A person not physically present at an unlawful assembly or riot can no longer be held liable as an actual participant of the crime, Hong Kong’s top court has ruled in a landmark decision for pending trials stemming from the 2019 anti-government protests.
In a much-anticipated judgment on Thursday, the Court of Final Appeal ruled it unlawful for prosecutors to apply the common law doctrine of joint enterprise to illegal assembly and riot cases when going after suspects who were not on the scene.
The five presiding judges held that prosecutors could only indict people who were not in attendance by invoking a conspiracy charge or ancillary offences such as aiding and abetting, incitement and assisting an offender.
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The doctrine previously relied upon by prosecutors allowed 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.
But the judges warned that, even with their ruling on the scope of joint enterprise in such cases, defendants found guilty of those alternative offences faced similar levels of punishment under the Public Order Ordinance as people convicted on the basis they had actually attended illegal gatherings.
As part of Thursday’s ruling, the top court dismissed an appeal by Lo Kin-man, who was seeking to overturn his conviction after being jailed for seven years in 2018 for rioting during the overnight unrest in Mong Kok that began on February 8, 2016.
Defence counsel for the 34-year-old argued the trial judge had failed to require the jury to find a common purpose for assembly before determining the defendant’s guilt.
However, Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Fok and Johnson Lam Man-hon, and British non-permanent justice Lord Jonathan Sumption found no issue with the trial judge’s direction, ruling the joint enterprise principle was not applicable in Lo’s case.
The latest ruling also addressed the same legal issues raised in a separate appeal following the acquittal of 40-year-old gym owner Tong Wai-hung, his wife Elaine To, 43, and student Natalie Lee Yuen-yui, 17, in the first riot trial relating to the 2019 anti-government protests. Following the acquittal, prosecutors sought the Court of Appeal’s clarification on the application of the joint enterprise principle.
The trial judge in that case – relating to a protest in Sai Wan on July 28, 2019 – ruled it had not been demonstrated that the trio had assembled with other demonstrators to take part in a riot, leading prosecutors to challenge the decision on the basis there was no requirement to prove that point.
The lower appellate court in March sided with the prosecution, allowing them to go after suspects, who might not have been present at the unrest, but were “clearly participants under the doctrine”, such as masterminds, sponsors, lookouts, getaway drivers and others who provided material support.
In Thursday’s 47-page ruling, the Court of Final Appeal agreed that prosecutors were entitled to indict those who were attending an unlawful assembly or a riot to assist or encourage actual participants, as well as those who counselled or procured such illegal gatherings behind the scenes.
But instead of applying the joint enterprise principle to those cases, the top court said prosecutors ought to have charged suspects who were not on the scene as accessories to the crime instead of primary offenders. The judgment made clear prosecutors were required to prove the suspect’s participation, or a “participatory intent”, before proceeding with an allegation of taking part in a riot or unlawful assembly.
“The [Public Order] Ordinance defines participatory offences requiring a defendant not just to ‘take part’, but to do so as part of an ‘assembly’, as a person ‘assembled together’ with others taking part,” the judgment read.
“Thus, its language imports a requirement of presence at the scene before one can be held guilty as a principal offender. Such a statutory requirement cannot be displaced by the common law [joint enterprise] doctrine.”
“However, a person who promotes or acts in furtherance of an unlawful assembly or riot while not present at the scene may be guilty as a counsellor and procurer of the relevant offence or guilty of conspiracy or incitement to commit such offence and would be punishable to a like extent as the principal offender,” the judgment added.
The senior jurists also warned lower courts against taking an overly rigid view of what constituted an assembly, saying trial judges should bear in mind the fluid nature of illegal gatherings and any indicators of participation, such as possession of protest equipment.
On that point, one lawyer with experience handling protests cases said the court had merely affirmed what had already been established.
“Some were worried that one could be found guilty of rioting just by being present. The court just reiterated that one can’t, really. But an inference can be drawn on whether they were actually participating,” he said.
Another lawyer who has defended cases connected to the 2019 unrest, however, said he was “very disappointed” with the ruling, as suspects who were found to have merely encouraged or abetted an illegal protest without being present could still “be given the same, or an even heavier, sentence than an actual participant”.
Former director of public prosecutions Grenville Cross said the ruling was unlikely to have a significant impact given that accessories to crimes would now simply be hit with alternative charges, adding it would still be “business as usual” for the Department of Justice when pursuing such cases.
University of Hong Kong legal scholar Simon Young Ngai-man, meanwhile, characterised the decision as a minor win for prosecutors, as the court had also clarified another aspect of riot law regarding the threshold for establishing that offenders shared a common purpose.
Defenders had long argued that prosecutors had to prove rioters shared a common purpose beyond simply attending the same unlawful assembly – for instance, attacking a specific building – but in the new ruling, the court found that was not necessary to secure a guilty verdict, according to Young.
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