Hong Kong top court upholds unlawful assembly conviction of photographer as gov't wins appeal

Hong Kong’s top court has upheld the original conviction of a photographer accused of taking part in an unlawful assembly in 2020, handing a victory to government lawyers who had lodged an appeal.

Chief Justice Andrew Cheung delivered the judgement to Choy Kin-yue at the Court of Final Appeal on Friday morning.

“The court unanimously allows the appeal and restores the conviction and sentence,” he said.

Choy, 37, was found guilty and sentenced to three months behind bars last August over an incident on March 8, 2020, when people gathered to remember Alex Chow, a protester who fell to his death near a demonstration site during the protests and unrest in 2019.

Choy later filed an appeal, and in March this year, the High Court overturned Choy’s conviction after ruling that it could not be fully asserted that the photographer had the “necessary participatory intent” for committing the offence.

In July, the Court of Final Appeal permitted government lawyers to challenge that ruling. The hearing took place in front of a panel of five judges late last month.

Choy has yet to serve the three-month sentence as he was granted bail when he lodged his appeal. The top court’s decision on Friday meant Choy was instantly remanded.

Not an ‘innocent bystander’

In th evening of March 8, 2020, Choy and a group of people trailed closely behind a plainclothes officer near Tai Po Mega Mall, with Choy filming using a video camera as he followed. People in the group began flashing torches at the officer and shouting his name.

Other police officers later arrived and arrested Choy as well as four others.

In a written judgement, the judges said there were two “ingredients” that show one’s “participatory intent” in an unlawful assembly – the first was that the defendant intended to become part of the assembly, and the second that the defendant was aware of the other participants’ conduct and intended to engage in that conduct.

alex chow tseung kwan o november 8 2020 — Flowers left for Alex Chow, a protester who fell to his death in November 2019. Photo: Kevin Cheng/United Social Press.

Both of these “ingredients” were present in Choy’s case, the judges added. They said video recordings showed that Choy had rushed towards the officer with others in the group, that he was able to film without the object of others, suggesting he was acting together with them.

“This is clearly not a case of mere presence or spontaneous filming by an innocent bystander,” the judgement read.

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