Read the full judgment text of CASJ 1/2020 on BabelCite. This Court of Appeal judgment was delivered on 25 March 2021 before Poon CJHC, Macrae VP and A Pang J.
Criminal law – Public Order Ordinance (Cap 245) – sections 18 and 19 – unlawful assembly and riot – common law doctrine of joint enterprise – applicability of doctrine to statutory offences – whether physical presence at scene required – statutory construction – purposive approach – reference of question of law under section 81D of Criminal Procedure Ordinance (Cap 221) – whether respondents' conduct on 28 July 2019 on Des Voeux Road West (rioting, formation of barricades, throwing objects at police, retreat and arrest in vicinity near MTR Sai Ying Pun Station) engaged doctrine of joint enterprise – arrest of three respondents based on circumstantial evidence including black outfits, rioter gear, unlicensed radio transceivers and flight – trial judge acquitted, holding doctrine excluded by 'corporate nature' of statutory offences – whether the common law doctrine of joint enterprise as elucidated in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 applies to the offences of unlawful assembly and riot under sections 18 and 19 of the POO – held, yes – sections 18 and 19 codified common law offences, common law principles retained unless excluded, doctrine necessary to catch fluid modern riots involving masterminds, funders, social media promoters, lookouts and getaway drivers – 'corporate nature' addresses principal liability, not secondary-party liability – over-charging concerns addressed by reference to freedom of expression limitations and case-by-case assessment of involvement – whether the principle that a defendant's presence at the scene is not always necessary for joint enterprise liability, as enunciated in Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475, applies to unlawful assembly and riot – held, yes – both Questions answered in the affirmative – acquittals not disturbed – per Poon CJHC, Macrae VP and A Pang J.
Legal issues: Applicability of joint enterprise doctrine to unlawful assembly and riot under POO ss.18 and 19 · Whether physical presence is required for joint enterprise liability for unlawful assembly and riot
Outcome: Both questions of law referred by the Secretary for Justice under section 81D of the Criminal Procedure Ordinance were answered in the affirmative; the Court of Appeal respectfully disagreed with the trial judge's ruling that the doctrine of joint enterprise was excluded from sections 18 and 19 of the POO. Acquittals of the respondents were not disturbed.
Cited by 35 cases · Cites 3 cases