Editorial | ‘Joint enterprise’ ruling by top Hong Kong court provides clarity in unrest cases

Hong Kong’s public order law was passed in 1967, in response to the widespread riots and bombings that rocked the city that year. But the way in which those laws are to be applied continues to cause controversy more than half a century later.

Last week, the Court of Final Appeal delivered an important judgment on the way these laws should be approached today. The unanimous ruling is welcome as it provides clarity and will influence the way cases arising from the civil unrest in 2019 are approached.

The government argued the principle of “joint enterprise” should apply to cases of riot and unlawful assembly. This long-established legal doctrine allows people to be held responsible for involvement in crimes even if they did not commit the relevant acts themselves.

It works on the basis that people embarked on the crime together and therefore share culpability, whatever their role. This was needed, government lawyers’ argued, to prevent those who assisted rioters while not present at the scene from evading justice.

The court ruled the basic form of joint enterprise does not apply to riot and unlawful assembly. It disagreed with the government’s view that this position creates a big gap in the law. The judges said only those present at the scene can be convicted of the public order offences.

To be guilty, they must have “taken part” in the riot or unlawful assembly. Just being there is not sufficient. But the court adopted a broad view of what would constitute “taking part”. It would not take “a great deal of activity” by those present to make them criminally liable as participants, the judges said.