Hong Kong protests: trio cleared of rioting, but husband and wife guilty of radio offence
- Student Natalie Lee, gym owner Tong Wai-hung and his wife Elaine To were first to face riot charges over civil unrest on July 28 last year
- Judge stresses his ruling may not truly reflect extent of trio’s participation as it is only based on evidence presented in court and common law principles
District judge Anthony Kwok Kai-on also said there was enough evidence to suggest two of the defendants, a married couple, were acting as first-aiders.
Student Natalie Lee Yuen-yui, 17, gym owner Tong Wai-hung, 39, and his wife, Elaine To, 42, had all denied rioting in Sai Wan on July 28 last year, after they were arrested near the site of a protest.
But the couple were found guilty of possession of apparatus for radio communications without a licence, over two walkie-talkies found in their backpacks on the same day, for which they were each fined HK$10,000 (US$1,282).
Tong hugged his wife in a tight embrace as soon as the acquittals were announced, while To and Lee burst into tears.
“I was crying because many people were crying,” To later said. “It was just a relief to hear that we were acquitted.”
Many family members and supporters who watched them in the dock from the public gallery were also heard laughing and breathing sighs of relief.
In the adjacent court where there was a live telecast of the verdict, a man shouted: “There was no riot.”
Outside court, a chorus of protest slogans and applause greeted the couple as they emerged smiling from the building hand in hand.
Tong thanked their lawyers, family members, friends and supporters upon revealing how they had struggled to cope with the financial pressure, lack of sleep and negative emotions over the past year – but said it was still too early for celebrations.
“There are still many others who have yet to receive a fair judgment,” Tong said. “Once all of the cases get their fair and just ruling, then we can celebrate together.”
The trio were among the first batch of 44 defendants to be charged with rioting since the civil unrest began last June. Their riot trial was also the first one to open in May.
Prosecutors had conceded they still had no direct evidence of what the three defendants did at the time of the riot, despite months of investigations.
Their case was solely based on circumstantial evidence, such as the defendants’ black clothing, protective gear, and attempts to flee from police.
Kwok said he found the trio not guilty of riot or the lesser, alternative charge of unlawful assembly because there was no evidence they had assembled together in common purpose with the protesters on Des Voeux Road West, where a riot broke out at 7.02pm.
The court has always followed the principle of presumption of innocence in handling criminal cases
On the contrary, the judge believed there was sufficient evidence to suggest the couple had been providing first aid near the site of protest as police had found many medical supplies among their belongings – including a belt bag with a Red Cross logo – and there was CCTV footage of them treating Lee after she was hit by tear gas.
Kwok also believed it was possible Lee was just accompanying a friend as she had claimed, so despite evidence of her presence at the site of protest, he concluded prosecutors failed to prove their case beyond reasonable doubt.
He said it would be inappropriate to place too much reliance on the black outfits and protective gear when these items were not unique to protesters and could be used for other purposes.
“The court agrees that the three defendants’ attire and conduct on the day were very suspicious,” Kwok wrote in his 131-page verdict. “But under the common law, the court has always followed the principle of presumption of innocence in handling criminal cases.”
Ultimately, Kwok stressed his judgment might not necessarily reflect whether the trio actually took part in a riot or even an unlawful assembly, because it was only based on the evidence presented in court and the relevant common law principles that he had reminded himself of, such as the benefit of doubt ought to go to the accused.
“It was said by no less a judge than Sir Mathew Hale that ‘to condemn the innocent, and to let the guilty go free were both abominations,’” he quoted from the Court of Final Appeal judgment on “milkshake murderer” Nancy Kissel. “Indeed they are, but the former is even more to be guarded against than the latter.”
A spokesman for the Department of Justice said: “We will study the reasons for the verdict and the case report of the prosecutor in order to determine whether any follow-up action is called for.”
Under the District Court Ordinance, prosecutors can appeal against an order of acquittal by way of case stated, but only on matters of law.
The court heard the protest began as an authorised assembly at Chater Garden in Central, during which some participants marched towards Beijing’s liaison office in Sai Wan, despite police objections.
Prosecutors said this unauthorised procession escalated into a riot at 5.37pm, when participants ignored police warnings and began to chant insulting slogans and set up roadblocks with umbrellas, metal barricades and miscellaneous objects near Western Police Station.
Police fired 408 rounds of tear gas on the day and arrested some 50 people.
All three defendants were caught on Sai Yuen Lane, a dead-end alley connected to the site of the protest at Des Voeux Road West, near Western Street.
Hectar Pun Hei SC, for the couple, who elected not to give evidence, had argued that his clients did not share a common purpose with the protesters on the thoroughfare, as they were only running away from the tear gas.
While Lee, in her testimony, said she had arrived at the scene to observe a protest but did not chant any slogans, or do anything that could breach the peace, before she ran into the couple while trying to leave the area.
Police have arrested at least 9,216 people in connection with the protests since June 9 last year.
Some 1,972 have been prosecuted, with 653 of those facing rioting charges.
But only one protester, lifeguard Sin Ka-ho, 22, has been convicted of the offence, after he pleaded guilty. He was sentenced to four years behind bars.
The only other riot trial, following the present case, resulted in an acquittal last month, after the judge sided with student Lam Tsz-ho, 19, in finding the police account of events unreliable.
Rioting is punishable by 10 years in prison, but that is capped at seven years at the District Court.
