律政司司長 對 余德穎及另七人

律政司司長 對 余德穎及另七人

Appeal court held (1) defective service of the case‑stated appeal documents within the statutory timeframe deprived the court of jurisdiction to proceed against certain absent defendants so the appeal was dismissed in respect of those defendants; (2) on the substantive law, a two‑person agreement can constitute...

Source-derived case information.

Citation
[2023] HKCA 877
Parties
Appellant: 律政司司長; Defendant: 張浩輝; Defendant: 胡凱富; Defendant: 陳子斌; Defendant: 蘇美莉; Defendant: 李盈莉; Defendant: 余德穎; Defendant: 賴姵岐; Defendant: 鍾嘉能; Defendant: 龔梓舜 (JASON); Defendant: 陳虹秀; Defendant: 簡家康; Defendant: 莫嘉晴; Defendant: 梁雁彬
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
14 July 2023
Case Number
CACC278/2021
Procedural Posture
Criminal Appeal (case‑stated) / Court of Appeal Judgment (appeal Heard and Judgment Delivered)
Outcome
Appeals allowed in part: appeals upheld against second to fifth defendants (acquittals quashed and matters remitted for retrial before a different judge); appeals in respect of first, sixth, seventh and eighth defendants dismissed insofar as the appellate court lacked jurisdiction due to defective service of...
Legal Topics
Conspiracy, Riot/violent Disorder, Unlawful Assembly, Service/notice Requirements, No‑case‑to‑answer / Mid‑trial Termination, Judicial Review of Factual Findings
Source Language
ch
Criminal Law Appellate Procedure Service of Process Evidence Law Conspiracy Riot/violent Disorder Unlawful Assembly Service/notice Requirements +2 more

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Parties

律政司司長

Appellant

張浩輝

Defendant

胡凱富

Defendant

陳子斌

Defendant

蘇美莉

Defendant

李盈莉

Defendant

余德穎

Defendant

賴姵岐

Defendant

鍾嘉能

Defendant

龔梓舜 (JASON)

Defendant

陳虹秀

Defendant

簡家康

Defendant

莫嘉晴

Defendant

梁雁彬

Defendant

Procedural Posture

Criminal Appeal (case‑stated) / Court of Appeal Judgment (appeal Heard and Judgment Delivered)

Legal Issues

  1. 1 Whether appeal documents required by District Court Ordinance s84 and related provisions were validly served on absent defendants and consequence of defective service
  2. 2 Whether an agreement between two persons can constitute conspiracy to participate in an unlawful assembly/riot when the substantive offence requires three or more participants
  3. 3 Whether the trial judge erred in fact‑finding and misapplied evidential principles (failure to assess cumulative/environmental evidence and misuse of no‑case‑to‑answer discretion)

Ratio Decidendi

Appeal court held (1) defective service of the case‑stated appeal documents within the statutory timeframe deprived the court of jurisdiction to proceed against certain absent defendants so the appeal was dismissed in respect of those defendants; (2) on the substantive law, a two‑person agreement can constitute conspiracy to participate in an unlawful assembly or riot if, at the time of agreement, the parties intended, knew or were aware that the agreed act would necessarily or foreseeably involve three or more participants (i.e. the intention/knowledge that others will participate is part of the agreement); and (3) the trial judge's treatment of the evidence in both matters was perverse...

Court Disposition

Appeals allowed in part: appeals upheld against second to fifth defendants (acquittals quashed and matters remitted for retrial before a different judge); appeals in respect of first, sixth, seventh and eighth defendants dismissed insofar as the appellate court lacked jurisdiction due to defective service of...

Orders

  • Appeals against second to fifth defendants allowed; original acquittals set aside and cases remitted to the District Court for trial before another judge
  • Appeals against first, sixth, seventh and eighth defendants dismissed (prosecution's case‑stated appeals not proceeded against them for lack of valid service)