Hong Kong court rules people absent from crime scene can’t be convicted

By Riyaz ul Khaliq

ISTANBUL (AA) – Hong Kong’s top court on Thursday ruled that people who are absent from any unlawful assembly or rioting cannot be convicted.

“A defendant who is not present at the scene of an unlawful assembly or riot cannot be found guilty as a principal offender because 'taking part' in the criminal assembly is a centrally important element of these statutory offenses. That requirement cannot be overridden by the common law doctrine of joint enterprise,” the top court said in a statement, summarizing the judgment pronounced by a five-judge panel led by Chief Justice Andrew Cheung.

The court gave the judgment overruling a lower court's ruling on the “legal doctrine of joint enterprise.”

It noted mere “presence at the scene of an unlawful or riotous assembly without more does not give rise to criminal liability.”

“A defendant who, being present, provides encouragement by words, signs or actions may be held guilty of ‘taking part’ or as an aider and abettor of the offenses of unlawful assembly or riot committed by others,” it added.

In its judgment, the lower court had said: “The common law doctrine of joint enterprise is applicable to the offenses of unlawful assembly and riot, so that a defendant may be convicted of those offenses even if not present at the scene.”

Many cases were on hold for want of further explanation and final judgment from the Hong Kong High Court – Court of Final Appeal.

Courts in Hong Kong are hearing many cases under the controversial national security law imposed by Beijing in June 2021 after year-long violent protests against a now-binned extradition bill that would have allowed convicts to be shifted to mainland China from the semi-autonomous region.

However, the court said people, who were not present at the scene of violence but had promoted or encouraged the criminal assembly, can still be prosecuted under other legal principles.

“A person who promotes or acts in furtherance of an unlawful assembly or riot while not present at the scene may be guilty as a counselor and procurer of the relevant offense or guilty of conspiracy or incitement to commit such offense and would be punishable to a like extent as the principal offender,” the court said.