The crime of carrying two cans of spray paint (Part One): The invisible graffiti

Do you still remember what happened in Hong Kong one year ago on November 2?

The 22-year-old man in the courtroom was not very tall. He faced two charges from November 2 last year: assault on a police officer and possession of goods with the intent of damaging property.

His fiancee was present throughout the subsequent hearings. But it was a relatively quiet courtroom. There were not a lot of friends, family or relatives.

On the other hand, some of the audience showed up frequently. Every morning at 9 am, I could see a small group of familiar faces. There was a young woman with long hair, a middle-aged couple consisting of a bald man and a woman in tight yoga pants, chatting with each other as they waited in line.

The audience and the defendant did not know each other, yet seemed as though they did. They would nod at each other in recognition or exchange encouraging smiles.

Unfortunately, the hearings did not go well.

The hearing started in July. Twice, the lawyer for the defendant was sick with a fever and could not attend. All the other attendees only learned of the cancellations as they lined up with a knowledgeable few who found their way to other hearings.

Then, in court, the defense tried to show footage captured by a security camera but could not show it due to repeated technical problems. The judge reprimanded the defense several times, causing the atmosphere to tense up. The audience could only exchange anxious looks while the defendant looked downwards and sighed repeatedly.

Victoria Park filled with white smoke

What happened in Hong Kong on November 2 last year? A search through news reports shows that the most widely shared photos, articles and videos were on riot police storming Victoria Park and the shooting of a large amount of tear gas canisters onto the hard-surface soccer fields.

That day, more than a hundred pro-democracy candidates of the District Council elections held rallies there. Under election regulations, each candidate can hold a rally of fewer than 50 people without applying for permission. By the afternoon, many black-clad supporters, amongst them families with children, were hurrying towards Victoria Park. But in the end, some time after 4 pm, the sound of tear gas canisters roared and the area was filled with white smoke. These dispersed the crowds to run for cover.

Back in the courtroom, a senior police superintendent from the Central District police station (hereafter "Witness #1 for the defendant") testified for the prosecution. According to him, on November 2, there was a variety of illegal activities ranging from illegal assemblies to rioting, with people blocking roads in the Central, setting fires, damaging stores, and spraying graffiti. He said that most of the graffiti was spray-painted on top of store signs. Many of the affected businesses were ones with significant Chinese investment, "stores that you could call Blue stores, like Maxim's or Yoshinoya."

A bag of supplies from a kind stranger

And what happened to the 22-year-old defendant that day? In his testimony, he said he had originally planned on attending the rallies at Victoria Park. But by the time he arrived, police had already started shooting tear gas canisters. Once hit by the tear gas, he and his friends ran for cover.

Along the way, a kind stranger handed them a bag of supplies and rinsed their eyes with water and saline solution. Upon taking the bag, he did not check its content right away and only found out later that there were facial tissues, wet wipes, crackers and two cans of spray paint. As he worked in the advertising industry, he would sometimes use spray paint to draft, so he kept the bag.

According to the timeline put forth by the defense, the defendant left Causeway Bay to head towards Central. At nine in the evening, he and his friends had dinner at a Hong Kong-style diner on Pottinger St. in Central. After the meal, he planned to get home by bus.

While he and his friend were walking in the street, police officers suddenly leapt out of their vehicle, charged towards him and arrested him.

"I didn’t do anything. But all of sudden riot police were getting out of the car with batons in their hands, charging towards me. I was scared, so I ran.” he said.

He and his friend scattered during their run. He continued to be pursued by witness #1 until he tripped on a curb and was subsequently restrained by the officer from behind. Never did he strike the officer with his umbrella.

Meanwhile, witness #1 contended that he was sitting in the police vehicle when he found the defendant and his friend appearing suspicious. So he decided to get out of the vehicle to investigate. He said that after getting out of the car, he yelled at them, "Stop! Police!" but was ignored by the defendant. He then started chasing after them and when the friend of the defendant ran off, he pursued the defendant. 

When they reached 18 Pottinger St., the defendant turned around and struck his head with an umbrella. He heard the loud sound of a hard object hitting his helmet. "It hurt quite a bit. It was a numbing pain." He then subsequently jumped onto the defendant and restrained him. "The defendant struggled and tried to get up. He tried to crawl away." Other officers at the scene searched his backpack and found cans of spray paint. In the end, he was charged with two crimes: assault on police officer and possession of goods with the intent of damaging property.

At this point let’s talk about the injuries sustained by the officer who alleged that he was attacked and those sustained by the defendant.

Witness #1, who was wearing a helmet at the time, did not immediately ask to be taken to a hospital. He felt dizzy after returning to the police station about three hours after the incident. He then asked the attending officer to call an ambulance to take him to Queen Mary Hospital. After an X-ray was taken, the attending doctor said that he had no serious injuries and did not need to stay for observation. The officer left with some analgesic medication.

The defendant, on the other hand, had his shoulder pressed down by the officer's knee and his fingers bent. After being taken to the police station, he asked to be taken to the hospital to be examined. He stayed at the hospital for two days with injuries to his head and ribs and sprained index fingers. As the defense argued, the officer, who was fitted with guns, pepper spray, handcuffs, batons, a helmet and a gas mask, was wearing gears that weighed about 40 lbs. The defendant, who is five-foot-seven, would have found it difficult to struggle while pressed down by the officer. The defense believed that the injuries sustained by the defendant were caused by the excessive force used by the officer.

In response to this, the judge pointed out in his ruling that the force used by the officer was appropriate. "The defendant was already lying on the ground, so he could struggle by pushing up from the ground in an attempt to run away." The judge indicated that he believed the officer's testimony completely and that the defendant did strike the officer with an umbrella. As for his own injuries, they were only caused by his own struggling and had nothing to do with the officer. The judge added that he would accept it completely because the officer's testimony was credible and reliable and contained no contradictions.

Upon hearing this pronouncement, the defendant’s fiancee began to weep. The defendant turned around several times, wanting to comfort her. But the two metres that separated them made her so close, yet so far.

The judge went on to say that he believed that the defendant deliberately turned around to strike the officer in the head with an umbrella. "On the first count [on assault of a police officer], I find the defendant guilty!"

All the charges were convicted

As for the two spray paints that were found on the defendant’s bag, the judge said he “couldn’t understand at” why he simply took the parcel from a stranger without even checking what’s in the bag. The judge said meanwhile that he also didn't understand why the defendant spent five hours walking around Central after failing to attend the demonstration at Causeway Bay, so the judge doubted that the statement made the plaintiff-” I want to go home, badly” was a lie. The judge said: “In my opinion, you did not tell the truth. Rather, you are lying to yourself and the others, attempting to distort the truth”. Furthermore, the judge pointed out that “at that time, the defendant was equipped with the stuff that was commonly used by the protestors, including goggles and gas mask”. So, in conclusion, the defendant was found guilty for his second charge.

The judge instructed the defendant to get into the prisoner column and then, after hearing his verdict, the defendant turned around and in the next second, he touched his fiance’s face which was filled with tears. There were 2 charges laid against him (which he was said to be guilty of) - One was assaulting a police officer, leading to up to six months’ imprisonment; The other one was possessing objects with the intention to damage properties, which can result in up to two years in jail, if the case is set to be decided in this judge’s court. 

The judge took another case as a reference. In that case, the incident occurred in 2016 when one defendant was accused of assaulting a police officer with a water bottle and the defendant was jailed for four weeks. But the judge believed that there are more and more protestors assaulting police officers nowadays and the situation is becoming out of control so he believed that four-week imprisonment has no deterrent effect so he decided to jail the defendant for 50 days but the sentence period was eventually reduced to 45 days because the public sent a petition letter to the judge.   

Invisible Graffiti

So, what is the logic behind this? In this case, 2 spray paints were found in the defendant’s bag but there’s no evidence showing that he used them and yet, despite the facts mentioned, the defendant still faced severe punishment. The judge admitted that there are no similar previous cases that occurred in Hong Kong, so he took one case in the UK and the other in Australia as a reference. The case that happened in the UK was about a group of teenagers using spray paints to paint slogans at the subway, while for the case in Sydney, Australia, the incident was about someone painted “No War” on Sydney Opera House’s external war and the painting was to show their political demands.

It’s apparent in the two cases mentioned in the last paragraph, there was clear evidence showing that the defendants did use spray paints to paint the graffiti, but for this case, there is no evidence showing that the 22-year-old young male defendant committed a crime, he was merely carrying two spray paints in his belongings. Yet, the judge has his own opinions. He believed that there are many places that can be used to do graffiti by using the two spray paints. He asserted that the two spray paints will make Hong Kong’s clean and tidy streets filled with graffitis. And the slogans painted are normally with an intention to prompt violence, hatred and separate the society. “In my opinion, I believe that this case is worse than the case in the UK and Australia. What I am sure of is that he carried two spray paints which can be used widely and can cause great damages.”

At the public seats, people were shocked and speechless upon hearing this, even the sobbing stopped. Everyone was still trying to process what the judge had just said.

The judge decided that the defendant to be jailed for 5 months but reduced to 4 months plus 15 days after taking the public’s petition into consideration; he also asserted that concurrent execution of the jail sentence (for 2 charges convicted) will not be able to show how the seriousness of this case, therefore he believed that it’s necessary to execute two jail sentences separately, so eventually the defendant will serve his sentence in the jail for 5 months plus 15 days.

The judge left his seat right after the trial and just then, the defendant's lawyer said immediately that he would like to appeal against this court decision and wanted to request a release on bail while the court is reviewing this case. The judge stumbled back to his seat, wrote on some documents and said, “the request for a release on bail was declined right away”, then he left the court. The defendant was taken from the prisoner section and his fiance was crying with a Gregory bag in her hand (the bag was seized by the court as an exhibit on the day the defendant was arrested and was returned to his fiance on the day of trial.

This case was decided in the Eastern Magistrates Court and the defendant is in the appealing process.

Source: The StandNews, 13 October 2020

https://www.thestandnews.com/court/看不到的塗鴉-兩支噴漆的定罪-一/