Flood of appeals could follow if Hong Kong’s top court overturns ‘joint enterprise’ principle, lawyer argues

Case centres on appeal by Hong Kong man found guilty of murder; his lawyer is arguing that conviction should be quashed based on landmark British ruling

PUBLISHED : Monday, 28 November, 2016, 10:09pm
UPDATED : Monday, 28 November, 2016, 11:03pm

A landmark appeal which challenges the definition of murder and on which the “integrity and legitimacy’’ of Hong Kong’s system of criminal justice rests could see the courts swamped with an “intolerable” flood of appeals , the Court of Final Appeal heard on Monday.

A panel of five top court judges must decide if a ruling by the United Kingdom Supreme Court overturning the three-decades-old legal principle of joint enterprise – which allows someone to be convicted of murder even if they did not strike the fatal blow – applies in Hong Kong.

At the centre of the case is Chan Kam-shing, who is appealing against a life sentence for the 2014 murder of 18-year-old Kwok Ching during a triad gang attack. Chan was not at the scene of the crime, nor did he strike the fatal blow.

Defending Chan, Felicity Gerry, the Queen’s Counsel who successfully overturned the legal principle of joint enterprise in the UK, told the Court of Final Appeal: “My submissions are of critical importance to the integrity and legitimacy of the criminal law of Hong Kong. Without it, we risk losing that integrity and legitimacy.”

Gerry argued that it would be wrong to convict every person in a group for murder just based on foresight and knowledge of a crime, while the prosecution warned that a change in the law could flood the judiciary and Department of Justice with “large numbers” of appeals from ongoing and past cases potentially dating back years.

In 1985, using a Hong Kong case, the UK’s Privy Council, which at that time was the city’s top court, ruled that only foresight was needed for an accomplice to be convicted of murder so long as he or she foresaw the fatal act might be committed by the principal attacker.

The submissions were heard in front of Chief Justice Geoffrey Ma Tao-li, Mr Justice Roberto Ribeiro, Mr Justice Robert Tang Kwok-ching, Mr Justice Joseph Fok and Lord Justice Leonard Hoffmann.

Gerry said the case raised “fundamental questions” around criminal responsibility and the “sufficiency and the individual’s connection with a crime.”

“In our submission, the decision [of the UK Supreme Court] is correct and restores the focus on the onus of offending, very basic criminal law acts and elements, and evidence.’’

Prosecutor Gerard McCoy SC said: “It’s hard to imagine a more structural change to the criminal law than occurred by the judgment in [the UK Supreme Court] because it has rewritten the law of criminal complicity.”

McCoy warned it “is now virtually unobtainable in terms of prosecutorial ability” to secure a conviction if the ruling was accepted in Hong Kong.

In a bid to convince the chief justice about the impact on the law, the prosecution argued for a legal review.

“A consideration of the full criminal justice terrain is important rather than making such a significant individualised change without being able to control the ramifications of its introduction,” McCoy said. “The implications for judicial time – and it’s quite intolerable both on the lordship’s judiciary and the Department of Justice should that have to occur,” added McCoy.

In February, the UK Supreme Court held that the principle of “joint enterprise” was the result of the law taking a “wrong turn” three decades ago.

That “wrong turn” emerged in a UK appeal by Ameen Jogee, who had his conviction for murder overturned on the grounds that the test that he had the foresight to know that his co-accused Mohammed Hirsi might go on to stab a man was incorrect.

The five judges reserved their ruling until a later date.