Introduction

A person who assists or encourages others to commit a crime, known as an accessory or secondary party, may be guilty of the same offence as the actual perpetrator. The secondary party (D2) may also be liable for any unplanned offence spontaneously committed by his co-adventurers (D1) if D2 foresaw the actual risk of D1 committing the further, more serious offence (A common illustration would be the commission of murder by one of the robbers in the course of a gang robbery). In other words, the secondary party’s liability is based on his foresight of the accident rather than his intention to commit the more serious crime. These principles were laid down by the Privy Council in Chan Wing Siu v R [1985] 1 AC 168, endorsed by the Court of Final Appeal in Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475 and became part of the law of accessory liability in Hong Kong.

In its recent decision of HKSAR v Chan Kam Shing FACC 5/2016, the Court of Final Appeal affirmed the above principles of establishing criminal liability based on the secondary party’s foresight. Such ruling contradicted with the UK Supreme Court’s decision in R v Jogee and R v Ruddock [2016] 2 WLR 681, which suggested that the mental element required is the intention of the secondary party to assist or encourage the commission of the offence and the intention that the offence be committed. In Jogee, it was held that foresight can only be evidence to infer such intention, but not itself be enough to establish the secondary party’s culpability. The UK Supreme Court also held that the above Chan Wing Siu principles should be abolished and replaced by traditional accessorial liability principles, i.e. assigning culpability on the basis of the secondary party’s intention to aid, abet, counsel or procure a principal offence.

HKSAR v Chan Kam Shing

Chan, a member of a triad society, along with his fellow gang members, armed themselves with knives, water-pipes and torches, planned to “chop” the members of a rival faction. At the time when Chan arrived at the scene to join the fight, the deceased had already been attacked and was lying on the ground. Chan was convicted of the murder of the deceased on the basis that he participated in the gang fight when he foresaw the real risk of his gang member inflicting grievous bodily harm on the deceased, even if he did not so intend.

In his appeal, Chan relied on Jogee and suggested that even though he had foreseen such accident, he did not intend to cause grievous bodily harm on the deceased. Therefore, the issue is whether Jogee should be adopted in Hong Kong.

The Court of Final Appeal’s decision

The Court of Final Appeal unanimously upheld Chan’s conviction and ruled that Jogee should not be adopted in Hong Kong.

The Court held the secondary party (Chan) is no less blameworthy than the principal offender (the actual murderer(s)) in such gang violence cases. In the instant case, Chan’s culpability was based on agreeing to carry out the gang violence with others and deciding to proceed with the gang violence despite the foresight of a real possibility of the further, more serious offence being committed by one of them in the course of the fighting. Thus, Chan deserves to be regarded as gravely culpable as the actual murderer(s).

The Court of Final Appeal Upholds Chan Wing Siu

The Court was also of the view that Jogee creates a serious gap in the law of accessory liability by abolishing the above mentioned Chan Wing Siu principles. The Chan Wing Siu principles are particularly useful in two situations in the context of gang violence causing death.

• The first one is cases in which the evidence is not sufficient to point out the actual killer among the co-adventurers, where there is evidential uncertainty as to who struck the fatal blow. The traditional accessorial liability rules are inapplicable to establish the co-adventurers’ liability since the principal offender cannot be identified in these cases. There is arguably “no principal offence” for the co-adventurers to aid, abet, counsel or procure.
• The second one is cases in which one of the co-adventurers spontaneously caused death in the course of the commission of another offence (as in the instant case of Chan Kam Shing). The traditional accessorial liability rules are also unhelpful to establish the other co-adventurers’ liability since the other co-adventurers may not necessarily have the intention to aid, abet, counsel or procure the more serious offence committed by one of them.

The Chan Wing Siu principles can be used in these circumstances to establish the co-adventurers’ liability based on their respective participation in the commission of the offences. In the first situation, all the co-adventurers can be guilty whoever the actual killer may have been. In the second situation, the co-adventurers can be held liable on his participation with the foresight of a real risk of one of the members committing the more serious offence, even if he did not so intend.

Under the Chan Wing Siu principles, the Court also enjoys the flexibility of giving differing verdicts of manslaughter and murder in respect of two co-adventurers who had engaged in the same violent attack but with different degree of participation. The liability of each participant in the offences is independently assessed.

Conclusion

Operating alongside the traditional accessorial liability principles, the Chan Wing Siu principles continue to apply in Hong Kong. In other words, foresight remains to be the sufficient mental element for accessory liability while intent is not a necessary condition in the Hong Kong law of accessory liability.

One may say that there is strong policy reason to uphold the traditional accessorial liability principles in Chan Wing Siu.  However, whether one should be condemned of murder merely for foreseeing that he is participating in a venture in which another participant may commit murder, remains debatable.  Having said that, the Court of Final Appeal has ruled that, he who have foreseen the possibility of murder yet participated in the venture nevertheless, is no less culpable than the one who actually committed the murder.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.