Joint Unlawful Enterprises and Murder
| Author | Andrew L.‐T. Choo |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00948.x |
| Published date | 01 November 1992 |
| Date | 01 November 1992 |
The
Modern
Law
Review
[Vol.
55
‘[the] Act prevents [the] other [party] from excluding or restricting.’ There might
be some doubt whether this would include a liability which can only be excluded
or restricted subject to satisfying the test of reasonableness.22 The court,
in
this
case, assumed that both types of liability were covered by the section. However,
it
would seem a strained construction to hold that such a liability
cannot
be excluded
or restricted under the Act. While Treitel argues that ‘prevents’
in
the section refers
to ‘(semble)
. . .
making the liability totally ineffective
or
by subjecting it to the
requirement of reasonablene~s,’~~ Furmston asserts that
in
a non-consumer sale,
‘
. . .
the Act does not prevent the seller from excluding
or
restricting his liability
but only subjects his attempts to do
so
to a test of reasonableness.’24 This would
seem to be the better view,
if
only as a matter of language, and would restrict the
section to nullifying only those agreements
in
respect of totally unexcludable
liabilities.
Second, even though some doubt might be cast on the court’s construction
of
the section,
it
may be argued that the decision was the best one
in
the circumstances.
It
does seem inequitable for the plaintiffs to accept the benefit
of
the compromise
agreement and later seek to have
it
avoided on the basis that it includes an unfair
contract term, especially where restitution is not possible. Clearly, further discussion
on all these issues is warranted, though
it
is urged that the approach suggested above,
to the effect that the genuine compromise be treated as an enforcement and not a
taking away of rights, be adopted.
Joint Unlawful Enterprises and Murder
Andrew
L.-T.
Choo”
The recent decision
of
the Privy Council in
Hui Chiming
v
R,‘
an appeal from
Hong Kong, has provided endorsement of one of the most controversial principles
of
English criminal law. This principle can best be illustrated by way of
an
example.
Suppose that
A
and
B
embark upon a joint unlawful enterprise and that, in the course
of this enterprise,
B
kills C. The principle in question provides that
A
is guilty of
murder,
no less,
if
when she embarked on the enterprise she foresaw
-
even
momentarily
-
the possibility that
B
might intentionally
kill
C, or might intentionally
cause grievous bodily harm to C. Proof that
A
herself intended
to
kill C
or
to cause
grievous bodily harm to C
-
the usual
mens
rea
required for murder
-
is
unnecessary.
The salient facts of
Hui Chiming
are as follows. The defendant had gone with
Ah
Po
and a number of other youths to a housing estate for the purpose of attacking
one
Ah
Hung.
Ah
Po was carrying a length of water pipe. A man fitting the
description of
Ah
Hung was seized and struck by the metal pipe, which was wielded
22
23
24
*Lecturer
in
Law. Faculty
of
Law, University
of
Leicester.
See
for
example
s
3:
(Where one party deals as consumer
or
on the other’s written standard terms
of
business).
op
cir
at p 205, n 77.
Editing
Cheshire,
Fifoot
and Furmsrons’
kw
of
Contracr
(I
Ith
ed, 1986) at
p
182.
1
(19921
I
AC
34.
870
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