Hong Kong magistrate overturns acquittal of couple who taunted man before he was set on fire during 2019 anti-government protests

Magistrate Arthur Lam jails Chan Hoi-wan and her husband Kwong Yiu-man for five weeks each for instigating violence against man set on fire in Ma On Shan
Lam accepts finding by appeal court that pair were wrongfully acquitted, as their actions were likely to provoke others at the scene to resort to unlawful force

Hong Kong protests

Brian Wong

Published: 7:30pm, 29 Aug 2023

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A Hong Kong magistrate has convicted a couple he previously cleared of instigating violence against a man set on fire during the 2019 anti-government protests, jailing them each for five weeks after a ruling by an appeal court that they were wrongfully acquitted.

Magistrate Arthur Lam Hei-wei on Tuesday said that taunts made by Chan Hoi-wan, 37, and her husband Kwong Yiu-man, 43, involved a real and imminent risk of violence and disorder, taking into account the politically charged atmosphere in the city at the time.

“The witness was assaulted by black-clad protesters and left covered in blood. He was outnumbered on the footbridge concerned, but the two defendants still shouted provocations at him,” the magistrate said.

The two Ma On Shan residents stood trial for a second time at Eastern Court, after prosecutors won an appeal against their acquittal in August 2020.

The magistrate also dismissed a request for an extension to the couple’s bail pending an appeal, saying the defence could not reasonably argue against his decision to decline suspending the pair’s five-week sentences.

“Regardless of their political views, I believe the two defendants’ conduct at the time deserves condemnation,” Lam said.

The construction worker was set on fire on November 11, 2019, during a demonstration in Ma On Shan. Photo: Handout

A middle-aged construction worker, who cannot be identified because of a gag order a gag order, was set ablaze by radical protesters on November 11, 2019, during a demonstration in Ma On Shan. The man had earlier given chase to vandals who trashed a railway station in the New Territories town and argued with onlookers who blocked his path.

Police were unable to arrest the attackers, but they accused the couple of verbally confronting the man in the lead-up to the incident “with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused”.

The trial in 2020 heard that Chan had told the man to “go back to the Greater Bay Area”, a reference to cities in neighbouring Guangdong province and that Kwong had told the man to “get lost”.

Lam acquitted the pair after he rejected the prosecution’s contention that their actions were likely to have caused a breach of the peace.

Madam Justice Judianna Barnes Wai-ling of the High Court held on appeal the pair’s taunts could have objectively provoked others at the scene to resort to unlawful force.

Lam on Tuesday agreed with Barnes that the couple’s verbal attacks amounted to adding “fuel to the fire”. He highlighted the antagonism towards the man before he was set alight before he found there was an imminent risk that onlookers might assault him.

He dismissed the defence’s argument that the man had no intent to resort to violence himself, and therefore would not escalate the situation to one causing a possible breach of the peace.

Lam highlighted instead that the man had been involved in an altercation with those surrounding him before the couple joined the fray.

Defence counsel Queenie Ng Wing-shan asked the court to consider alternative punishments, such as a community service order or a suspended jail sentence.

She stressed her clients could not be held liable for the subsequent attack on the man, a view shared by Barnes, who said he was likely to have been targeted because he had tried to stop the black-clad protesters from vandalising property.

Ng said the middle-aged man had started the provocation and her clients “could not help but speak up” later on.

“The court said they had added fuel to the fire, but the first question is how the fire had started. The two defendants did not start the fire,” Ng said.

The pair intended to appeal against their conviction and sentence in the High Court, she added.

The November 11 attack marked one of the most notorious chapters of that year’s social unrest, triggered by an extradition bill that has since been withdrawn.

Police arrested 18 people linked to the incident on suspicion of a string of offences, but the two primary suspects, then aged 17 and 25, were believed to have fled to Taiwan before officers could identify them.

Disorderly conduct in public carries a maximum jail sentence of a year under the Public Order Ordinance.