Editorial | The doctrine of joint enterprise must be handled with caution

The doctrine of “joint enterprise” involves the application of technical legal rules. But at its heart lies the objective of ensuring those who participate in crimes are brought to justice.

The principle makes it easier for the prosecution to overcome difficulties in proving an offender’s culpability. It applies to all laws in Hong Kong unless excluded by statute.

The finding by the Court of Appeal last month that joint enterprise can be used to convict those involved in a riot or unlawful assembly is not, therefore, particularly controversial. There is, however, a need for caution when applying the principle to cases involving peaceful protests that turned violent.

Joint enterprise has been developed by the courts to get around the strict rules governing the proof needed to convict an accessory to a crime. In a triad gang killing, for example, it may not be possible to prove which attacker struck the fatal blow. But all involved could be liable for murder under the principle of joint enterprise. This would apply to those who agreed to carry out the attack and foresaw that serious harm might be done to the victim.

The principle has been abolished in England in cases where matters escalate and the crime committed is more serious than that originally planned. But in Hong Kong, the Court of Final Appeal took a calculated decision in 2016 to maintain it in such circumstances.

Last month’s case arose because a judge, when acquitting three protesters accused of riot, said joint enterprise did not apply to that crime. The Department of Justice appealed, to clarify that it does. It did not seek to overturn the acquittals of the three accused.