Judge breaks ground with riot verdictTop News | Phoebe Ng Mar 17, 2017
University of Hong Kong student Hui Ka-ki, 23, student Mak Tsz-hei, 20, and chef Sit Tat-wing, 33, were remanded in custody after their bail requests were denied.
In the first riot convictions in 17 years, District Court Deputy Judge Sham Siu-man ruled all three were among the rioters, rejecting the main defense argument that they were mere bystanders.
The judge, who will sentence the three this morning, compared the case to a riot by a group of Vietnamese in a refugee center in Whitehead back in 1999.
And he said he would consider sentencing from the starting point of five years, just like in the Whitehead case.
"Any violent act is a breach of the peace, regardless of casualties or damages," Sham said.
"Let's say protesters attacked the police with knives, and the officers were unharmed because they wore helmets," Sham quoted as an example.
"Would it be a breach of the peace? I guess the answer would be pretty clear."
These were the first rioting convictions from the so-called "fishball revolution" that broke out on February 9 last year over the government's attempt to crack down on street-food hawkers.
The three were arrested near the northbound lane of Nathan Road near Soy Street in Mong Kok.
After reviewing all the evidence, the judge concluded that the woman in a blue top seen hurling glass bottles at police four times was Hui.
He also believed that Mak threw bamboo sticks and Sit heaved bottles at police.
Rejecting arguments that the trio were merely onlookers, the judge said he decided Hui and Mak were part of the rioters based on the location where they were arrested. "Even without proving they hurled the bottles and bamboo, there was enough evidence supporting the charge," he said.
He did not believe the police arrested the wrong persons, saying that if they had just been bystanders they would have distanced themselves from the rioters.
Sit, for example, said he did not take part and only ran along with other protesters because he was "worried about his safety."
But the judge said: "What he said did not make sense," adding that mingling with protesters was the last thing a spectator would want to do.
Dismissing the defense's point that there were discrepancies between the video evidence and police statements, Sham said it merely "showed the limitation of human memory."
"Our brain does not record everything happening clearly like a camera does," he said.
The three had pleaded not guilty to one joint count of riot and their counsels asked for leniency.
Erik Shum Sze-man, on behalf of Hui, said it was a "one-off, spontaneous and unplanned act" as government workers tried to clear street hawkers at 11 pm and the protesters started the unrest at 4 am.
He said the case involved a relatively low level of violence compared to examples raised by the prosecution, and that weapons used were only handy and immediately available items, which proved it was not a planned act.
He said Hui aspired to become a teacher but her studies at HKU had been suspended because of the case.
Mitigating for Mak, barrister Catherine Wong Kam-kuen said he was not "acting in his own self-interest" but for society and said the offense was of an "improvisational nature." Unconvinced, the judge said there was enough time to "let everything cool off."
Wong asked the judge to give a lenient sentencing for Mak so he can continue his studies.
Sit's counsel told the court his client was divorced with a four-year-old son.
Under the Public Order Ordinance, the maximum penalty for rioting is 10 years' jail, but the District Court only has the authority to hand down a seven- year sentence.
The judge also noted that at least 20 to 30 people "took part in the riot" and that it was "undisputed" that their assembly was also illegal.
Also in the District Court, the trial of another Mong Kok protester, Yeung Ka-lun, was adjourned until next Wednesday for final submissions.
Accused of burning a cab and taking part in the riot, Yeung, 31, decided not to summon any witness nor take the witness stand himself.
Yeung, a technician at the Open University of Hong Kong, has pleaded not guilty to one count of riot and one of arson.
While 90 people have been arrested so far in relation to the incident, the Department of Justice has taken 35 to court.
Civic Passion member Chan Pak- yeung was sentenced to nine months' imprisonment last October for resisting and assaulting police.
The last conviction for rioting in Hong Kong was in 2000 and involved a drug rehabilitation center inmate.