Press Summary (English)

Press Summary (Chinese)

FACC No 6 of 2023

[2023] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 6 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMA NO 448 OF 2021)

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J U D G M E N T

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Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Fok PJ:

3. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Lam PJ:

4. This is an appeal brought by the prosecution against the judgment of Barnes J (“the Judge”) in a magistracy appeal. Magistrate Andrew Mok [1] (“the Magistrate”) found the defendant Mak Wing Wa (“the Respondent”) guilty of the offence of taking part in an unlawful assembly under Section 18 of the Public Order Ordinance [2] (“the POO”) and made a detention order [3] against him. On 23 August 2022, the Judge allowed the Respondent’s appeal, quashed the conviction and set aside the sentence. The Appellant contended that the Judge had misapplied the law as set out in HKSAR v Lo Kin Man [4] . Leave to appeal was granted by the Appeal Committee on 20 February 2023.

Background and facts of the case

5. In the midst of a period of social disorder in Hong Kong, there was an incident of unlawful road blockading at Lung Cheung Road in the evening of 7 October 2019. At around 8:45 p.m. a mob of mostly black clad persons wearing face coverings and masks threw objects into the eastbound carriageway of Lung Cheung Road near Hsin Kuang Centre to obstruct the traffic. The carriageway was cleared by the police and a team of police officers were stationed at the Hsin Kuang Footbridge in Wong Tai Sin which overlooked that part of Lung Cheung Road.

6. At about 10:00 p.m. a team of anti-riot police officers took over the police duties there. The commander of the team was a Senior Inspector who gave evidence at the trial. She testified that upon their arrival, there was a crowd of more than 100 people gathered at Wong Tai Sin Square (which was adjacent to the Hsin Kuang Footbridge) shouting abuse at the police and there were people shining laser pointers at police officers [5] . Despite repeated warnings by the commander urging the crowd to disperse, many people remained and some of them shouted insulting and provocative remarks at police officers. Finally, the police took action to disperse the crowd shortly after 11:00 p.m. and several persons were arrested. The Respondent was amongst those arrested on that occasion. He was subsequently charged with the offence of unlawful assembly.

Findings by the Magistrate

7. At the time when the Magistrate decided the case, he did not have the benefit of the gui