Dangerous Expansion of Basic Joint Enterprise in Hong Kong
Published date | 01 April 2023 |
DOI | http://doi.org/10.1177/00220183221151917 |
Author | Aaron H L Wong,Noreen N C Lui |
Date | 01 April 2023 |
Dangerous Expansion of Basic
Joint Enterprise in Hong Kong
HKSAR v Tsang Cheung Yan [2022]
1 HKLRD 167
Keywords
Joint enterprise, basic joint enterprise, accessorial liability, secondary liability, Hong Kong
In HKSAR v Tsang Cheung Yan [2022] 1 HKLRD 167, three defendants (D1–D3) were jointly charged with
murder (Count 1) before a jury, to which they all pleaded not guilty. They all pleaded guilty to the charge of
preventing the lawful burial of a body (Count 2). The prosecution’s case was that the defendants invited the
deceased to a flat in an industrial building, thereupon killing him by injecting dichloromethane (DCH) into
his body and suffocating him by covering his mouth and nose. The deceased’sbody w asl aterfound encased
in a “cement block”. Due to advanced decomposition, medical expert evidence could not confirm the exact
time and cause of death. It was proposed that the combination of one or more factors among (i) the depressant
effect of DCH on central nervous system; (ii) suffocation due to covering mouth and/or nose and putting
pillow case and plastic bags on the head of the deceased; (iii) a cerebral blood clot found at the left cerebral
hemisphere of the deceased; (iv) cut wounds at left lower chest and abdomen which ruptured the heart, the
lung, the diaphragm and the liver, could be the possible causes of death (at [8]).
At trial, whilst directing the jury to consider whether there was a joint enterprise between D1–D3, the
jury was asked to first consider whether there was an agreement to apply DCH into the victim. If so, the
next step was to consider whether the defendants had the intention to kill or cause grievous bodily harm
(at [18]). The court further directed that if the jury concluded a joint enterprise existed but there was no
intention to kill or cause grievous bodily harm, the verdict of manslaughter should be returned.
D1 was unanimously convicted of murder (Count 1); D2 and D3 were acquitted of murder but unanimously
convicted of the alternative count of manslaughter. Amongst the four grounds of appeal raised by D1, only
ground 1, which argued that it was an inconsistent verdict to convict D1 of murder while convicting D2 and
D3 of manslaughter based on basic joint enterprise principle (at [33]–[50]), is considered in this case comment.
Held, dismissing the appeal, the Hong Kong Court of Appeal (“HKCA”) approved the trial judge’s
directions and held the jury was perfectly entitled to find that there was a joint enterprise to administer the
substances, albeit “the defendants’individual intentions in taking part in the enterprise differed”(at [46]).
Accordingly, guilty verdicts of murder against D1 and manslaughter against D2 and D3 are not incom-
patible and can be properly reached (at [46]–[50]).
Commentary
In HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640, the Hong Kong Court of Final Appeal
(“HKCFA”) decided not to follow R v Jogee [2017] AC 387 and held both basic joint enterprise and
extended joint enterprise remain applicable in Hong Kong. While the decision of HKCFA to retain
joint enterprise principles is no doubt controversial, this case note will focus on discussing the
HKCA’s endorsement of the expansion of basic joint enterprise principle.
Case Note
The Journal of Criminal Law
2023, Vol. 87(2) 156–158
© The Author(s) 2023
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DOI: 10.1177/00220183221151917
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