Hong Kong Court of Final Appeal dismisses ‘joint enterprise’ appeal (and chooses not to follow English law)

The South China Morning Post has reported that a landmark appellate bid to change the legal definition of murder in Hong Kong has been rejected unanimously by the Hong Kong Court of Appeal.

The Court of Final Appeal’s judgment, handed down on 16 December 2016, prevents what could have been hundreds of appeals by people convicted of murder, and it roundly rejects a controversial joint ruling by the UK’s Supreme Court and Privy Council in February 2016, in the case of Jogee and Ruddock v The Queen [2016] UKSC 8, [2016] UKPC 7 which turned 30 years of legal principle on its head.

That principle is “joint enterprise”, which allows for accomplices of the person who strikes the fatal blow in a murder to be convicted of the same crime.

Dismissing unanimously what was effectively a test case appeal based on the earlier UK court decision, the ruling on 16 December 2016 retained and reinforced the validity of the joint enterprise principle in Hong Kong after the top court’s panel of five judges gave a detailed rejection of the argument that convicting an accomplice of murder was excessive.

However, some legal experts, including the lawyer who won the UK case and challenged the ruling in Hong Kong, called for a review of the “draconian” law, warning the legal principle could be overused to secure convictions on a lower test of the law compared to any other crime.

The Court of Final Appeal disagreed and warned of a “gap’’ in criminal law if joint enterprise was rewritten.

Leave to appeal was granted because it was appropriate that the aforesaid question should be addressed for the guidance of our criminal courts,” said Mr Justice Roberto Ribeiro. “Jogee [the UK Supreme Court decision] should not be adopted in this jurisdiction. The joint criminal enterprise doctrine … continues to apply in Hong Kong.”

Mr Justice Ribeiro, Chief Justice Geoffrey Ma Tao-li, Mr Justice Robert Tang Kwok-ching, Mr Justice Joseph Fok and Lord Justice Leonard Hoffmann dismissed the appeal in a unanimous decision.

At the centre of the appeal was Chan Kam-shing, who was jailed for life in 2014 for the murder of an 18-year-old known as “Kwok Ching” during a triad gang attack. Chan was not at the scene of the crime, nor did he strike the fatal blow.

In the February case, the UK Supreme Court ruled that the joint enterprise doctrine had resulted from the law taking a “wrong turn” three decades ago – based on a 1985 Hong Kong case – and ruled it was wrong to treat “foresight” as a sufficient test.

Representing Chan, Felicity Gerry QC said: “It is all the more important that there is a full review of the law and sentencing on homicide as the risks for those in the periphery are great, especially the vulnerable and especially with such draconian sentencing in Hong Kong.” It was Gerry who won the case in the UK.

University of Hong Kong legal scholar Eric Cheung Tat-ming warned that local prosecutors “may have the temptation to use this law of joint enterprise in a demonstration scenario in Hong Kong”.

He gave as an example a group of two or more who have a plan to commit a minor crime, but one member commits a more serious criminal offence such as murder. All members who agreed to commit the minor crime could then be prosecuted for the more serious charge of murder because the law required a basic test of proving a crime based on foresight rather than intent.

Cheung, who disagreed with Friday’s judgment, said the Court of Final Appeal had “strengthened” the criminal law on joint enterprise and not just maintained it. He said it was “unfortunate because the law goes too far to just require foresight.”

The judgment now results in a significant divergence in approach as between the UK Supreme Court and the Privy Council, on the one hand, and the Hong Kong Court of Final Appeal, and Australia’s High Court (Miller v The Queen; Presley v The Director of Public Prosecutions [2016] HCA 30), on the other.

Where does this leave Bermuda, taking into account section 27 of Bermuda’s Criminal Code Act 1907 (which has been considered a number of times by the Bermuda Court of Appeal, including in the Bermuda Court of Appeal’s November 2015 judgment in the ‘joint enterprise’ case of Stacey Robinson v The Queen [2015] CA Bda 36 Crim)?

If nowhere else, respectfully confused (although potentially bound by the Privy Council’s judgment, subject to further argument as to the applicability of its ratio decidendi to the interpretation and application of section 27 of the Criminal Code Act 1907).

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