Three Convicted of Rioting in HK Despite No Evidence of Involvement

A Hong Kong court has convicted three people of rioting, jailing them for at least four years despite a lack of evidence that they played any role in the riot. This is the latest conviction since a higher court upheld the doctrine of “joint enterprise” in riot and unlawful assembly prosecutions earlier this year, vastly expanding the scope of both offenses to include people not directly placed at the scene of a protest. Hong Kong public broadcaster RTHK reported on the convictions on Thursday:

The District Court on Wednesday handed down jail sentences of at least four years to three people convicted of rioting in Tsuen Wan during anti-government protests in 2019 – even though the judge acknowledged there was no evidence they had any actual role in the riot.

District Court judge Ernest Lin said that the presence of the three defendants at the protest on October 1, 2019, had encouraged protesters who were confronting police officers.

[…] He said it was no coincidence that the three defendants, who had been dressed like protesters, stayed at the scene while the standoff lasted for 20 minutes.

Lin said the trio, who are all in their 20s, had to face the same punishment as those who broke the law based on the “joint enterprise” principle.

The judge said a deterrent sentence was needed, and adopted a starting point of four and a half years, before deducting between one and three months from their sentences after considering background reports. [Source]

The sentencing of the trio is the latest episode following a protracted legal battle over the appropriate scope of rioting and illegal assembly charges in Hong Kong. In March of this year, Hong Kong’s Court of Appeal, its second highest court, allowed prosecutors to apply the legal principle of “joint doctrine” in the case of riot and illegal assembly charges, a decision with far reaching implications on who could be prosecuted in relation to the 2019 Hong Kong protests.

The March ruling followed an appeal by the Department of Justice, after three defendants were acquitted of rioting in July 2020 when a judge ruled that they could not be found guilty of rioting or illegal assembly if they were not present at the scene of the crime. That case was closely watched by many in Hong Kong, after two of the defendants—a couple who claimed they were providing first aid support at the scene—garnered public sympathy and support. ’ Jessie Pang profiled the couple shortly before they received the outcome of their trial last year:

For Valentine’s Day this year, Henry Tong gave his wife, Elaine To, a photo book. It holds the memories of their life together: their first date six years ago, kissing in front of a pro-democracy “Lennon wall”; the tattooed bands on their ring fingers, symbolizing a bond not easily erased; and their wedding day last year, when he vowed to her, “Not even a nuclear explosion could break us apart.”

[…] Much older than the teenagers who came to symbolize the demonstrations, Henry and Elaine insist they were merely providing first aid to those who were tear-gassed on that day of protests last July. The couple, who own a gym in Hong Kong’s Sheung Wan neighborhood, pleaded not guilty. They say they never went anywhere near the front lines, and never acted violently or illegally.

Their lawyer argued in court that there was no direct evidence proving they were on the street where the alleged riot happened; CCTV footage showed them in an alley nearby and leaving the area. The court testimony also showed that only umbrellas, protective gear, medical supplies and two walkie-talkies were seized in their arrest.

The prosecution said in court that even though there was no evidence showing that the couple was present at the point where the rioting took place, they shared the goals of those participating in the rioting. Their gear and the fact they were running away from the police, the prosecution said, supported the accusation that they had been involved in rioting.

The couple’s lawyer countered that they were avoiding tear gas, not running away. [Source]

After their acquittal, cheers rang out in an adjacent courtroom, where supporters rallied in support of the couple. But prosecutors lodged an appeal in September 2020, arguing that the judge’s decision negated the legal principle of “joint enterprise.” The principle holds that a person can be convicted for the actions of a third if the court finds they could foresee a crime likely to be committed. Opponents argue that the application of the doctrine would be a significant overreach, and that it would be impossible for people not at the scene of a crime to foresee spontaneous protest developments. In March of this year, the Court of Appeal sided with the Department of Justice, allowing joint enterprise prosecutions in riot cases. South China Morning Post’s Brian Wong and Natalie Wong reported on the decision and its implications:

Handing down the judgment on Thursday, Chief Justice of the High Court Jeremy Poon Shiu-chor acknowledged such an application of the law could allow prosecutors to go after a myriad of suspects – ranging from a lookout or the driver of a getaway car, to a social media user who merely clicked “like” on a post promoting an illegal gathering – depending on the strength of the evidence.

The ruling at the Court of Appeal could pave the way for more prosecutions, as well as increase the likelihood of convictions in future trials and overturn the acquittals of some riot suspects charged for their roles in 2019’s anti-government protests.

Poon said the common law doctrine must apply to the offences of rioting and unlawful assembly, as it was plainly in the public interest to penalise not just offenders caught at the scene, but also accomplices who were not.

“An accessory or a party to a joint enterprise is liable as the principal. This serves the public interest of maintaining the public order,” Poon said. “A contrary construction which excludes the doctrine of joint enterprise … will have dire consequences for the maintenance of public order.” [Source]

On Thursday, the joint enterprise doctrine led to the trio’s conviction. This precedent is likely to be alarming for many others in Hong Kong. In 2019, many Hong Kongers, particularly older individuals, offered support and assistance to protesters. One example is the “school bus” network, a code for an underground nexus of getaway drivers that helped to ferry protestors away from conflict zones. The Journal’s John Lyons reported on the underground support network in September 2019:

He’s part of what’s known as “the school bus”—code for a vast underground of getaway cars typically driven by older, middle-class Hong Kongers who want to support the younger generation protesting in the streets. One of the encrypted chat groups organizing the rides, also called “after school pickup,” connects drivers it calls “parents” with protester “children.” The group has some 21,000 subscribers. Tens of thousands more subscribe to other groups.

[…] The public got a glimpse of the size of that chain early this month. When authorities shut down public transport links to Hong Kong’s remote and left protesters there stranded, so many drivers responded to pleas for rides that they snarled traffic on a major highway. Hours into the rescue, there were more drivers than protesters. Some cars went home empty. [Source]

More than 10,000 people have already been arrested in connection with the 2019-2020 protests, among them over 2,400 charged with rioting, unlawful assembly, and other protest-related offenses. Just this week, 21 others were charged with “perverting the course of justice” for their role in helping to drive fleeing protestors away from Hong Kong Polytechnic University, the site of some of the most violent clashes between police and protestors in 2019. It remains to be seen how many  will be charged with the more serious offense of rioting, which carries a maximum sentence of 10 years.

Separately, pro-democracy activists Joshua Wong, Lester Shum, Tiffany Yuen, and Jannelle Leung were handed jail sentences of between four and 10 months on Thursday for their participation in a peaceful Tiananmen Vigil in the city’s Victoria Park last June 4th. Authorities had banned the vigil for the first time since 1990, citing coronavirus restrictions. The ban was renewed this year. Wong is already in jail, serving a 17-month sentence for two other unlawful assemblies. Shum and Yuen are also currently behind bars, pending trial on national security charges for their participation in the 2020 pro-democracy primary elections. Along with Wong, the three face maximum sentences of life imprisonment for “subversion.”

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