stick and stood
P among the front line of the P
White Tops.
Q P18a(13) 00:16:07 Escalator outside Exit J X and the White Tops left Exit Q
of YL Station leading to J.
R Long Wo Road R
S S
T T
U U
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A A
B B
THE DEFENCE’S CASE
C C
27. At the closing of the prosecution’s case, there was no halfway
D D
submission by the defence. I ruled that there was a case to answer in
E respect of the two charges. D elected not to give evidence and called an E
alibi defence witness, Madam Wong Wing Yan (DW).
F F
G 28. DW was a restaurant owner in Wong Uk Tsuen (黃屋村) in G
Ying Lung Wai in Yuen Long. It took five minutes to walk from Exit J of
H H
YL Station to get to the restaurant.
I I
29. DW started her the restaurant with her husband since 2014. It
J J
was closed down in 2023. Apart from DW, her husband and a waiter
K assisted in serving the customers. K
L L
30. The restaurant was operated in a typical village house
M consisted of G/F, 1/F and 2/F. It measured about 700 ft² on each floor. M
There were 16 tables on G/F, two big tables on each of 1/F and 2/F.
N N
O O
31. DW said she had always allowed regular customers to hang
P
around to chat and drink even after the restaurant closed its business. She P
would then leave the restaurant and ask the customers to close up the
Q Q
restaurant for her.
R R
32. DW recognized D as a regular customer. He used to visit her
S S
restaurant about three times a month. He often came to the restaurant for
T meal with his friends at nighttime. T
U U
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A A
B B
33. At about 9pm on 21 July 2019, D visited her restaurant with
C 8 to 10 of his friends to eat. He stayed on 2/F of the restaurant. DW said C
she had particular recollection because a riot and fight happened in Yuen
D D
Long during that night.
E E
34. At 12:30am on 22 July 2019, DW and her husband left the
F F
restaurant after D paid the bill. She allowed D to continue to stay in the
G restaurant with his friends. G
H H
35. DW closed down the restaurant in 2023. She held a closing
I party with her regular customers. D attended that party. I
J J
36. In all her time knowing D, DW said D had always worn
K glasses and an all-back hairstyle as he did in court. K
L L
37. During cross-examination, DW said she was busy with the
M customers as it was a Sunday night on 21 July 2019. She went to the upper M
floors to serve the customers every 15 minutes to see if any help was
N N
required.
O O
38. The prosecution questioned that D left the restaurant when she
P P
did not pay attention. DW denied it. She insisted that she would definitely
Q see D had he left the restaurant. Customers on the upper floors had to leave Q
by the staircase within the restaurant. She would have noticed if D left.
R R
S 39. The prosecution showed the following photos to DW and S
asked if she confirmed the man shown is D. The photos include:
T T
U U
V V
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A A
B B
(i) a screen capture from the website of Ming Pao (P15);
C (ii) photos taken by the police at the police station (P48); C
and
D D
(iii) a photo from the Immigration Department (P50).
E E
40. DW replied that she did not know the man on the above
F F
photos and she had never met him before. She insisted D always wears
G glasses and an all-back hairstyle. It has always been the same in the past G
years. The man shown in the photos is not D.
H H
I ANALYSIS OF EVIDENCE I
J J
41. I direct myself that the burden of proof is on the prosecution.
K It is for the prosecution to prove each element of each charge against D K
beyond reasonable doubt. D bears no burden of prove. He is not required
L L
to prove his innocence.
M M
42. D elected not to give evidence. It is his rights and no adverse
N N
inference would be drawn against him. However, this means that there is
O no evidence to undermine, contradict or explain the evidence presented by O
the prosecution.
P P
Q 43. I also direct myself that I have to consider the case against D Q
on each charge separately.
R R
S 44. I note from D’s movement record (P49) that D left Hong Kong S
on the very same day at 2152 hours on 22 July 2019 and returned to Hong
T T
Kong on 28 July 2019. I will not take it as D’s flight after the crime. There
U U
V V
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A A
B B
are many innocent reasons why he left Hong Kong. This is not evidence
C of guilt. I would not take this evidence as a way to support the C
prosecution’s case. I will not make any adverse inference by the mere fact
D D
that D left Hong Kong on the same night.
E E
45. I also take notice that outfit wore and the black bag carried by
F F
X could not be found at D’s home.
G G
46. The only evidence against D on each charge comes from the
H H
Footages.
I I
47. In the defence case, DW was an alibi witness for D.
J J
K 48. The defence submitted that DW testified in a straightforward K
manner and her evidence is full of particulars. She remained firm during
L L
cross-examination. I consider the submissions in full and take the
M following matters in consideration. M
N N
49. In assessing DW’s credibility, I bear in mind her criminal
O record was 20 years ago. I consider her evidence on the basis that she is a O
person of clear record. This is relevant to her credibility when she testified.
P P
Q 50. DW said D was in her restaurant at 9pm on 21 July 2019 and Q
he stayed until 12:30am on 22 July 2019. She was certain because she
R R
would have noticed D had he left through the staircase within the restaurant.
S In my view, I find that DW cannot make such a conclusion. Firstly, DW S
was not with D during these 3.5 hours. Secondly, she might have been to
T T
the toilet. Even if not, she needed to serve customers on different floors.
U U
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A A
B B
D could have left the restaurant without her knowledge. I find her alibi
C evidence to be not helpful to the defence case. C
D D
51. According to DW, she had known D for years. D had always
E visited her restaurant three times per month since 2014. D even came to E
the party in 2023 when her restaurant closed down. She said that D always
F F
wears glasses and his hairstyle is all-back. During cross-examination, she
G was shown Photos taken by police (P48) and Immigration Department G
(P50). She was also shown a screen capture (P15) from the Ming Pao
H H
website which showed that X was holding a rattan stick in front of the
I Black Tops. She insisted that the man in P48, P50 and P15 is not D. She I
explained that the man of the above photos did not match with D’s
J J
appearance.
K K
52. In this respect, I do not find DW to be credible. It is
L L
undisputed and non-disputable that the man shown in P48 and P50 is D.
M D’s hairstyle in the photos is obviously different from that of D in the court M
hearing. However, hairstyle can easily be changed. The same applies to
N N
wearing of glasses. DW cannot base her recognition by reference to the
O hairstyle and glasses only. O
P P
53. DW emphasized that for all the times that she met D, D wore
Q glasses with his all-back hairstyle. His look is the same as he appeared in Q
the court hearing. There is no evidence to disprove DW’s testimony.
R R
However, it is inconceivable that D wore glasses and had his all-back
S hairstyle whenever he visited the restaurant. Then due to reasons unknown, S
D changed his usual look when he took his ID card on 5 July 2019 and on
T T
26 September 2021when he was arrested by the police. He did not wear
U U
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A A
B B
glasses and has his hair parted on the right. I find it inherently impossible
C and unthinkable why D would have changed his usual look on these two C
particular two occasions. It is unreasonable that D would change his
D D
hairstyle and wear glasses only when he visited the restaurant.
E E
54. Under such circumstances, I find DW to be untruthful and
F F
unreliable. I find that I cannot give her evidence any weight on D’s look
G in this respect. G
H H
55. Even though I find that DW had been dishonest, I do not
I convict D upon this. D has nothing to prove. I
J J
IDENTIFICATION
K K
56. This case depends wholly on the correctness of the
L L
comparisons between the Footages with the Photos.
M M
57. Prosecution alleges that D’s appearance matches with X in the
N N
Footages. They are to prove that D was present at the crime scene.
O O
58. Defence does not dispute that the man circled by PW3 in P19a
P P
being the same person.
Q Q
59. I notice that the identification of X in the Footages by PW3
R R
was only by reference of his outlook and clothing without any reference to
S X’s facial features. S
T T
U U
V V
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A A
B B
60. Due to this shortcoming, I would carry out the exercise of
C comparison myself. It is not that PW3 had made the wrong identification C
of the same man. On the contrary, I am satisfied that PW3 identified the
D D
same person, X, in the Footages. I have this finding due to the following
E reasons. There were many men wearing white tops in the Footages. E
However, the men in White Tops differed in their age, shoes, pants,
F F
hairstyle and body build. Some of them were wearing caps and most of
G them did not. Some of them were wearing glasses and some did not. Some G
of them carried shoulder bags as X did, but the size and color of the bags
H H
were different. By making comparison of the men circled in P19a, I am
I sure, that they are all the same man. The most distinctive feature is the I
pattern on his T-shirt with a red rectangular shape with characters of
J J
LEVI’S in white and the unique characters of VLTN over the whole strap
K of his shoulder bag. The cumulative effect of the outfits and hairstyle K
makes me sure; the man circled by PW3 is the same person.
L L
M 61. Being a tribunal of fact, I now turn to whether I can reach a M
conclusion that D is X in the Footages.
N N
O 62. In R v Dodson & Williams [1984] 79 Cr App R220, the court O
held that, “juries are called upon to do no more than the average person in
P P
domestic, social and other situations does from time to time, namely, to say
Q whether he is sure that a person shown in a photograph is the person he is Q
then looking at or who he has seen recently.”
R R
S 63. D wore a surgical mask during the course of the 3 days’ trial. S
He wore glasses and his hairstyle was all-back. Therefore, I do not have
T T
the opportunity to make the visual comparison of D’s facial features in
U U
V V
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A A
B B
court with the Footages. I have to rely solely on comparing the Photos with
C the Footages. C
D D
64. When making identification and comparison, I understand
E that the need for caution before convicting D in reliance on the E
identification evidence. I can only convict D only when I am sure that he
F F
is X. I consider the authority of HKSAR v Tagao Saudee Abad CACC
G 366/2015 and gave myself a full Turnbull warning when comparing the G
appearance of D on the Photos with X shown in the Footages.
H H
I 65. The Photos taken at the police station (P48) and Immigration I
Department (P50) are of high clarity with excellent resolution. They show
J J
the appearance of D before and after the riot occurred.
K K
66. P50 is an application to Immigration Department for HKID
L card dated on 5 July 2019. It was 17 days prior to the riot took place. I find L
this photo (P50) truly reflected how D’s hairstyle looked like in July 2019.
M M
P48 is photos taken at the police station on 27 September 2021, which was
N
26 months from the riot. D’s hairstyle in 2021 remained the same except N
O
that the hair was a bit longer. Based on the two sets of photos in P48 and O
P50, I find that D did not habitually wear glasses. He had a short hairstyle
P P
parted on the right in 2019. He kept the same hairstyle even to 2021.
Q Q
67. Due to the better lighting conditions, the Footages acquired
R indoors were of better clarity than the ones in outdoors. However, the R
Footages enable the court to observe the appearance of X with no difficulty.
S S
Besides, I find the actual images shown on the Footages were of much
T better resolution than that of the printed screen captures (P5a-P19a) of the T
Footages. I believe it is due to the quality of the printer used by the
U U
V V
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A A
B B
prosecution was not high enough. I would rely on the viewing of the actual
C Footages myself. The screen captures (P5a-P19a) of the Footages are just C
used for easy reference.
D D
E 68. Prosecution extracted still photos from the Footages with E
enlarged appearance of X (P55-P60) for comparison.
F F
G 69. Now I turn to decide if X shown in the Footages is D. G
H H
70. I have viewed the Footages repeatedly with normal and slow
I speed on X, in particular examined the still image obtained from Ming Pao I
website (P15). I paid attention to his hairstyle, facial features, including
J J
shape and size of his eyebrows, eyes, nose and lips (P55-P60). I noticed
K that X has distinctive thick eyebrow and big long ears. He is chubby with K
a belly. His hair is short with hair parted on the right.
L L
M 71. I pay special attention to the Photos in relation to D’s facial M
features, including shape and size of his eyebrows, eyes, nose and lips.
N N
They show that D has a distinctive thick eyebrows and big long ears. I also
O pay attention to his hairstyle and body build. The photos (P48) taken by O
police was on 27 September 2021 showed that D was of chubby build with
P P
a belly. He had short hair with his hair parted on the right.
Q Q
72. I fully appreciate that resemblance in appearance was not
R R
sufficient to convict. I have to be sure D and X are the same person. I
S remind myself the potential risks and dangers of mistaken identification. S
T T
U U
V V
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A A
B B
73. Upon comparison, I find that D’s appearance, in particular his
C facial features, was identical to that of X depicted in the Footages. I am C
sure that X was D. I find that D deliberately changed his hairstyle and wore
D D
glasses in the court hearing to make him look different from the Footages
E and the Photos. E
F F
Charge 1 -Riot
G G
74. In HKSAR v Lo Kin Man (盧建民) (2021) 24 HKCFAR 302,
H H
the Court of Final Appeal said the offence under s19 of the Public Order
I Ordinance built on that of unlawful assembly. Its starting point was that I
an unlawful assembly existed. When any person taking in the unlawful
J J
assembly committed a breach of the peace, the assembly became a riot.
K The actus reus of this offence was committed when any person ‘takes part’ K
in the riot.
L L
M 75. Defence does not dispute a riot took place at the material time, M
day and place. For completeness, I still make the ruling as to whether there
N N
was a riot.
O O
P
76. In the present case, obviously, there were three or more P
participants remained actively engaged in the criminal assembly. Their
Q Q
taking part in the assembly committed breaches of the peace. I find that
R
there was a riot took place on 22 July 2019 during the time at the place. R
S S
77. Based on the above finding that X is D, I find that D was one
T of the participant in the riot. I find that X had thrown a site lamp, a wooden T
stick and pointed a rattan stick towards the Black Tops. His presence was
U U
V V
- 20 -
A A
B B
more than encouragement to other participants. I find that he had taken
C part in the riot. He was one of the principal and provided encouragement C
by action.
D D
E 78. Now, I turn to the mens rea for taking part in the riot. E
F F
79. Mr Boyton submitted that the prosecution failed to prove that
G D had the common purpose of inflicting serious bodily harm. With respect, G
I reject Mr Boyton’s submission. No extraneous common purpose has to
H H
be shown in the offence of riot. The proof of a defendant’s participatory
I intent is sufficient (see paragraph 47 &48 of Lo Kin Man). I
J 80. From the admitted facts and the Footages, I can draw an only J
irresistible inference that D intended to take part in the riot along with other
K K
participants in the riotous assembly.
L L
81. Due to the above reasons, I find that D guilty of the offence
M M
of riot.
N N
O
Charge 2 - Conspiracy to wound O
P P
82. As to the nature of conspiracy charge, in HKSAR v Lai Kam
Q Fat (2019) 22 HKCFAR 289, the Court of Final Appeal said: Q
R R
“36. In satisfying the requirement that a course of conduct, if
carried out in accordance with the parties’ intentions, will
S necessarily amount to or involve the commission of an offence, S
it is important that both the actus reus and the mens
rea elements of the underlying offence are satisfied. Thus,
T in Saik, Lord Nicholls emphasized that under the English T
equivalent of section 159A (1):
U U
V V
- 21 -
A A
B B
‘…The conspirators must intend to do the act prohibited
C by the substantive offence. The conspirators’ state of C
mind must also satisfy the mental ingredients of the
substantive offence. If one of the ingredients of the
D substantive offence is that the act is done with a specific D
intent, the conspirators must intend to do the prohibited
E
act and must intend to do the prohibited act with the E
prescribed intent.’ ”
F F
83. In the present case, the substantive offence of s17 wounding
G requires proof of a specific intent: see HKSAR v Chung Chi Fai CACC G
497/2012.
H H
I 84. Mr Boyton submitted that for the charge of conspiracy to I
wound with intent, the prosecution must prove the conspirator’s state of
J J
mind, satisfying the mental element of the substantive offence.
K K
85. I accept Mr Boyton’s submission. I find that for the offence
L L
of conspiracy to wound, the prosecution must prove that the defendant
M had a specific intent to wound and to cause serious body injury. The M
general intent and recklessness to commit is not enough to establish
N N
guilt.
O O
P
86. I find that D held a rattan stick before the Black Tops. P
Q Q
87. In the prosecution case, there is no direct evidence that there
R was an agreement between the parties. However, the conspiracy can be R
proved by inference from conduct. An inference can only be drawn from
S S
the proved facts.
T T
U U
V V
- 22 -
A A
B B
88. Based on the admitted facts, the Footages and statements from
C the 2 civilian witnesses, I find the following facts are proved beyond C
reasonable doubts:-
D D
(i) The White Tops came from Ying Lung Wai, Long Wo
E Road near the green arch. Many of them held wooden E
poles and rattan sticks. They gathered outside Ying
F F
Long Wai and YL Station. D was in white T-shirt. He
G was among the White Tops. G
(ii) At that time, the Black Tops and some reporters were
H H
also at the entrance (the green arch) of Ying Lung Wai.
I Most of the Black Tops wore caps and facemasks. I
(iii) The White Tops scolded the Black Tops and both
J J
engaged in physical scuffles.
K (iv) The White Tops attacked the Black Tops with wooden K
pole or rattan sticks.
L L
(v) The Black Tops ran towards YL Station along Long Wo
M Road. The White Tops chased after the Black Tops. The M
Black Tops defended themselves with umbrellas8.
N N
(vi) The White Tops chased the Black Tops and went to the
O area near G/F of Exit J of YL Station. There were about O
100 people at the place9.
P P
(vii) D picked up a site light and threw it at the Black Tops.
Q (viii) Both the Black Tops and the White Tops went up to Exit Q
J on 1/F of YL Station.
R R
S S
T T
8
Screen capture at P7a (8)
9
P19a (2)
U U
V V
- 23 -
A A
B B
(ix) Some of the White Tops attacked the Black Tops with
C rattan sticks 10 . The Black Tops, who wore cap and C
facemask, opened their umbrellas to guard the attack .11
D D
(x) D held a rattan stick and stood among the front line of
E the White Tops. D also threw a wooden stick at the E
Black Tops.
F F
(xi) D left Exit J by the escalator with the White Tops.
G G
89. Having considered the proved facts above, I find by drawing
H H
an irresistible inference that:-
I I
(i) The White Tops and the Black Tops attacked each other.
J J
(ii) There was an agreement between the White Tops to
K wound the Black Tops by rattan sticks and wooden K
poles.
L L
(iii) D was wearing a white T-shirt and holding a rattan stick.
M I find that D was one of the White Tops. He was a party M
of the agreement to wound.
N N
O 90. I have examined the rattan sticks closely. They are of O
about 80cm in length and 1 cm in diameter. They are hard and rigid
P P
in nature. On one end of the rattan stick, it is wrapped with thin white
Q rattan strips as handle. The length of the rattan stick makes it easy to Q
attack someone at a distance.
R R
S S
T T
10
P9a(6)
11
P9a(7)
U U
V V
- 24 -
A A
B B
91. I do not accept defence’s submission that the rattan sticks
C were picked up from the vicinity. Given the specific nature of the C
rattan sticks and the number of White Tops holding rattan sticks
D D
during the riot, I find that the rattan sticks must have been brought to
E the scene of crime deliberately. There must be prior planning. E
F F
92. Defence further submitted that there is no evidence of any
G wounds (cutting of the skin) inflicted on anyone. It diminishes the G
irresistible inferences that there was an intent to wound. This also
H H
reduces inference that the participants were able to foresee an
I intention to wound with intent. I
J 93. I disagree with the above submission. I find that the J
rattan sticks are not lethal in nature. However, the hitting by which
K K
will bring grievous bodily harm like bruises and even bleeding,
L resulting in laceration of skin. L
M M
94. It is undisputed that the Footages showed that the White
N Tops attacked the Black Tops with wooden poles or rattan sticks. N
There was no evidence that D had himself done any act causing injury to
O O
those people. However, D armed himself with a rattan stick and took part
P in the riot. He also acted as an accessory, encouraging the White Tops to P
commit the intended offence to wound: see HKSAR v Chan Kam Shing
Q Q
(2016) 19 HKCFAR 640, paragraph 100.
R R
95. Conspiracy to wound is an inchoate offence. It is
S unimportant whether D did actually inflict grievous bodily harm on S
others12.
T T
12
Archbold Hong Kong 2024 at para. 36-4
U U
V V
- 25 -
A A
B B
C 96. In a usual wounding case involving a direct attack with C
weapon, as the present case using of wooden poles or rattan stick, I
D D
believe that any reasonable jury would conclude that the “intent”
E required under section 17 had been sufficiently proved. I find that D E
had the specific intent for wounding with intent. I find that D foresaw
F F
grievous bodily harm as an inevitable consequence of hitting with wooden
G pole or rattan stick. G
H H
97. For the above reasons, I find that D is guilty for the offence of
I conspiracy to wound. I
J J
VERDICT
K K
98. I find that prosecution has proved every elements of the two
L L
charges against D to beyond reasonable doubt. Therefore, I convict D for
M both charges. M
N N
O O
( Amy Chan )
P P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 6/2022
[2024] HKDC 1890
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 6 OF 2022 E
F F
---------------------------
G G
HKSAR
H
v H
TANG KA MAN
I I
----------------------------
J J
Before: Deputy District Judge Amy Chan
K K
Date: 26 November 2024
L Present: Mr NG K C Simon, Counsel on fiat, for HKSAR L
Mr David Boyton, instructed by T K Tsui & Co, for the
M M
defendant
N Offence: [1] Riot (暴動) N
[2] Conspiracy to wound with intent (串謀有意圖而傷人)
O O
P P
Q
----------------------------------------- Q
REASONS FOR VERDICT
R R
-----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
INTRODUCTION
C C
1. This case involves a riot that took place on 22 July 2019
D D
around midnight at Long Wo Road and Yuen Long MTR Station 1 . A
E serious clash broke out between two groups of people whom mainly wore E
black and white tops. The two groups attacked each other. Some of the
F F
white tops were armed with wooden pole or and rattan stick. Most of the
G black tops held umbrellas, wore caps and facemasks2. G
H H
2. Police seized, inter alia, wooden poles, rattan sticks,
I umbrellas and foam boards written with Chinese characters “Defend Yuen I
Long. Defend our Home.3” from the scene of the riot.
J J
K 3. Police arrested defendant (“D”) on 26 September 2021, 26 K
months after the riot occurred. The police charged D with (i) Riot;4 and (ii)
L L
Conspiracy to wound with intent to do grievous bodily harm.5 D pleaded
M not guilty to both charges. M
N N
4. In this case, there was no direct evidence to prove that D had
O committed acts related to the charges. D made no admission either. O
P P
5. Prosecution relies on CCTV footages seized at the Yuen Long
Q MTR Station and video clips from open sources (collectively referred as Q
“Footages”) that showed what happened during the riot, and based on D’s
R R
S 1 S
See map P2
2
See screen capture at P9a (7)
3
保䘙元朗 保䘙家園
T 4 T
Contrary to section 19(1) and (2) of the Public Order Ordinance, Cap 245.
5
Contrary to section 17(a) of the Offences against the Person ordinance, Cap 212 and sections 159A and
159C of the Crimes Ordinance, Cap 200.
U U
V V
-3-
A A
B B
photos taken at the police station and Immigration Department(collectively
C referred as “Photos”), and then compared the two to conclude that D took C
part in the riot.
D D
E 6. The Footages include:- E
F F
(i) CCTV footages of Yuen Long MTR Station (P5 & P6);
G (ii) Video clips from open source (P7- P14, P16 & P17); G
(iii) A screen capture from Ming Pao website (P15);
H H
(iv) Highlights of incidents at Ying Lung Wai (P18); and
I (v) Highlights of which Prosecution alleged that D was I
present (P19).
J J
K 7. Screen captures of the Footages are marked as P5a-P19a. K
L L
8. The Photos include:-
M M
(i) D at the Immigration Department when he made his
N N
HKID card application on 5 July 2019 (P50); and
O (ii) D at the police station after he was arrested on 27 O
September 2021 in which a total of 24 photos were
P P
taken at different angles (P48).
Q Q
LOCATION OF RIOT
R R
S 9. According to the prosecution case, an incident started at the S
entrance of Ying Lung Wai (英龍圍), where a green arch (綠色牌坊) is
T T
erected, in Long Wo Road ( 朗和路). Yuen Long MTR Station (“YL
U U
V V
-4-
A A
B B
Station”) is located in Long Wo Road. There is a staircase and an escalator
C in Long Wo Road connecting G/F of YL Station to the concourse of Exit J C
6
on 1/F of YL Station .
D D
E ISSUES E
F F
10. The above Footages and Photos are admitted to be accurate.
G The defence does not challenge their authenticity. G
H H
11. The defence does not dispute that a riot took place. The main
I issue is whether the man alleged by prosecution in the Footages can be I
identified as D in the Photos.
J J
K Charge 1: Riot K
L L
12. In relation to Charge 1, whether the court can infer that D
M together with other people took part in the riot. M
N N
Charge 2: Conspiracy to wound with intent
O O
13. In relation to Charge 2, whether the court can infer that there
P P
was an agreement between D and others to unlawfully and maliciously
Q wound with intent to do others grievous bodily harm. Q
R R
S S
T T
6
See photos at P47(63-74) and MFI 1
U U
V V
-5-
A A
B B
ADMITTED FACTS
C C
14. Around midnight on 21 July 2019, a group of not less than 20
D D
persons, mostly wearing white tops (“White Tops”) and holding wooden
E poles and rattan sticks, gathered outside Ying Lung Wai in Long Wo Road E
and YL Station. At that time, a group of around 40 persons mostly in black
F F
tops (“Black Tops”) and some reporters were also at the scene.
G G
15. Around 0003-0005 hours, more White Tops joined in. The
H H
White Tops (not less than 40 persons) had a dispute with the Black Tops
I (not less than 40 persons). Some White Tops scolded the Black Tops and I
engaged in physical scuffles with them.
J J
K 16. Around 0005-0007 hours, the situation intensified and turned K
into a violent confrontation between the White Tops and the Black Tops.
L L
Some Black Tops ran towards YL Station.
M M
17. The White Tops chased the Black Tops to the area near the
N N
entrance of Exit J of YL Station. They went up to the 1/F of YL Station.
O They attacked the Black Tops with wooden poles and rattan sticks inside O
the concourse near Exit J.
P P
Q 18. Around 0016 hours, the White Tops left Exit J. Q
R R
19. According to the Immigration Department’s movement
S record (P49), D was present in Hong Kong when the riot took place. S
T T
U U
V V
-6-
A A
B B
THE PROSECUTION’S CASE
C C
20. Prosecution relied on three witnesses for its case, two of
D D
which are civilian witnesses. Their evidence was admitted under Criminal
E Procedures Ordinance, section 65B7. The other witness is a police officer E
who viewed all the Footages and identified a man whom the prosecution
F F
alleges was D. D was at the scene and he took part in the riot and conspired
G with others to wound. G
H H
21. PW1 (A) is an ambulance officer. At 2300 hours on 21 July
I 2019, he learnt via radio that someone was injured in YL Station. At 0000 I
hours on 22 July 2019, he saw a man surrounded by White Tops outside
J J
the green arch, the entrance of Ying Lung Wai (see screen captures at
K P7a(1)). They refused to let PW1 to assist this person. At 0007 hours on K
22 July 2019, PW1 went to Exit J of YL Station. He saw a man in white
L L
top was lying on the ground with a wooden rod of about 3 feet long in his
M right hand (P11a(4)). PW1 and his colleague assisted this man. On that M
night, he also gave assistance to several injured person.
N N
O 22. PW2 (B) is a lawyer. At 2245 hours on 21 July 2019, he was O
on his way to YL Station. He saw about 10 White Tops, holding weapon
P P
in their hands, yelling and walking towards YL Station. In YL Station,
Q PW2 saw some ambulance men guarding a room. About 15 minutes later, Q
police officers arrived. They brought the people from that room to receive
R R
treatment. However, men who dressed in different colours started to scold
S and shout at the police officers. They demanded the police officers leave. S
The police officers left the YL Station under pressure. The scene was calm
T T
7
Statements at P55 and P54.
U U
V V
-7-
A A
B B
again. After a while, PW2 saw a clash broke out at G/F of Exit J of YL
C Station. The White Tops rushed upstairs and dashed to Exit J of 1/F ( P9a C
(4-5)). PW2 tried to persuade them not to do so but failed (P8a(1)).
D D
E 23. DPC 19264 (“PW3”) spent 150 hours viewing the Footages E
in late March 2024 to August 2024 upon instruction from his senior.
F F
G 24. PW3 identified a male (thereafter referred as “X”). He circled G
X with red on screen captures (P19a). PW3 said X has the following
H H
features and outfits:
I I
(i) He has short black hair.
J J
(ii) He wore a white T-shirt with a red rectangular pattern
K printed with “LEVI’S” in white on the chest. K
(iii) He wore black shoes and pants.
L L
(iv) He had a black shoulder bag with “VLTN” in white
M printed all over the strap. M
N N
25. Defence did not dispute X circled by PW3 on P19a was the
O same person. O
P P
26. P18a and P19a are screen captures of highlights of the
Q Footages showing the situation of Ying Lung Wai, Long Wo Road and Exit Q
J of YL Station at the material time in sequence ( Asterisk * is used in
R R
showing a repetition of incident but taken at different angles). The
S following table described what had happened on 22 July 2019 at the S
material times:-
T T
U U
V V
-8-
A A
B B
Exh. no Time (hr) Location Description
P18a (1) 00:00:40 Outside entrance of The White Tops gathered near
C Ying Lung Wai near the Ying Lung Wai, restrained a C
green arch in Long Wo male from leaving and
D
Road prevented an ambulance D
officer (PW1) from assisting
the male.
E E
P18a (2) 00:03:43 -ditto- The White Tops scolded the
Black Tops and had physical
F F
scuffles with the Black Tops.
G P19a(1) 00:05:17 -ditto- X walked from the direction of G
Ying Lung Wai and joined the
White Tops.
H H
P18a (3) 00:05:40 Outside Ying Lung Wai, The White Tops attacked the
I Long Wo Road Black Tops by wooden poles I
or rattan sticks.
J P19a(2) 00:06:26 G/F of Exit J of YL The White Tops attacked the J
Station in Long Wo Black Tops. X was among the
K Road White Tops. K
P18a(6) 00:07:02 -ditto- A White Top attacked a person
L with orange helmet by wooden L
pole.
M M
P19a(4) 00:07:05 -ditto- X picked up a site light and
threw it at the Black Tops.
N N
P18a(7)* 00:07:09 -ditto- The White Tops attacked the
Black Tops. X was among the
O O
White Tops. He picked up a
site light and threw it at the
P Black Tops. P
P19a(5)* 00:07:13 -ditto- The White Tops attacked the
Q Black Tops. X was among the Q
White Tops.
R R
P18a(8) 00:07:54 -ditto- A White Tops collapsed onto
the ground with a wooden rod
S holding on right hand. S
T
P18a (9) 00:08:50 -ditto- The White Top chased and T
attacked the Black Tops to
ground floor outside Exit J.
U U
V V
-9-
A A
B B
Exh. no Time (hr) Location Description
C P19a(6)* 00:09:05 -ditto- The White Tops gathered at C
ground floor outside Exit J. X
D was among the White Tops. D
P18a(10)* 00:14:21 G/F of Exit J of YL The White Tops and X
E Station, Long Wo Road gathered at ground floor E
outside Exit J.
F F
P18a(11) 00:15:05 Staircase leading from The White Tops went up the
G/F of YL Station to staircase to the entrance of
G 1/F of Exit J Exit J and attacked the Black G
Tops.
H H
P18a(12) 00:15:29 Outside Exit J of 1/F of X held a rattan stick and stood
YL Station among the front line of the
I White Tops. X also threw a I
wooden stick at the Black
Tops.
J J
P19a (7) 00:15:33 -ditto- The White Tops attacked the
K Black Tops outside Exit J. X K
held a rattan stick and stood
among the front line of the
L White Tops. L
P19a(8)* 00:15:37 -ditto- The White Tops attacked the
M M
Black Tops at the entrance of
Exit J. X threw a wooden
N stick at the Black Tops. N
P19a(9)* Around -ditto- The White Tops attacked the
O O
00:15 Black Tops outside Exit J. X
held a rattan stick and stood
P among the front line of the P
White Tops.
Q P18a(13) 00:16:07 Escalator outside Exit J X and the White Tops left Exit Q
of YL Station leading to J.
R Long Wo Road R
S S
T T
U U
V V
- 10 -
A A
B B
THE DEFENCE’S CASE
C C
27. At the closing of the prosecution’s case, there was no halfway
D D
submission by the defence. I ruled that there was a case to answer in
E respect of the two charges. D elected not to give evidence and called an E
alibi defence witness, Madam Wong Wing Yan (DW).
F F
G 28. DW was a restaurant owner in Wong Uk Tsuen (黃屋村) in G
Ying Lung Wai in Yuen Long. It took five minutes to walk from Exit J of
H H
YL Station to get to the restaurant.
I I
29. DW started her the restaurant with her husband since 2014. It
J J
was closed down in 2023. Apart from DW, her husband and a waiter
K assisted in serving the customers. K
L L
30. The restaurant was operated in a typical village house
M consisted of G/F, 1/F and 2/F. It measured about 700 ft² on each floor. M
There were 16 tables on G/F, two big tables on each of 1/F and 2/F.
N N
O O
31. DW said she had always allowed regular customers to hang
P
around to chat and drink even after the restaurant closed its business. She P
would then leave the restaurant and ask the customers to close up the
Q Q
restaurant for her.
R R
32. DW recognized D as a regular customer. He used to visit her
S S
restaurant about three times a month. He often came to the restaurant for
T meal with his friends at nighttime. T
U U
V V
- 11 -
A A
B B
33. At about 9pm on 21 July 2019, D visited her restaurant with
C 8 to 10 of his friends to eat. He stayed on 2/F of the restaurant. DW said C
she had particular recollection because a riot and fight happened in Yuen
D D
Long during that night.
E E
34. At 12:30am on 22 July 2019, DW and her husband left the
F F
restaurant after D paid the bill. She allowed D to continue to stay in the
G restaurant with his friends. G
H H
35. DW closed down the restaurant in 2023. She held a closing
I party with her regular customers. D attended that party. I
J J
36. In all her time knowing D, DW said D had always worn
K glasses and an all-back hairstyle as he did in court. K
L L
37. During cross-examination, DW said she was busy with the
M customers as it was a Sunday night on 21 July 2019. She went to the upper M
floors to serve the customers every 15 minutes to see if any help was
N N
required.
O O
38. The prosecution questioned that D left the restaurant when she
P P
did not pay attention. DW denied it. She insisted that she would definitely
Q see D had he left the restaurant. Customers on the upper floors had to leave Q
by the staircase within the restaurant. She would have noticed if D left.
R R
S 39. The prosecution showed the following photos to DW and S
asked if she confirmed the man shown is D. The photos include:
T T
U U
V V
- 12 -
A A
B B
(i) a screen capture from the website of Ming Pao (P15);
C (ii) photos taken by the police at the police station (P48); C
and
D D
(iii) a photo from the Immigration Department (P50).
E E
40. DW replied that she did not know the man on the above
F F
photos and she had never met him before. She insisted D always wears
G glasses and an all-back hairstyle. It has always been the same in the past G
years. The man shown in the photos is not D.
H H
I ANALYSIS OF EVIDENCE I
J J
41. I direct myself that the burden of proof is on the prosecution.
K It is for the prosecution to prove each element of each charge against D K
beyond reasonable doubt. D bears no burden of prove. He is not required
L L
to prove his innocence.
M M
42. D elected not to give evidence. It is his rights and no adverse
N N
inference would be drawn against him. However, this means that there is
O no evidence to undermine, contradict or explain the evidence presented by O
the prosecution.
P P
Q 43. I also direct myself that I have to consider the case against D Q
on each charge separately.
R R
S 44. I note from D’s movement record (P49) that D left Hong Kong S
on the very same day at 2152 hours on 22 July 2019 and returned to Hong
T T
Kong on 28 July 2019. I will not take it as D’s flight after the crime. There
U U
V V
- 13 -
A A
B B
are many innocent reasons why he left Hong Kong. This is not evidence
C of guilt. I would not take this evidence as a way to support the C
prosecution’s case. I will not make any adverse inference by the mere fact
D D
that D left Hong Kong on the same night.
E E
45. I also take notice that outfit wore and the black bag carried by
F F
X could not be found at D’s home.
G G
46. The only evidence against D on each charge comes from the
H H
Footages.
I I
47. In the defence case, DW was an alibi witness for D.
J J
K 48. The defence submitted that DW testified in a straightforward K
manner and her evidence is full of particulars. She remained firm during
L L
cross-examination. I consider the submissions in full and take the
M following matters in consideration. M
N N
49. In assessing DW’s credibility, I bear in mind her criminal
O record was 20 years ago. I consider her evidence on the basis that she is a O
person of clear record. This is relevant to her credibility when she testified.
P P
Q 50. DW said D was in her restaurant at 9pm on 21 July 2019 and Q
he stayed until 12:30am on 22 July 2019. She was certain because she
R R
would have noticed D had he left through the staircase within the restaurant.
S In my view, I find that DW cannot make such a conclusion. Firstly, DW S
was not with D during these 3.5 hours. Secondly, she might have been to
T T
the toilet. Even if not, she needed to serve customers on different floors.
U U
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A A
B B
D could have left the restaurant without her knowledge. I find her alibi
C evidence to be not helpful to the defence case. C
D D
51. According to DW, she had known D for years. D had always
E visited her restaurant three times per month since 2014. D even came to E
the party in 2023 when her restaurant closed down. She said that D always
F F
wears glasses and his hairstyle is all-back. During cross-examination, she
G was shown Photos taken by police (P48) and Immigration Department G
(P50). She was also shown a screen capture (P15) from the Ming Pao
H H
website which showed that X was holding a rattan stick in front of the
I Black Tops. She insisted that the man in P48, P50 and P15 is not D. She I
explained that the man of the above photos did not match with D’s
J J
appearance.
K K
52. In this respect, I do not find DW to be credible. It is
L L
undisputed and non-disputable that the man shown in P48 and P50 is D.
M D’s hairstyle in the photos is obviously different from that of D in the court M
hearing. However, hairstyle can easily be changed. The same applies to
N N
wearing of glasses. DW cannot base her recognition by reference to the
O hairstyle and glasses only. O
P P
53. DW emphasized that for all the times that she met D, D wore
Q glasses with his all-back hairstyle. His look is the same as he appeared in Q
the court hearing. There is no evidence to disprove DW’s testimony.
R R
However, it is inconceivable that D wore glasses and had his all-back
S hairstyle whenever he visited the restaurant. Then due to reasons unknown, S
D changed his usual look when he took his ID card on 5 July 2019 and on
T T
26 September 2021when he was arrested by the police. He did not wear
U U
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A A
B B
glasses and has his hair parted on the right. I find it inherently impossible
C and unthinkable why D would have changed his usual look on these two C
particular two occasions. It is unreasonable that D would change his
D D
hairstyle and wear glasses only when he visited the restaurant.
E E
54. Under such circumstances, I find DW to be untruthful and
F F
unreliable. I find that I cannot give her evidence any weight on D’s look
G in this respect. G
H H
55. Even though I find that DW had been dishonest, I do not
I convict D upon this. D has nothing to prove. I
J J
IDENTIFICATION
K K
56. This case depends wholly on the correctness of the
L L
comparisons between the Footages with the Photos.
M M
57. Prosecution alleges that D’s appearance matches with X in the
N N
Footages. They are to prove that D was present at the crime scene.
O O
58. Defence does not dispute that the man circled by PW3 in P19a
P P
being the same person.
Q Q
59. I notice that the identification of X in the Footages by PW3
R R
was only by reference of his outlook and clothing without any reference to
S X’s facial features. S
T T
U U
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A A
B B
60. Due to this shortcoming, I would carry out the exercise of
C comparison myself. It is not that PW3 had made the wrong identification C
of the same man. On the contrary, I am satisfied that PW3 identified the
D D
same person, X, in the Footages. I have this finding due to the following
E reasons. There were many men wearing white tops in the Footages. E
However, the men in White Tops differed in their age, shoes, pants,
F F
hairstyle and body build. Some of them were wearing caps and most of
G them did not. Some of them were wearing glasses and some did not. Some G
of them carried shoulder bags as X did, but the size and color of the bags
H H
were different. By making comparison of the men circled in P19a, I am
I sure, that they are all the same man. The most distinctive feature is the I
pattern on his T-shirt with a red rectangular shape with characters of
J J
LEVI’S in white and the unique characters of VLTN over the whole strap
K of his shoulder bag. The cumulative effect of the outfits and hairstyle K
makes me sure; the man circled by PW3 is the same person.
L L
M 61. Being a tribunal of fact, I now turn to whether I can reach a M
conclusion that D is X in the Footages.
N N
O 62. In R v Dodson & Williams [1984] 79 Cr App R220, the court O
held that, “juries are called upon to do no more than the average person in
P P
domestic, social and other situations does from time to time, namely, to say
Q whether he is sure that a person shown in a photograph is the person he is Q
then looking at or who he has seen recently.”
R R
S 63. D wore a surgical mask during the course of the 3 days’ trial. S
He wore glasses and his hairstyle was all-back. Therefore, I do not have
T T
the opportunity to make the visual comparison of D’s facial features in
U U
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A A
B B
court with the Footages. I have to rely solely on comparing the Photos with
C the Footages. C
D D
64. When making identification and comparison, I understand
E that the need for caution before convicting D in reliance on the E
identification evidence. I can only convict D only when I am sure that he
F F
is X. I consider the authority of HKSAR v Tagao Saudee Abad CACC
G 366/2015 and gave myself a full Turnbull warning when comparing the G
appearance of D on the Photos with X shown in the Footages.
H H
I 65. The Photos taken at the police station (P48) and Immigration I
Department (P50) are of high clarity with excellent resolution. They show
J J
the appearance of D before and after the riot occurred.
K K
66. P50 is an application to Immigration Department for HKID
L card dated on 5 July 2019. It was 17 days prior to the riot took place. I find L
this photo (P50) truly reflected how D’s hairstyle looked like in July 2019.
M M
P48 is photos taken at the police station on 27 September 2021, which was
N
26 months from the riot. D’s hairstyle in 2021 remained the same except N
O
that the hair was a bit longer. Based on the two sets of photos in P48 and O
P50, I find that D did not habitually wear glasses. He had a short hairstyle
P P
parted on the right in 2019. He kept the same hairstyle even to 2021.
Q Q
67. Due to the better lighting conditions, the Footages acquired
R indoors were of better clarity than the ones in outdoors. However, the R
Footages enable the court to observe the appearance of X with no difficulty.
S S
Besides, I find the actual images shown on the Footages were of much
T better resolution than that of the printed screen captures (P5a-P19a) of the T
Footages. I believe it is due to the quality of the printer used by the
U U
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A A
B B
prosecution was not high enough. I would rely on the viewing of the actual
C Footages myself. The screen captures (P5a-P19a) of the Footages are just C
used for easy reference.
D D
E 68. Prosecution extracted still photos from the Footages with E
enlarged appearance of X (P55-P60) for comparison.
F F
G 69. Now I turn to decide if X shown in the Footages is D. G
H H
70. I have viewed the Footages repeatedly with normal and slow
I speed on X, in particular examined the still image obtained from Ming Pao I
website (P15). I paid attention to his hairstyle, facial features, including
J J
shape and size of his eyebrows, eyes, nose and lips (P55-P60). I noticed
K that X has distinctive thick eyebrow and big long ears. He is chubby with K
a belly. His hair is short with hair parted on the right.
L L
M 71. I pay special attention to the Photos in relation to D’s facial M
features, including shape and size of his eyebrows, eyes, nose and lips.
N N
They show that D has a distinctive thick eyebrows and big long ears. I also
O pay attention to his hairstyle and body build. The photos (P48) taken by O
police was on 27 September 2021 showed that D was of chubby build with
P P
a belly. He had short hair with his hair parted on the right.
Q Q
72. I fully appreciate that resemblance in appearance was not
R R
sufficient to convict. I have to be sure D and X are the same person. I
S remind myself the potential risks and dangers of mistaken identification. S
T T
U U
V V
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A A
B B
73. Upon comparison, I find that D’s appearance, in particular his
C facial features, was identical to that of X depicted in the Footages. I am C
sure that X was D. I find that D deliberately changed his hairstyle and wore
D D
glasses in the court hearing to make him look different from the Footages
E and the Photos. E
F F
Charge 1 -Riot
G G
74. In HKSAR v Lo Kin Man (盧建民) (2021) 24 HKCFAR 302,
H H
the Court of Final Appeal said the offence under s19 of the Public Order
I Ordinance built on that of unlawful assembly. Its starting point was that I
an unlawful assembly existed. When any person taking in the unlawful
J J
assembly committed a breach of the peace, the assembly became a riot.
K The actus reus of this offence was committed when any person ‘takes part’ K
in the riot.
L L
M 75. Defence does not dispute a riot took place at the material time, M
day and place. For completeness, I still make the ruling as to whether there
N N
was a riot.
O O
P
76. In the present case, obviously, there were three or more P
participants remained actively engaged in the criminal assembly. Their
Q Q
taking part in the assembly committed breaches of the peace. I find that
R
there was a riot took place on 22 July 2019 during the time at the place. R
S S
77. Based on the above finding that X is D, I find that D was one
T of the participant in the riot. I find that X had thrown a site lamp, a wooden T
stick and pointed a rattan stick towards the Black Tops. His presence was
U U
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A A
B B
more than encouragement to other participants. I find that he had taken
C part in the riot. He was one of the principal and provided encouragement C
by action.
D D
E 78. Now, I turn to the mens rea for taking part in the riot. E
F F
79. Mr Boyton submitted that the prosecution failed to prove that
G D had the common purpose of inflicting serious bodily harm. With respect, G
I reject Mr Boyton’s submission. No extraneous common purpose has to
H H
be shown in the offence of riot. The proof of a defendant’s participatory
I intent is sufficient (see paragraph 47 &48 of Lo Kin Man). I
J 80. From the admitted facts and the Footages, I can draw an only J
irresistible inference that D intended to take part in the riot along with other
K K
participants in the riotous assembly.
L L
81. Due to the above reasons, I find that D guilty of the offence
M M
of riot.
N N
O
Charge 2 - Conspiracy to wound O
P P
82. As to the nature of conspiracy charge, in HKSAR v Lai Kam
Q Fat (2019) 22 HKCFAR 289, the Court of Final Appeal said: Q
R R
“36. In satisfying the requirement that a course of conduct, if
carried out in accordance with the parties’ intentions, will
S necessarily amount to or involve the commission of an offence, S
it is important that both the actus reus and the mens
rea elements of the underlying offence are satisfied. Thus,
T in Saik, Lord Nicholls emphasized that under the English T
equivalent of section 159A (1):
U U
V V
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A A
B B
‘…The conspirators must intend to do the act prohibited
C by the substantive offence. The conspirators’ state of C
mind must also satisfy the mental ingredients of the
substantive offence. If one of the ingredients of the
D substantive offence is that the act is done with a specific D
intent, the conspirators must intend to do the prohibited
E
act and must intend to do the prohibited act with the E
prescribed intent.’ ”
F F
83. In the present case, the substantive offence of s17 wounding
G requires proof of a specific intent: see HKSAR v Chung Chi Fai CACC G
497/2012.
H H
I 84. Mr Boyton submitted that for the charge of conspiracy to I
wound with intent, the prosecution must prove the conspirator’s state of
J J
mind, satisfying the mental element of the substantive offence.
K K
85. I accept Mr Boyton’s submission. I find that for the offence
L L
of conspiracy to wound, the prosecution must prove that the defendant
M had a specific intent to wound and to cause serious body injury. The M
general intent and recklessness to commit is not enough to establish
N N
guilt.
O O
P
86. I find that D held a rattan stick before the Black Tops. P
Q Q
87. In the prosecution case, there is no direct evidence that there
R was an agreement between the parties. However, the conspiracy can be R
proved by inference from conduct. An inference can only be drawn from
S S
the proved facts.
T T
U U
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A A
B B
88. Based on the admitted facts, the Footages and statements from
C the 2 civilian witnesses, I find the following facts are proved beyond C
reasonable doubts:-
D D
(i) The White Tops came from Ying Lung Wai, Long Wo
E Road near the green arch. Many of them held wooden E
poles and rattan sticks. They gathered outside Ying
F F
Long Wai and YL Station. D was in white T-shirt. He
G was among the White Tops. G
(ii) At that time, the Black Tops and some reporters were
H H
also at the entrance (the green arch) of Ying Lung Wai.
I Most of the Black Tops wore caps and facemasks. I
(iii) The White Tops scolded the Black Tops and both
J J
engaged in physical scuffles.
K (iv) The White Tops attacked the Black Tops with wooden K
pole or rattan sticks.
L L
(v) The Black Tops ran towards YL Station along Long Wo
M Road. The White Tops chased after the Black Tops. The M
Black Tops defended themselves with umbrellas8.
N N
(vi) The White Tops chased the Black Tops and went to the
O area near G/F of Exit J of YL Station. There were about O
100 people at the place9.
P P
(vii) D picked up a site light and threw it at the Black Tops.
Q (viii) Both the Black Tops and the White Tops went up to Exit Q
J on 1/F of YL Station.
R R
S S
T T
8
Screen capture at P7a (8)
9
P19a (2)
U U
V V
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A A
B B
(ix) Some of the White Tops attacked the Black Tops with
C rattan sticks 10 . The Black Tops, who wore cap and C
facemask, opened their umbrellas to guard the attack .11
D D
(x) D held a rattan stick and stood among the front line of
E the White Tops. D also threw a wooden stick at the E
Black Tops.
F F
(xi) D left Exit J by the escalator with the White Tops.
G G
89. Having considered the proved facts above, I find by drawing
H H
an irresistible inference that:-
I I
(i) The White Tops and the Black Tops attacked each other.
J J
(ii) There was an agreement between the White Tops to
K wound the Black Tops by rattan sticks and wooden K
poles.
L L
(iii) D was wearing a white T-shirt and holding a rattan stick.
M I find that D was one of the White Tops. He was a party M
of the agreement to wound.
N N
O 90. I have examined the rattan sticks closely. They are of O
about 80cm in length and 1 cm in diameter. They are hard and rigid
P P
in nature. On one end of the rattan stick, it is wrapped with thin white
Q rattan strips as handle. The length of the rattan stick makes it easy to Q
attack someone at a distance.
R R
S S
T T
10
P9a(6)
11
P9a(7)
U U
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A A
B B
91. I do not accept defence’s submission that the rattan sticks
C were picked up from the vicinity. Given the specific nature of the C
rattan sticks and the number of White Tops holding rattan sticks
D D
during the riot, I find that the rattan sticks must have been brought to
E the scene of crime deliberately. There must be prior planning. E
F F
92. Defence further submitted that there is no evidence of any
G wounds (cutting of the skin) inflicted on anyone. It diminishes the G
irresistible inferences that there was an intent to wound. This also
H H
reduces inference that the participants were able to foresee an
I intention to wound with intent. I
J 93. I disagree with the above submission. I find that the J
rattan sticks are not lethal in nature. However, the hitting by which
K K
will bring grievous bodily harm like bruises and even bleeding,
L resulting in laceration of skin. L
M M
94. It is undisputed that the Footages showed that the White
N Tops attacked the Black Tops with wooden poles or rattan sticks. N
There was no evidence that D had himself done any act causing injury to
O O
those people. However, D armed himself with a rattan stick and took part
P in the riot. He also acted as an accessory, encouraging the White Tops to P
commit the intended offence to wound: see HKSAR v Chan Kam Shing
Q Q
(2016) 19 HKCFAR 640, paragraph 100.
R R
95. Conspiracy to wound is an inchoate offence. It is
S unimportant whether D did actually inflict grievous bodily harm on S
others12.
T T
12
Archbold Hong Kong 2024 at para. 36-4
U U
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A A
B B
C 96. In a usual wounding case involving a direct attack with C
weapon, as the present case using of wooden poles or rattan stick, I
D D
believe that any reasonable jury would conclude that the “intent”
E required under section 17 had been sufficiently proved. I find that D E
had the specific intent for wounding with intent. I find that D foresaw
F F
grievous bodily harm as an inevitable consequence of hitting with wooden
G pole or rattan stick. G
H H
97. For the above reasons, I find that D is guilty for the offence of
I conspiracy to wound. I
J J
VERDICT
K K
98. I find that prosecution has proved every elements of the two
L L
charges against D to beyond reasonable doubt. Therefore, I convict D for
M both charges. M
N N
O O
( Amy Chan )
P P
Deputy District Judge
Q Q
R R
S S
T T
U U
V V