“Parasitic accessory liability” – no doubt most readers will now be scratching their heads, and not because of parasitic lice. It is a strange phrase, coined by Professor Sir John Smith. Biologically a parasite is a body that freeloads on another body, to the benefit of the parasitic body only. Figuratively, it usually means older children who will not leave home and still rely on their parents financially. Neither meaning applies here. What we are looking at is the opposite of this. The “parasite” suffers rather than benefits because of the actions of another; they can be convicted of murder when they have not killed. We are looking again at the issue of joint enterprise. Until February 18, 2016, a person could be convicted of murder if they were involved in a situation where another killed the victim and they had foreseen the possibility of such a thing happening. This is a simplification, but is accurate to explain the legal position. A defendant who had not killed could be convicted of murder by a jury on a lower level of mental culpability than the actual killer In R v Jogee, a joint Privy Council/Supreme Court ruling reversed what they described as 30 years of error concerning an important element of the joint enterprise rule in murder cases. This is a common law principle, which, unless there is specific statutory provision, applies to all common law jurisdictions, including Hong Kong. This is appropriate because the rule that was significantly revised stems from a 1985 Hong Kong case called R v Chan Wing-sui, which had gone to the Privy Council. This opened up the potential for culpability for murder for people who had not, in fact, actually caused death. It is important to understand that basic fact; people who actually kill are not and have never been covered by the rules stemming from Chan Wing-sui. The shocking development, which I have criticised in criminal law lectures going back 30 years, is that a defendant who had not killed could be convicted of murder by a jury on a lower level of mental culpability than the actual killer. The latter could only be convicted if the jury were satisfied that he/she intended to kill or cause the victim really serious injury. Whereas the non-killing accessory could be convicted if the jury were satisfied that they had merely foreseen the possibility that death might be caused. The ruling makes it clear that there is a difference between foresight and intention. Foresight might be evidence of intention but, also it might not. The jury must now be satisfied that a defendant accused of being a secondary party had the foresight that death or really serious injury would be caused and further, that they had the intention that that should happen. Many secondary parties are deserving of a fixed term sentence based on a conviction for manslaughter. They do necessarily deserve the most severe of sentences Ordinary people, and some criminal lawyers, might be puzzled or even upset about this. If you have participated in any way in an incident leading to death, and let us never forget the victim, surely you should be convicted of murder. The court in Jogee dealt with this by mentioning two important issues. The first is fair labelling; murder is more culpable than manslaughter and there has to be a distinction between these two crimes. Secondly, fair discrimination in sentencing. The mandatory sentence for murder is life imprisonment. Many secondary parties are deserving of a fixed term sentence based on a conviction for manslaughter. They do necessarily deserve the most severe of sentences. I doubt if this ruling will lead to many successful appeals. The facts of many such cases are likely to trigger the use of the “proviso” by the Court of Appeal – that the application of the law at trial was wrong but no actual miscarriage of justice occurred. On the facts, Chan Wing-sui was a clear case of common enterprise murder where all three defendants were equally culpable. In my view Jogee could be regarded as fortunate that his murder conviction was reduced to manslaughter. Another Hong Kong case, Hui Chi-ming, might now be regarded as of doubtful safety. Facts are everything. Andrew Raffell is a barrister who has practised criminal law in Hong Kong for over 25 years