HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [2021] HKCFA 37

Philip Dykes SC (leading Hectar Pun SC, Anson Wong Yu Yan, and Ferrida Chan) represented the Appellant in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [2021] HKCFA 37.

L was convicted after trial before a Judge and a jury of riot contrary to s.19 of the Public Order Ordinance (Cap.245) (the POO). His appeal to the Court of Appeal was dismissed (see [2020] 4 HKLRD 462). Separately, T was charged alongside two other defendants with unlawful assembly and riot contrary to ss.18 and 19 of the POO. He was acquitted after trial. The Secretary for Justice referred two questions of law concerning the applicability of the common law doctrine of joint enterprise to offences under ss.18 and 19 to the Court of Appeal, on which that Court gave its opinion (see [2021] 2 HKLRD 399). On the appeals of both L and T to the Court of Final Appeal, the following issues arose regarding the ss.18 and 19 offences: (i) the existence and nature of a requirement (if any) for proof of a “common purpose” shared by the defendant and other persons assembled; (ii) the applicability of the doctrine of joint enterprise to the two statutory offences and whether the doctrine enabled liability to be established without the defendant’s presence at the scene; and (iii) whether a defendant could be found guilty under ss.18 and 19 on the basis of “encouragement through [the defendant’s] presence”, without committing acts specifically prohibited by those sections. Additionally, under the “substantial and grave injustice” ground, L raised the question whether it was a material irregularity not to mention in an indictment any participants in the riot other than the named co-defendants who were not convicted after trial.

Held, unanimously dismissing L’s appeal and addressing the questions raised so as to dispose of T’s appeal, that:

Unlawful assembly

• (1) The constituent elements of an unlawful assembly under s.18(1) were: (i) where three or more persons; (ii) assembled together; (iii) conducted themselves in a disorderly, intimidating, insulting or provocative manner; (iv) intended or likely to cause any person reasonably to fear that the persons assembled would commit, or would by such conduct provoke other persons to commit, a breach of the peace ((i) to (iv) together “the Constituent Offenders” and (iii) and (iv) together “the Prohibited Conduct”) (HKSAR v Leung Chung Hang Sixtus (2021) 24 HKCFAR 164considered). (See paras.8, 9, 109(a).)
• (2) Pursuant to s.18(3), which provides that any person who “takes part” in an assembly which is an unlawful assembly commits the offence, the actus reus was “taking part”. This included acting in furtherance of the Prohibited Conduct by facilitating, assisting or encouraging the performance of such conduct by other participants in the assembly. In doing so, the defendant may attract liability either as a principal offender or an aider and abettor. The defendant need not be one of the Constituent Offenders and could “take part” in the unlawful assembly by joining in later. (See paras.8, 11 – 14, 109(d).)
• (3) Unlawful assembly was a “participatory offence”. To be guilty under s.18 as a principal, the defendant must be shown to have acted as part of an assembly with others who were also participants, being aware of their related conduct and with the intention, while assembled together with them, to engage in or act in furtherance of the Prohibited Conduct (Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 applied). (See paras.15 – 18, 109(c).)

Riot

• (4) Section 19 built on s.18, making the existence of an unlawful assembly one of the constituent elements of the offence of riot. A riot came into being when any person taking part in an unlawful assembly committed a breach of the peace, turning the assembly into a riotous assembly. The offence was committed by any person who “takes part” in a riot so constituted. (See paras.19 – 21, 109(b).)
• (5) The offence of riot was also participatory in nature. The defendant must be shown to have intended to take part and committed, or acted in furtherance of, breaches of the peace together with other participants riotously assembled. (See paras.22 – 23, 109(c).)

Whether proof of “common purpose” required

• (6) Sections 18 and 19 eliminated any common law requirement for proof of a “common purpose”. It was not necessary to prove the defendant shared a specific extraneous common purpose as distinct from the requisite participatory intent. Thus, it was preferable not to refer to “common purpose”, but to recognise instead the requirement of a participatory intent, which reflected the participatory nature of the two offences (Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 applied; R v Graham (1888) 16 Cox CC 420, Field v Receiver of Metropolitan Police [1907] 2 KB 853, R v Caird(1970) 54 Cr App R 499, R v Jones (1974) 59 Cr App R 120, Anderson v A-G (NSW) (1987) 10 NSWLR 198 considered). (See paras.28 – 50, 109(c).)

Whether doctrine of joint enterprise applicable

• (7) Sections 18 and 19 left no room for the operation of the joint enterprise doctrine (in its basic form) because the statutory language rendered that doctrine otiose and liable to cause confusion regarding the central actus reus element of “taking part” in the criminal assembly. It could not be applied as a basis for liability as a principal if the defendant was not present and therefore did not “take part” (HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 applied). (See paras.63 – 70, 109(g).)
• (8) (Obiter) However, the extended form of the doctrine might be applicable where certain participants can be proved to have foreseen commission by one or more of them of a more serious offence as a possible incident of the execution of their planned joint participation in the unlawful assembly or riot. (See paras.71 – 73, 109(g).)
• (9) Public order could be fully enforced relying on secondary and inchoate liability, consistently with the true construction of the statutory offences and without stretching the concept of being “assembled together” beyond its proper limits. Liability as a counsellor or procurer did not require presence at the scene. Nor did the defendant who committed the inchoate offences of conspiracy or incitement have to be present at the scene. Persons so convicted as accessories or for inchoate crimes were punishable to a like extent as principals (HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 applied). (See paras.68 – 70, 109(h).)

Presence and location and scope of assembly

• (10) In determining where and when an unlawful assembly or riot took place and whether the defendant was present, an overly rigid view should not be taken. The defendant’s role, if any, should be considered to assess his or her potential principal, accessorial or inchoate liability. Supporting evidence might include matters such as the time and place of arrest and items found on the defendant (Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518 considered). (See paras.74 – 78.)

Encouragement

• (11) Mere presence was not enough to constitute either “taking part” or aiding and abetting; there must be some intentional activity by the defendant in furtherance of the unlawful assembly or riot. However, it did not take a great deal of such activity to move the case from “mere presence” to circumstances qualifying as “encouragement”, thus attracting liability (Clifford v Brandon (1810) 2 Camp 358, R v Caird (1970) 54 Cr App R 499, R v Cook (1994) 74 A Crim R 1, HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640applied). (See paras.79 – 87, 109(e).)

Particulars of indictment

• (12) Where justified by the evidence, it was good practice to add the allegation that the defendant’s participation was “with persons unknown” or “with persons not before the court”. The failure to do so may be a material irregularity where, as in L’s case, the defendant was convicted but not the only other named defendants. However, on the evidence, the jury would have reached the same conclusion if fully directed such that the application of the proviso was appropriate (R v Abdul Mahroof (1989) 88 Cr App R 317, R v Worton (1989) 154 JP 201 considered). (See paras.94 – 108, 109(j).)

[The above is excerpted from the headnote to the report in HKLRD.]