Hong Kong social worker Jackie Chen faces a retrial for a riot charge in 2019 – which she was acquitted of in 2020 – after her attempt to challenge a court’s decision for her to be retried was rejected.
Chen’s challenge came after the government won an appeal against her acquittal and a Hong Kong court ruled that she should be retried.
The Court of Appeal on Tuesday refused to permit Chen to take her case to the Court of Final Appeal. A three-judge panel ruled that her challenge did not involve any point of law that needed to be dealt with by the city’s top court, let alone any point of law of “great and general importance.”
Chen is currently facing a retrial alongside Lai Pui-ki, Chung Ka-nang and Jason Gung, all four of whom were cleared of rioting on August 31, 2019, in Wan Chai. Following the Department of Justice (DoJ) appeal against their acquittals – and those of nine others who have already left Hong Kong – the Court of Appeal ruled in mid-July that then-district judge Sham Siu-man was “plainly wrong” when he found them not guilty.
In her application for a certificate, Chen argued her case should be heard by the highest court because it would shed light on important points of law. Among them, whether the Court of Appeal should rule on issues that were not raised in the DoJ’s appeal against her acquittal, and whether the appeal court should allow the DoJ to raise an argument that was not mentioned during the original trial.
Her case would also touch on whether the appeal court can or should consider “external evidence” that were not included in the DoJ’s case.
On Tuesday, Chief Judge of the High Court Jeremy Poon and justices of appeal Derek Pang and Anthea Pang said the DoJ’s appeal and the subsequent retrial decision did not trigger the questions Chen raised.
The Court of Appeal’s order for retrial was based on evidence before the trial judge, as well as whether Sham had and should have considered certain evidence and whether he erred in his judgement.
“All were factual judgements, they did not concern the questions [Chen] raised. Regardless, [Chen’s] arguments regarding these issues were not valid,” a Chinese-language written judgement read.
The three judges also rejected Chen’s complaint over video footage reviewed by the appeal court. She complained that the DVD or USB drive containing the clips or relevant copies were not included in the DoJ’s appeal against her acquittal, violating requirements set out in a legal precedent.
The complaint “did not hold any ground,” the judges ruled on Tuesday, saying the video evidence had been agreed by the prosecution and defence at the original trial.
“Chen did not raise any objection before this court viewed the relevant clips. The current complaint seems to be unfounded,” the judgement read.
During the original trial in September 2020, judge Sham ruled there was a lack of evidence to show that the social worker’s conduct and speech amounted to an unlawful assembly, let alone rioting.
Chen was a member of the Battlefield Social Worker group and was frequently seen on the front line of protests in 2019 when she volunteered to monitor police behaviour. She sought to liaise between protesters and the force and provide emotional support at demonstrations, often speaking to police officers through a loudspeaker and telling them not to deploy tear gas against reporters and residents without protective gear.
The case was adjourned last month to January 23 next year after Chen’s lawyer requested the court to put the current proceedings on hold pending her challenge. There is no fixed date for the retrial.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
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