Defendants who come before the courts in Hong Kong facing rioting and unlawful assembly charges may still be convicted – even if they were not present at the scene of protest.

The Court of Appeal on Thursday upheld the right of the Department of Justice (DoJ) to apply the common law doctrine of “joint enterprise” when prosecuting suspects accused of the two offences. It also ruled that a defendant’s physical presence was “not always necessary” for them to be held criminally liable.

A photo of frontline protesters taken at a protest on August 24, 2020. Photo: Studio Incendo.

Delivering the ruling, Chief Judge of the High Court Jeremy Poon, Vice-President of the Court of Appeal Andrew Macrae and Judge Anthea Pang said the application of such a legal principle would serve the public interest of maintaining public order.

They agreed with the DoJ’s argument that riots and unlawful assemblies nowadays were “highly fluid in nature.” They acknowledged that the ruling could allow prosecutors to indict people who played different roles in a protest, such as a “mastermind” who monitors the situation remotely, a lookout stationed nearby and social media users who spread messages deemed as “encouraging or promoting” the unlawful assembly and riot.

“They involve a myriad of participants playing various roles and sometimes with a rather sophisticated division of labour among them,” the judgement read. “Some may not even be present but are clearly participants under the doctrine of joint enterprise.”

Photo: GovHK.

Other roles that may risk committing rioting and unlawful assembly under joint enterprise included people who provides materials for the protests and those providing “back-up support” by gathering gear, weapons and other materials for the actual participants.

“Whatever role the above participants might have played, they have all acted in concert with the principal offenders thereby sharing both their physical acts and culpability,” the court said, adding the list was not exhaustive.

Thursday’s decision came after Secretary for Justice Teresa Cheng asked the court to clarify questions of law, following a lower court’s acquittal of married couple Henry Tong and Elaine To and teenager Natalie Lee of rioting last July.

The trio was accused taking part in an riot in Sheung Wan on July 28, 2019, during the early months of the anti-extradition bill protests. The District Court at the time said the prosecution lacked direct evidence against the three defendants, adding the doctrine of joint enterprise was not applicable to the offences in question.

Protest scenes from July 28, 2019. Photo: May James/HKFP.

Olivia Tsang, who represented Lee, argued people may easily find themselves in a position where they could be accused of encouraging others to take part in an unlawful assembly by posting on social media: “Freedom of speech may be compromised consequential on an overexpansion of the interpretation of the two sections [of the Public Order Ordinance],” she said.

In response, the court said freedom of expression was not absolute, adding such a right does not grant immunity to rioting and unlawful assembly offenders.

“If there is sufficient evidence to establish their liability under the accessorial rules or the doctrine of joint enterprise, they are no longer innocent people exercising their freedom of expression.”

Protest scenes from July 28, 2019. Photo: May James/HKFP.

In Hong Kong, rioting is punishable by up to ten years behind bars, while unlawful assembly carries a maximum penalty of five years in prison.

Barrister and law professor Simon Young of the University of Hong Kong told HKFP that he thought the Court of Appeal’s decision was “entirely sensible.” But he said people who simply “liked” another person’s post on social media asserting a plan to commit rioting may not be a a party to criminal joint enterprise.

“Because 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.

Kelly Ho

Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.