Criminal Law — Defendants acquitted of unlawful assembly and other charges arising from 2019 protest outside police operations base

After an 8-day trial, the learned Magistrate found that the Prosecution had failed to discharge their burden of proof in relation to the 2^nd, 3^rd and 4^th Defendants, notwithstanding TV news footages showing their presence. Her Worship also rejected the evidence of the 4^th Defendant’s arresting officer as being unreliable.

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HKSAR v Leung Shun Kwan & Ors

Reference:	TMCC 1953/2020
Court:	Magistrates’ Court
Before:	Magistrate Kelly Shui
Date of Decision:	6 August 2021
Appearance:	Albert Wan, instructed by Henry Chiu & Partners, for the 2nd Defendant Flora Lam, instructed by Cheng & Co, for the 3rd Defendant. Andrew Lau, instructed by Henry Chiu & Partners, for the 4th Defendant.

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Magistrate Kelly Shui acquitted 3 out of 4 Defendants charged with taking part in an unlawful assembly, using facial covering at an unlawful assembly and possessing instruments with intent to destroy or damage property.

The Defendants were arrested whilst the police were conducting a clearance operation in relation to a protest outside the Tai Hing Operational Base in Tuen Mun on 28 October 2019. The protest stemmed from the residents’ displeasure over a mysterious smell alleged to have emanated from the police facility.

The Defendants were commonly charged with taking part in an unlawful assembly. The 1^st, 2^nd and 4^th Defendants were also charged with using facial covering at an unlawful assembly. Furthermore, the 4^th Defendant faced an additional charge of possessing instruments with intent to destroy or damage property.

After an 8-day trial, the learned Magistrate found that the Prosecution had failed to discharge their burden of proof in relation to the 2^nd, 3^rd and 4^th Defendants, notwithstanding there were TV news footages showing their presence. Her Worship also rejected the evidence of the 4^th Defendant’s arresting officer as being unreliable.

This case has been widely covered in the press, including Ming Pao Daily and Stand News.

Albert Wan Albert obtained a Master of Law (LLM) at the University of Cambridge and Bachelor of Laws (LLB) at City University of Hong Kong with First Class Honours. He was called to the Bar in 2017. Albert has a wide-ranging practice with experience in general civil, land, company, probate, contract, tort, commercial, construction, bankruptcy, personal injuries, judicial review and election petition. In Lui Chi Hang Hendrick v Independent Police Complaints Council [2019] HKCFI 3120 (with Mr Jeffrey Tam), he acted for the Applicant in successfully obtaining leave to challenge the legality of the Independent Police Complaints Council’s decision to proactively conduct a fact-finding study on the public order events since June 2019.

Andrew Lau Andrew is a Charles Ching Scholar who joined Chambers in 2018. He is developing a broad civil and criminal practice, with experience in areas such as commercial disputes, company/insolvency, construction, equity/trusts, land, probate, family, personal injuries and public law. In his criminal practice, Andrew acted as co-counsel for the 1st Defendant in appealing against conviction in HKSAR v Cheung Kwai Choi and Chow Nok Hang [2018] HKCFI 2243; [2019] HKCFA 13 (contravention of an administrative instruction issued under the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).

Flora Lam Flora joined Denis Chang’s Chambers in 2018 and is developing a broad civil and criminal practice. She has experience in areas such as company law, commercial disputes, criminal law, defamation, probate, trusts, adverse possession, personal injuries, and public law. She is also regularly instructed to handle legal aid appeals. Recently, Flora (led by Mr. Derek Chan SC and appearing with Mr. Joseph Lee) secured the acquittal of the 1st Defendant of “conspiracy for an agent to accept advantages” in HKSAR v Cheung Ling Chu Sally and Another (DCCC 920/2019) [2021] HKDC 188.

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Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.