The anti-extradition movement continues as the government refuses to meet the five
demands of the protesters: to withdraw the extradition bill, retract the characterisation of the June 12 protest as a riot, have Chief Executive Carrie Lam Cheng Yuet-ngor step down, release and drop charges against arrested protesters, and launch an independent inquiry into police brutality.
Unsurprisingly, front-line protesters are focusing on the last two demands. But these two involve more than political problems and have to be understood from a legal perspective.
My first point relates to Police Commissioner Stephen Lo Wai-chung’s reference to the so-called Rioting Five from the June 12 protest.
According to
Section 19 of the Public Order Ordinance: “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.”
On the 2016
Mong Kok riot, the court
judgment said: “The offence of riot … derives its gravity from a defendant choosing to become one of those who, by weight of numbers, pursued a common and unlawful purpose. It is therefore wrong to sentence a defendant on the basis of his individual act(s).”
We can conclude that a riot is not about the individual “violent acts” of several “radical protesters”. In fact, only the whole assembly can be seen as a riot with all of the people taking part in it as rioters, individually peaceful or not. Therefore, the label “Rioting Five” is legally impossible, and as long as the riot characterisation remains, all of those engaged in the June 12 protest could be prosecuted in the future for rioting.
Second, Article 63 of the
Basic Law states: “The Department of Justice of the Hong Kong SAR shall control criminal prosecutions, free from any interference.” So, despite Carrie Lam and Stephen Lo’s
earlier characterisation of the protest as a riot, Secretary of Justice Teresa Cheng Yeuk-wah is the one who has the de jure power to prosecute the protesters.
