I recently read Michael Jackson’s article “HKSAR v Chan Kam Shing: CFA Finds ‘No Wrong Turning’” in the March edition of Hong Kong Lawyer. While the feature provides a good summary of HKSAR v Chan Kam Shing, FACC 5/2016 and the adverse political environment in which the doctrine was operating in the UK, it failed to touch on instances in which the doctrine is susceptible to abuse in Hong Kong.
In “Is Abolishing Joint Enterprise Beneficial for Hong Kong?” (Hong Kong Lawyer, May 2016), Franklin Koo convincingly set forth a number of public policy considerations that weigh against the extended version of doctrine, or as Jackson termed “the wide principle”, being maintained in Hong Kong. Namely, he highlighted the possibility of the doctrine being used to oppress particular groups – such as those in politically sensitive groups or those involved in local social movements. While the doctrine has not been used in this way in Hong Kong to date, this is a worrisome possibility, as joint enterprise liability is applicable to a wide variety of offences, not just gruesome, gang-related murders.
Even after looking at the public policy considerations used to justify the creation and maintenance of the doctrine in the wider context, these concerns are not assuaged. As noted by Koo and Jackson, the Chan Wing Siu principle does have certain merit, in that it was designed to deter people from participating in gang-related criminal activities by holding all participating members of a gang responsible for each other’s criminal actions. As Koo noted, studies have shown that “gang members commit over five times as many offences as non-gang members”. He also pointed out that “social science research literature strongly suggested that individuals in groups behave very differently than they do when alone. They take more risks, are pressured to conform with the majority, and feel less personal responsibility, thus raising the possibility that group crimes lead to escalated and unplanned violence.” Even with this being the case, it still seems anomalous that a secondary defendant can be convicted of a crime on proving mere foresight, when the prosecution must prove the “intent” of the primary defendant to secure a conviction. Put another way, this seems grossly unfair because foresight is a lower mental requirement than intention, which is the mens rea that must be established by the prosecution to meet its burden of proof to establish its case against the primary defendant.
Also troubling is the possibility of an individual being convicted of a crime based on their involvement in a joint criminal enterprise, when he or she did not physically perpetrate the crime, had no intention to do so and was never at the crime scene. For all of these reasons, it is regrettable that the UK’s approach in Jogee was not followed in Hong Kong.