No Wrong Turn in Hong Kong – an analysis of the Chan Kam Shing decision
A landmark bid to change the law of joint enterprise in Hong Kong was unanimously rejected by the Hong Kong Court of Final Appeal in December 2016. The court retained and reinforced the joint enterprise principle established in the 1980s case of Chan Wing Siu v The Queen [1985 1 AC 168] and refused to adopt the decision of the UK Supreme Court that the law in relation to joint enterprise had taken a “wrong turn” all those years ago.
Prior to 1985, a person encouraging or assisting a murder would only be guilty of murder if they had intended to encourage or assist the actual murdering or the causing of grievous bodily harm. Participation in a joint attack with an intention to cause some harm, or to scare, would be enough for manslaughter if the victim died, but this would not constitute murder.
In 1985 the Privy Council, then Hong Kong’s final Court of Appeal, ruled in the case of Chan Wing Siu that an accomplice was liable to conviction for murder, so long as he or she foresaw that the fatal act might be committed by the principal offender. This principle was duly followed in the UK case of Regina v Powell; English  1 AC 1 where the UK Court of Appeal held that “the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon”.
And so it was that “parasitic accessory liability”, a term coined by Professor Sir John Smith in the Law Quarterly Review  113 LQR 453, was born. The justification for this was largely on the grounds of public policy; the rise of gang crime called for a law which ensured that those present at the scene of a murder, albeit not the dealer of the fatal blow, were still culpable of murder as opposed to manslaughter. As Lord Steyn put it in Powell; English, “The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises.”
This was the law in the UK until February 2016 when the conclusion of the UK Supreme Court in the landmark decision of R v Jogee (Appellant)  UKSC 8 was that Chan Wing Siu and Powell; English took a “wrong turn” and that the principle in Chan Wing Siu “was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments.”
The Supreme Court decision did not concern the more straightforward cases of group offending, in which each defendant may play a particular role, but is nonetheless responsible for the consequences on the basis that they are part of a “joint enterprise” to commit that particular crime. The question for the Supreme Court was: what is the mental element required of a secondary party who has been engaged in a criminal venture to commit crime A, where in committing crime A, the principal commits a second crime, crime B?
The Justices ruled that the correct way to approach parasitic liability is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.
As a result, the doctrine of liability on the basis of foresight is no longer operative in England and Wales. In light of this very significant shift, the Hong Kong Court of Final Appeal took the opportunity to review the same issue, and decide whether the doctrine as laid down in Chan Wing Siu should continue to be applied in Hong Kong.
That opportunity presented itself in the form of Chan Kam Shing FACC No. 5 of 2016, which was heard before the Hong Kong Court of Final Appeal on 28 November 2016.
The facts were straightforward. The Appellant was convicted after a trial before a jury on one count of murder and one count of acting as a member of a triad society. The prosecution case at trial was based on what the Appellant had said to an undercover police officer: he had agreed with other members of his gang to locate and “chop” the followers of Fei Kit (a rival gang). The Appellant and his gang had armed themselves and set out to locate the rival gang in two vehicles, car A and car B. The Appellant was in car A. The evidence at trial was that car B had located the rival gang and killed the deceased by “chopping”. It was not disputed that the occupants of car A (including the Appellant) were not present at the attack; the prosecution case was that they were part of a joint plan to “chop” rival gang members and that the Appellant had participated in that plan with the intention to kill or cause really serious injury. The defence case was that there was no evidence that the Appellant had been present at the scene of the attack or that he had done any act which caused the death of the deceased.
The judgement was handed down on 16 December 2016.
It is hardly surprising that the Appellant’s appeal was dismissed out of hand; he had armed himself with weapons with the intention of “chopping” – causing at least serious harm to – members of a rival gang. This was a basic joint enterprise case and it mattered not that his fellow gang members were the actual perpetrators of the fatal attack. He was also, by definition, an accessory, encouraging his fellow gang members to commit the intended “chopping”.
What many anticipants of the judgement found more surprising was that all five judges unanimously refused to adopt the UK Supreme Court’s decision, and reaffirmed that the joint enterprise doctrine established in Chang Wing Siu remains good law in Hong Kong.
At the heart of Jogee [at 83] is a passage from the joint judgment of Lord Toulson and Lord Hughes JJSC, with whom the other members of the Court agreed:
“…in the common law foresight of what might happen is ordinarily no more than evidence from which a jury can infer the presence of a requisite intention. It may be strong evidence, but its adoption as a test for the mental element for murder in the case of a secondary party is a serious and anomalous departure from the basic rule, which results in over-extension of the law of murder and reduction of the law of manslaughter. Murder already has a relatively low mens rea threshold, because it includes an intention to cause serious injury, without intent to kill or to cause risk to life. The Chan Wing-Siu principle extends liability for murder to a secondary party on the basis of a still lesser degree of culpability, namely foresight only of the possibility that the principal may commit murder but without there being any need for intention to assist him to do so. It savours … of constructive crime.”
However, Mr Justice Ribeiro, giving the judgment which the rest of the court adopted, disagreed with the proposition that it is unjust to base the culpability of a secondary party on anything other than intention to assist or encourage the principle offender. The court considered that an assessment of secondary party’s culpability “is skewed by characterising it as merely the culpability of a person derivatively liable as an accessory and thus somehow less blameworthy than the principal offender”. And although their Lady Macbeth analogy is slightly misplaced (she is, in fact, the archetypal accessory to murder) they rejected the conclusion that the rule established in Chan Wing Siu was “anomalous” because it set different mens rea requirements based on participation in a joint enterprise.
The court justified its retention of the “foresight” doctrine on the basis it is not open-ended: “It is foresight of the commission of the actual further offence as a possible incident of the execution of their planned enterprise. And it is foresight of a real possibility of the offence being committed and excludes a risk fleetingly foreseen and dismissed as negligible” [at 64]. A person that satisfies these conditions, the court found, “deserves to be regarded as gravely culpable [at 65]”.
The Court held that confining secondary liability to cases where the prosecution can prove intentional assistance or encouragement to a principal offender “deprives the law of a valuable principle for dealing with dynamic situations involving evidential and situational uncertainties which traditional accessorial liability rules are ill-adapted to addressing.”
The Court of Final Appeal further found that the availability of differing verdicts of manslaughter and murder in respect of individuals who had engaged in the same violent attack is presently explicable on the basis of the joint criminal enterprise doctrine and that it is unclear how a post-Jogee world can accommodate such availability.
Although much of the decision in Chan Kam Shing is steeped in policy, it offers some additional insightful criticisms on Jogee. The heaviest of criticisms was laid at the door of the doctrine of “conditional intent” and understandably so.
The UKSC explained in Jogee [at 92-94] that intention to assist is not the same as desiring the crime to be committed and that the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary. If he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. The treatment in conditional intent left the Court of Final Appeal “wondering whether there is any practical difference between that concept and the principle of assigning liability on the basis of foresight of the possible commission of an offence in an extended joint criminal enterprise situation.”
Both Jogee and Chan Kam Shing reflect the difficulties inherent in labelling and defining roles in group crime, and the tension between criminal liability as a policy decision and as a reflection of individual moral responsibility. However, if the decisions of the Court of Appeal and the approach of trial judges in the U.K. to joint enterprise murder post-Jogee show anything, it is that such matters make little difference to the basis for conviction – where a defendant foresees death or serious injury as a result of his companions’ actions, it is only a small step from that to intention.