判決理由書／裁決書撮要(由AI生成)
以下撮要以AI生成及／或翻譯，內容以原來的判決理由書／裁決書為準。
Judge’s written judgment states that the three defendants in this case were charged on 28 July 2019 with participating in a riot together with others near Sai Pin Street on Des Voeux Road West in Hong Kong. The first two were additionally charged with possession of two unlicensed radio transceivers at Sai Yuen Lane. After an 18-day trial, the prosecution relied on police CCTV footage and testimony from a total of 17 witnesses, including police officers and representatives from the Communications Authority, to allege that, after the police line advanced, the defendants fled from Des Voeux Road West via Kee Ling Lane and East Tsz Back Lane to Sai Yuen Lane, where they were arrested, dressed in black, wearing helmets and carrying equipment. Each defendant denied the charges; the third defendant opted to testify in their own defence, while the first two exercised their right to remain silent.
The prosecution must prove beyond reasonable doubt that the defendants assembled with others at the site of the unlawful assembly or riot and disturbed public order; the defendants are not required to present evidence, and their silence does not give rise to an adverse inference; evidence may include both direct and contextual evidence, and the principle of better acquittal than wrongful conviction applies.
The court held that the prosecution failed to eliminate other reasonable possibilities, and the contextual evidence was insufficient to prove that the three defendants had assembled with protesters on Des Voeux Road West or jointly disturbed public order; therefore, the riot and unlawful assembly charges were not established; however, the first two defendants were found guilty of possession of two unlicensed radio transceivers, which tests confirmed were capable of transmitting and receiving radio waves and thus fell under the definition of “radiocommunications equipment” in section 8(1)(b) of the Telecommunications Ordinance, so those two charges were upheld.
The offences of riot and unlawful assembly both involve a collective element, requiring the defendant to be physically present at the scene, assembled with others and sharing a common purpose; the prosecution’s contention that one can be held liable by a joint criminal scheme for those not on site is inconsistent with the spirit of the provision; the walkie-talkies, helmets and other equipment, as well as the act of fleeing, all admit other reasonable explanations, and the contextual evidence is insufficient to support an inference of guilt.
In this case, the three defendants were acquitted of the riot and unlawful assembly charges; the first and second defendants were each convicted of the offence of possession of unlicensed radiocommunications equipment. (Translated from Chinese to English by AI)
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判刑理由書撮要(由AI生成)
以下撮要以AI生成及／或翻譯，內容以原來的判刑理由書為準。
The judgment notes that the two defendants were arrested on 28 July last year at Sai Yuen Li, and the police each seized a switched-off radio transceiver from their rucksacks. They denied the charge of rioting but admitted to possessing unlicensed equipment; after trial, the rioting charge was dismissed, and they were convicted solely on the count of unauthorised possession of radio communication apparatus. Neither defendant appeared to plead or provide an explanation, and on the day of the incident they did not have a valid licence, only claiming that the equipment was used for rock-climbing training and was seized because they had forgotten to remove it.
Under sections 8(1)(b) and 20 of the Telecommunications Ordinance, a person who possesses radio communication apparatus without a licence is liable to a level 6 fine (up to HK$100,000) and five years’ imprisonment; if dealt with summarily, a level 5 fine (up to HK$50,000) and two years’ imprisonment may be imposed.
The court took into account that there was no evidence that the defendants had used or intended to use the two transceivers; the devices were switched off, sealed in airtight bags and carried only for rock-climbing activities. Considering their past conduct and background, their lack of criminal record (or that any record was unrelated to the nature of the present offence), stable financial means, and the fact that pandemic relief grants were sufficient to sustain their operations, the overall harm was low and the offence relatively minor.
The judge considered that, discounting the rioting context, the offences were merely technical breaches and there was no need to increase the punishment due to background factors; given the defendants’ clean records and absence of malicious intent, a fine in place of imprisonment was appropriate to reflect the principles of proportionality and individual justice.
For the two counts of unauthorised possession of radio communication apparatus in this case, each defendant was sentenced to a fine of HK$10,000, payable within 14 days; in default of payment, imprisonment will be substituted. (Translated from Chinese to English by AI)
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