Michael Jackson on DOJ Secures ‘Joint Enterprise’ Enforcement (Part II) (Boase Cohen & Collins blog)

"DOJ secures ‘joint enterprise’ enforcement (Part II)"
 Michael Jackson
Boase Cohen & Collins blog

Published on 15 April 2021

In Part I, we outlined the recent decision of the Hong Kong Court of Appeal (“HKCA”) in Tong Wai Hung ([2021] HKCA 404) in which the court ruled that the doctrine of “joint criminal enterprise” (as it has been styled by the Court of Final Appeal – hereafter “JCE”) is of general application to all offences in Hong Kong, unless excluded by statute; secondly, and more specifically, that it applies to unlawful assembly and riot, contrary to ss.18 and 19 respectively of the Public Order Ordinance (“POO”); and thirdly, that presence at the scene is not a necessary requirement of joint enterprise liability. In this part, we offer some additional thoughts on Tong, and ask what will actually need to be proved to impose liability for unlawful assembly or riot on parties to a joint enterprise (assuming the correctness of the latter two rulings).

     Presumably consideration is being given to appealing the decision. In the meantime, the following comments are offered by way of critique of the legal analysis and reasoning offered and relied on in Tong and to elaborate its effect, and not to suggest that the social instability which the HKCA addressed in its judgment and perceived by it as a motivating reason for ensuring the doctrine of joint enterprise liability is available in relation to ss.18 and 19, is anything less than a legitimate and pressing concern of the criminal law... Click here to read the full text. 

Michael Jackson Comments on Hong Kong's Joint Criminal Enterprise Decision (HK Lawyer)

"HKSAR v Chan Kam Shing: CFA Finds 'No Wrong Turning'"
Michael Jackson
Hong Kong Lawyer
March 2017

Late in 2016, the Court of Final Appeal (“CFA”) in HKSAR v Chan Kam Shing, FACC 5/2016 confirmed that joint enterprise liability remains part of Hong Kong criminal law. In so ruling, the CFA upheld the 1985 decision of the Privy Council (on appeal from Hong Kong) in R v Chan Wing Siu [1985] AC 168 (PC), in which Sir Robin Cooke formulated a broader basis for the imposition of secondary liability on the parties to a joint criminal enterprise than had previously been clearly established (the “wide principle”).

     In re-affirming Chan Wing Siu and the wide principle, the CFA declined to follow the lead of the UK Supreme Court in R v Jogee, R v Ruddock [2016] 2 WLR 681 (“Jogee”) earlier in 2016. In Jogee, the UK Supreme Court (“UKSC”) had somewhat surprisingly concluded, more than 20 years after the wide principle was unequivocally adopted in the criminal law of the UK, that Chan Wing Siu had “taken a wrong turning at law”. The UKSC concluded that the wide principle involved a misunderstanding of the prior case law dealing with the liability of participants in a common criminal purpose. “Foresight” of what the parties to a common purpose might do beyond their agreed purpose while carrying out that purpose had been wrongly elevated into a principle of secondary liability, rather than serving at best as an evidential foundation for liability. Having identified this “wrong turning”, the UKSC in Jogee unblinkingly abolished joint enterprise liability as a separate basis of secondary party liability. Rather, the UKSC held that the liability of participants in a common purpose must instead be established using traditional accessory principles of liability, based on assisting or encouraging, with intention (or at least conditional intent) to assist or encourage the commission of the relevant offence and knowledge of all essential matters relating to that offence. Foresight in a joint judgment is only relevant as evidence of intention and not as a basis for establishing complicity... Click here to read the full article.

The Inaugural HKU-Boase Cohen & Collins Criminal Law Lecture (20 Jan 2017) (video available)

The Faculty of Law at The University of Hong Kong is delighted to announce the inaugural HKU-Boase Cohen & Collins Lecture Series in Criminal Law was delivered by award-winning international barrister Clare Montgomery QC on Friday, 20 January 2017, at the HKU’s Centennial Campus.

     Ms. Montgomery, of Matrix Chambers in London, is a barrister of international renown and, among the many accolades that have come her way, she has twice been named Crime Silk of the Year in the Chambers & Partners Bar Awards as well as Crime Silk of the Year in the inaugural Legal 500 Awards.

     She spoke about “Joint Enterprise” – a topic which has been in the news due to a landmark ruling by the UK’s Supreme Court and Privy Council in early 2016 and its historic connection with Hong Kong.  She commented on the Court of Final Appeal's December 2016 decision in HKSAR v Chan Kam Shing, which decided not to follow the UK's landmark ruling.  Her lecture can be viewed below.

Eric Cheung on Joint Enterprise Murder in Hong Kong (CCPL Occasional Paper)

"The Dichotomy Between Foresight and Intention in Joint Enterprise Murder: Should our Top Court Depart from Chan Wing Siu and Sze Kwan Lung?"

Eric TM Cheung
CCPL Occasional Paper No. 28
October 2016

Abstract: Since 21 June 1984, Hong Kong courts have faithfully followed the Privy Council decision in Chan Wing Siu (which was adopted by our Court of Final Appeal in Sze Kwan Lung after the handover) to hold a secondary party liable for joint enterprise murder based on his participation with foresight of a real risk of his co-adverturer inflicting grievous bodily harm on the deceased victim, even if he did not so intend. On 18 February 2016, the UK Supreme Court and Privy Council held in Jogee that the common law took a “wrong turn” in Chan Wing Siu by equating foresight with intent rather than treating foresight as evidence of intent. This landmark decision has prompted our top court to grant leave to appeal on 17 May 2016 in Chan Kam Shing to re-examine the Chan Wing Siu doctrine of extended joint enterprise. While pending the appeal hearing, there is yet another interesting development in that the High Court of Australia decided on 24 August 2016 in Miller not to follow Jogee but affirmed Chan Wing Siu. With the help of volunteer law students, a comprehensive survey of our appellate court decisions (both reported and unreported) before and after Chan Wing Siu on joint criminal enterprise resulting in the victim’s death has been done. This paper traces the relevant history of development of the doctrine of extended criminal joint enterprise in Hong Kong and concludes that our top Court should now depart from Chan Wing Siu and Sze Kwan Lung and reinstate the mens rea requirement of intention instead of foresight for joint enterprise murder.  Click here to download the full paper.

Simon Young on R v Jogee (Joint Criminal Enterprise) Implications for Hong Kong (SCMP)

"Landmark UK ruling is not a 'get out of jail' card for Hong Kong felons"

Simon Young
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.  

Michael Jackson on the UK Supreme Court's Decision to Overrule Criminal Joint Enterprise Authorities - Will Hong Kong Follow?

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 [1985] 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.