South China Morning Post
12 April 2016
Let’s be clear on what this new United Kingdom Supreme Court decision (R v Jogee) on joint criminal enterprise might mean for Hong Kong. You and I plan to rob a 7-Eleven. You carry a wooden stick, and I know you’ll use it if you need to. I stand outside the store to keep watch. To my surprise, I hear a gun fired and see you running out of the store, one hand with a fistful of cash and the other holding a handgun. I run too. The cashier died from your gun shot to the head.
Under the existing Hong Kong law, you would be guilty of murder, but I would be guilty of only robbery, as a secondary party, because it cannot be proven that I foresaw the use of the gun, a more lethal weapon than the stick. If our courts follow the UK decision, Jogee, I would be guilty of both robbery and manslaughter because I was party to an unlawful and dangerous enterprise that resulted in a person’s death. If it was proven that I intended that the cashier suffer really serious bodily harm by the stick, I would be guilty of murder. In this example, Jogee results in more serious criminal consequences for me than under the current law.
Take a second example. You and I plan to rob the 7-Eleven, but this time, you are carrying your usual pocket knife, and though you say you will only use it to frighten the cashier, I know of your short temper and violent tendencies. As I stand outside, I hear a scream and see you running out with the cash and pocket knife stained with blood. You killed the cashier with intention to cause really serious harm and will be done for murder.
Under the existing law, I will also be guilty of murder because I foresaw that you might use the knife to stab the cashier. If our courts follow Jogee, I would likely be guilty of manslaughter instead of murder because robbery of a 7-Eleven with a pocket knife is an unlawful and dangerous act – objectively carrying the risk of some harm to another – that resulted in death. By requiring proof of intention in place of foresight, Jogee narrows the net of criminal liability in this example.
These examples show that Jogee is not a ‘get out of jail’ card for those involved in serious crimes of violence. Manslaughter instead of murder is more likely to be the verdict if intention cannot be proven. Jogee also closes the exception based on an inability to foresee the use of a more lethal weapon. The case should find support with both defence lawyers and prosecutors.
To persuade the Court of Final Appeal to overrule itself will always require some effort. But where the reasons for extending the net of criminal liability of a common law offence have fallen away, the court would be justified to restore the law to its original form.