On 22 March, after 5 days’ deliberations, a jury finally found Yung Wai-yip, aka Captain America, guilty of two rioting charges concerning 2016 Lunar New Year Mongkok Police-civilian Clash. Hong Kong law scholar Wong on-yin opines that there is ground for a re-trial of Yung wai-yip conviction as the judge mis-directed the jury in 3 ways, including failing to stress the defendant’s certified autism, declining to remind the jury of the benefit of any reasonable doubt, and deemphasizing any police provocation.
First, Judge Wong failed to instruct the jury to consider that as the defendant Yung Wai-yip is a medically certified patient of autism, he might have lacked criminal intent, and/or whether the prosecution has proven beyond all reasonable doubt that Yung had broken the law like a normal person without mental illness.
Second, two days into the jury’s course of deliberations, Judge Albert Wong, despite the defense counsel’s appeal, refused to remind the jury that the benefit of any reasonable doubt should go to the defendant, which is the most important spirit of the Common Law; and that the jury can be dismissed if a majority verdict cannot be reached.
Third, in instructing the jury, Judge Wong stressed that the Police’s planning and action errors as pointed out by the defense were not crucial for the case, on the ground that this was not a disciplinary hearing on the police. This is unfair misleading for how come being provoked by the police cannot be a kind of defense? At least, the jury should have been instructed to take into account, as they considered the defendant’s actus reus and mens rea, whether at the time concerned, the defendant was provoked so much so that he lost self-constraint.
Disclaimer: Mr. Wong On-yin’s view does not necessarily represent the stance of Local Press.
Source: HKEJ A15, Wong On-yin, 2019-03-16