A Hong Kong court has found married couple Henry Tong and Elaine To not guilty of rioting on Friday. A secondary school student involved in the case was acquitted of the charge as well.

Thirty-eight-year-old Tong, 41-year-old To and a 17-year-old female surnamed Lee were accused of taking part in a riot in Sheung Wan on July 28 last year. They were among the first to formally face the colonial-era charge in connection with the year-long pro-democracy protest movement, triggered by a now-axed extradition bill. The trio pleaded not guilty.

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Elaine To (L), 41, and Henry Tong, 38, dance as they celebrate outside the District Court in Hong Kong on July 24, 2020, after the couple were found not guilty of rioting during last year’s widespread pro-democracy protests. Photo: Anthony Wallace/AFP.

The couple wedded in a public ceremony days after they received the charges last August.

Rioting carries a maximum penalty of ten years’ imprisonment under the Public Order Ordinance but is limited to seven years when handled by the District Court.

In his judgment, District Judge Anthony Kwok wrote the three defendants – who all wore black at the time of their arrest – had dressed and behaved “suspiciously.” According to the prosecution, police stopped the trio on Sai Yuen Lane while protesters fled from tear gas during a dispersal operation in the Sai Wan area.

During their arrests, police found a helmet, respirator, pair of gloves, saline solution and a radio apparatus on Tong. To was wearing a helmet and respirator, and carried goggles, gloves, saline solution, a hiking stick and a radio apparatus in her bag. Lee was wearing a helmet and carried a face mask and umbrella in her backpack.

Kwok said, unlike previous rioting cases, the case lacked direct evidence and the prosecution was “completely relying on circumstantial evidence.”

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Protest scenes in Sheung Wan on July 28, 2019. Photo: May James/HKFP.

Kwok said based on the submitted evidence, the court could not determine whether the couple – not married at the time – and Lee had “gathered” with protesters on Des Voeux Road West before their arrests due to insufficient evidence.

The court disagreed with the prosecution which argued the trio had a “common plan to commit crimes” with people who congregated in the area, regardless of whether they had appeared on the street in Sheung Wan.

“Somehow the prosecution in its statement only emphasised that people needed to have a ‘common purpose’ in order to gather, but said nothing of the requirement for the offender to ‘gather’ at the scene of a riot in order to breach social peace,” the verdict read. “The statement has neglected this important feature and has a fallacy of composition.”

Kwok accepted Lee’s testimony which said she was only watching the protest with her friends and did not take part in the unlawful assembly. The teenager told the court she felt unwell owing to the tear gas, but Tong and To – whom she did not know – helped her wash her eyes.

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Henry Tong and Elaine To. Photo: Holmes Chan/HKFP.

The court deemed the prosecution could not prove, beyond a reasonable doubt, that the then-16-year-old had a “common plan to commit crimes” in joining the riot or illegal assembly.

Tong and To were convicted on a separate count of possession of an apparatus for radiocommunications without a license. They were each fined HK$10,000.

When delivering his verdict, Kwok said the ruling only reflected the condition of the presented evidence related to this case. He said it was based on the common law principles of the “benefit of the doubt” and the “Blackstone’s ratio” – a legal concept that suggests it is better to let guilty people escape than allow one innocent person to suffer.

Tong, To and Lee became emotional after hearing the verdict, and they gave each other a hug while To cried, according to local media. Their supporters reportedly clapped and cried at court upon being informed that the trio had been acquitted.

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Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.