Top court to hear appeal over ‘joint enterprise’ rule

The Court of Final Appeal (CFA) is set to hear arguments on whether people charged with unlawful assembly or rioting can be convicted even if they were not present at the scene.

An appeal has been initiated by Tong Wai-hung, who was among several defendants charged with rioting in Sheung Wan in July 2019 but was eventually acquitted by the District Court.

The Department of Justice (DOJ) did not challenge the acquittal, but asked the Court of Appeal to clarify the law over whether a person’s physical presence at an unlawful assembly or a riot is necessary for a conviction – in accordance with the “joint enterprise” doctrine in the common law system.

In March, the Court of Appeal ruled in favour of the DOJ. It decided that people who encourage others to join illegal protests through social media, provide resources, acts as lookouts or masterminds, or drive protesters away from a scene, can all be criminally liable.

Tong then sought a certificate from the Court of Appeal to bring the matter to the city’s top court and was given the green light on Monday.

“[This question has] far reaching implications for the prosecution of offences of riot and unlawful assembly in the future,” the appeal court judges wrote in a brief judgement granting an appeal certificate to Tong.

The judges also noted that the CFA recently granted leave to appeal to another man, Lo Kin-man, who was convicted of rioting during the Mong Kok unrest in 2016, so he can argue against the joint enterprise doctrine.

No dates have been set for the CFA hearings.