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Top court corrected DOJ's flawed interpretation on“joint enterprise”doctrine


Editor's note: This is translated from CitizenNews' weekly digest tracking Hong Kong's political news over the past week. (一周政情:律政僭建伙同犯罪 終審恢復法律原貌

Court of Final Appeal (CFA) last week delivered a landmark ruling on whether the principle of joint enterprise would apply on the offence of rioting, which determine protesters who were not at the scene of the riot could be charged. The top court has ruled against the Department of Justice and instead relied on conventional common law approach to determine if the accused is principal or accessory on their conducts. This is a testament that while Hong Kong courts are subservient to the National Security Law and fully cooperate with its implementation, it remains committed to existing legal principles when it comes to offences unrelated to national security.

While the ruling may somewhat upset the prosecutors, the CFA was also cautious and went at length to “guide” prosecutors what remained in their arsenal to charge those indirected participated in the riot without being at the crime scene. For instance, for lookouts, or those who driving others away from the scene, digging up bricks and providing weapons, they could be charged under aiding or abetting, counselling or procuring of the riot and may attract a similar level of jail term to participating rioting. The CFA went on to describe how the role of the defendant and the applicable charges could be inferred from the accused’s clothing, equipment and behaviour. CFA went so explicit that the flawed application of "joint enterprise" is objectively unnecessary.

Prosecution’s original attempt to push for the application on persons present at the alleged riot and its proximity was largely to fast track and bring more charges. Because the violent clash between the police and the protesters were usually chaotic. Once tear gas or rubber rounds were deployed, protesters, humanitarian workers, journalists and onlookers would scattered around, and officers could not articulate the exact role of each alleged persons and their respective illegal acts committed.

If the conventional criminal law doctrine is applied to identify protester on a case-by-case basis, a significant number of arrestees might not be charged due to lack of evidence. This is precisely because they were not arrested during the height of the conflict, but at the immediate vicinity without immediate violence. If the principle of "joint enterprise" could be loosely applied, it would save time to take all persons at the scene as principal offenders in the riot.

However, ample common law precedents speak of the need for prosecution to prove that the defendants had a “common purpose” to commit the offence and that they were in agreement to commit a crime together. In reality, however, the accused protester did not know each other, did not communicate with each other beforehand, and arrived at the scene with different purposes: some wanted to protest, some to protect their friends, some to provide humanitarian aid, some to document, and some were just passing by busy areas before clashes happened. It was no easy task to prove that these defendants had a common purpose.

However, with the SAR Government's overarching mission of "stopping violence and curbing chaos", the judges at the appeal court dared not to challenge the prosecution and even distorted the principle, ignoring judicial precedents and giving green light to prosecutors to force the charges upon those who were not present at the scene. Had the CFA not set the record straight, Hong Kong will be the “sole enterprise” in the common law world on this very principle.

If overseas judges were to stop sitting on the Hong Kong bench in the face of the deteriorating rule of law, and if the current senior permanent judges at the CFA were to retire to give way to those from the Court of Appeal, who found no problem to side with the prosecution at the time, the judicial landscape would be different. The erroneous application on “joint enterprise” would then become a binding application on cases to bring charges. This begs the question: how close are we from that?