Opinion | In murder and matters of justice, facts are everything
A recent court ruling on joint enterprise killings clarifies the difference between foresight and intention
“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.