Hong Kong’s High Court has ruled against a man who challenged a magistrate’s decision to put him behind bars for a year in connection with an unlawful assembly in November 2019.
An appeal filed by 24-year-old Tam Yu-hin was denied by Judge Alex Lee of the Court of First Instance on Monday. The judge ruled that Magistrate Kenneth Chan had not been “wrong in principle” when he convicted Tam in September last year.
The appellant was among three people who were said to have participated in an unlawful assembly at the intersection of San Wan Road and So Kwun Po in Sheung Shui on November 12, 2019. On that day, Hong Kong saw citywide unrest and transportation chaos as pro-democracy protesters staged a general strike by blocking roads in various districts.
Tam originally asked the higher court to reverse both his conviction and his 12-month sentence, but he gave up on challenging the latter earlier this month.
Correct inference
Representing Tam, barristers Steven Kwan and Vivian Wong argued that Magistrate Chan had erroneously relied on the action of fleeing as proof that the assembly was unlawful. They also contended that the magistrate had wrongly used the basic form of joint enterprise – whereby a secondary offender may be found guilty of the same charge as a primary defendant – as the basis of finding Tam guilty.
In a written judgement handed down on Monday, Lee disagreed with Tam’s lawyers who complained that Magistrate Chan had not “comprehensively and accurately” considered the situation described by the prosecution’s witnesses.
Lee agreed with Chan’s inference from “irresistible” circumstantial evidence presented by the prosecution that the black-clad protesters in Sheung Shui assembly were gathering illegally: “[B]ased on the evidence before the magistrate, this inference cannot be faulted.”
The judge sided with the lower court, which noted Tam’s attire – not disputed by the defence during the trial – had matched with what a “general violent protester” would wear. Lee also agreed that while a police witness in anti-riot gear did not show the word “police” on his uniform, he had a pepper ball gun in his hand and therefore “any reasonable person would know he was a police officer by one glance.”
Fleeing
Lee went on to say that the magistrate took into account Tam’s action of running away when he saw the police and the fact that he ignored the officer who told him to freeze. The appellant was also said to have kept on running despite being hit by pepper ball pellets multiple times, whilst a police officer later caught him by his backpack.
Even if Chan did not cite circumstantial evidence related to Tam’s fleeing, there was already sufficient proof to make “the only reasonable inference” that Tam was one of the unlawful assembly participants, Lee said.
“I do not see any sufficient reasons to interfere with the magistrate’s decision,” Lee wrote.
Sufficient facts
On the argument of misusing the common law doctrine to pronounce Tam guilty, Lee said Chan did not need to rely on any joint enterprise principle to rule that the appellant was not merely present at the scene. There were “sufficient facts” to back the conviction of Tam.
“Whether the magistrate has made a mistake when citing the joint enterprise principle was not important at all, it does not affect the conviction,” the judgement read.
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