People who abet perpetrators of an unlawful assembly or a riot are subject to the same charges as the actual participants even if they are not physically present, the Hong Kong Court of Appeal has said.

The judgment, handed down by Chief Justice of the High Court Jeremy Poon on Thursday, effectively grants prosecutors the power to indict suspects on the principle of “joint enterprise” in rioting and illegal assembly cases.

It will have wide repercussions, possibly paving the way for more prosecutions of Hongkongers involved in protests that shook the city in 2019.

The pool of people implicated could include, say, a getaway car driver picking up protesters from the crime scene, and a social media user who clicked “like” on a post promoting a gathering banned by the police.

Earlier, the Department of Justice argued in court that if the joint enterprise principle did not apply to cases of rioting or unlawful assembly, it would be difficult to prosecute people who were involved in the periphery of the protest movement.

Those people could have been behind the wheel of a getaway car, provided monetary support or equipment such as gas masks, collected supplies, or acted as lookouts for protesters on the streets, prosecutors said.

The court debate arose from the first riot case to come out of the 2019 anti-government protests, in which all three defendants were ruled not guilty in July last year.

In that trial, District Court Judge Anthony Kwok said that offenders needed to have been together at the crime scene for the charges to stand. Kwok found that the evidence was insufficient to conclude gym owner Tong Wai-hung, his wife Elaine To and 17-year-old student Natalie Lee had assembled with protesters for a common purpose on July 28, 2019.

The department did not seek a reversal of the acquittals, but asked the appeal court to uphold the common law doctrine of “joint criminal enterprise” — which would allow all members of a group with a shared purpose to be held liable for offenses committed by any one of them — in riots and unlawful assembly.

Riot and unlawful assembly laws were made in order to keep public order, Poon said in his judgment. In today’s context, such incidents had become extremely fluid as participants performed different roles, some of which would physically take them to a crime scene while others would not, but they were in fact working together to cause damage and therefore should take responsibility together as well, the High Court chief justice said.

Poon also responded to the defense argument that if a person who liked a social media post about an illegal gathering was deemed complicit, this would infringe on freedom of speech and expression, especially when most people were using social media apps such as WhatsApp, Facebook and Telegram on a regular basis.

The judge said that freedom of expression was not absolute, and did not exonerate people from taking responsibility for their actions. If there was enough evidence of liability under joint enterprise, the individual concerned would not be considered an innocent bystander but a participant of a riot or an illegal gathering, he said.

Click here for Chinese version

---------------------------------

Apple Daily’s all-new English Edition is now available on the mobile app: bit.ly/2yMMfQE

To download the latest version,

iOS: bit.ly/AD_iOS

Android: bit.ly/AD_android

Or search Appledaily in App Store or Google Play