Hong Kong Court of Final Appeal
| Author | Beatricex Krebs |
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| DOI | http://doi.org/10.1177/0022018317719800 |
| Subject Matter | Case Notes |
Case Note
Hong Kong Court of Final
Appeal: Divided by a
Common Purpose
Chan Kam Shing [2016] HKCFA 87
Keywords
Joint enterprise, accessorial liability, intention, complicity
The appellant was a member of the triads. Following an order from his boss to ‘chop’ members of a rival
organisation, he went searching for victims. When fellow gang members found some of their rivals, he
went to join in their attack. The victim was fatally injured before the appellant arrived at the scene. The
appellant’s murder conviction was based on his participation in the joint enterprise to ‘chop’ their rivals,
with the court noting that his involvement constituted encouragement to other members of his gang.
These facts do not necessarily call for an analysis in terms of joint enterprise liability (as opposed to
aiding and abetting), as the court readily accepts (at [100]), but then neither did the facts of Jogee. Both
cases went to appeal because the robustness of the joint enterprise principles operating in their respective
jurisdictions needed examining by their highest courts—in England because public and academic pres-
sure to revise parasitic accessorial liability (PAL) had grown overwhelming; in Hong Kong because
Jogee had thrown the correctness of the doctrine into doubt.
Held, dismissing the appeal, that the doctrine of joint enterprise should continue to be applied in
Hong Kong (at [97–98]). Ribeiro PJ (who delivered the leading judgment) identified three principal
reasons for this: first, that secondary parties to a joint criminal enterprise deserve ‘to be regarded as
gravely culpable’ (at [65]); secondly, that abolition of the joint enterprise doctrine would ‘deprive 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’ (at [71]); and
thirdly, that ‘Jogee’sintroduction of the concept of “conditional intent” ...gives rise to significant
conceptual and practical problems’ (at [58]).
Commentary
The decisionof Hong Kong’s Final Court of Appeal (HKFCA)in the present case deals another blowto the
joined SupremeCourt (UKSC) and Privy Council (JCPC) decision in RvJogee[2016] UKSC 8; Ruddoc k
vThe Queen [2016] UKPC 7; [2016] 2 WLR 681. It follows hard on the heels of Miller vThe Queen
[2016] HCA 30, in which the High Court of Australia also refused to follow the lead of their former
imperial masters; both jurisdictions, in no uncertain terms, declined to abolish their respective variants of
parasitic accessory liability, whereby parties to a joint criminal enterprise are convicted for incidental
crimes committed by their associates-in-crime which the former foresaw but did not necessarily intend.
While the judgment in Chan Kam Shing echoes some of the pragmatic reasons given in Miller for
retaining joint enterprise liability, such as its undoubted usefulness in imposing liability in the face of
The Journal of Criminal Law
2017, Vol. 81(4) 271–274
ªThe Author(s) 2017
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DOI: 10.1177/0022018317719800
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