Criminal “joint enterprise doctrine” survived the CFA’s scrutiny
It has long been established that a person may be found guilty as a participant in a crime committed by another person by virtue of the ‘joint enterprise doctrine’, which is also known as the ‘Chan Wing Siu principle’ – named after the Hong Kong case in which the doctrine was established by the Privy Council in 1985. The Chan Wing Siu principle was, however, held to be wrong by the U.K. Supreme Court in Jogee ( UKSC 8) earlier this year, leading to the total abolition of the joint enterprise doctrine in England and Wales. It was just a matter of time before our court would re-consider the same issue – and the opportunity came to light recently.
On 16 December 2016, the Court of Final Appeal (“CFA”) delivered its judgment in Chan Kam Shing (FACC 5/2016). This judgment has caught the attention of criminal litigators as all five CFA judges unanimously refused to follow the U.K. Supreme Court’s decision, and reaffirmed that the joint enterprise doctrine remains good law in Hong Kong.
The Chan Wing Siu principle and Jorgee
Chan Wing Siu was said to be the cornerstone of the joint enterprise doctrine. In that case, Mr Chan was part of a gang who had gone into a house to commit robbery, during which another member of the gang stabbed the victim to death. Although it was clear that Mr Chan did not kill the victim himself, the Privy Council nevertheless upheld his conviction for murder. Importantly, the Privy Council held that for an accomplice to be guilty of a crime committed by another person, all the prosecution has to prove is that he could foresee such a possibility but nevertheless continued to take part in the criminal venture. In other words, it is not unnecessary to prove the accomplice’s intention to commit the crime in question.
Such had been the common law position in both Hong Kong and England & Wales for over 3 decades, until recently the U.K. Supreme Court declared in Jogee that the law had taken “a wrong turn” and that the Chan Wing Siu principle “was based on an incomplete, and in some respects erroneous, reading of the previous case law, coupled with generalised and questionable policy arguments.” As a result, the joint enterprise doctrine is no longer operative in England & Wales.
Chan Kam Shing
In light of the significant shift of law in England & Wales, the Hong Kong CFA took the opportunity to review the same issue in Chan Kam Shing. The facts of this case were straightforward: Mr Chan, a triad member, followed his gang to locate and “chop” members of a rival faction. By the time he arrived at the scene, the deceased had already been knife-stabbed by other members of the gang and was lying on the floor. Crucially, there is no evidence showing that Mr Chan ever attacked the deceased or had done anything causing his death.
Led by Felicity Gerry QC, Counsel for Mr Chan argued before the CFA that following Jogee, the joint enterprise doctrine should be abolished in Hong Kong as well. This view was not shared by the CFA, which concluded that Jogee should not be adopted and that the joint enterprise doctrine as expounded in Chan Wing Siu continues to apply in Hong Kong.
The survival of the Chan Wing Siu principle would mean that Hong Kong is going to embark on a different journey from that of England and Wales in respect of the accomplice liability. Apparently the Chan Kam Shing decision should be welcomed by prosecutors as they merely have to prove foresight, as oppose to intent, on part of the secondary party.
However, the defence can also in certain cases exploit the gap between foresight and intent. For instance, if A and B agreed to rob a shop with a knife, but B in fact carried a gun unbeknown to A and killed the shopkeeper, then A may argue in Court that he did not foresee the use of the gun as being part of the agreed criminal conduct – regardless of whether he had the intention to kill with the knife that he carried. This shows that Chan Kam Shing does not necessarily give the prosecution the upper hand. That said, it remains to be seen how the Court is going to evaluate such a defence.
Please click here for the full judgment of Chan Kam Shing (FACC 5/2016).
Written by: Felix Ng, Partner & Kevin Chan, Trainee Solicitor