4. Riot (S.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”
As long as there is one person participating in the unlawful assembly, who may or may not be the defendant, who commits a breach of the peace, that unlawful assembly would transform into a riot.
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))
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), ). 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), -)