Joint Criminal Enterprise (JCE) Law – Hong Kong

Introduction

The joint criminal enterprise (JCE) laws are legal doctrines that are utilized by most of the modern International Criminal Tribunals (ICT)  to prosecute political as well as military leaders for war crimes. A case in point embraces the act of genocide that was committed in the Yugoslav Wars during 1991 – 1999. This given doctrine tends to consider every member of an organized group as  individually responsible for the crimes that have been committed by the group, within their mutual plans and purpose. For instance, “when four individuals commit bank robberies, and during a robbery, one of the members fatally shoots someone, every member of the group will be considered guilty of murder”. Subsequently, in dealing with the doctrine of joint criminal enterprise as the case is presented, there is a relative notion of “collective liability” that holds a lot of differences relevant to the concept at the global level. Originally the concept held that every member or person was to share the relative liability, as well as punishment, for the actions of the other individual. Thus, this has not been universally accepted.It has been considered by some nations to be a form of human rights abuse, while others perceive the concept as being just.

Without certain degrees of co-operation, as well as co-ordination of actions, it is believed that it’s virtually impossible to perpetrate some atrocities, for instance, genocide and crimes against humanity. The initial traces of the JCE doctrine can be identified during the post-World War II era, whereby the doctrine was utilized in assuming the main common purpose or the joint enterprise, and in some cases without a specific name. Nonetheless, the originality of the Joint Criminal Enterprise can be predisposed by the Common Laws of England that presented the given principle into the relative criminal laws within the UK, in addition to other existing commonwealth states such as Australia. Additionally, similar legal principles have also been identified within other states such as Texas, USA, where it is known to be the law of parties. Therefore, it is noteworthy to mention that the concept of collective liability, as well as the shared punishments for the relevant actions of others, taking the position that all perpetrated the same deed can be much older, and has been used solely to justify the extermination of some religious and cultural groups. Hence, in regards to the JCE doctrines, this paper intends to explore critiques that have been used to argue that the JCE can result in excessive legal processes, as well as punishments, which eventually lowers the evidential bar in favour of the prosecution, and in relation to the nation of Hong Kong. As such, this paper will also engage various cases to show how the relative arguments tend to contribute to and instigate criminal acts being appropriately made to call for their involvement.

Overview Position

In HKSAR v Chan Kam Shing FACC 5/2016, the Hong Kong Court of Final Appeal disagreed with and declined to adopt UK decision R v Jogee [2016] UKSC 8, but agreed with the Australian High Court decision in Miller v the Queen [2016] HCA 30, and reaffirmed and restated the relevant common law principles of secondary liability in Hong Kong.

Part I

The Doctrine of Joint Criminal Enterprise and its Distinction from the Accessorial Liability Principle

Accessorial liability doctrine extends its derivative criminal liability to individuals who are not part of the joint criminal enterprise, but nevertheless tend to have taken part in the commission of crimes in some given way. Thus, for a person to hold responsibility for crimes under this doctrine, the accused ought to satisfy some given principles:

1. Actus reus: either of the following:

• Being principal to the second degree – This holds when the accused is believed to be present in the commissioning of the crime. The mere presence and acquiescence are not enough since the accused must have assisted, abetted, counselled, or procured the crime.
• Accessory prior to the facts – The accused is believed to have taken part in the preliminary steps of the crime via aiding, abetting, as well as counselling and procuring, yet was not present at the time of the crime. Thus, the accused’s assistance ought to have been within the presence of the relative offender, however, need not have affected him.

2. Mens rea: the intention to aid with the crime, not that the relative crime is actually committed.

• Requires knowledge of the significant facts that make up the offence.
• Does not require the possession of knowledge of the specific crime, and can be of similar type.
• If a more serious crime resulted, compared to the one the relative accused intended to aid, the accused will be held liable for the lesser crime.

Therefore, if the above-stated principles can be proved, then the accused will have to be held as incurring accessorial liability, which means that the accused will only get convicted when the primary offender also gets convicted. Hence, the defendant will benefit from every defense utilized by the primary offender such as provocation, the insanity defense, as well as substantial impairment, among others. Hence, as opposed to the JCE attributes of the primary liability, as in the case HKSAR v Chan Kam Shing FACC 5/2016, the relative liability of individuals with accessorial liability, in this case, tends to be derivative, which posits that the primary offender must be convicted in order for the accessory to be convicted.

Subsequently, most crimes with numerous participants tend to be based on JCE agreements, thereby making accessorial liability less common. Such instances occur significantly within typical cases of unplanned support and assistance during the commission of crimes, and when the prosecution looks to extend liability to persons not present at the scene. Hence, in such situations, accessorial liability can be utilised as an alternative. In Hore vs, Fyffe, the court endorses this given practice in situations where every fact is seen to be within the knowledge of the prosecuted, and the Crown is seemingly unable to justify which set of complicity appears to rule best and fits with what is believed to have happened. However, what occurs ought to either have been a case of joint enterprise liability, or an accessorial liability.

Basic Joint Criminal Enterprise – The Plain Vanilla Version

The principles that tend to govern the criminal liability of joint criminal enterprises are normally found within the common laws relative to the grounds of public policy. As such, there ought to be a mutual purpose or venture existing between the members or participants to commit a given offence. Therefore, every participant will have to act as primary offenders and are equally liable regardless of their levels of participation. Brown & Isaacs vs. The State (2003) [Lord Hoffmann], the relative instance has been described as ‘the plain vanilla version of the joint enterprise’. The basic principle, however, in relation to the joint liability inclines to be straightforward in that the recent tests of foresight are burdensome for most judges and juries. This can be related to the case judgments of Beldam LJ in the R. vs. Uddin [1998] and the participation in crime (2007) Law Com No.305 as well as other instances given. Thus, the Lordship provides five key principles in relation to a death from group attacks; however, there is also the aspect of holding the potential to issue unjust results. Despite the current rulings of the House of Lords in R. vs. Rahman [2008],3 WLR 264, Hong Kong’s Home Office claims its intention to abandon the common law’s “fundamentally distinct rules” for murder, as well as replace it with more flexible statutory rules.

Challenges do arise when one member steps outside of the venture and commits greater offences, possibly using the force of different individuals. As such, the other participants or members can still be liable under fundamental principles such as in R. vs. Hyde [1991]1 QB 139. The relevant Court of Appeal rules that the secondary offender tends to be equally liable if they (subjectively) realize, or even contemplate, that at the time of the course of the joint enterprise the primary offender can commit greater offences. Chan Wing Siu vs. The Queen [1985] AC 168, the participant can escape the given liability only when the greater offence and force incorporated appears to be unforeseen and thus some element of “fundamental difference” (a complete departure) from the original enterprise is observed. Thus, the House of Lords, as well as the reform proposals, tend to make it clear that individuals that become involved with group violence ought to accept the relative criminal responsibilities for the deaths of the victims of the given attacks. In regards to Hong Kong’s ruling, the need to put laws on a clearer, as well as a more rational,  basis or grounding arises, which is discussed further in the subsequent sections.

Extended Joint Criminal Enterprise (Parasitic Accessorial Liability)

The principles of extended joint criminal enterprise function where there has been a joint criminal enterprise to commit crimes, as well as when one participant or member commits a distinct crime instead of the crime agreed upon. seperate . The liability for a crime in such circumstances can be extended to the members of the JCE. With this in mind, the fundamental policy rationale for the existing rules provides that are relative to the extended JCE is that the members should often refrain or avert from taking part in JCE, since there are risks that other parties inclined to engage in addition to other, more serious offences. According to Miller’s case, the defiance of this given logic can be illuminated by providing the facts that the extended joint criminal enterprise appeared to be relied on when during the entire five-month period Miller had been driving around searching for women to have consensual sex with – not constituting to any foundational crime – but, his alleged friend later kills the women. It is also found that Miller continued to drive around with the same friend during most subsequent instances, later killing another six women. In this case, it is held that Miller is to be acquitted of the murder relative to the first woman yet convicted of the other six murders. From the given point of view, it is clear that the court fails to consider the foundational crime that is necessary, but only that Miller foresaw the possibilities that he might kill.

Additionally, the most common criticism of this given doctrine embraces its contravening aspect to the fundamental principles of criminal law, since a person can get convicted without being in possession of the actus reus and the mens rea for any given offence. As such, Kirby J argues that the inconsistency within the law when the tests for the secondary offenders – foresight of possibilities – appears to be less than the relative tests for the primary offenders – foundations of the crime. Subsequently, the conceptual, as well as the practical challenges within the overlaps and the inconsistencies between the doctrines, can also be noted in the unreasonable expectations placed upon other trial judges in explaining the idiosyncrasies of distinct notions of the secondary liability to the jury as something to be concerned about within the court. Hence, it is believed that the law must not be unjust, obscure, as well as disparate and asymmetrical, as it appears to be. A case in point involves R vs. Powell, whereby the court is seen to note an experience that tends to portray joint criminal enterprises as being too ready to escalate into the commissioning of greater offences. Similarly, Lord Hutton illuminates that the policy considerations, rather than the logical incline, shape the doctrine of parasitic accessorial liabilities, balancing the need to offer effective security to the public against such criminals that operate within gangs. Additionally, most believe that unlike the primary party that performs the killing with deadly weapons, the extended or secondary party cannot be placed in the situation where they suddenly have to decide whether to shoot, or even stab the victim, with intent to kill or cause serious harm. Hence, the secondary party must not escape the liability owing to the luck, which places them in distinct situations despite the involved risks they take when engaging in the joint criminal enterprise.

Part II: Justification of Chan Kam Shing

Considering the recent landmark decision, Hong Kong’s Court of Final Appeal (CFA) in HKSAR v Chan Kam Shing FACC 5/2016 chose to reject the UK Supreme Court R vs. Jogee [2016] UKSC 8 leads on the relative questions of joint enterprise liability. The CFA confirmed that the joint enterprise liability tends to remain part of Hong Kong’s criminal law and in so ruling, the CFA upholds the 1985 decision of the relative Privy Council in R vs. Chan Wing Siu [1985]AC 168 (PC), where broader grounds – the “wide principle” – for the imposition of secondary liability on the party to the JCE compared to the previous have been formulated.

Reasons of CFA Rejecting R vs. Jogee

In R vs. Jogee, the UK Supreme Court (UKSC), in  making their conclusions, said Chan Wing Siu is believed to have ‘taken the wrong turning at law”. Thus, the wide principle embraced in the conclusion can be noted to involve misunderstandings of previous case laws that tend to deal with the liability of participants within a common criminal purpose. As such, the aspect of ‘foresight’ from the members to a mutual purpose are speculated to do beyond their decided purpose, while executing the given purpose was wrongly elevated into principles of secondary liability, instead of serving as, at best evidential grounds for liability. Thus, by identifying this ‘wrong turning’, the UKSC in Jogee had to unblinkingly abolish and reject JCE as a separate foundation for secondary party liability. Additionally, the UKSC is seen to hold that the relative liability of the participants or members in a mutual purpose should instead be established and developed utilizing the traditional accessory principles of liability, grounded on aiding and encouraging with intent, or at least conditional intent, to aid and encourage the commissioning of the relevant offence, in addition to knowledge of every fundamental matter relating to the offence. Hence, this shows that foresight within joint judgments can only be pertinent as evidence of intention, and not as grounds for establishing complicity. Therefore, in Chan Kam Shing’s case, the CFA had to unambiguously reject, as well as abolish, the UKSC’s conclusions in Jogee, with concluding remarks that Chan Wing Siu took no “wrong turning”. Nonetheless, this similar decision is also seen in the High Court of Australia in Miller vs. R [2016] HCA 30 relative to the same reasons.

The Extended Joint Enterprise Liability Aspects

The relative ‘agreed’ joint enterprise includes offences that have been ‘tacitly agreed’, yet the wider principles of liability for most offences that have been contemplated upon and foreseen as possible incidents of carrying out joint enterprises is seen to extend Lord Parker’s principles. Similarly, this exposes those individuals that participated and continued their participation in the joint enterprise, with similar contemplations to the wider potential liabilities (Anderson & Morris [1966] 2 QB 110).

The relative differences between the mentioned forms of joint enterprise liabilities tend to be explicitly articulated within Chang Kam Shing. Additionally, liability for offences are termed to parties within the joint enterprise setting out to commit pursuance to the agreed mutual purpose, whether expressly, or even tacitly, agreed, but as a basic joint enterprise. Nonetheless, the case’s wide principle enables the possible conviction of participants within the joint enterprise for similar offences contemplated and foreseen by participants as possible incidents of executing a common purpose, however, not intended as such. Hence,  Chan Kam Shing’s case takes the course as an extended joint enterprise. Emphasis is also put on how it appears to offer effective means of handling the situational uncertainties that normally arise when most criminals intend to operate in gangs, as well as those that can otherwise present challenges in effectively prosecuting such participants, particularly utilizing the traditional accessory principles.

Part III: Flaws of the Decisions of Jogee

The less welcoming aspect of the Jogee decision in relation to joint enterprise liability having evolved within the UK is the incorporation of the concept of ‘fundamental difference’ in dealing with the associated differences that can appear in the manners by which contemplated offences are carried out. This mentioned restriction has always been an aspect of joint enterprise liability. For instance, in Anderson & Morris, the secondary participant was acquitted of murder and manslaughter when the primary participant suddenly, as well as unpredictably according to Morris, used a knife to fatally stab their victim. Thus, this possibility is similarly identified in Chan Wing Siu, where observations that the involved parties to the joint enterprise can escape liability (i) if both members did not contemplate the offence carried out by the principal as a conceivable incident of executing the joint enterprise or (ii) if both members contemplated on such an offence yet dismissed it as being “too remote”.

Subsequently, it is quite evident how the prosecution lacks enough evidence to prove the participant’s encouragement had a positive impact on the members conduct and on the outcome. As such, R vs. Calhaem [1985] QB 808 still holds to be a good law. It is sensible, and as within many cases, it can be impossible to prove. Thus, there might, for instance, have been several supporters encouraging the members so that the encouragement by one of the members cannot be proved to have had a difference.

Nevertheless, manslaughter is seen to still maintain a wider reach. One participant can be held liable for manslaughter when the other kills, given that the secondary has intentionally taken part within an offence that a sober, as well as reasonable individual, can view as holding some risk of physical harm, even if the secondary has not and has been incapable of personally viewing any kind of risk of injuries therefrom.

Part IV: Concluding Remarks and Recommendations

One of the aspects of the appeal is its dismissal of the provided evidence on the grounds that there were no actual instances of extended joint enterprise liability. Hence, Chan is perceived to be liable in regards to ‘basic’ joint enterprise grounds, as well as on the relative traditional accessory liability principles. Regardless of the little mention of the fundamental differences aspect within Chan Kam Shing, it is still hoped that its abolition or eradication, along with the joint enterprise liabilities, offers suitable opportunities to rid Hong Kong’s laws of this notion.

Nonetheless, withdrawals remain uncertain since the relevant rules that are applicable to withdrawal for the relative secondary liability are still  complex. For instance, there is a growing uncertainty over whether similar principles apply to the spontaneous as different from the contemplated violence, since the jury can tend to bear the burden of drawing relevant boundaries (Rajakumar [2013] EWCA Crim. 1512 and Robinson [2000] EWCA Crim. 8). Thus, clarifications from Courts of Appeal regarding the relative terms of the relevant ‘defence’ will be welcome.

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