Although the Judiciary is sometimes criticized when defendants are acquitted, or unduly lenient sentences are imposed, it has its own mechanisms in place for rectifying errors made by judges and magistrates. Only a handful of judicial officers, out of an establishment of about 170, have fallen into appealable error when handling protest-related trials, and the appeal courts have, whenever necessary, stepped in to put matters right. Not only have 15 manifestly inadequate sentences imposed in protest-related cases been overturned by the Court of Appeal since 2020, but, when trial courts have misunderstood legal principles, it has also clarified the law to avoid any repetition.
On July 28, 2019, there were various public protests on Hong Kong Island. After an authorized assembly in Chater Garden, Central, some of the protesters, disregarding police warnings, headed towards the CPG’s Liaison Office, in Sai Wan. This diversion duly escalated into a riot, with the participants setting up roadblocks near Western Police Station, and chanting offensively. When the police sought to disperse and apprehend the protesters, they arrested three suspects nearby whom they believed, if not actively engaged in the riot, to be nonetheless complicit in it. They were jointly charged with a riot which took place at Des Voeux Road West, contrary to the Public Order Ordinance (Sect.19), and with an alternative charge of unlawful assembly (Sect.18), which is a less serious offense.
In July 2020, when the three defendants, Natalie Lee Yuen-yui, Tong Wai-hung and Elaine To, faced trial in the District Court, before Judge Anthony Kwok Kai-on (DCCC 872/2019), there was no direct evidence to show that they had actually participated in the offense. Instead, prosecutors relied on circumstantial evidence to demonstrate their involvement, which is by no means unusual in criminal cases. By drawing inferences from the evidence, the judge was invited to conclude that they were either present, participating or encouraging other rioters, or else that they were parties to the riot by virtue of the joint enterprise doctrine, under which, although not physically present, they were supporting the rioters in other ways.
The circumstantial evidence upon which prosecutors relied included their black attire, their possession of protective gear, which included goggles, gloves, helmets and bottles of saline, and their attempts to escape, often a sure sign of guilt. They argued that, taken cumulatively, these factors, at the very least, were such as to fix them with liability, on the basis that they were secondary parties who were participating in an unlawful enterprise along with their principals, the actual rioters. This is a common law doctrine, and it arises where somebody participates in a joint criminal enterprise during which an offense is committed by the principal acting in concert and with a common design.
Judge (Anthony) Kwok’s ruling created huge problems for prosecutors, and meant that significant numbers of criminal suspects might no longer be prosecutable. In essence, the effect of the ruling was that people could not be convicted of riot or unlawful assembly unless they were physically present at the crime scene, and their discharge of related roles in support would not implicate them
This doctrine, recognized throughout the common law world, is of great assistance to prosecutors, and it enables everybody involved in a crime to be held to account, even ancillary figures. It means, for example, that somebody who acts as a lookout while a robbery is being committed, or who agrees to be the getaway driver, or who supplies the weapons for the robbers to use, or undertakes to hide the money, is just as culpable as the actual robbers who smash their way into the bank and grab the cash. Although mere observers of a crime are not culpable, those who play some role in it, albeit at second hand, can be held to account.
On July 24, 2020, however, Judge Kwok acquitted the three defendants of both riot and unlawful assembly. He declined to infer that they were physically present during the riot, and ruled that, as a matter of statutory construction, sections 18 and 19 of the Public Order Ordinance, which create the two offenses, excluded the joint enterprise doctrine. He considered that they had the distinctive feature of “corporate nature”, and this required the suspects to “assemble together” when the offense occurred, meaning that secondary parties who were elsewhere were immune from prosecution.
As this was the first prosecution for riot arising out of the insurrection in 2019, with many others reportedly in the pipeline, Kwok’s ruling created huge problems for prosecutors, and meant that significant numbers of criminal suspects might no longer be prosecutable. In essence, the effect of the ruling was that people could not be convicted of riot or unlawful assembly unless they were physically present at the crime scene, and their discharge of related roles in support would not implicate them. This, quite clearly, drove a coach and horses through the prosecutors’ arsenal, with the Director of Public Prosecutions noting that “unlawful assemblies and riots nowadays are highly fluid in nature, and involve a myriad of participants in various roles”.
On September 15, 2020, therefore, the Secretary for Justice, as is her right, initiated an appeal, the purpose of which was to invite the Court of Appeal to clarify the law, but not to have the acquittals themselves overturned. Once the law was explained, it was hoped that it would again be possible to prosecute everybody, evidence permitting, who was in any way complicit in offenses of riot or unlawful assembly. At the appeal, prosecutors argued, firstly, that the joint enterprise doctrine applies to both offenses, and, secondly, that criminal liability for neither offense was dependent on a suspect’s presence at the scene.
On March 25, 2021, the Court of Appeal delivered its judgment (CASJ 1/2021). The Chief Judge of the High Court, Jeremy Poon Shiu-chor, agreed with prosecutors that, under the joint enterprise doctrine, people can be prosecuted for either riot or unlawful assembly even if they are not physically present. It was plainly in the public interest that not only the offenders caught at the scene should be prosecutable, but also their accomplices who were not. This approach, he said, served “the public interest of maintaining public order”, while that adopted by Judge Kwok, which excluded joint enterprise, would have “dire consequences for the maintenance of public order”.
Although, in opposing the Secretary’s arguments, the defendants claimed that the net should not be cast too wide, with, for example, people who posted supportive comments on social networks becoming prosecutable, Poon said that an individual would remain safe unless he or she “crosses the line”. Having noted that freedom of expression is not absolute, he emphasized that “it does not provide immunity to those who have actually, in the eyes of the criminal law, participated in an unlawful assembly or riot, such as by encouraging or promoting it, in the disguise of exercising their freedom of expression”.
The Court’s judgment, therefore, is a victory for common sense, and a blow for the men and women of violence. If Judge Kwok’s decision had been upheld, with the joint enterprise doctrine being excluded from riot and unlawful assembly cases, there would have been a significant lacuna in relation to both offenses, from which only the criminals would have benefited. As Poon explained, this “could not have been the legislative intent when enacting sections 18 and 19”.
In light of the judgment, the riot cases that were on hold can now proceed. Over 10,000 people have been arrested in connection with the 2019 disturbances, and, as of January 31, 2,457 people had been charged for their alleged involvement in riots, unlawful assemblies and other protest-related crimes. So far, 17 defendants have pleaded guilty to riot-related charges, 6 have been convicted after trial, and 25 have been acquitted, with the Secretary for Justice challenging some of those acquittals. As only about 750 cases have been finally adjudicated upon, a vast number are either awaiting trial, pending legal advice, or still being investigated.
Although some of the riot trials are facing long delays, with cases being listed for 2023, there will, hopefully, as the joint enterprise doctrine has now been clarified, be more guilty pleas, and also greater precision once proceedings get underway.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
