Blurring boundaries on ‘taking part’ in an unlawful assembly: HKSAR v Choy Kin Yue (2022) 25 HKCFAR 360

ABSTRACT

It is trite law that mere presence at the scene of an unlawful assembly or a riot is not unlawful. However, what it takes to shift a person from an innocent bystander to an active participant in the eyes of the law is less well known. In HKSAR v Choy Kin Yue (2022) 25 HKCFAR 360, the Hong Kong Court of Final Appeal accepted that the Respondent who filmed the participants in an unlawful assembly had acted in a provocative manner by his conduct of filming, and further held that the Respondent had intentionally taken part in the unlawful assembly. The Court therefore allowed the prosecution’s appeal and restored the Respondent’s conviction. This case comment argues that the court’s reasoning is problematic in four aspects, and that the case has led to increasingly blurred boundaries between an innocent bystander and an active participant in an unlawful assembly or riot.

KEYWORDS:

• Unlawful assembly
• riot
• criminal law
• participatory intent
• Hong Kong

1. Facts of the case

HKSAR v Choy Kin Yue¹ is a Hong Kong Court of Final Appeal (CFA) judgment concerning events which took place during the 2019 protests against the Extradition Bill² in Hong Kong. In the incident in question, several persons tailed a police officer on plain clothes duty and shouted threatening remarks towards him near a shopping mall. As the officer came out from the mall, four persons (D1 to D4 at trial) continued to trail behind him. This case comment concerns D5, the Respondent in the CFA judgment, who was filming the incident at some distance before getting close to the other defendants and the officer.³ While the other defendants flashed torches toward the officer and accused the officer of beating a youngster, the Respondent rushed to the scene and continued to use the video camera to record the incident.⁴ Shortly after, other police officers arrived and arrested the Respondent along with the other defendants. They were then charged with unlawful assembly under section 18 of the Public Order Ordinance (Cap 245). The Respondent pleaded not guilty, claiming that he did not participate in any assembly and merely ‘filmed the incident spontaneously without any ill intent’.⁵

After trial, the Respondent was found guilty by Principal Magistrate Don So (‘the Magistrate’). The Magistrate observed that the Respondent was acting together with the other defendants as (i) there was no evidence that the Respondent was a journalist; (ii) at the end of the video, the Respondent’s camera focused on filming the police officer; and (iii) the Respondent recorded incriminatory evidence of D4 (which shows D4 using his torch to harass the officer) without any interference. Based on the fact that the Respondent could film the incident without interference from the other defendants, the Magistrate inferred that the Respondent had reached a consensus with D4 that the video would not become incriminating evidence against them. Furthermore, the Magistrate observed that the Respondent continued to approach the group upon observing the other defendants assaulting the officer.⁶ As such, the Respondent was found to have deliberately taken part in the unlawful assembly.

On the Respondent’s appeal to the Court of First Instance (CFI) of the High Court, Wong J (‘the Judge’) allowed the appeal and quashed the Respondent’s conviction. The Judge held in agreement with the Magistrate that the Respondent’s behaviour was capable of being provocative.⁷ The Judge was however unable to conclude that there was any consensus between the Respondent and D4. After considering various factors (which will be outlined below), the Judge held that there was insufficient evidence to draw an irresistible inference that the defendant had ‘participatory intent’ in relation to the unlawful assembly.⁸

The prosecution appealed to the Hong Kong Court of Final Appeal (CFA) on the ground that the Judge had misapplied case law by treating the Respondent as an assister or encourager rather than a ‘constituent offender’ of the unlawful assembly. It was submitted that, had case law been properly applied, the Respondent’s conviction would have been upheld.⁹

Allowing the prosecution’s appeal, the CFA unanimously reversed the Judge’s decision and restored the Respondent’s conviction, citing two reasons. Firstly, the CFA held that the Judge erred by moving away from examining whether the Respondent had the intent to become part of the assembly. Instead, as the CFA held, the judge erroneously examined whether the Respondent had the intent to encourage the other defendants in performing the ‘prohibited conduct’.¹⁰ It was held that, if the focus had been properly placed, ‘the inescapable conclusion would have been that the Respondent had joined the [unlawful] assembly’.¹¹ Secondly, the CFA held that, as the Respondent was found to be a ‘constituent offender’, there was no need to prove the Respondent’s intent to ‘act in furtherance of the prohibited conduct of the other defendants’.¹² It was held that, had the Judge properly directed himself, ‘the matters which he relied upon should not have precluded him from drawing an irresistible inference that the Respondent had the intent to commit the prohibited act’.¹³ As such, the CFA held that the quashing of the conviction ‘resulted in substantial and grave injustice’.¹⁴

2. Comment

2.1. The offence of unlawful assembly

Section 18(1) of the Public Order Ordinance stipulates that it constitutes an unlawful assembly when:

[three] or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace[.]¹⁵

The CFA has further clarified the elements of unlawful assembly in HKSAR v Lo Kin Man,¹⁶ referring to conduct which satisfies the above as ‘the prohibited conduct’ and the group of persons performing the prohibited conduct as ‘the constituent offenders’.¹⁷

The actus reus of the offence of unlawful assembly is ‘taking part’ in the unlawful assembly.¹⁸ If the defendant is one of the constituent offenders who engaged in the prohibited conduct, there is usually little difficulty in finding that he or she had taken part in the unlawful assembly.¹⁹ However, a person may also take part in an unlawful assembly by ‘facilitating, assisting or encouraging the performance of such [prohibited] conduct by others participating in the assembly’.²⁰ Also, as the offence is a ‘participatory offence’, it is insufficient for the prosecution to prove that the defendant performed the prohibited conduct alone. The defendant must be proven to have ‘acted as part of an assembly with others who were also participants’.²¹ In other words, the defendant’s conduct must have ‘sufficient nexus with other participants … to justify regarding them as acting together’.²²

As to the mens rea of the offence, the defendant must have intended to (i) assemble together with other participants and (ii) ‘to engage in or act in furtherance of the prohibited conduct’.²³ This is termed by the CFA as ‘participatory intent’.²⁴

2.2. The Judge’s list of observations

On the Respondent’s appeal against the Magistrate’s decision, the High Court Judge in the CFI listed 19 observations in deciding that the Respondent’s participatory intent could not be established beyond a reasonable doubt.²⁵ The Judge first noted that an unlawful assembly occurred at the material time, and that the Respondent’s act of filming was capable of being provocative. The Judge also noted that there was no evidence showing why he filmed the incident or that he was a journalist. The Judge then listed various factors favourable to the Respondent, including that: (i) apart from filming, the Respondent did not say anything or perform any other act that was improper (even when the others were harassing the police officer); (ii) his conduct (of filming) was remarkably different from that of the other defendants; (iii) the clothes he wore did not indicate that he had any connection with the other defendants; (iv) he did not communicate with the other defendants verbally or through any other means; (v) when he started filming, he was not in the vicinity of the other defendants; (vi) at most time he had kept a distance from others when filming the incident (except for when he ran closer and in front of the police officer once); and (vii) he had no previous criminal conviction. These observations were not challenged on the prosecution’s appeal to the CFA²⁶ and were adopted in the CFA’s judgment.²⁷

2.3. The problematic aspects of the judgments

Having set out the facts of the case and the relevant law, this section turns to discuss the problematic aspects of the judgments. Two preliminary points are noteworthy. First, the CFA Judgment involves a prosecution appeal on the ground that ‘substantial and grave injustice’ has been done in the CFI’s decision to acquit the Respondent.²⁸ Thus, to allow the appeal and restore the conviction, it is not sufficient merely to show that the Judge had made an error—the CFA must also be satisfied that the conviction is safe and satisfactory. Second, to restore the conviction, the CFA must be satisfied that all elements of the crime have been successfully proven against the Respondent on the criminal standard of beyond a reasonable doubt. Anything less, for example, proving that the Respondent ‘probably’ had the participatory intent, is insufficient for a conviction. With these two points in mind, this case comment will attempt to show that the CFA has arguably erred in restoring the Respondent’s conviction.

The first problematic aspect of the case is the finding that the Respondent’s act of filming was provocative. The CFA found that the Respondent was a constituent offender,²⁹ and its judgment focused primarily on the Judge’s purported error in not assessing whether the Respondent had satisfied the mens rea requirement of a constituent offender. Yet, for the Respondent to be regarded as a constituent offender, the Respondent must have been proven to have acted in a provocative manner in the first place.³⁰ Without clarifying this issue, the whole appeal might have been assessed on a flawed basis.

In the CFI, the Judge held that, depending on the context and circumstances, the act of mere filming is capable of constituting a provocative act.³¹ The Judge, however, added that filming performed by a journalist in proper execution of his or her duty generally does not constitute a provocative act, as the freedom of press is a constitutional right protected by the Hong Kong Basic Law.³² Turning to the facts of this case, the Judge noted that no evidence showed that the Respondent was a journalist and held that, in the circumstances, the Magistrate was entitled to find the Respondent’s act provocative.³³ The CFA did not take issue with the finding.³⁴

As shown in the Judge’s list of observations, the Respondent filmed the incident without uttering any words or communicating with the other defendants in any form. The Respondent also did not react when others were harassing the police officer. In such circumstances, it is difficult to see how the Respondent had conducted himself in a provocative manner. As the CFI Judge paradoxically noted, the fact that the Respondent was not a journalist cannot enhance the prosecution’s case.³⁵ In fact, generally speaking, it is entirely lawful for a bystander to film an ongoing protest provided that he or she did not take part in it. If a journalist who performed the exact same act should not be found to have acted provocatively, what extra factor exists in the present case that renders the Respondent’s conduct provocative? Simply ‘not being a journalist’ appears to be a weak reason for turning the Respondent’s otherwise non-provocative act into a provocative one. Based on the facts accepted by the Judge and the CFA³⁶ (which slightly differed from the Magistrate’s, as the Judge held that the Respondent's act of filming was not targeted at the police officer), the two Courts have failed to provide any positive reason (let alone a convincing reason) for finding that the Respondent had acted in a provocative manner.

The second problematic aspect of the CFA Judgment relates to the finding that the Respondent was a ‘constituent offender’ who performed a prohibited act. While in the CFI the Judge was ambivalent on whether the Respondent was a constituent offender or an assister or encourager, the CFA clearly held that ‘[t]he Respondent was one of the constituent offenders in the unlawful assembly’.³⁷ As discussed above, to hold the Respondent to be a constituent offender, apart from finding that he had acted in a provocative manner, the Court must also have found that he (1) intended or (2) was likely to (i) cause any person reasonably to fear that the assembled persons may commit a breach of peace or (ii) provoke other persons to commit a breach of peace.³⁸ The CFA did not address how the Respondent satisfied such an element. There was no evidence that the Respondent intended to cause the stipulated fear or to provoke others to commit a breach of peace. Similarly how the Respondent's mere act of filming would likely cause others to reasonably fear that a breach of peace may be committed or provoke other persons to commit a breach of peace is unclear and requires elaboration. The CFA has unfortunately failed to address this issue in affirming the Magistrate’s finding that the Respondent was a constituent offender. The evidential foundation for treating the Respondent as a constituent offender (rather than a potential assister or encourager) of the unlawful assembly was therefore not properly set out.

Even assuming that the Respondent’s act could properly be found as provocative and likely to cause the stipulated fear or provoke others to commit a breach of peace, further hurdles exist in returning a guilty verdict. The third problematic aspect of the case lies in failing to establish the actus reus—that the Respondent had ‘taken part in’ the unlawful assembly. In Lo Kin Man, the CFA has explained that, to be regarded as having taken part in an unlawful assembly,

[t]he defendant must … be shown not merely to have been engaging in disorderly conduct alone, but to have acted as part of an assembly with others who were also participants. The offence is ‘participatory’ in that sense … the defendant’s conduct has to be assessed to see if a sufficient nexus with other participants exists to justify regarding them as acting together.³⁹

At trial, the Magistrate inferred that there was a consensus between the Respondent and D4. This finding, however, was not adopted by the Judge in the CFI as he held that such an inference was not the only irresistible inference that could be made.⁴⁰ The CFA assessed the appeal based on the facts accepted by the Judge (thus differing from the Magistrate in this regard).⁴¹ However, it appears that the CFA made inferences that were different from those of the Judge. For example, the CFA held that, as the Respondent was rushing towards the officer after D4 had flashed his torch towards the officer, and as the Respondent could film without being intervened by the defendants, the Magistrate:

was justified in drawing the inference that the Respondent was acting together with the other defendants. In other words, he had the intent to become part of the group of people who pestered PW1 at close distance.⁴²

This contradicts the Judge’s list of observations which (although not expressly stated) indicates that an irresistible inference cannot be drawn to the effect that the Respondent must have been acting together with the other defendants. Having accepted the Judge’s list of observations as the factual basis of their decision (especially that the Respondent did not communicate with the other defendants at all times and the Respondent’s conduct differs from the other defendants and was limited to filming), it is difficult to see how the CFA could arrive at the ‘inescapable conclusion’ that there is a sufficient nexus between the Respondent’s acts and those of the other defendants, such that the Respondent could be regarded as taking part in the assembly.

As acknowledged by the CFA in the judgment, ‘mere presence without more would not be regarded as taking part’ in an unlawful assembly.⁴³ Running towards an incident for filming without more (as a journalist would do) does not by itself create a ‘sufficient nexus with other participants … to justify regarding them as acting together’.⁴⁴ Also, the fact that the Respondent had filmed the other defendants’ illegal conduct (which could be, and has been, used as incriminating evidence against them) should have at least given rise to the possible inference that they were not acting together.⁴⁵

Strangely, in the paragraph quoted above,⁴⁶ the CFA appears to have confused the actus reus with the mens rea of the offence. Immediately after holding that the Respondent was acting together with others, the Court wrote that, ‘[i]n other words’, the Respondent had the ‘intent to become part of the group’ with the other defendants.⁴⁷ However, the Court did not explain how the finding that the Respondent was acting together with others would automatically mean that he also had the necessary intent to become part of the assembly. Had the CFA treated the two as distinct questions, some explanation or discussion on the mens rea part might have been expected to follow.

The same mistake was more obviously repeated in paragraph 43, where the CFA held:

[h]ad the Judge properly focused on the Respondent’s intent to become part of the assembly, notwithstanding those factors he alluded to, the inescapable conclusion would have been that the Respondent had joined the assembly for the reasons already canvassed above.⁴⁸

With respect, given the CFA’s decision in Lo Kin Man,⁴⁹ it is erroneous to treat the actus reus of ‘taking part’ (which relates to whether a sufficient nexus with other participants existed so that the Respondent could be seen as part of the assembly) and the mens rea of ‘participatory intent’ (the intent to become part of the assembly and ‘to engage in or act in furtherance of the prohibited conduct’)⁵⁰ as identical. Having focused only on whether the Respondent had the requisite mens rea, the CFA should not have reached the ‘inescapable conclusion’ that the Respondent had satisfied the actus reus of joining the assembly.⁵¹ Whether the Respondent had satisfied the actus reus requirement depends on whether there was a sufficient nexus between his conduct and the other defendants’, not on his participatory intent.

Related to the same question is the fourth problematic aspect of the case, that the CFA failed to establish the Respondent’s ‘participatory intent’. The Court held that, if the Judge had properly directed himself, ‘the matters which he relied upon should not have precluded him from drawing an irresistible inference that the Respondent had the intent to commit the prohibited act’.⁵² Based on the CFA’s assessment (criticised above), it was satisfied that the Respondent had intentionally acted in a provocative manner. Even so, in order to establish the Respondent’s participatory intent, apart from proving the Respondent’s intention to engage in the prohibited conduct, the Respondent’s intent to become part of the assembly must also be proven.⁵³ Without challenging the Judge’s list of observations, there is insufficient factual basis to suggest that the Respondent had subjectively intended to become part of the assembly. Notably, the Respondent’s conduct was limited to filming, and he did not perform any other improper act or communicate with the other defendants at all. In addition, the Respondent kept a distance when filming for most of the material time. He also had no conviction record, which indicates a lower propensity to offend.⁵⁴ It is after taking into account these factors that the Judge held the Respondent’s intent to take part in the assembly could not be proven on the criminal standard of proof of beyond a reasonable doubt.⁵⁵ In reversing the Judge’s decision, the CFA unfortunately did not address those factors favourable to the Respondent or elaborate on how an irresistible inculpatory inference could be drawn in the circumstances.

3. Conclusion

After setting out the reasons for allowing the prosecution’s appeal, the CFA concluded that the present case ‘is clearly not a case of mere presence or spontaneous filming by an innocent bystander’.⁵⁶ This case comment, however, has cast doubt on such a conclusion by highlighting four problematic aspects of the ruling. The CFA failed to provide a sufficient basis to demonstrate that (i) the Respondent had acted in a provocative manner; (ii) the Respondent’s act was likely to cause reasonable fear as to a breach of peace or provoke others to commit a breach of peace; (iii) there was a sufficient nexus between the Respondent’s conduct and that of the other defendants for him to be regarded as taking part in the unlawful assembly; and (iv) the Respondent had the mens rea of intending to become part of the unlawful assembly.

As the Hong Kong Court of Appeal observed in another case,

unlawful assemblies and riots nowadays are highly fluid in nature. They involve a myriad of participants playing various roles and sometimes with a rather sophisticated division of labour among them.⁵⁷

While this statement is no doubt true in the context of the 2019 Hong Kong social unrest, the fluid nature of the protests also means that many persons who did not take part in the unlawful assemblies or riots (in other words, innocent persons) may find themselves in the vicinity of unlawful events. This has led to a number of cases in which the courts have to distinguish whether a person is an innocent bystander or a guilty participant. For example, the Court of Appeal has considered that volunteer first-aiders who provided first-aid services to protesters can properly be convicted of the offences of unlawful assembly or riot.⁵⁸ One may also wonder whether a documentary producer or ethnographic researcher who closely followed the protesters in an unlawful assembly or riot would be seen as taking part. The facts of Choy Kin Yue provided a prime opportunity for the court to clarify the boundaries between being an innocent bystander and an active participant in an unlawful assembly or riot.

Unfortunately, in Choy Kin Yue the CFA has construed the concept of taking part in an unlawful assembly in an excessively wide manner. The ramification of the case is that what constitutes mere presence and what constitutes taking part in an unlawful assembly or riot has become increasingly indistinguishable. The mistake made by the CFA in confusing the actus reus and mens rea of the offence adds further difficulties for future applications of the law. Recently, the CFA has granted leave for the prosecution to appeal in another unlawful assembly case and, in doing so, has cited Choy Kin Yue as one of the authorities.⁵⁹ It is hoped that the CFA will seize the upcoming opportunity to clarify the law.

Additional information

Notes on contributors

Aaron H L Wong

Aaron H L Wong is an MPhil in Criminology candidate at the Institute of Criminology, Faculty of Law, University of Cambridge, Cambridge, United Kingdom.

Notes

1 (2022) 25 HKCFAR 360 (Hong Kong Court of Final Appeal (CFA)) (‘CFA Judgment’) [6]–[7].

2 Officially the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.

3 香港特別行政區訴蔡健瑜 (‘HKSAR v Choy Kin Yue’) [2022] HKCFI 712 (Hong Kong Court of First Instance) (‘CFI Judgment’) [54].

4 CFA Judgment (n 1) [6]–[7].

5 CFA Judgment (n 1) [8].

6 CFI Judgment (n 3) [12].

7 CFI Judgment (n 3) [47].

8 CFI Judgment (n 3) [54]–[55].

9 HKSAR v Choy Kin-yue FACC 3/2022, Appellant’s Printed Case (‘Appellant’s Printed Case’), para 3.

10 CFA Judgment (n 1) [41]–[43].

11 CFA Judgment (n 1) [43].

12 CFA Judgment (n 1) [46].

13 CFA Judgment (n 1) [47].

14 CFA Judgment (n 1) [48].

15 Public Order Ordinance (Cap 245), s 18.

16 (2021) 24 HKCFAR 302 (CFA).

17 Lo Kin Man (n 16) [9].

18 Lo Kin Man (n 16) [11]; Public Order Ordinance, s 18(3).

19 Lo Kin Man (n 16) [12]–[13].

20 Lo Kin Man (n 16) [14].

21 Lo Kin Man (n 16) [16].

22 Lo Kin Man (n 16) [16].

23 Lo Kin Man (n 16) [17]. Also, in HKSAR v Leung Chung Hang Sixtus [2021] HKCFA 24 (CFA) [59], the CFA clearly stated that ‘the prosecution will need to prove full mens rea on the part of the defendant’ in relation to both the assembled together element and the prohibited conduct element.

24 Lo Kin Man (n 16) [17].

25 CFI Judgment (n 3) [54]–[55].

26 Appellant’s Printed Case, para 35.

27 CFA Judgment (n 1) [47].

28 CFA Judgment (n 1) [48].

29 CFA Judgment (n 1) [34].

30 Lo Kin Man (n 16) [9].

31 CFI Judgment (n 3) [39]–[42].

32 CFI Judgment (n 3) [41].

33 CFI Judgment (n 3) [40], [42].

34 CFA Judgment (n 1) [40].

35 CFI Judgment (n 3) [40].

36 CFI Judgment (n 3) [24], [52]; CFA Judgment (n 1) [13].

37 CFA Judgment (n 1) [34].

38 Leung Chung Hang Sixtus (n 23) [59].

39 Lo Kin Man (n 16) [16].

40 CFI Judgment (n 3) [51].

41 See CFA Judgment (n 1) [13], [43], [47].

42 CFA Judgment (n 1) [37].

43 CFA Judgment (n 1) [23].

44 Lo Kin Man (n 16) [16].

45 CFI Judgment (n 3) [52].

46 CFA Judgment (n 1) [37].

47 CFA Judgment (n 1) [37].

48 CFA Judgment (n 1) [43] (emphasis added).

49 Lo Kin Man (n 16) [109(c)].

50 Lo Kin Man (n 16) [17].

51 CFA Judgment (n 1) [43].

52 CFA Judgment (n 1) [47].

53 CFA Judgment (n 1) [25].

54 See HKSAR v Tang Siu Man [1998] 1 HKLRD 350 (CFA).

55 CFI Judgment (n 3) [55]–[60].

56 CFA Judgment (n 1) [47].

57 Secretary for Justice v Tong Wai Hung [2021] HKCA 404 (Hong Kong Court of Appeal (HKCA)) [56].

58 See HKSAR v Chan Cho Ho [2022] HKCA 1281 (HKCA) [18].

59 HKSAR v Mak Wing Wa [2023] HKCFA 6 (CFA).