Govt loses appeal over ‘joint enterprise’ rule

Hong Kong’s top court ruled on Thursday that people cannot be convicted of taking part in an unlawful assembly or rioting if they are physically absent from the scene.

A five-judge panel led by Chief Justice Andrew Cheung made the landmark decision as it overturned a lower court’s ruling on the legal doctrine of “joint enterprise”.

Upon a request by the Department of Justice to clarify the law, the lower court had said that people who encourage others to join illegal protests through social media, provide resources or drive protesters away from a scene can all be criminally liable as participants of the unlawful assembly or riot.

But the Court of Final Appeal has now ruled that being present at the scene is a crucial element of these crimes.

“A defendant who is not present at the scene of an unlawful assembly or riot cannot be found guilty as a principal offender because ‘taking part’ in the criminal assembly is a centrally important element of these statutory offences. That requirement cannot be overridden by the common law doctrine of joint enterprise,” the judges said.

The top court said people who were not present at the scene of violence but had promoted or encouraged the criminal assembly can still be prosecuted under other legal principles.

“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. Moreover, a person who assists an offender is liable under section 90 of the Criminal Procedure Ordinance,” they said.

A number of protest-related cases had been put on hold awaiting this ruling.

Professor Simon Young, an associate dean of the University of Hong Kong’s Faculty of Law, said the ruling doesn’t really narrow the net of criminal liability.

“It’s an offence about taking part in an unlawful assembly or a riot, and taking part implies many different forms of participation… if you are not there, you can still be liable through other doctrines such as conspiracy or incitement… So the court basically said that there is no gap in the law,” Young said.

He added that the Court of Final Appeal’s ruling doesn’t have any major implications for Department of Justice prosecutors.