HKSAR v. Lo Kin Man (盧建民)

FAMC No. 12 of 2020

[2021] HKCFA 17

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 164 OF 2018)

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Appeal Committee: Mr Justice Ribeiro Acting CJ, Mr Justice Fok PJ and Mr Justice Stock NPJ

Date of Hearing and Determination: 17 May 2021

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DETERMINATION

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Mr Justice Ribeiro Acting CJ:

1.For reasons which will be handed down separately, we dismiss the application for leave to appeal against sentence. 

2.The applicant was convicted of the offence of riot contrary to section 19 of the Public Order Ordinance (Cap 245) arising out of incidents involving public disorder occurring in Portland Street, Mongkok, on 8 and 9 February 2016.  This Determination concerns his application for leave to appeal against conviction.[1]

3.Leave to appeal is sought on the basis that ten questions of great and general importance are involved in the decisions below. They are set out in the Annex to this Determination.  The first four questions (Questions 1a-1d) concern the existence and nature (if any) of a disputed requirement for proof of a “common purpose” among the persons assembled.  The next four questions (Questions 2a-2d) concern the disputed applicability of the doctrine of joint enterprise to the offence of riot.  Then two questions (Questions 3a and 3b) are advanced seeking to challenge the constitutionality of the offence of riot. 

4.We grant leave only in respect of the following questions, namely, Questions 1a to 1d, Questions 2a and 2d.  We dismiss the application regarding the other proposed questions as too case-specific (Questions 2b and 2c) and as not reasonably arguable (Questions 3a and 3b).

5.The applicant also seeks leave to appeal contending that it is reasonably arguable on three separate grounds that there has been a substantial and grave injustice.  We grant leave only on one of those grounds, namely, the allegation referred to in the Applicant’s skeleton argument (at §57 et seq) as “SGI-2”, that a material irregularity arises in that the indictment does not mention any potential participants other than the co-defendants who were not convicted.  We dismiss the application in relation to the other proposed “substantial and grave injustice” grounds.

6.The appeal will be listed for hearing on 5 October 2021.

Leave to appeal against Conviction

Ms Gladys Li SC (on a pro bono basis) leading Mr Lawrence Lau (assigned by the Director of Legal Aid), Mr Kin Lau and Mr Jason Ko (both on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

Leave to appeal against Sentence

Mr Lawrence Lok SC leading Mr Lawrence Lau (both assigned by the Director of Legal Aid) and Ms Tina Mok (on a pro bono basis), instructed by Bond Ng Solicitors, for the Applicant

Ms Vinci Lam DDPP, Mr Ivan Cheung ADPP (Ag.) and Mr Douglas Lau PP, of the Department of Justice, for the Respondent

ANNEX to DETERMINATION

Question la [Leave granted]

In order to establish the offence of riot under section 19 of the Public Order Ordinance (Cap 245) (“POO”), whether proof of the unlawful assembly required that at least 3 persons be assembled together for a “common purpose” which was distinct from the intention of committing the statutorily prescribed acts, namely, conducting oneself in a disorderly, intimidating, insulting or provocative manner; and therefore whether the Trial Judge had erred in law in directing the jury that the element of  “common purpose” is satisfied if they are satisfied that the Applicant assembling together with other defendants had the intention of conducting themselves in a disorderly, intimidating, insulting or provocative manner? 

Question 1b [Leave granted]

If the answer to Question 1a is in the affirmative, whether there is a legal requirement that the said prescribed acts and the breach of the peace must be committed with the specific intent to achieve the “common purpose” by such means? 

Question 1c [Leave granted]

For the common purpose to be a substantive element in the offence of riot, whether the Prosecution is required legally to prove that such alleged common purpose must be shared, mutually understood or communicated between the accused to a standard that there is a meeting of minds, or the Prosecution is simply required to prove that the same purpose was held individually by the accused without the need to prove further mutual understanding or communication?

Question ld [Leave granted]

Whether it is a distinct element of riot under section 19 of POO that the defendants must have the mutual intention to assist each other, by force if necessary, against any person who might oppose them in the execution of the common purpose? 

Question 2a [Leave granted]

Whether the doctrine of joint enterprise applies to the offences under sections 18 and 19 of the POO? 

Question 2b [Leave refused]

Whether the direction given by the Trial Judge “in vacuo” on how a plan or agreement for a joint offence can be reached on impulse, and without any reference to any particular fact or facts which were put in evidence by the Prosecution or admission by any of the persons named in the 3^rd Charge was misleading, in that she did not repeat her direction that any inferences to be drawn against any defendant named in the 3^rd  Charge including the Applicant must be based upon facts of which the jury were certain and the irresistible or only reasonable inference against each of  the defendants was that there was a plan or agreement as to the common  purpose and how it was to be achieved between the named defendants? 

Question 2c [Leave refused]

Whether the said direction in effect enabled the prosecution to secure a conviction without having to prove the elements of the offences in sections 18 and 19 of the POO beyond reasonable doubt thus rendering the trial of the Applicant unfair, not in accordance with law or the principle of legality and in breach of the presumption of innocence?  

Question 2d [Leave granted]

Whether a person could be found guilty of riot without specific conduct on his part falling under the prescribed conduct provided in sections 18 and 19, but merely by virtue of alleged encouragement through his presence?  

Question 3a [Leave refused]

Whether the offence of riot as interpreted now by the Hong Kong Courts is unconstitutional in that it is arbitrary, contrary to Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights?  Specifically, whether the “common purpose” as interpreted by the Court of Appeal and the element of “taking part” as understood are not legally certain?  

Question 3b [Leave refused]

Whether the number of 3 as the minimum number of people required to form an unlawful assembly, and hence a riot, is too low and arbitrary?