Inside the Public Order Kaleidoscope: Should Hong Kong Revise its Definition of Riot?

The development of human civilisation, throughout the course of history, discourages the use of violence in dispute resolution, regardless of how noble the causes are. In the eyes of the general public, a riot is the violence perpetrated by a crowd, which often involves illegal behaviours, such as assault, robbery, and vandalism, and poses a threat to the life and property of others. Due to its repercussions on social stability and public security, riot, as a serious criminal offence, is subject to severe statutory control in jurisdictions worldwide, where harsh penalties are imposed in order to deter offenders.

The Public Order Ordinance (Cap.245) was enacted in response to the 1967 leftist riots, whose provisions define the criminal offence of riot in Hong Kong and impose penalties thereof, however, the conviction threshold for riot is often criticised as outdated and incompatible with modern-day human rights standards. In the Concluding observations on the third periodic report of Hong Kong, China, the United Nations Commission on Human Rights noted that some provisions in the Public Order Ordinance disproportionately restricts freedoms protected under the International Covenant on Civil and Political Rights (ICCPR), which consequently led to more and more arrests and prosecutions.

Some 9,000 people have been arrested in public demonstrations throughout the anti-extradition bill movement, which has lasted for more than one year. In light of this, this article will review the offence of riot, compared to similar offences in other common law jurisdictions such as England and Singapore, and discuss whether it is in line with international standards.

Riot under the Hong Kong Public Order Ordinance

  • The Public Order Ordinance is aimed at amending the law on riot and unlawful assembly, including the abolishment of common purpose as the essential element for conviction in riot, and hence lowering the conviction threshold. Moreover, the maximum penalty for riot was raised to 10 years from originally 2 years.
  • Hong Kong’s riot offence is an extension from unlawful assembly, i.e. unlawful assembly is a prerequisite in order to establish a riot offence. Stipulated in s.19 of the Public Order Ordinance, “when any person taking part in an assembly which is an unlawful assembly by virtue of s.18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.”
  • In s.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.” 

The conviction elements for riot in Hong Kong could be elaborated as such:

  1. 3 or more persons assembled;
  2. Conducting themselves in a disorderly, intimidating, insulting or provocative manner; and
  3. Intending or likely to cause any person reasonably to fear that they will commit a breach of the peace, or by such conduct provokes other persons to do the same.

Unlawful assembly is described as a broad offence. The Court of Final Appeal in Secretary for Justice v Wong Chi-fung and Others [2018] HKCFA 4 admitted that “the offence of unlawful assembly can be committed in a wide variety of different ways and with different consequences.”

In relation to disorderly conduct, the Hong Kong position has been illustrated by the Court of Final Appeal in the case of HKSAR v Chow Nok Hang and Another (2013) 16 HKCFAR 837. Despite the fact that the criminal charge was neither riot nor unlawful assembly but disorder in public places (an offence under s.17B of the Public Order Ordinance), the meanings of “disorderly conduct” and “breach of the peace” adopted by the Court is definitely worth looking into. Ribeiro PJ, joined by Chan ACJ (as he then was) and Lord Millet NPJ, adopted the approach in construing “disorderly conduct” in the Australian High Court decision in Coleman v Power (2004) 220 CLR 1, whereby “concepts of what is disorderly… vary with time and place and may be affected by the circumstances in which the relevant conduct occurs.” This leaves the construction issue a question of fact rather than a question of law, thus whether the conduct is “disorderly” is left for the facts, as well as the testimonies of the eyewitnesses to decide. In cases that might involve political demonstrations, the perspectives delivered to the court could be subjective. The same standard applies for “insulting” conduct as well.

Ribeiro PJ also accepted the English jurisprudence in Percy v Director of Public Prosecutions [1995] 1 WLR 1382 regarding “breach of the peace”, agreeing that it is not necessary for any violence or threat of violence to provoke a breach of the peace, as long as “it suffices that his conduct is such that the natural consequence of it is violence from some third party”. In his reasoning, Ribeiro PJ noted that the “third party” need not be the provoked or bystanders. Taking R v Chief Constable of Devon and Cornwall [1982] 1 QB 458 as an example, the court ruled that a sit-in at the construction site could constitute a “breach of the peace” because it could provoke other people and law enforcers to use violence.

The modern authority of the doctrine, R v Holwell [1982] 1 QB 416, suggests that “a breach of the peace” can be established “whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” In the judgment, Ribeiro PJ applied the English authority, stating that “[t]he actual or feared harm must be unlawful and, where the harm is anticipated, there must be a real risk and not the mere possibility of such harm. Moreover, the anticipated harm must be imminent.”

Yet, if there is no proof of actual harm or likely harm, the concept of “breach of the peace” could be rather ambiguous as it is dependent on how others interpret the accused’s actions and what response others would give, instead of what the accused has committed. Nevertheless, Lord Bingham noted in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, that “the essence of the concept was to be found in violence or threatened violence” as the English position.

Besides conviction elements of riot, Hong Kong courts are often described as inclined to deliver relatively harsh sentences. Subsequent to the 2016 Mong Kok riot, the longest jail terms for riot in history were imposed on the defendants, where the starting point for the riot offences was 6 years imprisonment. In the Court of First Instance decision on HKSAR v Leung Tin Kei and Others [2018] HKCFI 1329, Pang J opined that the acts of violence committed in the name of expressing social or political views should not be condoned (which is also upheld by the Court of Appeal). Giving weight to public interest, Pang J refused personal background as a mitigating factor.

Riot under English common law and statutes

In 1983, the Law Commission of England and Wales reviewed some of the public order offences, including unlawful assembly and riot. As noted in Criminal Law: Offences Relating to Public Order, the Law Commission concluded it is disproportionate to the seriousness of the riot offence when “breach of the peace”, as an important conviction element, does not have a precise and concise definition.

The original intent of establishing the riot offence was to prevent people from reaching unlawful goals en masse by weight of their numbers, and therefore only 12 persons or above suffice to reflect the seriousness of the offence. The report also emphasised that “common purpose” shall be an essential element to establish riot because the dangerous crux of riot is that crimes are committed for a shared objective. Therefore, it is inconclusive to establish a riot offence just because an act is committed similarly and concurrently by many people.

Later, the UK Parliament passed the Public Order Act 1986 that codified the riot offence, and abolished the common law offences of riot, unlawful assembly, rout and affray under s.9. The Act replaced unlawful assembly by violent disorder, where the “breach of the peace” requirement was repealed, and the use of or threaten to use violence became an essential conviction element. The law reform for riot has followed the guiding principles adopted in reforming unlawful assembly.

Riot is clearly defined under s.1(1) of the Public Order Act 1986, “where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot.” This “reasonable firmness test” is aimed at mitigating the court’s risk of excessively interpreting responses of other people to the defendant’s conduct.

Regarding the definition of violence, s.8 states that violent conduct is an essential element, which covers violent conduct against both persons or property and “is not restricted to purely causing injury or damage”, but also other violent conduct. Inside the statute, the example given to illustrate the inclusion of “other violent conduct” is “throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short.” In relation to mens rea, s.6(1) stipulates that one must be aware that his conduct may be violent.

Thus, in order to establish riot in England and Wales, the following must be satisfied:

  1. 12 or more persons present together;
  2. Using or threatening to use unlawful violence, no matter it is against a person or property;
  3. Intending to use violence, or being aware that their conduct may be violent;
  4. For a common purpose; and
  5. Causing a reasonable person present at the scene to fear for his personal safety.

“Common purpose” was a moot point in R v Tyler and Others [1993] Crim LR 60 when the English Court of Appeal heard appeals against conviction of riot and sentence. One of the appellants, Frost, argued that he “ceased to share the common purpose of the rest of the demonstrators” when he “tried to penetrate a police cordon”. Eventually, the Court quashed the appeal and rejected this ground, citing that such ground is based on an assumption that “only one purpose would occupy the appellant's mind at a time”.

Despite the fact that the above is only applicable to the law in England and Wales, the English experience is highly referenceable for law reform within the common law world.

The 2011 England Riots are one of the most recent violent demonstrations in the UK. In the judicial proceedings, there was no surprise that courts ruled on grounds of public safety and social interests in sentencing. At the end, the English Court of Appeal gave 6 months to 4 years of imprisonment in R v Blackshaw and Others [2011] EWCA Crim 2312 for a series of crimes committed, where riot was also one of them. Judge LCJ (as he then was) explained that 4 years of imprisonment suffice to serve as a deterrent sentence.

Riot under the Penal Code of Singapore

Both being nicknamed two of “Four Asian Dragons”, Hong Kong is usually compared to the Lion City. Singaporean authorities can “preventively detain” a suspect without trial for a period as long as 2 years under s.8(1)(a) of the Internal Security Act (Cap.143,Laws of Singapore) and retains the punishment of caning.

The Penal Code (Cap.224, Laws of Singapore), same as Hong Kong’s Public Order Ordinance, was enacted by legislature during British colonial rule, and coincidentally the riot offence of Singapore also derives from unlawful assembly.

Singapore’s Penal Code, modelled after the Indian Penal Code, 1860 of the British Raj, was passed by the Legislative Council of the Straits Settlements in 1871. The elements for unlawful assembly are stated in s.141 of the Singaporean Penal Code, where there must be 5 or more persons assembled and same as England, there is also a statutory requirement of common object. This common object could be:

  1. to overawe by criminal force, or show of criminal force, the Legislative or Executive Government, or any public servant in the exercise of the lawful power of such public servant;
  2. to resist the execution of any law, or of any legal process;
  3. to commit any offence;
  4. by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal rights of which he is in possession or enjoyment, or to enforce any right or supposed right; or
  5. by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Another element is added in s.146: “whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.” In terms of penalty, a rioter can be imprisoned for 7 years and liable to caning. If they are armed with a deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, they are liable to a maximum imprisonment term of 10 years and liable to caning.

Weighing Hong Kong’s riot offence against that of Singapore, both offences are comparable, but it is easier to convict in Hong Kong. The wordings used in Singapore’s Penal Code, as opposed to that of Hong Kong’s Public Order Ordinance, for example, “intimidating”, “insulting” and “provocative”, are much more specific and illustrated the actions in detail. Compared to the “three-person riot” of Hong Kong, the five-person threshold must be reached in order to constitute riot in Singapore. In spite of the fact that persons without violent conduct could still be convicted for riot, Singaporean law requires a common purpose to be identified, which is not a mandatory requirement in Hong Kong. In the case where deadly weapons are not used, the maximum penalty of 10 years imprisonment in Hong Kong is far higher than 7 years imprisonment in Singapore.

An illustration of common intention in unlawful assembly could be traced from the boys’ home case in 2016. 26 youth residents were charged for taking part in a 100-strong unlawful assembly, where the common intention was to commit vandalism offence as they damaged bed frames and fluorescent lamps in the premise.

The Little India riot in 2013 was the first violent demonstration in Singapore since the racial conflicts of 1969. The riot lasted for around 2 hours, and some 400 demonstrators tossed stones, glass bottles and rubbish bins to police officers and special operations personnel, and left 62 injured. 25 emergency vehicles were damaged, alongside 5 being arsoned. Subsequently, 40 people were arrested and 33 were charged with criminal offence. Later, the Singaporean government set up a commission of inquiry to review the policy on migrant workers.

Twenty-five demonstrators were charged for riot. Those convicted with riot were sentenced imprisonment for 15 weeks to 31 months. In her decision, Marie DCDJ said that a strong signal must be sent that defiant conduct should not be tolerated, giving “no illusions as to what consequences would flow should they knowingly choose to ignore the lawful orders of the police.” The Singaporean sentencing appears to be more lenient than that of Hong Kong, despite riot of a larger scale.

Prospects of law reform in Hong Kong

The riot offence of Hong Kong is castigated as out of date and convicting people innocent of any violent conduct. The general public has been increasingly concerned about law reform of the Public Order Ordinance after months of public protests. As England’s Law Commission stated in its 1983 report, breach of the peace, being an essential element, does not have a precise definition that could include persons exhibiting no violent conduct at the scene, and hence disproportionate to the graveness of the offence. Meanwhile, some also doubted the deterrent effect of such offence, citing illegal acts like assaults as to other persons and police officers, arson and setting up roadblocks have not been deterred.

Indeed, the Secretary for Justice has choices other than riot when directing prosecutions that can bring offenders exhibiting violent conduct to justice. With respect to arson, use of explosives and vandalism of property, sections in Parts VII, VIIA and VIII of the Crime Ordinance (Cap.200) are mostly applicable; whereas as to vigilantism, the prosecution can charge according to provisions in the Offences against the Person Ordinance (Cap.212). Given the vagueness of the riot and unlawful assembly, the prosecution should be cautious when referencing to the Public Order Ordinance.

Last December, pro-democracy Legislative Council Members Au Nok-hin (Note: Au was ruled unduly elected and disqualified by the Court of Final Appeal after Chow Ting v Returning Officer and Another [2019] HKCFA 50) and Eddie Chu Ho-dick proposed the Public Order (Amendment) Bill 2019, which received a certificate issued by the Law Draftsman.

This is a private members’ bill that seeks to amend the Public Order Ordinance on riot, including lowering the maximum jail term from 10 years to three years, and adding “common purpose” and assembly of 12 persons or above as conviction elements. Furthermore, the Bill stipulates that offenders are only punishable only if they are aware of their violent conduct, and the riot offence is only triable by a jury in the Court of First Instance acting in exercise of its criminal jurisdiction.

Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws I
The University of Hong Kong