Decision by Hong Kong’s top court is not a free pass for rioters
- The ruling by the Court of Final Appeal narrowed the scope of riot and unlawful assembly prosecutions. It is unlikely to have the impact that some claimed but may prevent miscarriages of justice
The months of civil unrest that followed have resulted in hundreds of prosecutions, many involving riot allegations. But the definition of a rioter has remained uncertain.
A ruling by the Court of Final Appeal last week provides some clarity. It narrows the scope of prosecutions for riot and unlawful assembly.
The decision of the five judges, including one from Britain, was unanimous. They rejected the government’s argument that people can be convicted of rioting even if not at the scene.
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A riot is an unlawful assembly that descends into a breach of the peace. The key word is “assembly”. To be guilty of rioting, you must have “assembled with others”. To do that, you have to be there.
The court disagreed with the government’s view that those involved in some way but not at the scene can still be convicted of riot on the basis of “joint enterprise”. This principle applies criminal responsibility to people who did not personally commit the act concerned, such as the hirer of a contract killer.
The Department of Justice saw the principle as crucial for riot cases. Without it, there would be a “significant” gap in the law which would “unnecessarily curtail” the scope of crimes during the protests, it said. The government argued those who supported rioters from a distance, by providing funding, weapons, or even being the masterminds, could escape justice.
This view was endorsed by the Court of Appeal in March. But it was dismissed by the top court which said there is no gap in the law.
Those not present at the scene of a riot may still be convicted of being an accessory to the crime if it is proved they assisted, encouraged, or incited the offence. This does not make them a rioter, but the penalty they receive could be just as severe.
The legal principles are complex, but the thrust of the court’s judgment is simple. To be a rioter you must be present at the scene and have taken part in the riot. Whether or not a person “took part” depends on the circumstances of each case.
Being present is not, in itself, sufficient to be “taking part” or even to be an accessory to the crime, the court said. But the judges added it would not take “a great deal of activity” to turn “mere presence” into encouraging the riot.
There was no need for prosecutors to prove those involved had a shared purpose other than their intention to breach the peace together, the judges said.
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The courts must now apply this guidance. It will not be an easy task. Thousands were on the streets amid chaotic scenes during the months of civil unrest.
Some were involved in violence, others provided active support. There were also journalists, first aiders, and commuters making their way home along embattled streets. Many were just looking on.
In May, a social work assistant was imprisoned for 53 months on the basis of joint enterprise. She argued she had been “unknowingly involved” and was only at the scene “out of curiosity”.
A lighting technician was acquitted after being arrested near a riot in Yau Ma Tei. He had been drunk and looking for a massage parlour. He was in the wrong place at the wrong time.
The top court’s ruling is not a free pass for rioters. It is unlikely to have the dramatic impact the government claimed. But the judgment will, hopefully, help prevent miscarriages of justice. Courts must be sure beyond reasonable doubt that anyone convicted of riot was present at the scene and took part. A broad brush approach will not do.
