The Court of Final Appeal handed down a judgment concerning the offences of unlawful assembly and riot on November 4. I would like to highlight some of the significant legal points clarified by the Court of Final Appeal so that members of the public may have a better understanding of the offences.
(1) Broad expression of “taking part”
- The judgment noted that “taking part” has a broad expression, embracing conduct which involves facilitating, assisting or encouraging. Those, in doing so, may attract liability either as principal offender or aider and abettor. (paragraph 14)
- A defendant is considered to be “taking part” if he or she performs the acts prohibited or acts in facilitating, assisting or encouraging others. (paragraph 109d)
- While mere presence does not make a person guilty, it does not take a great deal of activity to move from mere presence to encouragement, such as by words, signs or gestures, or by wearing the badge or ensign of the rioters. (paragraph 82)
- The offences of unlawful assembly and riot are participatory in nature. Proof of participatory intent may generally be inferred from conduct. (paragraph 109c)
(2) Extraneous common purpose not required to be proved
- There is no requirement for the prosecution to prove any extraneous common purpose. The participatory intent already denotes the requirement of a defendant being aware of other participants’ related prohibited conduct. (paragraphs 48 – 50)
(3) Basic form of joint enterprise unnecessary
- Persons can be found guilty as a principal offender of unlawful assembly or riot if it is proved that he was present at the scene and “taking part” in the unlawful assembly or riot. (paragraph 109f)
- Therefore, basic form of joint enterprise is found to be unnecessary and not applicable to the offences of unlawful assembly and riot. (paragraphs 66, 67 and 109g)
- Defendants who promote or act in furtherance of an unlawful assembly or riot while not present at the scene would still be liable as accessories or as a conspirator or inciter of the main offences, and are punishable to the same extent as principal offenders. (paragraphs 68-70, 109f, 109h and 111)
It is important to bear in mind that paragraphs 69 and 70 of the judgment clearly stated that public order can be fully enforced relying on secondary liability and inchoate offences. Those masterminds who remotely oversee and give commands, fund or provide materials for the unlawful assembly or riot, encourage or promote it on social media, provide back-up support to participants such as collecting bricks, or act as lookouts may either be “taking part” as principals or liable as aiders and abettors if present at the scene; or, if not present, liable as counsellors or procurers.
Further, the judgment gave an example in paragraph 73 that if a group of persons agreed to take part together in a riot intending to erect barriers stopping traffic while knowing some amongst them would take along petrol bombs, should they proceed with their plan and petrol bombs were used to cause serious injury, the doctrine of extended joint enterprise might apply under which rioters would be liable for the more serious offence.
I hope the above summary would assist the general public in learning the legal principles set out in the judgment.
November 7, 2021