HKSAR v. LEUNG TIN KEI AND OTHERS

[English Translation - 英譯本]

HCCC 408/2016 & HCCC 408A/2016
(Consolidated indictment)

[2018] HKCFI 2715

Court Order
Before the trial at first instance in the present case is fully concluded, this Reasons for Ruling shall only be provided to the two counsel engaged by the prosecution and the two counsel that each of the defendants had engaged respectively for reading and retention. Without leave of the court,
	(1)   this Reasons for Ruling shall not be handed to any other person (including the defendants) or made available for reading by any other person;
	(2) save and except paragraphs 78 - 82 of this Reasons for Ruling, any other part of the contents thereof shall not in any way be disclosed to any other person or published (including the uploading of any part thereof onto the internet or any other public information platform).
Upon the conclusion of the trial at first instance in the present case, the aforesaid order shall be discharged automatically and the Reasons for Ruling will be uploaded onto the Judiciary website.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS. 408 AND 408A OF 2016

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REASONS FOR RULING ON THE ISSUES OF THE ELEMENTS OF THE OFFENCES AND UNCONSTITUTIONALITY

1.  The charges involved in this case include:

(1)  unlawful assembly; and

(2)  riot.

2.  The prosecution and each of the defendants held different views on the elements of the offences in respect of the two charges. It is therefore necessary for the court to decide on this issue.

3.  The two offences are created by sections 18 and 19 of the Public Order Ordinance[1] respectively.

4.  Section 18(3) provides that any person who takes part in an unlawful assembly shall be guilty of the offence of unlawful assembly.

5.  What is an unlawful assembly? According to section 18(1):

“When 3 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, they are an unlawful assembly.”

6.  As for the offence of riot, according to section 19(1):

“When any person taking part in an assembly which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.”

7.  Regarding the offence of unlawful assembly, on the face of the provisions, there are the following 3 aspects of the elements of the offence:

(1)  At the time and place specified in the charge, 3 or more persons assembled together, the defendant took part therein and was one of these 3 or more persons;

(2)  These persons assembled committed one of the following acts:

(a)  a disorderly act; or

(b)  an intimidating, insulting or provocative act.

((a) and (b) are hereinafter referred to as “the prescribed acts”.)

(3)  When these persons assembled committed one or more of the aforesaid “prescribed acts”:

(a)  they intended to cause any person reasonably to fear that:

(i)   the persons so assembled will commit a breach of the peace;

(ii)  the persons so assembled will by one of the aforesaid acts they committed provoke other persons to commit a breach of the peace.

((i) and (ii) are hereinafter referred to as “the stipulated fear”.)

or

(b)  “the prescribed act or acts” actually committed is/are likely to cause any person reasonably to fear that:

(i)   the persons so assembled will commit a breach of the peace; or

(ii)  the persons so assembled will by one of the aforesaid acts they committed provoke other persons to commit a breach of the peace.

(3(a) is hereinafter referred to as “causing the stipulated fear by a subjective standard”; 3(b) is hereinafter referred to as “causing the stipulated fear by an objective standard”.)

Prosecution’s submission

8.  Citing the English case of R v Jones[2], the prosecution submitted that: the ingredients of the offence of unlawful assembly are: (1) the actus reus of being or coming together, namely the act of assembly, and (2) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger public peace. Those ingredients have to be co-existent.

9.  The prosecution took the view that in respect of element 3(b) (“causing the stipulated fear by an objective standard”) set out in para 7 above, proof of mens rea is not required, nor will the defence[3] that defence counsel Mr Kwok has raised by citing Kulemesin v HKSAR exist.Mr Kwok SC for the prosecution pointed out that regarding the matters required to be proved by the prosecution in relation to the charge, particularly “taking part”, proof of the intention to take part is required, as well as proof of the “corporate nature / common purpose” of the assembly in which the defendant is “taking part”. This matter also requires proof of mens rea, and therefore there is no absolute liability or strict liability imposed.

10.  As to “taking part”, if the defendant commits the “prescribed act or acts” personally, that can be used as the basis of proof. Besides, the principle of joint enterprise can also be relied on for proving it.

11.  Regarding the offence of riot, the essential actus reus is also “taking part”. Proof of mens rea is required.

12.  The prosecution also submitted that even if the considerations set out in Kulemesin[4]are applicable in the present case, on the proper construction of the relevant provisions, the presumption of mens rea ought to be displaced. The prosecution made reference to the offence of assault occasioning actual bodily harm[5] to support this argument.

13.  The prosecution also urged the court to take into account that: even if the “causing the stipulated fear by an objective standard” limb is of absolute liability, it does not undermine the other safeguards provided in the elements of the offence, and the reasons why the defendant committed a certain “prescribed act” and why he and other persons assembled do cover to a large extent the defence of honest and reasonable belief raised by the defence. Furthermore, the displacement of the presumption of mens rea is conducive to ensuring the effect of the provisions.

14.  Taking together the prosecution’s written submission and Mr Kwok SC’s oral submission at the hearing, it was the prosecution’s view that the elements of the offences in respect of the two charges are as follows:

The offence of unlawful assembly

(1)  At the time and place specified in the charge, 3 or more persons assembled together, and these persons assembled had a common purpose (which, as the prosecution alleged, was to obstruct police officers in the execution of their duties at the scene); and

(2)  These persons assembled, with the aforesaid common purpose, conducted themselves in a disorderly, intimidating, insulting or provocative manner; and

(3)  When these persons assembled, with the intention of fulfilling the common purpose, actually conducted themselves in one or more of such manners at that time, they:

(a)  intended 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. That is a subjective standard; or

(b)  were 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. That is an objective standard; and

(4)  The defendant did take part in the said unlawful assembly; and

(5)  The defendant did intend to take part in the said unlawful assembly.

The offence of riot

(1)  At the time and place specified in the charge, there existed an unlawful assembly (see the definition of unlawful assembly); and

(2)  Any person (whether or not the defendant) taking part in the said unlawful assembly had committed a breach of the peace (see above), rendering the said unlawful assembly a riot; and

(3)  The defendant did take part in the said riot; and

(4)  The defendant did intend to take part in the said riot.

The defence’s submissions

15.  The main points of the submission of Mr Ma, counsel for D1, are as follows:

(1)  The mens rea in respect of the two charges lies in the defendant’s intention of “taking part” in the “unlawful assembly” or “riot”.

(2)  Only when a defendant does “the prescribed act or acts” will he be guilty of the offence of unlawful assembly. It is pointed out in cases such as R v To Kwan Hang[6] and R v Jones[7] that the unlawful assembly is made up of those doing “the prescribed act or acts”.

(3)  The so-called “taking part” means the defendant and other persons assembled together, did the “prescribed act or acts”, and intended or were likely to cause the consequences set out in the Ordinance.

(4)  Regarding the “causing the stipulated fear by an objective standard” limb, if the prosecution is not required to prove mens rea, it might become a strict liability or even an absolute liability. That would not be the legislative intent.

16.  He was of the view that the prosecution has to prove the matters set out in items (1) to (5) below in order to prove that there was an unlawful assembly, and go on to prove the matters set out in items (6) to (8) in order to prove that he committed the offence of riot:

(1)  3 or more persons including D1 assembled together; and

(2)  D1 and those persons assembled together had a common purpose to conduct themselves in a disorderly, intimidating, insulting or provocative manner; and

(3)  D1 and those persons assembled together did conduct themselves in one or more of the aforesaid manners; and

(4)  D1 and those persons assembled together had the corresponding intention to conduct themselves in one or more of the aforesaid manners; and

(5)  D1 and those persons assembled together conducted themselves in one or more of the aforesaid manners:

(a)  which was intended 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; or

(b)  where such conduct was 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.

(6)  When D1 was taking part in the unlawful assembly, he

(a)  intended to and did by his presence at the scene encourage other persons to use violence or threaten to use violence; or

(b)  alone or jointly with other defendants deliberately used violence or threatened to use violence; and

(7)  D1 intended to commit a breach of the peace; and

(8)  A breach of the peace was actually committed at that time.

17.  Mr Iu and Mr Wong, counsel for D2 and D3 respectively, submitted that the relevant directions given by Pang J in another case ought to be adopted, however, as far as the “causing the stipulated fear by a subjective standard” limb is concerned, the wording used in the Ordinance ought to be adopted, namely intended to cause “any person reasonably to fear that the persons so assembled will commit a breach of the peace”, and not intended to cause “a breach of the peace”. Besides, they also submitted on how to direct the jury on the matter of “common purpose”. The directions given by Pang J are as follows:

“ The offence of unlawful assembly

You must be sure that the prosecution has proved each of the following matters (i.e. (1), (2), (3) and (4)(i), or (1), (2), (3) and (4)(ii)) before you may convict D4 of the first count of unlawful assembly he faced:

(1) At the time and place specified in the first charge, 3 or more persons including D4 assembled together; and

(2) The common purpose of D4 and those persons assembling together at that time was to conduct themselves in a disorderly, intimidating, insulting or provocative manner (such conduct); and

(3) D4 did at that time conduct himself in one or more of the manners of such conduct; and

(4) (i) D4 and those persons assembled together conducted themselves in such manners at that time, which was intended to cause a breach of the peace; or

     (ii)    such conduct was 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.

The offence of riot

(1)    The said defendant, at the time and place specified in the charge, took part in an unlawful assembly (see the definition of unlawful assembly); and

(2)    When the said defendant took part in the relevant unlawful assembly, he

(i)  intended to and did by his presence at the scene alone encourage other persons to use violence or threaten to use violence; or

(ii)  alone or jointly with other defendants deliberately used violence or threatened to use violence; and

(3)    The said defendant intended to cause a breach of the peace (see above) at that time; and

(4)    A breach of the peace was actually committed at that time.”

18.  It was the submission of Mr Kwok, counsel for D4, that the prosecution’s interpretation of the elements of the offences is unconstitutional because:

(1)  as far as the offence of unlawful assembly is concerned, the “causing the stipulated fear by an objective standard” limb of the elements of the offence has adopted an arbitrary concept;

(2)  further, this “causing the stipulated fear by an objective standard” element has imposed an absolute liability; and

(3)  the offence of riot has also arbitrarily imposed an absolute liability.

19.  In support of his argument, Mr Kwok cited Article 28 of the Basic Law, which reads:

“Arbitrary … deprivation or restriction of the freedom of the person shall be prohibited.”

20.  He also cited a passage from Bokhary PJ’s judgment in HKSAR v Hin Lin Yee[8] and submitted that freedom of the person engages constitutional protection. A law may be unconstitutional if it is arbitrary. The imposition of absolute liability may be unconstitutional for arbitrariness where the imposition of such liability would have no deterrent effect.

21.  He took the view that in the course of analysis and consideration, the considerations in R v Jones[9] cited by the prosecution ought not to be adopted as what was examined in that case is the offence of unlawful assembly under the common law, and not the offence of unlawful assembly under the Public Order Ordinance.

22.  He was of the view that in order to determine what has to be proved in respect of the relevant charge, the approach and the considerations that the Court of Final Appeal set out in the case of Kulemesin[10]  ought to be followed.

23.  It was his submission that it is most appropriate to adopt the second alternative in Kulemesin for the purpose of interpretation, namely, in respect of the element of offence of “causing the stipulated fear by an objective standard”, the prosecution is not required to prove mens rea, however, the defence ought to be allowed to raise the argument that even if the defendant did “the prescribed act”, given that it was his honest belief that that act would not be likely to cause “the stipulated fear”, he should not be found guilty of the offence. In respect of this belief, the defence bears only an evidential burden.

24.  Although Mr Iu and Mr Wong, counsel for D2 and D3, took the stance as set out in para 17 above, they also indicated that should the court agree with the submission of defence counsel Mr Kwok, they would welcome that.

Discussion and Consideration

25.  It was pointed out in cases such as Hin Lin Yee[11] and Kulemesin[12] that under the established principle of statutory interpretation, proof of mens rea in relation to each element of the offence, which is not  related to the offender’s state of mind[13], is required. This applies even where the statute is silent on mens rea. That is the presumed legislative intent.

26.  However, this presumption may be displaced. Where the court ascertains that the legislative intent was to create an absolute liability, it may do so.

27.  The court would be slow to come to the conclusion that absolute liability has been imposed. Particularly, where the relevant offence is serious, it should be more cautious.

28.  Unlawful assembly and riot are both serious offences.

29.  All parties accepted that in order to prove the charge of unlawful assembly, the prosecution has to prove 3 aspects of the elements of the offence (see para 7 above).

30.  The main issue in dispute lies in element (3)(b), which is the third aspect of the elements. The prosecution submitted that in respect of proof of the first and second aspects of the elements, the prosecution has to prove the mens rea that the defendant and other persons had a common purpose. As for the third aspect of the elements, the Ordinance expressly provides that in respect of element 3(a) (“causing the stipulated fear by a subjective standard”), the prosecution has to prove intention, however, in respect of element 3(b) (“causing the stipulated fear by an objective standard”), the provision does not expressly require proof of mens rea. It was the prosecution’s submission that this shows that the legislative intent was to displace the presumption of mens rea.  

31.  The prosecution cited the judgment of the House of Lords on the elements of the offence of assault occasioning actual bodily harm in DPP v Parameter[14] to support its submission.

32.  The prosecution also submitted that the displacement of the relevant presumption is for ensuring the effect of the Ordinance. The main purpose of the Public Order Ordinance is to safeguard public order and safety and prevent social order from deteriorating. The displacement of the relevant presumption is rationally connected with this lawful purpose and is also necessary.

33.  The Court of Final Appeal pointed out in Hin Lin Yee[15] that what is to be determined by the court is:

(1)  whether the presumption of mens rea is displaced;

(2)  if so, whether the common law defence is excluded expressly or by necessary implication by the language and subject matter of the statute.

34.  As far as the subject matter is concerned, it is necessary for the court to have regard to the social context in which the Ordinance was enacted.  This includes:

(1)  the purpose of creating the offence, especially whether it is concerned with public safety;

(2)  the nature of the offence;

(3)  whether the consequences of the conviction are serious;

(4)  whether the creation of the absolute liability offence is conducive to achieving the legislative purpose.

35.  The Court of Final Appeal also pointed out that in deciding whether the presumption of mens rea has been displaced expressly or by necessary implication, the first (and possibly most crucial) consideration is the statutory language, including the use of words carrying a connotation of knowledge or intention. Second, the nature and subject matter of the offence are also of great importance. The more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted, although this is not impossible. Third, the legislative purpose, and its possible frustration by insisting on full mens rea, is obviously an important consideration.

36.  Where the consequences are severe, an absolute liability should only be found to arise where such a conclusion is compelling. It is necessary to justify absolute liability on the basis that it serves some useful purpose, i.e. it can affect observance of the law. Further, the court has to be satisfied that the statutory purpose cannot sufficiently be met by making the offence subject to the common law defence.

37.  There are two situations, among others, where absolute liability may in principle be imposed. The first is where the law does not consider the conduct in question to be essential or even necessarily acceptable from a societal point of view, as in the case of certain sexual offences. Another example is where the policy of the law is that a person should abstain from certain conduct unless that conduct is plainly lawful and acceptable in the relevant circumstances. The second involves the statutory imposition of a duty on a person where the conduct or task being the subject of the duty is in practice likely to be carried out or performed by someone else, such as an employee or a contractor. Many regulatory offences may fall within the second situation.

38.  The offence of unlawful assembly was originally a common law offence. In accordance with the English case of R v Jones[16]，the elements of the offence are as set out in para 8 above.

39.  Since the enactment of the Public Order Ordinance, the elements of the offence have had to be ascertained by reference to its provisions.

40.  The two essential elements of the offence of unlawful assembly can be seen in section 18(3) of the Ordinance[17], namely “taking part” and “unlawful assembly”.

41.  These two essential elements are, on its language, both actus reus.

42.  In order to understand the requisite mens rea, one has to construe the Ordinance.

43.  In SJ v Leung Kwok Wah[18]，Lam JA[19] pointed out that the concerns with the 3 aspects of the offence of unlawful assembly are as follows:

(1)  assembled together;

(2)  did “the prescribed act or acts”;

(3)  intended or likely to cause the “stipulated fear”.

44.  As far as “assembled together” is concerned, because of the corporate nature, it entails a joint responsibility, which is directed against the persons who did “the prescribed act or acts” amongst those assembled together, and for those who did “the prescribed act or acts”, there have to be at least 3 persons. Furthermore, for those who did “the prescribed act or acts”, apart from the requirement that there have to be at least 3 persons, it is also necessary to prove that they did so for a common purpose.

45.  Although it was stated in the legislative documents when the Ordinance was amended in 1967 that proof of a common purpose would no longer be required, both the prosecution and the defence took the view that given the development of case law[20], it has now been established that that has to be proved. I agree with this view.

46.  Lam JA cited R v Jones[21]in the judgment, the main purpose of which seemed to be to analyse the first concern. He expressly stated that those words[22] he had quoted were concerned with the common law offence. In the context of an offence created by section 18, there is a need to adjust the mens rea aspect to take account of the objective limb of the third aspect of the elements. Since the issue of mens rea in this regard was not an issue in dispute in that case, Lam JA did not explore any further in that regard. However, it could not be said that he agreed that the legislative intent was to impose an absolute liability.

47.  In respect of “the prescribed acts” aspect, Lam JA was of the view that the focus should be on the character of the conduct rather than the legality of the purpose behind the conduct. There are authorities to support this view, with which I also agree. In To Kwan Hang[23], Macdougall VP stressed that even if the protesters were exercising their right of assembly, they had no right to resort to violence. This view is confirmed in a series of authorities.

48.  As to what the nature of element 3(b) of the offence of unlawful assembly (i.e. “causing the stipulated fear by an objective standard”) is, the parties differed. The defence was of the view that it is the consequences of “the prescribed acts”, whereas the prosecution was of the view that it is merely a criterion for regulating “the prescribed acts”.  

49.  There is no authority to support the prosecution’s view, whereas the defence’s view falls within the literal meaning of the words. Defence counsel Mr Kwok also submitted that when so construed, it is no different from authorities such as SJ v Leung Kwok Wah[24]. He pointed out that Lam JA, in that case, described this element as “the third ingredient” rather than categorizing it as the criterion for the second ingredient (“the prescribed acts”).

50.  In my view, the defence’s view is desirable.

51.  Even if the prosecution’s view is correct, I do not consider that consideration of the presumption of mens rea as aforesaid can be avoided. If the effect of the “causing the stipulated fear by an objective standard” limb were to regulate by criterion “the prescribed acts”, it would be all the more necessary to prove mens rea because if the prosecution’s argument were correct, a complete concept would be doing “the prescribed acts” which conform to that criterion, and the corresponding mens rea would have to be directed at such acts. What can be considered would be “intended to”, “deliberately” or “wilfully” do a “prescribed act” which is of such a “criterion”, and not just having the mens rea in respect of “doing the prescribed act”.     

52.  Since I am of the view that the defence’s view is desirable, I have considered the matter on the basis that the nature of element 3(b) of the offence (“causing the stipulated fear by an objective standard”) is the possible consequences of “the “prescribed acts”. In accordance with the directions in Hin Lin Yee[25], in considering the matter, I have taken into account the 5 alternatives set out in Kulemesin[26]. 

53.  Defence counsel Mr Kwok submitted that if proof of mens rea were not required in respect of this limb of the elements of the offence, it would be tantamount to the imposition of absolute liability.

54.  Imposition of absolute liability is not necessarily unconstitutional.

55.  In Sweet v Parsley[27], the House of Lords pointed out that whether the legislative intent was to impose absolute liability is a matter of statutory interpretation. If it is ascertained through interpretation that this is the legislative intent, the statute ought to be held to have imposed absolute liability. Such an approach was also endorsed by the Court of Final Appeal in Hin Lin Yee[28].

56.  In Kulemesin, the Court of Final Appeal stressed[29] that if the offence is serious, the conclusion that the presumption of mens rea is displaced should not be lightly reached, especially where the situation is one of the following:

(1)  that person did not wilfully, deliberately or recklessly[30] engage in the prohibited conduct;

(2)  that person was ignorant of circumstances making his conduct criminal;

(3)  he acted in the honest and reasonable belief that he is not culpable.

57.  The court has to consider whether the imposition of absolute liability is conducive to achieving the legislative purpose and whether it is appropriate and adequate to impose less stern measures.

58.  The purpose of creating the two relevant offences is concerned with public safety. According to the preamble of the Ordinance, the purpose of its enactment is “to consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, processions, places, … unlawful assemblies and riots and matters incidental thereto or connected therewith.”

59.  It is beyond doubt that the two offences are both serious.

60.  Would it be the legislative intent that proof of mens rea is not required?This is something to which I have to give careful consideration.  

61.  It can be seen from the legislative documents that at the time of the enactment of the Ordinance, one of the main concerns was to ensure that innocent persons are not made criminally liable when something untoward happens in the assembly. Having regard to the constitutional rights of assembly, procession and petition, I am of the view that weight has to be given to this concern.

62.  On the other hand, it is clear that the creation of this offence is a preventive measure which aims at safeguarding against the breach of the peace.

63.  Creating an element of the offence with a simple objective test is relevant. However, regard has to be had to whether it is in line with the principles of statutory interpretation set out above and assessment has to be made as to whether requiring no proof of mens rea is conducive to achieving the legislative purpose and whether it is proportionate to what is necessary.  

64.  In the course of consideration, I have taken into account the above considerations as well as the following matters:

(1)  The “causing the stipulated fear by a subjective standard” limb requires proof of intention, which is, generally speaking, one of the highest requirements in respect of proof of mens rea;if the “causing the stipulated fear by an objective standard” limb requires no proof of mens rea, the two sets of requirements of proof will be very far apart;

(2)  The essential actus reus of committing this offence is “taking part” and that is taking part in an assembly which is an “unlawful assembly” under the statute. “Taking part” involves “knowledge”. If a person does not know of the actual nature of the assembly, he could hardly be said to be a party to it. For example, a person who goes to a party without knowing that it is to secretly celebrate someone’s birthday, he can only be said to have attended a party but not a birthday party. Of course, after the secret purpose was unveiled, the situation would be different.

65.  Besides, I am also concerned with whether requiring no proof of mens rea is a prerequisite for achieving the legislative purpose and whether this will be disproportionate to what is necessary.

66.  Upon careful consideration, I am of the view that as far as the “causing the stipulated fear by an objective standard” limb is concerned, the presumption of mens rea ought not to be displaced. I am also of the view that “knowledge” or “recklessness” is the appropriate mens rea in relation to the “causing the stipulated fear by an objective standard” limb of the elements.

67.  In Hin Lin Yee[31], the Court of Final Appeal endorsed the following views articulated in the English case of He Kaw Teh v R[32]:

(1)  In accordance with the presumption of mens rea, the prosecution is required to prove mens rea in relation to each element of the offence which is not relating to the defendant’s state of mind.

(2)  Where the offence involves a prohibited act, in order to comply with the relevant presumption, the statute may have to be read as requiring the prosecution to prove mens rea in terms of “intention” or “recklessness” in the performance of that act.

(3)  Where the offence involves doing certain specific acts in specified circumstances, the mens rea that can be considered would be “knew of” or “was reckless as to” the existence of those circumstances.

68.  In the prosecution’s submission, Mr Kwok SC made it clear that the prosecution took the view that proof of mens rea is not required in respect of this aspect of the elements of the offence, but if the presumption of mens rea applies, then “knowledge” or “recklessness” would be the appropriate mens rea for consideration.

69.  Defence counsel Mr Kwok took the view that it has to be demonstrated that the presumption of mens rea ought to be displaced and that only by adopting the second alternative set out in Kulemesin[33] will it be consistent with the approach and the principles articulated in that case.

70.  The second alternative reads: the prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted … in the honest and reasonable belief that the circumstances of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves “beyond reasonable doubt” the absence of such exculpatory belief or that there were no reasonable grounds for such belief.

71.  He also pointed out that if the legislative intent was to include mens rea, why is it that it was not written down expressly in the same manner as the “causing the stipulated fear by a subjective standard” limb; and what is more, in the context of this offence, the demarcation between “intention” and “knowledge” or “recklessness” is blurred. On the one hand, the “causing the stipulated fear by a subjective standard” limb requires mens rea in the form of “intention”, but on the other, “knowledge” or “recklessness” is adopted as mens rea in the objective limb; that is not appropriate.

72.  The two types of “causing fear” are aimed at different situations. What the subjective limb is aimed at is the situation where when those persons did “the prescribed act or acts”, they intended to cause fear; and what the objective limb is aimed at is the situation where those persons’ performance of “the prescribed act or acts”, objectively speaking, would have that sort of prescribed consequences. The question is whether it ought to be presumed that proof of mens rea is required in respect of the consequences. One of the relevant considerations is whether the displacement of this presumption is conducive to achieving the legislative purpose and not disproportionate to what is necessary.

73.  Upon careful consideration, I rule that in respect of the “causing the stipulated fear by an objective standard” limb, the prosecution has to prove that: the defendant knew of or was reckless as to the “prescribed act or acts” being likely to cause “the stipulated fear”. In so construing the relevant Ordinance, there is no possibility of unconstitutionality as defence counsel Mr Kwok asserted.   

74.  Furthermore, in respect of “the prescribed act or acts”, the prosecution has to prove that the defendant wilfully did one or more of “the prescribed acts”, in other words, knowing that his act or acts would be in a disorderly, intimidating, insulting or provocative manner, he nevertheless did “the prescribed act or acts” of his own free will. The word “wilfully” carries a connotation of knowingly doing the relevant act or acts and knowing that the relevant act or acts will be committed in a “disorderly”, “intimidating”, “insulting” or “provocative” manner, and the word “knowing” carries the meanings of, inter alia, “knowledge” and “recklessness”.

75.  The wording of the Ordinance is conduct themselves in a “disorderly”, “intimidating”, “insulting” or “provocative” manner, and not doing an act or acts to disrupt order, intimidate, insult or provoke. The former is looking at the effect from an objective point of view whereas the latter is doing an act or acts with a subjective intent. Thus, in my view, “wilfulness”, and not “intention” as defence counsel Mr Ma submitted, is the appropriate mens rea. This is in line with the legislative intent.  

76.  Where there is an evidential basis, the prosecution may prove the charge on the basis of the principle of joint enterprise.

77.  Defence counsel Mr Kwok also submitted that if the prosecution proved the charge of unlawful assembly by relying on the principle of joint enterprise, then, as a matter of logic, it was also proven that the defendant had the intention or was likely to know that the persons so assembled would commit a breach of the peace. In such circumstances, the prosecution had in fact proved the charge of riot on the basis of the principle of joint enterprise as well, so that, in other words, there was no difference at all between the two sets of charges of unlawful assembly and riot D4 faced, a matter that infringed the rule against double jeopardy, which is prohibited by law. That is not the situation in the present case. The elements of the offences of unlawful assembly and riot are different. The prosecution has to adduce evidence in respect of each charge so as to make the jury sure that each and every element of the offence in respect of each charge has been proved. Where the charge of unlawful assembly has been proved, even if it has been proved on the basis of joint enterprise, it does not necessarily follow that the charge of riot has been proved. I do not think that there is any problem with the present prosecution, nor do I agree that the prosecution’s approach infringed the rule against double jeopardy as defence counsel Mr Kwok asserted.

Conclusion

78.  I rule that, in giving directions to the jury, the elements of the offences and the relevant directions in respect of the two relevant charges shall be as follows:

The offence of unlawful assembly

(1)  At the time and place specified in the charge, the defendant and 2 or more other persons assembled together; and

(2)  The common purpose of the defendant and those persons assembling together at that time was to obstruct police officers in the execution of their duties; and

(3)  The defendant and those persons assembled together at that time, with that common purpose, wilfully:

(a)  conducted themselves in a disorderly manner; or

(b)  conducted themselves in an intimidating, insulting or provocative manner;

(the acts in (a) and (b) above, hereinafter referred to as “the prescribed acts”); and

(4)  When the defendant and those persons assembled together did one or more of “the prescribed acts”, they:

(a)  intended to cause any person present at the scene

(i)   reasonably to fear that the persons so assembled will commit a breach of the peace; or

(ii)  reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace; or

(b)  knew of or were reckless as to such conduct being likely to cause any person present at the scene:

(i)   reasonably to fear that the persons so assembled will commit a breach of the peace; or

(ii)  reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace.

79.  Did “the prescribed act or acts” can mean:

(a)  that the defendant and those persons assembled together, with the aforesaid common purpose, did it/them in person separately or together;

(b)  or that the defendant did not do it/them personally, but he and the persons who did “the prescribed act or acts” personally had the aforesaid common purpose, and furthermore

(i)   he and the persons who did “the prescribed act or acts” in person had a joint plan or agreement to commit the offence, acting together as part of the joint plan or agreement, and each of them shared a common intention to commit the offence and played his part in it (however great or small) so as to achieve that aim.

(ii)  he was present at the scene, intended by his presence at the scene to encourage the persons who would do the “prescribed act or acts” and did encourage and support the persons who did the “prescribed act or acts” in person.

80.  As to whether it is necessary to give directions in this regard and the wording to be adopted, it all depends on the evidential circumstances at the trial.

The offence of riot

81.  The prosecution has to prove all the elements of the offence of unlawful assembly, as well as that: the defendant and the aforesaid persons assembled unlawfully actually “committed a breach of the peace”.

82.  In the context of the offences of unlawful assembly and riot, “committed a breach of the peace” means:

(1) used deliberate violence or threatened to use violence

and

(2A) intended to cause

(i) harm to be actually done to a person present at the scene, or

(ii) harm to be done in his presence to that person’s property, or

(iii) that person to be in fear of harm being actually done to his body or his property through an assault, an affray, a riot, unlawful assembly or other disturbance.

or

(2B) knew of or was reckless as to

(i) harm being likely to be done to a person present at the scene, or

(ii) harm being likely to be done in his presence to that person’s property, or

(iii) whether that person is in fear of harm being likely done to his body or his property through an assault, an affray, a riot, unlawful assembly or other disturbance.