On 25 March 2021, the Court of Appeal gave judgment in CASJ 1/2020, in which the SJ referred the following questions of law for the Court’s determination:
(1) For the offences of unlawful assembly and riot respectively under sections 18 and 19 of the Public Order Ordinance (Cap 245) (“POO”), whether the common law doctrine of joint enterprise as elucidated in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 is applicable; and
(2) If the Question (1) is answered in the affirmative, for the offences of unlawful assembly and riot, whether the principle that a defendant’s presence at the scene is not always necessary for criminal liability under the common law doctrine of joint enterprise as enunciated in Sze Kwan Lung & Ors (2004) 7 HKCFAR 475 is applicable.
The Court of Appeal found in favour of the construction of sections 18 and 19 of the POO advocated by the Secretary for Justice and answered both of the above questions in the affirmative. In arriving at that conclusion, the Court of Appeal considered, inter alia, the following matters:-
(i) Due weight should be given to the common law principles underpinning the offences (para 44(1));
(ii) Other public interest considerations to be taken into account are (a) the need to maintain public order and (b) to avoid the risk of overcharging otherwise innocent persons caught up in an unlawful assembly or riot (para 48);
(iii) In common law, an accessory or a party to a joint enterprise is as liable as the principal in offences of unlawful assembly and riot (para 1). It is also an ordinary principle of common law it is not a pre-requisite for perpetrators of a crime to be present at the scene (paras 2-3);
(iv) The above principles were held to have been retained for the statutory offences under review as it plainly furthers the objective of maintaining public order (para 54) and have not been displaced (para 66); and
(iv) In respect of over-charging, the Court of Appeal held that in applying the doctrine of joint enterprise, there is no risk of over-charging because (a) the law protects peaceful demonstrators and an onlooker who does not become involved in the violence (para 79); (b) even when events descend into unlawful assembly or even riot, mere presence of an onlooker/ peaceful demonstrator will not, per se, render him liable in the relevant sense (para 80); (c) it is only when a person breaches the peace that he crosses the line of legitimacy be it as principal or accessory (para 80). The same applies, mutatis mutandis, for a person who is not present at the scene (para 81).
Ultimately, each charge turns on a question of fact, i.e. whether there is sufficient evidence to establish that the person(s) in question have “crossed the permissible line” and became liable whether as principal or accessory under the relevant provisions for the POO.
Eric Kwok SC was counsel on fiat, leading Mr Kelvin Tang SPP and Mr Wilson Lam SPP
The full judgment can be found here.