Hong Kong court orders retrial of 2 men cleared of protest charges 3 years ago
Hong Kong Free Press
A Hong Kong court has ordered the retrial of two men cleared three years ago of offences relating to the 2019 protests, after the government successfully appealed against their acquittals.
In a ruling delivered on Wednesday, the High Court said the lower magistrates’ court had erred in finding Sam Yip and Chan Kai-kiu not guilty of charges linked to the anti-extradition bill unrest in 2019. Yip was 20 at the time, while Chan was 22.
The two defendants were initially charged with taking part in an unlawful assembly and breaching the city’s anti-mask laws at a protest in Tsuen Wan on November 11, 2019. They were tried and acquitted in July 2021, after which the prosecution appealed.
Siding with the appellants, High Court judge Anthony Kwok wrote in his judgement on Wednesday that the case should be retried as the lower judge Betty Lau had failed to consider “circumstantial evidence.”
Kwok disputed Lau’s conclusion that the prosecution could not prove that Yip and Chan were in the “core area” of the unlawful assembly, near the intersection of Tai Ho Road and Wo Tik Street. Kwok said the pair were caught by police about six to eight minutes after they began their clearance operation, and were wearing black face masks and carrying items like zip ties and respirators. Such evidence could be used to infer whether they had been at the site of an unlawful assembly.
The judge also referred to the prosecution’s argument citing a court ruling delivered five months after Yip and Chan’s acquittal, which stated that “participating” in an unlawful assembly is defined as including acts that facilitate, assist or encourage others. Kwok said the lower judge did not consider whether the defendants’ behaviour could have fallen into that definition.
The High Court judge also said the magistrate had cleared the two defendants of breaching the anti-mask law, which states that a person “must not use any facial covering that is likely to prevent identification” while at an unlawful assembly. The decision was based on the fact that they were acquitted of taking part in an unlawful assembly.
But he cited the prosecution in suggesting that “participating” and “being at” a site is not the same, and that the two defendants could have been at the unlawful assembly without taking part in it.
“If the judge had concluded that the two defendants were not at an illegal assembly based on them not directly participating in that illegal assembly, that is jumping to conclusions,” Kwok wrote in Chinese.
He added that the incident took place in November 2019, before the Covid-19 pandemic, and there were not many people wearing face masks for health reasons.
Hong Kong saw large-scale protests that began in the summer of 2019 in response to a controversial extradition bill that would have allowed the transfer of fugitives to mainland China. The demonstrations soon ballooned into wider opposition against the Hong Kong and Chinese governments, as well as alleged police brutality during towards demonstrators.
Over 10,250 protest-related arrests were made during the 2019 demonstrations, police said, about 40 per cent of whom were secondary school or university students.
Yip and Chan were tried with a third defendant who was also acquitted, but he has since left Hong Kong. The Department of Justice is not appealing against his acquittal, according to the judgement.
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