CHRIS LAUchris.lau@scmp.com
PUBLISHED : Thursday, 03 September, 2015, 7:01am
UPDATED : Thursday, 03 September, 2015, 7:01am
Law Cheuk-yung during his arrest. Photo: SCMP Pictures
A magistrate yesterday convicted an Occupy protester after amending the charge he faced at the last minute - which a lawyer argued undermines the cornerstone of the original defence.
Eastern Court Magistrate Lee Siu-ho convicted Law Cheuk-yung, 18, of causing disorder in a public place, even though the Form Six student had been facing a charge of unlawful assembly.
Barrister Albert Luk Wai-hung said: "This could undermine the cornerstone of the defence the trial counsel made for the original charge."
The court heard the magistrate informed both prosecutor Francis Cheng and Law's counsel Randy Shek that he intended to change the charge, after Shek argued in his closing summary that his client should be acquitted of unlawful assembly because Law was not close to other protesters during the alleged offence.
Before handing down the verdict, Lee cited section 27 of the Magistrates Ordinance, which states a magistrate can amend defects and variances in complaints, information and summonses before him that are not material.
"This is to fill a hole when the prosecution evidence did not suffice," Shek responded, adding that the change Lee proposed was material.
But Lee made the amendment and convicted Law for sitting on a road divider and throwing a traffic cone onto Lung Wo Road during the protest in Admiralty last October.
Law is also accused, after throwing the cone, of raising both his arms in a gesture of defiance.
Lee adjourned the case to September 23 to see the community service and probation reports on the defendant.
Luk said it was not uncommon for magistrates to amend charges, though unfair situations could arise when amendments came so late in the trial.
Luk said the trial counsel could have adopted a different strategy and although the defendant would be given the chance to recall witnesses, these witnesses would already know what to expect as they had been grilled before.
http://m.scmp.com/news/hong-kong/law-crime/article/1854825/occupy-protesters-defence-undermined-hong-kong-magistrate
