The Hong Kong Court of Appeal has allowed an appeal against a court ruling that those not at the scene can also be convicted of unlawful assembly and riot.

In the written ruling, Madam Justice Anthea Pang acknowledged that two legal questions raised by Tong Wai-hung have “far reaching implications for the prosecution of offences of riot and unlawful assembly in the future.”

Tong was among the three defendants acquitted of rioting charges in July last year, after being arrested at a protest in Sheung Wan on July 28, 2019.

The Department of Justice had sought legal advice from the Appeal Court. Chief Judge of the High Court Jeremy Poon, Vice President of the Court of Appeal Andrew Macrae and judge Anthea Pang ruled in March that the principle of “joint enterprise” can be applied to unlawful assembly and rioting charges. It implies suspects who were not physically present at the scene could still be held criminally liable for offenses as long as they shared a common purpose.

Tong raised two legal questions of “great and general importance” in the appeal.

Firstly, for the offences of unlawful assembly and riot respectively under sections 18 and 19 of the Public Order Ordinance, Cap 245, whether the common law doctrine of joint enterprise as elucidated in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 is applicable?

Secondly, if the first question is answered in the affirmative, for the offences of unlawful assembly and riot, whether the principle that a defendant’s presence at the scene is not always necessary for criminal liability under the common law doctrine of joint enterprise as enunciated in Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475 is applicable?

The ruling also noted that defendant Lo Kin-man, now serving a seven-year sentence for rioting, has been granted a leave of appeal over the same questions.

Though the result of the appeal will not affect the acquittal of Tong and two other defendants, it has implications on those who have played a support role for protests in 2019, including those who offered rides and acted as scouts, and whether they may be found guilty.

In the previous ruling, the judges agreed with the government’s argument that unlawful assemblies and riots are “highly fluid in nature.” If the principle of joint enterprise under the common law does not apply to those who are not at the scene but assist the crimes, there exists a loophole in the law and may undermine public interests.

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