HONG KONG -- Hong Kong's top court on Thursday ruled that individuals can generally be convicted of the crime of rioting only if they were present at the scene or had incited others to join in, dealing a blow to government efforts to prosecute some residents linked the city's 2019 demonstrations.
The Court of Final Appeal's five-judge panel explained in its written judgment that the offenses of rioting and unauthorized assembly are both participatory in nature and that there must be sufficient evidence shown of having taken part and of having done so intentionally. Merely being present should not constitute a crime.
The judges, however, ruled that whether present or absent, defendants who incite or encourage a criminal assembly -- such as a "mastermind" remotely overseeing the actions or providing instructions online -- are punishable to the same extent as the principal offenders.
The court added that those who provide funds or materials for an illegal assembly, or promote it on social media, can also be prosecuted under the common law's principle of "joint enterprise."
The landmark ruling, which will have far-reaching implications for future riot and unlawful assembly cases, comes at a time when the independence of Hong Kong's judiciary is under immense pressure, straining a core element of the city's special status and distinction from mainland China.
Pro-Beijing politicians have expressed frustration with the courts over cases where protesters charged in connection with the 2019 anti-government demonstrations have been acquitted or avoided heavy punishment.
More than 2,700 people still face prosecution over protest-related charges. Of those, roughly 750 have been charged with rioting, a crime punishable by up to 10 years' imprisonment.
Hong Kong's common law legal system, inherited from the colonial British government, is what attracts many multinational companies to set up offices in the city. But there have been mounting concerns that the city's rule of law could be compromised, some in the legal establishment say.
Thursday's legal challenge arose from two separate cases relating to protests in recent years, questioning the application of the joint enterprise principle.
Riot police and pro-democracy activists inside a mall in Hong Kong, July 2019. © Reuters In one, 34-year-old Lo Kin-man sought to overturn his rioting conviction in relation to a 2016 incident.
The other case involved 40-year-old gym owner Henry Tong, who along with his wife and a student was acquitted last year in the first riot trial relating to the 2019 protests. After the verdict, the city's secretary for justice asked for clarity on the application of the joint enterprise principle.
The Court of Appeal ruled in favor of prosecutors interpretation of joint enterprise in March, finding that illegal assemblies and riots are "highly fluid in nature" and that those who act as lookouts or drive a getaway car could be indicted.
On Thursday, the top court's judges dismissed Lo's appeal but noted that prosecutors had failed to prove Tong and his two co-defendants had been present with other protesters at the scene.
Simon Young, associate dean of the University of Hong Kong's law school, said the court's decision was largely a win for prosecutors' efforts to lay rioting charges.
"Depending on your degree of pre-involvement, you might also be caught as a conspirator or someone who incites the unlawful assembly or rioting," he said.
A lawyer who has been representing protesters said the judgment could lead to further convictions.
"I can foresee that there will be another round of prosecution of those arrested in 2019," he said, declining to be named due to the sensitivity of the subject.