‘It has been so long': Hongkongers acquitted in 2019 protest cases face lengthy legal battle after gov't appeals
Chan Lok-sun, 31, appeared calm earlier this month when he heard he was found guilty of rioting for an event that took place almost six years ago in Hong Kong.
His conviction came nearly four years after the same court acquitted him of the same charge.
Chan and four others were accused of rioting and violating a mask ban during a demonstration in Wan Chai on October 6, 2019, as Hong Kong was embroiled in months-long pro-democracy protests and unrest over a controversial extradition bill.
In December 2021, the five defendants were convicted of breaking the mask ban but acquitted of rioting. Chan was sentenced to 10 weeks in jail.
'I kind of thought of it as a win already,' Chan said in Cantonese as he recalled his rioting acquittal.
But on the day of his release in February 2022, he and his co-defendants were taken back to court, where they were told the government had decided to appeal their rioting acquittal.
In May 2024, the Court of Appeal sided with the government, overturning the five defendants' acquittal and sending their case back to the trial judge.
When their case was heard again in March this year – almost five and a half years since the October 2019 demonstration – three of Chan's co-defendants had pleaded guilty instead. Chan and another co-defendant, 21-year-old Lam Hin-shing, contested the charge for the second time.
'It has been so long that I practically feel nothing,' Chan told HKFP in late May. Less than two weeks later, he was found guilty of rioting by the same judge who acquitted him.
Chan was not alone. Many people charged in relation to the 2019 protests and later acquitted by the court face prolonged, additional legal proceedings following the government's appeals.
One high-profile case was social worker Jackie Chen. She was initially cleared of rioting midway through her first trial in September 2020, but the Department of Justice (DoJ) successfully appealed the acquittal. She faced a retrial in December 2024, and four months later, she was convicted of rioting and sentenced to almost four years in jail. She is now appealing.
Out of over 10,000 arrests linked to the 2019 protests, nearly 3,000 people had been charged as of April, according to police. About 2,400 were convicted of offences ranging from rioting and unlawful assembly to wounding and arson.
In an emailed reply to HKFP's enquiry, the DoJ said it does not keep statistics on the total number of appeals against court rulings of the 2019 protest cases. It only disclosed that it had appealed in 26 cases for a sentencing review.
The DoJ can lodge a sentencing review when it believes the sentence is too light or too heavy. In cases related to the 2019 protests, however, the DoJ has only applied for sentencing reviews because it wanted the court to impose heftier sentences, according to court news outlet The Witness.
The years-long legal process could extinguish defendants' will to continue fighting their cases, two lawyers with experience representing clients facing retrials of their 2019 protests cases told HKFP.
Meanwhile, the defendants continued to have their freedoms restricted by bail conditions, their lives disrupted by court proceedings, and a future hanging in uncertainty, said the lawyers, who requested anonymity to discuss court cases.
'Not surprised'
In February 2022, near the end of his 10-week prison term, Chan planned to leave Hong Kong 'for a break' once he was freed.
He tried to retrieve his passport, which was being kept at the court at that time, but did not succeed. He knew then that his case was not over, he said.
The music producer-teacher had already lost a chance to go to Taiwan for education in 2021. At that time, he had received an offer to study music in Taipei but had to abandon the opportunity due to his trial.
Although he said he was 'not surprised' by the government's decision to appeal his case, he acknowledged that, over the years that ensued, he had wanted to 'get it over with.'
'Many defendants would simply give in,' said one of the lawyers, whose client pleaded guilty after their acquittal was quashed and their case sent back to the trial court.
'They just want to put an end to the matter,' he said in Cantonese.
In Hong Kong, following a successful appeal against an acquittal, the Court of Appeal may order the case to be retried – meaning that all evidence will be re-examined – or the verdict to be 'reconsidered' by the trial judge. The Court of Appeal may also order a judge to 'continue handling' the case after it points out the error made in the first trial.
In cases related to the 2019 protests, there can be a long delay once the government appeals a court ruling, the lawyer said.
He said that 'sometimes the delay is not due to the DoJ,' which acts as the prosecution, but added it could still be 'extremely severe' in length.
While the offence took place in 2019 or 2020 and the first trial concluded within one or two years, an appeal and a possible retrial could drag on for several more years due to scheduling issues between the court, the prosecution, and defence lawyers, he said.
'As a matter of fact, the criminal justice system in Hong Kong is heavily overloaded,' the lawyer said.
'My observation is that they [the defendants] have entered a limbo during this delay because they cannot really do anything,' he added. 'For them, the clock is ticking.'
Some feel they are losing their chance to pursue their dreams or build their careers.
Chan was 26 when he was arrested in 2019 – already the oldest person in the case. The other four defendants were between 15 and 23 years old at the time of the arrest.
Almost six years later, none of them could leave Hong Kong because of bail conditions. In March, lawyers for the three defendants who pleaded guilty told the court about the impact the case had on their lives.
That included So Nga-yin, now 26, who had to abandon her dream of becoming a kindergarten teacher because of the court case. Following the government's appeal, So completed a master's programme for special education and hoped to become a behavioural therapist in the future, her lawyer told the court.
Chan, who pleaded not guilty, changed track in his career and became an arborist as he awaited the results of the government's appeal.
Caught in a dilemma
Chan had considered pleading guilty in exchange for a greater sentencing discount after his acquittal was quashed.
A defendant could see their sentence reduced by a third if they enter a guilty plea at the beginning of a trial. In a rioting case, a one-third discount could mean more than a year of sentence remission.
However, in the case following a successful appeal against acquittal, changing to a guilty plea would not guarantee a sentencing discount as much as a third. The actual sentence reduction could vary from less than 20 per cent up to 30 per cent in past cases, the two lawyers said.
Another factor is the length of the process, as a court could offer some discount due to the delay of the case following an appeal.
'That really is a calculation,' Chan said of his decision to plead not guilty for a second time.
He believed he had a strong case against the rioting offence despite the Court of Appeal's ruling, betting on being acquitted again.
'Even if I lose, it will only be an extra few months in prison,' he said.
Defendants facing a retrial are typically caught in the dilemma: choosing between pleading guilty for a quicker exit and defending their case again while withstanding the uncertainty of the court's decision, the lawyers said.
According to an HKFP tally of rioting cases arising from the 2019 protests, the DoJ had appealed against the acquittal of at least 29 people. Only 11 had to face the charge again after their acquittal was quashed, and the rest were believed to have left Hong Kong.
Among the 11 people, seven were convicted after they changed their plea to guilty following the government's appeals. Four of them were sentenced to prison terms ranging from 29 months to 33 months, while three are still awaiting sentencing.
Three others who pleaded not guilty – Chan, his co-defendant Lam and social worker Chen – lost their cases.
One defendant, Alice Tong, is seeking to take her case to the apex Court of Final Appeal (CFA). She has not entered a plea, and a hearing is expected in July.
It is not uncommon for defendants facing retrials to 'face a lot of psychological stress,' said one of the lawyers. 'Each one of them found it really painful. For cases to drag on for five or six years, this should be a mitigation factor in itself.'
Defendants may decide how to enter a plea to get the best possible outcome in court. 'As lawyers, we often say that a plea is fundamentally a decision made [by the defendant] for the court,' the other lawyer said.
'It is a separate matter from whether you have actually committed the offence or whether you think you have done wrong,' he added. 'It's about turning over a new leaf.'
Key judgment
Following a government appeal, the defendants face a more stringent court as it adjudicates public order offences such as rioting and unlawful assembly, the lawyers said.
A key judgment that has changed how the courts handle rioting cases is the case of Lo Kin-man, who was sentenced to seven years in prison for rioting in 2018 over the Mong Kok unrest in 2016. Lo appealed against his conviction and took his case to the CFA.
In 2021, the CFA upheld Lo's conviction and reasoned that a defendant could be held guilty for rioting if they were found to have encouraged the riot while at the scene.
'Mere presence at the scene of an unlawful or riotous assembly does not give rise to criminal liability. However, if the accused, being present, provides encouragement by words, signs or actions, he or she may be held to be 'taking part' and guilty as a principal or held to be an aider and abettor,' the CFA ruled in Lo's case.
Before the top court's ruling, people accused of rioting had put up a defence that they were merely at the scene without conducting any acts that would constitute a 'breach of the peace' – a critical element in the rioting offence.
'The threshold [of conviction] has become much lower' since the CFA judgment, legal commentator Edward Wong told HKFP.
The definition of participating in a riot has been expanded, he said, pointing out that in some cases, people wearing regular medical masks at the scene could be seen as encouraging the violence.
'The CFA also did not clearly define what constitutes more than mere presence; this opens room for interpretation for the lower courts,' he added.
Chan was not seen to have confronted the police during the October 6, 2019, demonstration in Wan Chai, despite carrying defensive gear such as a gas mask and gloves.
In the first trial in 2021, Deputy District Judge David Ko acquitted Chan, saying the court 'could not draw the only irresistible inference' that he had participated in the riot.
After the Court of Appeal quashed the acquittal, Ko received the case again and allowed Chan to testify to explain why he was at the scene.
Chan told the court in March this year that he was merely passing through Wan Chai to North Point on that day in October 2019 and was not aware of the protests nearby. He said he was caught in the clash between police and protesters before he was arrested.
Three months after his testimony, on June 9, Ko overturned his previous ruling and found Chan was 'encouraging or abetting other rioters' through his presence.
Speaking to HKFP before the verdict hearing, Chan said he could not predict the outcome of his case but reckoned he would be sentenced to around three years in jail if convicted.
He and his four co-defendants will be sentenced on Wednesday.
'I once felt that my life had stopped because of this case, but it wasn't as bad on second thought,' he said.
Reflecting on his life over the past six years, he tried to be positive. 'There are restrictions,' he said, 'but I don't think they are catastrophic.'
Original reporting on HKFP is backed by our monthly contributors.
Almost 1,000 monthly donors make HKFP possible. Each contributes an average of HK$200/month to support our award-winning original reporting, keeping the city's only independent English-language outlet free-to-access for all. Three reasons to join us:
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