Three people arrested during an anti-government protest in 2019 have been convicted of rioting, despite a lack of evidence pointing to any violent act, after the judge found their presence and attire had “abetted” others and made it difficult for police to enforce the law.
Judge Ernest Michael Lin Kam-hung found the trio guilty on Thursday by citing a Court of Appeal ruling last month, which upheld prosecutors’ wide power of indicting suspects who did not directly take part in a riot under the legal principle of “joint enterprise”.
Lin also convicted a fourth defendant of rioting and arson after identifying him as the man captured on camera hurling objects at police and burning a banner on the street on the day in question.
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The District Court trial last month centred on the National Day demonstration in Tsuen Wan on October 1, 2019.
More than 200 protesters were said to have confronted police at the junction of Tai Ho Road and Hoi Pa Street at around 3.40pm by throwing petrol bombs, bricks, water bottles and rubbish at officers from behind a movable roadblock made of umbrellas. Officers responded by firing tear gas and rubber bullets.
Five people were arrested at the scene, including the four defendants – janitor Chan Hang, 40; vocational school student Chan Kam-kwok, 21; programmer Lee Chun-man, 27; and college student Kwok Siu-kam, 24.
The fifth person arrested, vocational school student Fung Ching-wah, 22, absconded before the trial.
Prosecutors accused the janitor of rioting and arson by referring to various news clippings, but acknowledged they could not prove the other three defendants had committed any violent acts.
Defence lawyers argued there was a reasonable doubt in the prosecution’s case against the three. They cited a previous verdict by another District Court judge, who held the defendant’s presence at a riot was not enough to justify a conviction even if he wore black or protective gear, as some people might simply be there to witness “a rare and special historical moment”.
But Lin rejected that argument, calling it baseless to suggest the three had merely walked past the area or accidentally embroiled themselves in the violence which had lasted for at least 20 minutes.
Lin noted Chan Kam-kwok’s conduct after his arrest – shouting the popular slogan “Liberate Hong Kong” twice as well as crying out his name and identity card number to journalists – suggested he believed he was right in taking part in the riot.
The judge also pointed out that Lee and Kwok were detained near the scene of violent clashes while wearing protective gear similar to the other participants.
“After considering all the evidence, the only reasonable inference is that [the defendants] had chosen to remain in the eye of the storm, their purpose being to take part in the riot or abet others to do so,” the judge said.
“If they were merely peaceful protesters, common sense dictates they should have left as quickly as possible, but there was no evidence they were duty-bound to stay or could not leave the scene.
“Even assuming the defendants were there to ‘witness a rare and special historical moment’, they could not have failed to realise their full sets of gear had the effect of inflaming protesters’ passions as well as giving an impression to police that protesters’ numbers were going up, that is, abetting protesters at the scene to riot.”
The judge remanded the four defendants in jail before sentencing on May 5. They face up to seven years behind bars.
Last month, the Court of Appeal ruled that the legal principle of “joint enterprise” should be applied to riot and unlawful assembly cases, so that even those not physically present at the scene can face the same charges as participants. The ruling allows prosecutors to go through a wide range of suspects, ranging from a lookout or the driver of a getaway car, to a social media user who merely clicked “like” on a post promoting an illegal gathering, depending on the strength of evidence.