7.28 Conflict | The prosecution said that crimes such as riots should cover participants who were not at the scene and seek clarification from the Court of Appeal

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Written by: Li Huina

2021-01-25 19:24

Last update date: 2021-01-25 19:24

The three men and women were arrested at the scene of the demonstration in the Central and Western District on July 28 the previous year. The prosecution had no evidence to prove that the three had committed any riots, but they were still charged with riots and illegal assembly.

The judge of the trial held that the two charges must be proved to be "collective in nature", and that the prosecution's clothing of 3 persons alone was not enough to prove the guilt of 3 persons.

The prosecution dissatisfied the ruling and believed that these two charges, which are commonly used in group gatherings, should also consider the element of "collaborative crime", which means that even if the defendant is not present at the scene, if he participates in it, he should be covered, and therefore appealed The court made a clarification.

The defense believes that this statement will implicate innocent citizens, and that the two crimes themselves have elements of collective responsibility. If even those who are not present have to bear criminal responsibility, it is not proportional.

The judge adjourned the ruling.

The collective nature must prove to be gathered together and have a common purpose

Three defendants: Tang Weixiong (39 years old), Du Yilan (42 years old) and a female defendant surnamed Li (17 years old).

They were originally accused of participating in a riot in the west of Des Voeux Road near West Street on July 28, 2019.

The trial judge ruled that the three persons were not guilty of rioting, and Tang and Du were fined 10,000 yuan each for possessing a set of radio walkie-talkies without a license.

He mentioned in the verdict that the Liang Tianqi case pointed out that the crime of illegal assembly or riot must have a "collective nature", that is, include common purpose and assembly together.

Tang Weixiong and Du Yilan, the couple who run the fitness center, were found guilty of rioting and illegal assembly at the original trial, but the Attorney General refused to accept the ruling and asked the Court of Appeal to clarify the elements of the charges.

(Photo by Li Huina)

The senior lawyer Guo Dongming, who represents the Department of Justice, said that the main disputes in this case include:

(1) Whether the law of illegal assembly and riot crimes explicitly or implicitly excludes the principle of "collaborative crime";

(2) Under the principle of "collaborative crime", can the relevant crime cover people who are not at the scene of the riot?

Collaborative crime elements can cover not present

Guo Dazhuang believes that under the principle of "collaborative crime", as long as the offender and his partner reach a criminal agreement, the partner can predict that the crime will occur. Even if the partner is not present, he can be convicted. Moreover, if the offender commits a crime more serious than expected For crimes, companions must also be held criminally responsible for the more serious crimes.

Believes that the principles also apply to riots and illegal assemblies

Guo believes that the principle of "collaborative crime" is applicable to all crimes, including illegal assembly and riot crimes. The trial judge did not clearly explain whether the law explicitly or implicitly excludes the principle of "collaborative crime".

The prosecution disagrees that the crime can only cover people at the scene of the riot, and pointed out that according to the New Zealand case, the defendant can be convicted even if he is not at the scene.

Will not cover peaceful protesters

He continued that in terms of policy considerations, illegal assembly and riot crimes should not rule out the principle of "collaborative crime".

He also argued that the "common purpose" element in the crime of illegal assembly and riots can be legal or illegal, while the principle of "collaborative crime" refers to the purpose of a joint crime. He disagrees with the respondent's claim that the crime includes "collaborative crime." the concept of.

The deputy chief of the Appeals Court, Mai Jizhi, pointed out that if a demonstrator participates in a legal procession, the head of the procession will turn into violence, but the demonstrator is at the end of the line. The relevant laws are not intended to cover these situations. Guo Dazhuang agreed.

On July 28, 2019, the Central and Western District of Hong Kong Island evolved from a rally and procession into a conflict between police and civilians.

(See the picture below for details)

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The defense stated that the law states that it must be brought together

The respondent believes that the law clearly stipulates that the relevant persons must be "grouped together" to constitute a crime. The crime is targeted at people at the scene. Judging from the history of legislation, the authorities have amended the law to narrow the scope of the crime. Scope, in order to prevent innocent citizens from falling into the law.

Mak Jizhi also asked if a citizen viewed the position of the demonstrators and the police in a bird's-eye view, and then instructed the demonstrator how to move, whether he was involved in the riot, the respondent pointed out that he was only involved in a crime of aiding or abetting.

Citing collaborating crime will expand criminal liability

The defense also pointed out that if the prosecution can rely on the principle of "collaborating in crime" and accusing people who are not on the scene, the criminal liability will be extended, the criminal liability will become disproportionate, and the chances of innocent citizens being implicated will be increased because public order is involved. The crime of, is different from crimes such as murder. The former punishes all demonstrators on the scene without uncertainty in evidence; the latter may have multiple assailants armed with knives, but in the end it is impossible to know who killed The victim.

Illegal assembly and riots are collectively responsible

The respondent continued to explain that the crimes of illegal assembly and riots themselves are collectively responsible crimes. For example, one person in the riots fired the petrol bomb. Although it is impossible to know which person fired the petrol bomb in the end, all participants must also be held criminally responsible. , There is no need to impose a similar concept (ie the principle of "collaborative crime").

People who have been transported to the assembly site also have the opportunity to bear criminal responsibility

The respondent continued that if the principle of "collaboration crime" also applies to crimes of illegal assembly and riots, it is not the people present at the scene that they cannot predict the actions of others at all, but they must be held criminally responsible for the immediate actions of the people present. For example, if someone just drives a car to pick up a person who wants to participate in an illegal assembly to the scene, the principle of "co-crime" will make the driving person be liable for the criminal liability imposed by what happened later, which is out of proportion.

The principle of conspiracy or incitement can be introduced in due course

For those who are not at the scene, the respondent believes that the prosecution can actually deal with the situation through the conspiracy principle or incitement to commit crimes, instead of applying the "collaborative crime" principle.

Case number: CASJ1/2020

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