Read the full judgment text of FACC 6/2021, FACC 7/2021 on BabelCite. This 終審法院 judgment was delivered on 4 November 2021 before 張舉能, 李義, 霍兆剛, 林文瀚, 岑耀信勳爵.
Criminal law – Public Order Ordinance (Cap 245) ss.18, 19 – unlawful assembly (非法集結) and riot (暴動) – construction of statutory elements – 'participation' (參與) as the actus reus – 'common purpose' (共同目的) requirement – whether prosecution must prove an 'additional common purpose' (額外的共同目的) – joint enterprise principle – basic form (BJE) and extended form (EJE) – whether applicable to statutory offences – whether an absent defendant can be convicted as principal – mere presence and encouragement – meaning of 'breach of the peace' (破壞社會安寧) – material and substantial unfairness from unnamed participants in indictment – 2016 Mong Kok riot on Portland Street (砵蘭街) – 2019 Des Voeux Road West riot – appeal against conviction and certified questions – Held: (1) The prosecution need not prove an 'additional common purpose' beyond the 'intent to participate' (參與其中的意圖) in the assembly; the 1967 Public Order Ordinance replaced the common law and removed the 'common purpose' requirement. The prosecution must prove the defendant intended to participate in the assembly or riot with other participants, knowing of their relevant conduct. (2) BJE does not apply to ss.18 and 19 because the statutory language already requires 'participation' as the actus reus; an absent defendant cannot be convicted as a principal under BJE, and even for present defendants BJE is redundant and potentially confusing. However, no gap is left because absent participants can be prosecuted under secondary liability (aiding, abetting, counseling, procuring) or inchoate offences (conspiracy, incitement). (3) EJE may apply in certain circumstances where further offences (e.g., murder) are committed during execution of a criminal plan, if the further offence was foreseen as a possible event. (4) Mere presence at the scene is not sufficient for liability, but encouragement through words, signs, or gestures can establish participation as a principal or secondary liability as an aider and abettor. The court should consider the fluid nature of modern riots in determining whether the defendant was present and participated. (5) 'Breach of the peace' extends to actual or threatened violence against persons or property, without requiring the property owner to be present, following the broader approach in R (Laporte) v Chief Constable of Gloucestershire. (6) Failure to name other participants in the indictment is a material irregularity but the proviso can apply if evidence clearly shows three or more persons participated in the criminal assembly and the defendant was fairly aware of the case against him. 盧建民's appeal against conviction dismissed; 湯偉雄's case disposed of by answering the certified questions.
Legal issues: 共同目的要求 · BJE的適用性 · EJE的適用性 · 鼓勵與單純在場 · 破壞社會安寧的含義 · 實質及嚴重的不公平情況
Outcome: 盧建民's appeal against conviction was dismissed. 湯偉雄's case was disposed of by answering the certified questions: BJE does not apply to ss.18 and 19 of the Public Order Ordinance, but EJE may apply in certain circumstances.
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