Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Hksar v Chan Kam Shing

Judgment Cited authorities 30 Cited in Precedent Map Related
Vincent
Judgment Date16 December 2016
Year2016
Citation(2016) 19 HKCFAR 640
Judgement NumberFACC5/2016
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC5/2016 HKSAR v. CHAN KAM SHING

FACC No. 5 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2016 (CRIMINAL)

(ON APPEAL FROM CACC NO. 231 OF 2014)

_______________________

BETWEEN
HKSAR Respondent
and
CHAN KAM SHING (陳錦成) Appellant

_______________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Hoffmann NPJ
Date of Hearing: 28 November 2016
Date of Judgment: 16 December 2016

___________________________

JUDGMENT

___________________________


Chief Justice Ma:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. The doctrine of joint enterprise in criminal law as applied in Hong Kong has been based for many years on the Privy Council’s decision in Chan Wing Siu v R,[1] endorsed by this Court in Sze Kwan Lung v HKSAR.[2] The question in the present appeal is whether that doctrine should continue to be applied in the light of the decision of the United Kingdom Supreme Court in R v Jogee and R v Ruddock[3] disapproving Chan Wing Siu and, one might add, in the light of the contrary decision of the Australian High Court in Miller v The Queen.[4]

A. The appellant’s conviction

3. After trial before M Poon J and a jury, the appellant was convicted of the murder of Kwok Hin Ching.[5] The appellant, who was a member of the Sun Yee On triad society in Tuen Mun, received an order from his triad boss, along with fellow gang members, to “chop” members of a rival faction. The appellant and other members of the gang therefore armed themselves with knives, water-pipes and torches and went in two cars in search of their rivals. When those in the appellant’s car heard that the others had found the intended victims and had set about attacking them, they immediately drove to the scene to help.

4. The deceased, a member of the rival faction, was attacked by four or five persons with knives. Whilst, having been injured, he was being helped to walk away by two others, a seven-seater vehicle ran him down and, when he was lying on the ground, deliberately ran over him again. The autopsy revealed that he died from multiple blunt force injuries and cut and stab wounds.[6]

5. When the appellant arrived at the scene, the deceased was lying on the ground after the attack. He and his party helped their fellow gang members who were facing a furious counter-attack by the rival faction to leave the scene.

6. There was no evidence that the appellant had been present during the attack on the deceased or that he had himself done any act causing injury or death to the deceased. His murder conviction, upheld by the Court of Appeal, was based on his active participation in a joint criminal enterprise, “namely an agreement with others to chop the followers of [the rival faction] with knives with the intent to cause such persons grievous bodily harm”.[7] The Court also held that the appellant’s conduct in giving effect to the joint enterprise constituted encouragement to the others in the gang.[8]

7. By their decision in Jogee, the UK Supreme Court held that the Privy Council in Chan Wing Siu had “taken a wrong turn”. It decided that the doctrine of joint criminal enterprise, especially that aspect of it referred to as “parasitic accessory liability”, should be abolished and replaced by traditional accessorial liability principles, assigning culpability on the basis of the secondary party’s intention to aid, abet, counsel or procure a principal offence. It is therefore necessary to examine the Jogee decision against the background of existing accessorial liability principles and the doctrine of joint criminal enterprise.

B. Accessorial liability principles

8. At common law, a person is held to be an accessory to a crime if he or she aids, abets, counsels or procures the commission of an offence by another. This is reflected in section 89 of the Criminal Procedure Ordinance[9] which states: “Any person who aids, abets, counsels or procures the commission by another person of any offence shall be guilty of the like offence.”

9. The principal offender is the person who carries out the prohibited conduct or actus reus with the requisite mental state or mens rea constituting the main offence. Thus, in a murder case, the principal offender is the person who causes death to the victim with intent to cause death or to do grievous bodily harm. He or she was also known as the principal in the first degree. There may be more than one person acting together as joint principals.

10. A person who aids or abets the principal offence, sometimes referred to as an accessory at the fact (and in felony cases as the principal in the second degree), is one who is present and, by way of actus reus, renders assistance or encouragement to the principal in the commission of the offence.[10] The aider and abettor must provide active assistance or encouragement by words or action. Mere presence at the scene may in some cases be evidence of encouragement, but in itself is not enough to constitute aiding and abetting.[11]

11. The mens rea of aiding and abetting involves the accessory acting with knowledge of the essential matters constituting the offence and with the intention of assisting or encouraging the principal offender to do the things which constitute the offence.[12]

12. A person who counsels or procures an offence (referred to also as an accessory before the fact) is not present but provides assistance or encouragement prior to the commission of the offence.[13] Such a person performs the actus reus of “procuring” an offence “by setting out to see that it happens and taking the appropriate steps to produce that happening”.[14] A person “counsels” an offence by soliciting or encouraging its commission.

13. The actus reus of counselling or procuring therefore comprises assisting or encouraging commission of the principal offence by words or action prior to its occurrence and the mens rea is an intention to render the assistance or encouragement with a view to facilitating or bringing about commission of the offence.

14. Under traditional accessorial rules, the secondary party’s liability is derivative. Only if it is proved that the principal offence has been committed (even if the identity of the principal is not known) can a person’s liability as an accessory to that offence be established.[15] Otherwise the defendant may be guilty of an inchoate offence of conspiracy, incitement or attempt but not as an accessory.

B.1 Stretching the boundaries of accessorial liability

15. The abovementioned rules are well adapted to clear-cut, static situations and place considerable evidential demands on the prosecution. To establish the accessory’s guilt, the prosecution must be able to prove the commission of the principal offence and the accessory’s performance of intentional acts capable of assisting or encouraging that offence, with knowledge of the essential facts constituting the offence and an intention to assist or encourage its commission.

16. There will of course be many cases where such requirements can readily be met. However, it will often be the case that the co-adventurers do not spell out their plans to each other. Such cases have given rise to difficulties regarding proof of the accessory’s intention to assist or encourage the principal. How is such intention to be proved if the accessory did not know what the principal was actually going to do?

17. R v Bainbridge,[16] provides an example of a blurring of the mens rea requirement in a counselling and procuring case. A bank was broken into using oxyacetylene cutting equipment which was traced back to the defendant who had bought it some six weeks earlier. The defendant testified that he had bought it on someone else’s behalf and admitted that he was suspicious that the equipment was “wanted ... for something illegal”, thinking “it was for breaking up stolen goods which [that person] had received”. He denied knowing that it was intended for breaking and entering premises. The English Court of Appeal held that the jury had correctly been directed that he should be convicted of counselling or procuring the bank robbery if they were satisfied that he had “knowledge that a crime of the type in question was intended”, meaning a crime involving “breaking and entering premises and the stealing of property from those premises”. The submission that “there was no evidence which was more consistent with the equipment being needed for a felony of this type than for any other kind of illegal venture” was robustly brushed aside.

18. Maxwell v DPP for Northern Ireland,[17] furnishes another example. Maxwell, who was a member of the Ulster Volunteer Force, drove a car acting as guide for fellow members of the UVF in a car following, to show them the way to a public house in a Catholic area where they launched a bombing attack. It was accepted that Maxwell knew that a terrorist operation was being conducted but argued on his behalf that, as he did not know what form the attack would take, he could not be found guilty of aiding and abetting the commission of a crime which he did not know was to be committed. Unsurprisingly, that argument was rejected, but it required the traditional mens rea rule on aiding and abetting to be enlarged by an exercise of judicial creativity.

19. In the House of Lords, Lord Scarman acknowledged that it was “not possible in the present case to declare that it is proved, beyond reasonable doubt, that the appellant knew a bomb attack upon the inn was intended by those whom he was assisting. It is not established, therefore, that he knew the particular type of crime intended.”[18] His Lordship commended Lowry CJ’s approach to establishing accessory...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT