Hong Kong’s top court has cast doubt on the city’s prosecutors, who argued that the common law doctrine of “joint enterprise” should be applicable to unlawful assembly and rioting cases to fill what they saw as a lacuna in existing laws.

The Court of Final Appeal is set hand down a far-reaching verdict to decide whether people who are not physically present at an illegal assembly or a riot may face the same criminal charges as the actual participants under the legal principle in question.

Court of Final Appeal. Photo: GovHK.

The debate presented on Tuesday in front of a five-judge panel led by Chief Justice Andrew Cheung arose from two appeals by pro-democracy activists Lo Kin-man and Henry Tong. Both questioned the applicability of joint enterprise to unlawful assembly and rioting offences. The common law principle means a secondary perpetrator may be found guilty of the same charge as the principal defendant.

Lo’s appeal centred around his conviction in 2018, when he was found guilty of rioting and jailed for seven years in the same case as former localist leader Edward Leung in connection with the 2016 Mong Kok unrest.

He sat in the dock in a dark grey suit, wearing a pair of black thick-framed glasses. Lo’s family members sat around a metre away from the activist. He briefly chatted with prominent barrister Margaret Ng, who sat in the front row of the public gallery during the hearing.

Members of the public line up outside the Court of Final Appeal on October 5, 2021 for the hearing on an appeal on the applicability of Henry Tong

Tong, on the other hand, was acquitted of rioting in July last year in relation to the 2019 anti-extradition bill protests. The ruling, however, prompted the secretary for justice to ask the Court of Appeal for clarifications. The court ruled in favour of the government in March this year by saying that joint enterprise was applicable to the two types public order offences. But Tong took issue with the appeal court’s decision, which also declared that a suspect’s presence at the crime scene was “not always necessary” for criminal liability. He did not show up on Tuesday’s hearing.

Legal lacuna

Representing Lo, Senior Counsel Gladys Li argued that the prosecution must identify the “constituent members” of an unlawful assembly and prove that they had a common purpose to breach peace before charging a defendant with rioting. She said it was to avoid “dragging in casual participants.”

Lo Kin-man. File photo: Stand News.

Li said the criminal liability of an accessory should be based on his or her presence at the scene. Those who were off-site, a “mastermind” for instance, should face conventional accessorial liability rather than being indicted on the principle of joint enterprise.

“There is no identified lacuna,” Li told the judicial bench, comprising of Cheung and permanent judges Johnson Lam, Roberto Ribeiro, Joseph Fok and non-permanent judge Lord Jonathan Sumption.

Lawyers Gladys Li (right) and Lawrence Lau (left) for Lo Kin-man. Photo: Kelly Ho/HKFP.

The Court of Appeal had sided with the justice minister in March, ruling that unlawful assemblies and riots were “highly fluid in nature.” It agreed that participants sometimes had a “sophisticated division of labour,” such as a having a “mastermind” who oversaw the situation and gave commands remotely. Those who encouraged or promoted the illegal gathering by posting on social media and people who acted as “lookouts” and drove getaway cars were also said to be “clear participants” in an unlawful assembly or a riot.

Senior Counsel Philip Dykes argued on behalf of Tong that the doctrine of joint enterprise was “self-contained” in the corporate nature of the unlawful assembly and rioting offences. He said the provisions already included the elements of people “assembling together” in a place for a common purpose.

Protest scenes in Hong Kong from 2019. Photo: May James/HKFP.

Dykes went on to say that there was no legal lacuna in the existing legislation, as those who acted as “masterminds,” or took on other roles, could be held accountable through “auxiliary provisions,” namely incitement and conspiracy charges.

His arguments were echoed by the top court panel. The judges challenged Acting Deputy Director of Public Prosecutions Anthony Chau, when he said that excluding the joint enterprise principle from unlawful assembly and rioting offences would create a “lacuna” and “render the law ineffective against enterprise formed in advance.”

Acting deputy director of public prosecutions Anthony Chau leaves the Court of Final Appeal on October 5, 2021. Photo: Kelly Ho/HKFP.

Prosecutors had to rely on the doctrine, Chau said, when they faced “evidential and situational uncertainty” in identifying the principal and secondary perpetrators. But the top court bench questioned how the prosecution may prove a suspect had prior agreement, when they struggled to gather evidence to show the defendant’s participation.

“Invoking the doctrine would not lessen your difficulty, if any, in terms of evidence,” the chief justice said, adding that the “masterminds” may be “taken care of” with the existing accessorial liability.

Henry Tong. Photo: Kelly Ho/HKFP.

Chau later accepted that there would be “some overlapping” with other offences tackling secondary perpetrators. He said evidential difficulty was only one of the grounds for joint enterprise to be applied, urging the court to consider other reasons, such as the statutes of the two type of offences which did not expressly or impliedly say the common law principle should be excluded.

Li disagreed with Chau’s submission: “[Joint enterprise] is not a band aid to apply when there is insufficient evidence… [we] cannot use joint enterprise to fill evidential holes.”

Senior Counsel Philip Dykes represents Henry Tong in the Court of Final Appeal on October 5, 2021. Photo: Kelly Ho/HKFP.

Before the hearing concluded, Dykes raised the example of “keyboard fighters in Sha Tin or Tai Po” to oppose the use of the doctrine in charging them with participation in an unlawful assembly or riot.

“That is conceptually wrong,” he said.

The hearing set for two days concluded early on Tuesday afternoon. The chief justice said they would deliver the judgement later.

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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.