Introduction
It is a long established principle that a person who assists or encourages others to commit a crime, known as an accessory or secondary party, may also be guilty of the same offence as the actual perpetrator. However, the recent UK Supreme Court case of R v Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8 has surprised many by ruling that the principle established in Chan Wing-siu v The Queen [1985] AC 186 in relation to the mental element in finding accessory liability are wrong.

R v Jogee and Ruddock v The Queen (Jamaica)
Both Jogee and Ruddock were convicted with murder as an accessory. In Jogee, he and Hirsi went to the house of Ms. Reid and the deceased at 2 a.m. after being intoxicated. There was an angry exchange among the parties and the deceased tried to get them leave. Jogee, with a bottle raised, leaned forward towards the deceased and said he wanted to smash it over the deceased’s head, but he was too far away. At the end, the deceased was stabbed to death by Hirsi. On the other hand, in Ruddock, the deceased’s throat was cut to death by Hudson in the course of robbing. The co-defendant, Ruddock, admitted that he had tied the deceased’s hands and feet but he was not the one who cut the deceased’s throat.

Issue before the UK Supreme Court
The UK Supreme Court was faced with the question that whether the judge’s direction to the jury as to the mental element in finding accessory liability based on Chan Wing-siu is correct. In Chan Wing-siu, the Privy Councilheld that if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. D2’s foresight of that possibility plus his continuation in the enterprise to commit crime A were sufficient to hold D2 liable to crime B, whether or not he intended it. To put in simple terms, Chan Wing-siu rules that foresight is the sufficient mental element for accessory liability while intent is not a necessary condition.

The UK Supreme Court’s review of Chan Wing-siu
The UK Supreme Court, however, held that the principle in Chan Wing-siu was wrong. If D2 participates in crime A with D1, with the foresight that D1 may commit crime B, but nonetheless continues to participate, the foresight is evidence, and just evidence of his intent to assist D1 in crime B.  Such foresight may be strong evidence, but it is not necessarily the case that such foresight must infer the intention to assist.

The conclusion of the UK Supreme Court was reached after a careful review of the law since the 19th century. Before Chan Wing-siu, it is clear that the mental element required is the intention to assist or encourage the commission of offence and the intention that the offence be committed.  Notwithstanding that Chan Wing-siu did cite some older cases, those cases concerned some other context and did not support the Privy Council’s equating foresight with intention.  For example, in Davis v Director of Public Prosecutions [1954] AC 738, the discussion on “contemplation” of acts of the co-defendant(s) was spoken in the context of considering the need for an accomplice warning. Therefore, it provides no foundation for the principle in Chan Wing-siu which actually set a new principle.  The Privy Council had engaged in an incomplete and erroneous reading of the previous case law and reached a wrong conclusion.

The Correct Law on Accessory Liability
After disapproving with Chan Wing-siu, it is clear that the correct mental requirement for finding accessory liability is the intention that crime B should be committed.  Foresight by itself is not sufficient, though it may well be an evidence to infer the necessary intention. This will be a question of fact for the jury in all the circumstances.

In the context of violent attack, if D2 joined D1 to cause serious injury, and if the jury infers from the evidence that he intended to encourage or assist the deliberate infliction of serious bodily injury and/or intended that that should happen if necessary, then if D1 acted with intent to cause serious bodily injury and death resulted, both D1 and D2 will each be guilty of murder. On the other hand, if D2 joined D1 for a violent attack, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter.

Outcome of R v Jogee and Ruddock v The Queen (Jamaica)
After restating the correct principle for accessory liability, it was held the lower court judge’s direction to the jury based on Chan Wing-siu were wrong in both Jogee and Ruddock.  Therefore, appeal must be allowed.  However, given the factual circumstances in Jogee, it is clear that Jogee shall be guilty of manslaughter at least. Therefore, it shall either be a retrial for murder or substituting conviction to manslaughter.  

Conclusion
Given that both Hong Kong and the UK courts relied upon the same cases and laws in relation to accessory liability and the fact that the decision of the UK Supreme Court was unanimous, it seems very likely that the Hong Kong Court may follow the same. We shall wait and see the future development in Hong Kong.

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IMPORTANT: The law and procedure on this subject are very specialized 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.