Read the full judgment text of FACC 3/2022 on BabelCite. This Court of Final Appeal judgment was delivered on 16 December 2022 before 張舉能, 李義, 霍兆剛, 林文瀚, 賀輔明.
Criminal law – unlawful assembly – Public Order Ordinance (Cap 245) s.18 – elements of offence of participating in unlawful assembly – 'intention to participate' requirement – core offenders who commit prohibited acts under s.18(1) – application of HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 – whether common purpose, agreement, or mutual assistance between participants is required – mere presence at the scene insufficient – freedom of assembly protected by Article 27 of the Basic Law – whether a basic joint enterprise (BJE) overlay is needed – material facts: on 8 March 2020, a plain-clothes police officer (PW1) was on duty near Tai Po Mega Mall; an unknown person first approached PW1 and identified him as a police officer, after which the Fourth Defendant (D4) and others followed PW1 through the mall, calling out his name, accusing him of beating a teenager, and making threatening remarks; after PW1 left the mall, the respondent and three others ran towards PW1, with the respondent filming him at close range while two others shone torches at him, and other people gathered around shouting accusations – the respondent and four others were arrested and charged with unlawful assembly – the magistrate convicted the respondent of unlawful assembly as a core offender (his filming being a prohibited act) and sentenced him to three months' imprisonment – the Court of First Instance judge quashed the conviction, holding that while there was evidence supporting an inference of 'intention to participate', it was not the only reasonable inference, and the judge emphasised the absence of consensus between the respondent and the other defendants, the different nature of their acts, and the lack of communication – First issue: how should the 'intention to participate' requirement be applied to a core offender who commits a prohibited act under s.18(1) – the court holds that the inquiry focuses on (a) whether the defendant intended to become a member of the assembly, and (b) whether, knowing of other participants' relevant conduct, the defendant intended to commit or further a prohibited act; for a core offender, no additional common purpose, prior agreement, consensus, or mutual assistance is required, and different participants may commit different prohibited acts – the court also reaffirms that mere presence is insufficient and that a BJE overlay is unnecessary – Second issue: whether the CFI judge erred in quashing the conviction – the court holds that the judge misapplied HKSAR v Lo Kin Man by focusing on factors going to encouragement or mutual assistance rather than directing himself on the two elements of intention to participate; on the proper application of the law, the only irresistible inference on the evidence was that the respondent had the required intention – the misapplication caused substantial and grave injustice – appeal allowed – conviction for unlawful assembly and three-month sentence of imprisonment restored
Legal issues: Application of 'intention to participate' requirement to a core offender who commits a prohibited act under s.18(1) POBO · Whether the Court of First Instance judge erred in quashing the conviction by misapplying HKSAR v Lo Kin Man
Outcome: Appeal allowed; conviction for unlawful assembly and three-month sentence of imprisonment restored.
Cited by 8 cases · Cites 1 case