A Hong Kong court has upheld prosecutors’ wide power to indict suspects by ruling that even those not physically present at an unlawful assembly or riot can face the same charges as actual participants under the legal principle of “joint enterprise”.
Handing down the judgment on Thursday, Chief Justice of the High Court Jeremy Poon Shiu-chor acknowledged such an application of the law could allow prosecutors to go after a myriad of suspects – ranging from a lookout or the driver of a getaway car, to a social media user who merely clicked “like” on a post promoting an illegal gathering – depending on the strength of the evidence.
The ruling at the Court of Appeal could pave the way for more prosecutions, as well as increase the likelihood of convictions in future trials and overturn the acquittals of some riot suspects charged for their roles in 2019’s anti-government protests.
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Poon said the common law doctrine must apply to the offences of rioting and unlawful assembly, as it was plainly in the public interest to penalise not just offenders caught at the scene, but also accomplices who were not.
“An accessory or a party to a joint enterprise is liable as the principal. This serves the public interest of maintaining the public order,” Poon said. “A contrary construction which excludes the doctrine of joint enterprise … will have dire consequences for the maintenance of public order.”
Poon dismissed suggestions the interpretation might lead to the “overcharging” of innocent people, saying an individual would remain safe unless he or she “crosses the line”. He further rejected the notion that freedom of speech would be compromised.
“Freedom of expression is not absolute. It does not provide immunity to those who have actually, in the eyes of the criminal law, participated in an unlawful assembly or riot, such as by encouraging or promoting it, in the disguise of exercising their freedom of expression,” Poon added.
The court debate stemmed from the first riot case involving the 2019 unrest, in which the three defendants walked free after the presiding judge held that the unique group nature of the charges required offenders to have “assembled together” at a crime scene.
In his verdict last July, District Judge Anthony Kwok Kai-on found insufficient evidence to conclude the trio – student Natalie Lee Yuen-yui, 17; gym owner Tong Wai-hung, 40; and his wife Elaine To, 43 – had assembled with protesters in a common purpose in Sai Wan on the night of July 28, 2019.
The Department of Justice, without seeking a reversal of the acquittals, asked the appeal court to uphold the application of the common law doctrine of joint criminal enterprise, which allows for all members of a group to be held liable for offences committed by any individual member, so long as they shared a common purpose. The doctrine’s application, the department argued, was not expressly excluded under the law.
Rioting and taking part in an unlawful assembly are outlawed under the Public Order Ordinance, enacted in 1967 to quell leftist riots that year that left 51 people dead and more than 800 injured. The charges are punishable by 10 years and five years behind bars, respectively.
To date, only six defendants have been convicted at trial of riot-related charges stemming from the 2019 protests, while 17 pleaded guilty and another 25 have been acquitted. The justice department has lodged an appeal against 18 of those acquittals.
As of the end of January, 2,457 people had been charged for their alleged involvement in riots, unlawful assemblies and other offences related to the protests. So far, 565 have been convicted, 49 have had their charges withdrawn and 156 have been acquitted.
Simon Young Ngai-man, associate law dean at the University of Hong Kong, regarded Thursday’s ruling as an “entirely sensible decision”, citing previous decisions in local courts.
One was by the Court of Final Appeal in 2004 regarding the Immigration Tower blaze that resulted in the deaths of two people. At the time, Justice Kemal Bokhary held that it was not necessary for those guilty by way of joint enterprise to be present at the scene of the crime, Young said.
He said the court reaffirmed this principle in 2016 in a triad murder case in which a defendant was found guilty of murder despite being on his way to the scene with weapons at the time of the actual attack.
But Young noted that in a rioting case, someone who simply liked another person’s post on social media sharing a plan to commit the offence would not necessarily be “a party to a criminal joint enterprise”.
“It may not be clear if that first person shared a common intention to commit the offence or was simply showing support for the second person’s underlying political cause,” he said.
But Icarus Wong Ho-yin, a member of the Civil Rights Observer, said if people disseminated or circulated information about a protest on social media, even without inciting it, they could be deemed part of the joint enterprise.
“This could create a chilling effect on free speech, when people need to think twice about exercising their fundamental rights to express views online,” he said.