4. Riot (Section 19 Public Order Ordinance)

A riot is an unlawful assembly where a breach of the peace in fact occurred. Anyone taking part in an unlawful assembly that turned riotous will be considered as taking part in a riot. A person convicted with taking part in a riot is liable to imprisonment of 10 years on indictment, or a fine of $5,000 and imprisonment of 5 years on summary conviction.

A person commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which threatens immediate danger of injury or damage to property in the presence of the targeted person or the owner of that property.

Conduct which was peaceful in itself might, if persistently pursued, provoke others to violence. If a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conduct could be regarded as having committed a breach of the peace.

A breach of the peace on its own is not a criminal offence but the police can exercise the power of arrest when a breach of the peace occurs and require that the person breaching the peace to be subject to a bind-over order to keep the peace.

“Commits a breach of the peace”

A person commits a breach of the peace when he unlawfully resorts to or provokes violence which injures someone or damages property, or which threatens immediate danger of injury or damage to property. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [93])

As long as someone committed violent acts, such as throwing things at police officers, then regardless of whether anyone was injured or whether any property was damaged, he would have committed a breach of the peace.

“Takes part in a riot”

In relation to the conduct constituting “taking part in a riot”, there may be different manner and degrees, but the prosecution should prove that, after the unlawful assembly has turned into a riot, the defendant's conduct still possesses the necessary “corporate nature” or “common purpose”, and that the defendants’ conduct should be considered to constitute taking part in the riot (香港特別行政區訴楊家倫 (unrep., DCCC 875/2016, 3 April 2017))

It is not necessary for the defendant to take part in the preceding unlawful assembly to take part in a riot. It is sufficient for him to join once the riot has fully formed. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [20]).

A person may “take part” in a riot in the same way as he would take part in an unlawful assembly. Accordingly, the section on “taking part” and “mental element” in the article on “unlawful assemblies” is applicable here as well.

A person only takes part in a riot if he participated in the acts that breached the peace; such participation must be “some individual activity in furtherance of the riot” (香港特別行政區訴莫嘉濤 (unrep., DCCC 901/2016, 2 May 2018), [111]). For example, if the act turning an unlawful assembly into a riot is moving in a threatening manner, the defendant must have so moved in order to form the guilty conduct. If the acts turning an unlawful assembly into a riot are comprised of many different acts, such as moving, threatening, using violence and damaging property, the defendant must have participated in some of these acts. However, even if the defendant was simply present, if he supported and/or encouraged others to take part in a riot (i.e. committing acts that breach the peace), and intended to further the riot, then he also “takes part in a riot”.

The guilty intention of “taking part in a riot” is that the defendant must have an intention to take part in a riot, and recklessness is not a sufficient for this offence. However, the court rejected the defendants’ argument that, in order for someone to take part in a riot, he must not only possess a common purpose together with other rioters, but also intend to assist each other through violence. (香港特別行政區 訴 莫嘉濤 (unrep., DCCC 901/2016, 2 May 2018), [106]-[108])

“Taking part”

Taking part is a broad expression and is not confined to the conducts set out in Public Order Ordinance section 19. A defendant is “taking part” in the relevant riot if (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§ 14, 109(d)):
1. The person commits a breach of peace under section 19
2. The person acts in furtherance of such prohibited acts which includes acts of facilitating, assisting or encouraging those taking part in a riot

Mere presence does not make a person guilty, however, it does not take a great deal of activity on the defendant’s part to move the case from “mere presence” to “facilitating, assisting or encouraging”. “If the accused, being present, provides encouragement by words, signs or actions, he or she may be held to be taking part and guilty as a principle or held to be an aider and abettor”. Similarly, those present to lend the courage of their presence to the active participants, or to assist, if necessary, can be found guilty of the offences (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§ 81-85, 109(e)).

If the defendant’s presence occurs in circumstances qualifying it as “encouragement” of the breach of the peace by others, then he or she can be found guilty of taking part in a riot without specific conduct (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 86).

In deciding whether a defendant was present at the scene, evidence regarding the geographical area affected, the conduct of and communications maintained among the participants and the duration of the disturbances should be considered as a whole (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 76).

The following evidence can support an inference of “taking part”:
1. Time and place of arrest
2. Items found on the defendant (e.g. helmet, body armour, goggles, a respirator, a radio transceiver, plastic ties, laser pointers, weapons and materials to make weapons such as petrol bombs) (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 78).

A realistic view should be taken of the duration of the riot. So long as 3 or more participants remain actively engaged in the criminal assembly (not necessarily including the person or persons whose breaches of peace transformed the unlawful assembly into a riot – they may have left), the riot remains in being as a matter of law. Latecomers, who joined a riot after its formation, may also be guilty of the offences (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§20, 77).

“Participatory Intent”

Taking part in a riot is participatory in nature. The defendant must have a participatory intent.

Participatory intent means intending to take part in the riot, being aware of the related conduct of other participants and intending, while assembled together with them, to engage in or act in furtherance of the prohibited conduct. Proof of such participatory intent may generally be inferred from conduct (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§22, 48, 109(c)).

The concept of “breach of peace” in section 19 includes, but is not confined to, situations which might give rise to provoked retaliation. In cases involving actual or threatened violence to property, the owner of such property need not be present for there to be a breach of peace (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§93, 109(i)).

Joint enterprise

The basic form of joint enterprise doctrine is not applicable because the element of “taking part in” already covers joint liability. A defendant cannot be fixed with liability as a principal offender if that defendant was not present or acted as part of an assembly with the other assembled people. But he can be criminally liable as a counsellor, procurer, conspirator, or inciter.

Extended form of joint enterprise may be applicable to where there was proven foresight of a more serious crime committed in the course of an agreed plan of unlawful assembly or riot. For example, if a participant of an unlawful assembly or riot is proven to have foreseen that the offence of wounding with intent to cause of inflict grievous bodily harm or murder may be committed, that participant may be found guilty of wounding with intent or murder even when that participant was not the party inflicting the grievous bodily harm or committing the murder (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302).