Michael Jackson
Boase Cohen & Collins blog
Published on 15 April 2021
In Part I, we outlined the recent decision of the Hong Kong Court of Appeal (“HKCA”) in Tong Wai Hung ([2021] HKCA 404) in which the court ruled that the doctrine of “joint criminal enterprise” (as it has been styled by the Court of Final Appeal – hereafter “JCE”) is of general application to all offences in Hong Kong, unless excluded by statute; secondly, and more specifically, that it applies to unlawful assembly and riot, contrary to ss.18 and 19 respectively of the Public Order Ordinance (“POO”); and thirdly, that presence at the scene is not a necessary requirement of joint enterprise liability. In this part, we offer some additional thoughts on Tong, and ask what will actually need to be proved to impose liability for unlawful assembly or riot on parties to a joint enterprise (assuming the correctness of the latter two rulings).
Presumably consideration is being given to appealing the decision. In the meantime, the following comments are offered by way of critique of the legal analysis and reasoning offered and relied on in Tong and to elaborate its effect, and not to suggest that the social instability which the HKCA addressed in its judgment and perceived by it as a motivating reason for ensuring the doctrine of joint enterprise liability is available in relation to ss.18 and 19, is anything less than a legitimate and pressing concern of the criminal law... Click here to read the full text.
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