Did Hong Kong witness a riot on June 12? Justice chief’s answer holds the key

The anti-extradition movement continues as the government refuses to meet the five demands of the protesters: to withdraw the extradition bill, retract the characterisation of the June 12 protest as a riot, have Chief Executive Carrie Lam Cheng Yuet-ngor step down, release and drop charges against arrested protesters, and launch an independent inquiry into police brutality.

Unsurprisingly, front-line protesters are focusing on the last two demands. But these two involve more than political problems and have to be understood from a legal perspective.

My first point relates to Police Commissioner Stephen Lo Wai-chung’s reference to the so-called Rioting Five from the June 12 protest.

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According to Section 19 of the Public Order Ordinance: “When any person taking part in an assembly which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.”

On the 2016 Mong Kok riot, the court judgment said: “The offence of riot … derives its gravity from a defendant choosing to become one of those who, by weight of numbers, pursued a common and unlawful purpose. It is therefore wrong to sentence a defendant on the basis of his individual act(s).”

We can conclude that a riot is not about the individual “violent acts” of several “radical protesters”. In fact, only the whole assembly can be seen as a riot with all of the people taking part in it as rioters, individually peaceful or not. Therefore, the label “Rioting Five” is legally impossible, and as long as the riot characterisation remains, all of those engaged in the June 12 protest could be prosecuted in the future for rioting.

Second, Article 63 of the Basic Law states: “The Department of Justice of the Hong Kong SAR shall control criminal prosecutions, free from any interference.” So, despite Carrie Lam and Stephen Lo’s earlier characterisation of the protest as a riot, Secretary of Justice Teresa Cheng Yeuk-wah is the one who has the de jure power to prosecute the protesters.

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Moreover, according to Section 15(1) of the Criminal Procedure Ordinance: “The Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.” Therefore, the government’s political phrasing aside, Justice Secretary Cheng is the only one who can retract the characterisation of the June 12 protest as a riot and drop all charges against those arrested.

Protesters will not compromise until their demands are met. Whether it is to address their demands or extend an olive branch from the government, Cheng’s action will be pivotal in resolving the civil unrest, as the justice secretary represents the legitimate answer to the nature of the June 12 incident.

James Chan Kwok-keung, elected member, Sha Tin District Council