Hong Kong’s top court has allowed the government to challenge a lower court’s decision to overturn the conviction of a photographer who was originally jailed for three months in connection with an illegal assembly in March 2020.

Court of Final Appeal judiciary
Hong Kong’s Court of Final Appeal. Photo: GovHK.

The Court of Final Appeal on Monday granted a leave to appeal to the Department of Justice (DoJ), which argued that 37-year-old Choy Kin-yue should have been found guilty and should remain convicted for taking part in the unlawful assembly on March 8, 2020. On that day, some people gathered to pay tribute to university student Alex Chow Tsz-lok, who died after a fall near a protest site in November 2019.

Choy was said to have followed three then-district councillors and a councillor assistant, filming them pursuing a plainclothes police officer in Tai Po Mega Mall. The prosecution described the defendants’ speech and behaviour towards the officer as “threatening, insulting and provocative.”

Magistrate Don So convicted Choy and sentenced him to three months in prison last September, but the conviction was reversed by the High Court this March. At the rehearing, Judge Albert Wong said Choy allowed himself to be in a “quite suspicious situation,” and his intent to participate in the illicit gathering was “a reasonable inference” backed by evidence.

october 8 Alex Chow Tsz-lok (44)
A tribute to university student Alex Chow Tsz-lok, who died after a fall near a protest site in November 2019. File photo: May James/HKFP.

But the evidence was not sufficient to show such an inference was the “only possible” conclusion, Wong ruled, adding that the evidence did not meet the “very high standard of proof” required in a criminal conviction.

Primary offender

Representing the DoJ on Monday, Acting Assistant Director of Public Prosecution (Special Duties) Ivan Cheung argued that Choy took part in the unlawful assembly as a “constituent” or primary offender. Cheung said this was based on video evidence and the definition set out in the top court’s ruling last November, when it outlined what constituted participation in an unlawful assembly or riot. Last year’s decision also upheld the conviction of pro-democracy activist Lo Kin-man, who was jailed for seven years for rioting during the 2016 Mong Kok unrest.

The DoJ representative said the rehearing judge “departed” from findings from the original trial, in which the magistrate identified Choy as a primary offender. Cheung said that while the judge acknowledged such a basis for conviction, he analysed Choy’s participatory intent by evaluating whether he had “facilitated or encouraged” the behaviour of other defendants in the case.

“[This approach] involved an error of law,” Cheung told a three-judge panel featuring Permanent Judge Johnson Lam, Permanent Judge Joseph Fok and Non-Permanent Judge Frank Stock.

Choy’s representative and barrister Brian Tsui, on the other hand, backed Wong’s ruling and said the judge had considered all matters as a whole. He also defended his client, saying his conduct was “different” from the other defendants.

Judiciary Court of Final Appeal
Hong Kong’s Court of Final Appeal. Photo: Supplied.

“Although he did not expressly say so… he clearly had in mind the basis of conviction adopted by the magistrate,” Tsui said.

After a quick deliberation of less than 10 minutes, the appeal committee allowed the DoJ to officially challenge the overturned conviction, saying the government department could reasonably argue that the High Court judge misapplied the Lo Kin-man judgement.

The top court will officially hear the appeal on November 29. The judges imposed a cash bail of HK$10,000 on Choy and ordered him to surrender all travel documents. He must not leave Hong Kong during this period.

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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.