Secretary for Justice v. Tong Wai Hung

CASJ 1 /2020

[2021] HKCA 807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

SECRETARY FOR JUSTICE’S REFERENCE NO. 1 OF 2020

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BETWEEN

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J U D G M E N T

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Hon Anthea Pang J (giving the Judgment of the Court):

1.By way of a Notice of Motion dated 1 April 2021, the 1^st respondent applies, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a Certificate certifying that questions of law of great and general importance are involved in the Judgment of this Court, which was handed down on 25 March 2021[1] (“the Judgment”).  The parties have agreed that the application may be dealt with on paper. 

2.The two questions of law said to be involved in the Judgment are:

“1. 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?”, and

“2. If Question 1 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?”

3.These two questions are the same two questions of law referred to this Court by the Secretary for Justice under section 81D of the Criminal Procedure Ordinance, Cap 221[2], and which we answered in the affirmative after examining the legislative history of the Public Order Ordinance (“POO”), Cap 245, and after considering, on the one hand, the need to maintain pubic order and, on the other, the need to avoid over-charging where innocent people might be caught. 

4.On 17 May 2021, the Court of Final Appeal gave its determination in HKSAR v Lo Kin Man [2021] HKCFA 17 wherein leave to appeal was granted on a number of questions of great and general importance, one of which is Question 2a:

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

5.It is immediately apparent that Question 2a is essentially the same as the first question now posed by the 1^st respondent for certification.  It is also evident that although the second question now sought to be certified was not raised in Lo Kin Man, it is relevant in that if Question 2a is answered in the affirmative, then consideration would need to be given to whether a party’s presence at the scene is or is not necessary for criminal liability under the joint enterprise doctrine.  As observed in the Judgment, these two questions have far reaching implications for the prosecution of offences of riot and unlawful assembly in the future.[3]

6.In the circumstances, we are satisfied that it is proper for us to certify that points of law of great and general importance as set out in the two questions posed by the 1^st respondent are involved in the Judgment of this Court.  

Mr Anthony Chau, DDPP(Ag) and Mr Wilson Lam, PP of the Department of Justice, for the Applicant

Mr Hectar Pun SC, Mr Anson Wong Yu Yat and Ms Ferrida Chan, instructed by S. T. Cheng & Co, for the 1^st Respondent