Hong Kong's top court to decide if 'joint enterprise' doctrine applies to rioting and unlawful assembly charges

Hong Kong’s Court of Final Appeal will decide whether defendants facing rioting and unlawful assembly charges may still be convicted, even if they were not present at the scene of protests.

The city’s top court approved on Monday Henry Tong’s application to appeal against the court’s decision to allow the Department of Justice (DoJ) to apply the common law doctrine of “joint enterprise” when prosecuting suspects facing either of the charges.

Judge of the Court of First Instance Anthea Poon wrote in a judgement published on Monday that Tong’s application was approved as two of the legal questions had a “far reaching implication for the prosecuting of offences of riot and unlawful assembly in the future.”

If the top court decides the doctrine of “joint enterprise” is applicable to offences of rioting and unlawful assembly, it would also need to decide whether the defendant’s presence at the scene was necessary for a conviction.

Sheung Wan protest

The dispute first came as the Secretary for Justice Teresa Cheng asked the the court for clarification after Tong, his wife Elaine To, and teenager Natalie Lee were acquitted of rioting last July.

Henry Tong Elaine To — Henry Tong and Elaine To. Photo: Stand News.

The trio was accused taking part in a 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 that the prosecution lacked direct evidence against the three defendants, adding that the doctrine of joint enterprise was not applicable to the offences in question.

Chief Judge of the High Court Jeremy Poon, Vice-President of the Court of Appeal Andrew Macrae and Poon initially ruled in favour “after considering, on the one hand, the need to maintain pubic order and, on the other, the need to avoid over-charging where innocent people might be caught.”

The court’s initial ruling would have applied to people not present at the scene, but who may have been involved in encouraging others on social media to take part, facilitating escapes, or providing materials for the protests.