The Department of Justice is seeking the Court of Appeal’s opinion on whether the legal doctrine of “joint enterprise” is applicable in cases of unlawful assembly and rioting, two months after a judge called the idea into question when he acquitted the first three defendants facing riot charges over last year’s anti-government protests.

Student Natalie Lee, 17, gym owner Tong Wai-hung, 39, and his wife, Elaine To, 42, were acquitted after district court judge Anthony Kwok found insufficient evidence to prove they had assembled together in common purpose with protesters on July 28, 2019. Police deemed that a protest on that day had broken out into a riot at 7:02 p.m. on Des Voeux Road West. The three were arrested close to the protest site, though not while engaged in any rioting.

Under the Criminal Procedure Ordinance 81D, the hearing will not affect their acquittal. But if the Department of Justice’s interpretation of “joint enterprise” becomes applicable to unlawful assembly and rioting offenses, someone who is not present at where the unlawful assembly or riot is taking place could still be charged, one barrister said on the condition of anonymity.

“This is a big deal,” he said. “This means reporters on the grounds covering the events could be criminalized. One shouting ‘add oil’ at the crowd from the top of the building could also be charged. A father calling a son who happens to be at the location could be seen as joint enterprise.”

The three were told about the Court of Appeal request by the department, Tong told Apple Daily on Monday.

Tong said he has already begun studying the situation with his legal representatives.

In their trial, the judge found that prosecutors failed to provide direct evidence to show what they were doing at the time of the riot. The case was based on circumstantial evidence, namely their black outfits and protective gear and attempts to run away from the police.

Tong and his wife To were found guilty of possessing unlicensed radio communications devices and were each fined HK$10,000 (US$1,282).

The justice department’s move could change the way the law is defined, said Tong. Prosecutors need to prove that the defendant was at the same location as the other offenders in order to win a conviction for riot offenses, he said.

Although the hearing will not have an impact of his acquittal, Tong said he was worried that the justice department might go after him again should the Court of Appeal widen the application of joint enterprise according to the authorities' wish.

Tong said he will attend the hearing with his legal representatives. Tong’s lawyer, Senior Counsel Hectar Pun, said this would be the first time for the Secretary of Justice to seek an opinion from the Court of Appeal since the handover. He said this was not a common practice even before the handover, as only two such cases were documented.

The Department of Justice said it submitted to the Court of Appeal citing Criminal Procedure Ordinance 81D on Sept. 15. A department spokesperson declined to comment on the case because it was ongoing.

The department said that Judge Kwok’s ruling was wrong as it did not take into account others who were related to the riot but not physically present, such as those who were driving offenders away, providing supplies and acting as lookouts. Given the large number of upcoming cases, it was necessary to seek an opinion from the court, the department said.

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