The Court of Final Appeal in Hong Kong is being urged to consider a landmark joint ruling by the United Kingdom’s Supreme Court and the Privy Council which paves the way for murderers to launch appeals against their conviction.
The UK’s highest court ruled last week that the law concerning joint enterprise – which has allowed people to be convicted of murder even if they neither inflicted the fatal blow nor intended serious harm to occur – had taken a “wrong turn” following a high-profile Hong Kong murder case in the 1980s.
It is a judgement with “substantial ramifications”, according to Boase Cohen & Collins Consultant Michael Jackson, a leading academic and authority on criminal law in Hong Kong.
“For the past 30 years, defendants in Hong Kong and England have been convicted of murder and other serious crimes based on little more than proof of their association with others in criminal activities foreseen to carry a risk of serious violence,” said Mr Jackson.
“No more, it seems. If this judgement is followed in Hong Kong, prosecutors will have to reformulate any current or pending cases based on joint enterprise liability, and consideration will have to be given to the availability of appeal rights by those currently incarcerated on the basis of their participation in a joint enterprise.
“Hopefully, the Court of Final Appeal will seize the first opportunity to consider this judgement and clarify both the law in Hong Kong and the possibility of appeal.”
The Supreme Court issued its judgement after considering the case of Ameen Jogee, who was convicted of murder after his friend Mohammed Hirsi stabbed a man to death in Leicester in June 2011.
The court overturned his murder conviction after concluding it had been secured on the grounds that he merely had foresight of the potential that the victim, Paul Fyfe, could suffer life-threatening injuries.
Joint enterprise liability – or parasitic accessory liability, as it has also come to be known – originated in a decision of the Privy Council on appeal from Hong Kong in Chan Wing-siu v. The Queen  AC 168.
The case involved three gang members armed with knives who burst into the home of a prostitute and her husband, intending to collect a debt. The husband was stabbed to death by at least one of the gang. All three were convicted of murder.
“The Privy Council’s interpretation of the principle of joint enterprise in 1985 was later adopted in England and elsewhere in the Commonwealth. Most significantly, it enabled conviction of a party to an enterprise resulting in murder based merely on his foresight that murder might occur and his continued participation, rather than his ‘intention’, as must be proved against the actual murderer,” explained Mr Jackson.
“This was a ‘wrong turning’ in the law of accessory liability, according to the Lords in their joint judgement in Jogee. They declared that the ‘error’ needed to be ‘corrected’ and, having been judicially created, could properly be judicially abolished.”
New Zealand-born Mr Jackson, a Consultant with Boase Cohen & Collins since 1985, is Associate Professor with the Faculty of Law at the University of Hong Kong. He has authored a number of legal publications including the acclaimed textbook Criminal Law in Hong Kong, which was published in 2003.
He concluded: “In theory, the Hong Kong courts could decline to follow the Supreme Court’s ruling, since it is not legally binding here. But, given the express declaration that Chan Wing-siu, the foundation of joint enterprise liability in Hong Kong, involved a ‘wrong turning’, this would be a most surprising step.” This article is from the website of Boase Cohen & Collins and was reported on the front page of the South China Morning Post on 24 February 2016.
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