Hong Kong’s top court will examine the use of a legal principle that allows prosecutors to indict those not physically present at a riot or unlawful assembly with the same charges as actual participants.
The Court of Appeal on Monday granted a request to have the Court of Final Appeal determine on the issue arising from the first riot trial in relation to the 2019 anti-government demonstrations, after accepting it had far-reaching implications for future prosecutions.
The three defendants in the District Court trial last year were acquitted after the presiding judge ruled that the unique group nature of the charges of rioting and taking part in an unlawful assembly required offenders to have “assembled together” at a crime scene.
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But the judge 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 with a common purpose in Sai Wan on the night of July 28, 2019.
Without seeking a reversal of the acquittals, the Department of Justice asked the Court of Appeal to uphold the application of the common law doctrine of joint enterprise, which allows for all participants of a riot or unlawful assembly to be held liable for the same offences regardless of whether they were physically present at the scene, so long as they shared a common purpose.
In a written judgment in March, the lower appellate court sided with the prosecution and held that prosecutors could go after a myriad of suspects – for example, a lookout or the driver of a getaway car – depending on the strength of the evidence.
Tong, one of the acquitted defendants, sought the top court’s interpretation on whether the legal principle was applicable in cases involving riots and unlawful assemblies, and whether prosecutors needed to prove a suspect’s physical presence at a crime scene to secure a conviction for the offences.
On Monday, the Court of Appeal endorsed Tong’s appeal after accepting the questions were of great and general importance.
Madam Justice Anthea Pang Po-kam, who penned Monday’s judgment on behalf of a three-judge panel, said: “These two questions have far-reaching implications for the prosecution of offences of riot and unlawful assembly in the future.”
She noted the question concerning the application of the joint enterprise principle would also be looked at by the top court in a separate appeal by riot offender Lo Kin-man, who was jailed for seven years for his role in the overnight unrest in Mong Kok between February 8 and 9, 2016.
A hearing date has not yet been fixed for both appeals.