In a landmark ruling, Hong Kong’s Court of Final Appeal has chosen not to follow the UK Supreme Court’s lead on the question of joint enterprise liability. Boase Cohen & Collins Consultant Michael Jackson discusses the complex issues involved in the CFA’s eagerly awaited judgment.
Hong Kong, 17 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  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”).
CFA Rejects Jogee
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  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.
In Chan Kam Shing, The CFA unambiguously rejected the UKSC’s conclusion in Jogee, concluding that Chan Wing Siu had not taken any “wrong turning”.
However, the CFA was not the first superior court to reject Jogee. Four months earlier, the High Court of Australia similarly declined to follow Jogee in Miller v R  HCA 30 for similar reasons.
Expansion of Joint Enterprise Liability
Prior to Chan Wing Siu, the liability of participants in a joint enterprise was commonly based on Lord Parker CJ’s formulation of principle in Anderson & Morris  2 QB 110, para. 118 in 1966, that “where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, … [including] liability for unusual consequences if they arise from the execution of the agreed joint enterprise.” The “agreed” joint enterprise included such offences as had been “tacitly agreed”, but the wide principle of liability for offences which had been contemplated or foreseen as a possible incident of executing the joint enterprise clearly extended Lord Parker’s principle and exposed those who participated or continued to participate in a joint criminal enterprise with such contemplation to a wider potential liability.
The distinction between these two forms of joint enterprise liability is explicitly articulated by Ribeiro PJ in Chan Kam Shing. Further, he terms liability for offence(s) which parties to a joint enterprise set out or intended to commit pursuant to their agreed common purpose, whether expressly or tacitly agreed, as a basic joint enterprise. However, he states, Chan Wing Siu’s wide principle enables the conviction of the participants in a basic joint enterprise for such further offences as were contemplated or foreseen by them as possible incidents of carrying out the common purpose, but not otherwise ‘intended’ as such. In Chan Kam Shing, Ribeiro PJ refers to this latter category as “extended joint enterprise”. He also emphasises how it provides an effective means of addressing the situational uncertainties which regularly arise when criminals operate in gangs and which may otherwise present difficulties in effectively prosecuting those participants, especially using traditional accessory principles.
The commonly stated justification for extending liability in this way builds on this concern about the unpredictability and momentum of group criminal activity and to give effective protection to the public against criminals operating in gangs (see R v. Powell, R v. English  1 AC 1 (“Powell, English”)).
It Must Have Been One of Them
In Chan Kam Shing, Ribeiro PJ identifies a further category of uncertainties which can arise in prosecuting group criminality which he refers to as “evidential uncertainties”. A clear example of this is the potential inability of prosecutors dealing with group criminal activity, especially fatal group attacks, to identify the principal. According to traditional accessory principles, liability of the accessories is derivative from that of the principal, who must therefore be identified. If he or she cannot be identified, then all must be acquitted. Joint enterprise liability overcomes this by permitting a prosecutor to prove that the conduct giving rise to the offence in question (eg, the fatal blow giving rise to liability for murder), took place pursuant to a joint enterprise, and must have been performed by one of the parties to that joint enterprise (ie, could not have been done by anyone else). Once this combination is proved, then the prosecutor’s case against each of the alleged parties rests on proof of their liability as a secondary party based on joint enterprise liability. If the offence was what the parties set out to commit, each is liable because they agreed or intended to commit that offence; but otherwise, liability rests on proof that the offence charged was at least “contemplated as a possible incident” (ie, extended joint enterprise). As such, this supports the view that joint enterprise liability, unlike traditional accessory liability, should be regarded as a distinct basis of liability, not derivative from that of the principal, and indeed, this viewpoint is strongly affirmed by in Chan Kam Shing.
A Wrong Turning
Given the obvious and profound advantage enjoyed by a prosecutor via joint enterprise liability, why then did the UKSC in Jogee take such an adverse view of the doctrine, leading it ultimately to take the arguably unwelcome step of abolishing it?
One undoubted reason for doing so, as noted recently by Clare Montgomery QC in her inaugural lecture for the University of Hong Kong and Boase Cohen & Collins Lecture Series in Criminal Law, was an adverse political environment for the operation of joint enterprise liability in the UK. Unlike Hong Kong, where most group attacks resulting in homicide involve organised crime gangs, joint enterprise liability in the UK was said to have condemned increasing numbers of young men, especially black-British youths, to longer minimum terms of life imprisonment upon conviction for murder, largely due to little more than their “association” with those who became involved in violent attacks. Attempts to find a legislative solution to this over-reach had signally failed, and the task of rectifying common law’s creation eventually fell back onto the UK Supreme Court.
But more fundamentally, aside from these wider political concerns, the UKSC in Jogee chose to take objection to the very nature of the wide principle of liability.
Mindful of the advantages of joint enterprise liability, the UKSC had attempted to reassure prosecutors that all was not lost.
But neither these criticisms nor the proposed solutions found traction with the CFA. Ribeiro PJ, agreeing with the majority in Miller, rejected the Jogee decision for three reasons (para. 62).
First, he disagreed with the UKSC’s view of the secondary party’s culpability. Rather, he viewed joint enterprise liability as distinct from that of traditional accessories, stating the “liability of a party to a joint criminal enterprise is not derivative but arises independently by virtue of his or her participation in the joint criminal enterprise.” Second, he found “confining the secondary party’s liability to liability under the traditional accessorial liability rules and abolishing the joint criminal enterprise doctrine … creates a serious gap in the law of complicity in crime.” Third, he found Jogee’s introduction of the concept of “conditional intent” could give rise to significant conceptual and practical problems.
One of the less welcome features of the law relating to joint enterprise liability, as it had evolved in the UK, was the adoption of the notion of “fundamental difference” to deal with differences which may occur in the manner in which a contemplated offence is actually carried out. This notion was first introduced in R v English, and purported to recognise one restriction, at least, on the operation of the wide principle, as adopted in Powell, English. As formulated in R v English, differences in a homicide case in the dangerousness or lethality of the means used to kill the deceased during an “extended” joint enterprise potentially operated to limit the liability of those parties to the joint enterprise who could not be proved to have contemplated the use of weapons at all, or the use of weapons of such dangerousness or lethality.
This restriction had always been a feature of joint enterprise liability. In Anderson & Morris, Morris was acquitted of both murder and manslaughter when Anderson suddenly, and unexpectedly according to Morris, used a knife to fatally stab the victim.
This possibility was similarly recognised by Sir Robin Cooke in Chan Wing Siu, observing that parties to a joint enterprise would escape liability (i) if they had never contemplated the offence committed by the principal as a possible incident of carrying out the joint enterprise or (ii) if they had contemplated such an offence but dismissed it as “too remote”. But, if the party accused knew that lethal weapons, such as a knife or a loaded gun were to be carried on a criminal expedition, the defence should succeed only very rarely.
“Fundamental difference”, as formulated in R v English, in effect undermined this, by dictating that a jury could only acquit a party to a joint enterprise if an alleged difference related to the dangerousness or lethality of the means used to kill. This limitation was made explicit in R v Rahman  1 AC 129.
Regrettably, defining fundamental difference in this way became an endless source of uncertainty and resulted in numerous appeals based on attempts to distinguish the lethality or dangerousness of various weapons or means of killing. The New Zealand Supreme Court declined to adopt this notion of fundamental difference into New Zealand law, noting the risk of legal principles that depend on a comparison of the dangerousness of weapons could encourage attempts to make unmeritorious (and perhaps faintly ludicrous) distinctions (see R v Edmonds  NZSC 159).
Little mention was made of fundamental difference in Chan Kam Shing, and it is to be hoped that its abolition, along with joint enterprise liability, in Jogee provides a suitable opportunity to rid Hong Kong law of this notion.
Application of the Principles in Chan Kam Shing
One of the features of Chan’s appeal is that it was dismissed on the evidence on the basis that it was not actually an instance of extended joint enterprise liability. Rather, as explained by Ribeiro PJ, Chan was liable both on a ‘basic’ joint enterprise basis, and on traditional accessory liability principles.
Where does this leave the law?
Returning to Ms. Montgomery QC’s views, it seems reasonably clear that “the law in Australia, New Zealand and Hong Kong is now settled”, save for residual problems relating to fundamental difference and withdrawal which remain to be solved. By contrast, as Ms. Montgomery QC succinctly stated: “the law in the United Kingdom and the Caribbean appears less certain.” More regrettably, Jogee, and its proposed solution to the problem of guilt by association which afflicted the joint enterprise doctrine in the UK, has, in her view, created as many legal problems as it solves. Jogee has prevented the continuing use of the doctrine but has provided no relief for those who have been disproportionately affected by it.
In addition to being a Consultant with BC&C, Michael Jackson is an Associate Professor at the University of Hong Kong's Faculty of Law. This article first appeared in the March 2017 edition of Hong Kong Lawyer.