Hong Kong’s top court declares unlawful some aspects of ‘joint enterprise’ rule for rioting, illegal assembly cases in landmark judgment
- Those not physically present at unlawful assembly, riot can no longer be held liable for the crime as actual participants, judges rule
- Ruling on prosecution’s application of joint enterprise doctrine has major implications for coming trials stemming from 2019 protests
In a much-anticipated judgment on Thursday, the Court of Final Appeal ruled it unlawful for prosecutors to apply the common law doctrine of joint enterprise to illegal assembly and riot cases when going after suspects who were not on the scene.
The five presiding judges held that prosecutors could only indict people who were not in attendance by invoking a conspiracy charge or ancillary offences such as aiding and abetting, incitement and assisting an offender.
The doctrine previously relied upon by prosecutors allowed for all participants of a riot or unlawful assembly to be held liable for the same offences regardless of whether they were physically present at the scene, so long as they shared a common purpose.
But the judges warned that, even with their ruling on the scope of joint enterprise in such cases, defendants found guilty of those alternative offences faced similar levels of punishment under the Public Order Ordinance as people convicted on the basis they had actually attended illegal gatherings.
As part of Thursday’s ruling, the top court dismissed an appeal by Lo Kin-man, who was seeking to overturn his conviction after being jailed for seven years in 2018 for rioting during the overnight unrest in Mong Kok that began on February 8, 2016.
Defence counsel for the 34-year-old argued the trial judge had failed to require the jury to find a common purpose for assembly before determining the defendant’s guilt.