Abstract
In HKSAR v Tsang Cheung Yan [2022] 1 HKLRD 167, three defendants (D1–D3) were jointly charged with murder (Count 1) before a jury, to which they all pleaded not guilty. They all pleaded guilty to the charge of preventing the lawful burial of a body (Count 2). The prosecution's case was that the defendants invited the deceased to a flat in an industrial building, thereupon killing him by injecting dichloromethane (DCH) into his body and suffocating him by covering his mouth and nose. The deceased's body was later found encased in a “cement block”. Due to advanced decomposition, medical expert evidence could not confirm the exact time and cause of death. It was proposed that the combination of one or more factors among (i) the depressant effect of DCH on central nervous system; (ii) suffocation due to covering mouth and/or nose and putting pillow case and plastic bags on the head of the deceased; (iii) a cerebral blood clot found at the left cerebral hemisphere of the deceased; (iv) cut wounds at left lower chest and abdomen which ruptured the heart, the lung, the diaphragm and the liver, could be the possible causes of death (at [8]).
At trial, whilst directing the jury to consider whether there was a joint enterprise between D1–D3, the jury was asked to first consider whether there was an agreement to apply DCH into the victim. If so, the next step was to consider whether the defendants had the intention to kill or cause grievous bodily harm (at [18]). The court further directed that if the jury concluded a joint enterprise existed but there was no intention to kill or cause grievous bodily harm, the verdict of manslaughter should be returned.
D1 was unanimously convicted of murder (Count 1); D2 and D3 were acquitted of murder but unanimously convicted of the alternative count of manslaughter. Amongst the four grounds of appeal raised by D1, only ground 1, which argued that it was an inconsistent verdict to convict D1 of murder while convicting D2 and D3 of manslaughter based on basic joint enterprise principle (at [33]–[50]), is considered in this case comment.
Commentary
In HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640, the Hong Kong Court of Final Appeal (“HKCFA”) decided not to follow R v Jogee [2017] AC 387 and held both basic joint enterprise and extended joint enterprise remain applicable in Hong Kong. While the decision of HKCFA to retain joint enterprise principles is no doubt controversial, this case note will focus on discussing the HKCA's endorsement of the expansion of basic joint enterprise principle.
When summarising the evidence, the trial judge suggested there was evidence that the defendants might have a plan to kill the victim (i.e., to commit murder), and there was also evidence that they only wanted to rob the victim (i.e., to commit robbery) (at [47]). The verdict of the jury in finding D1 guilty of murder suggests it was satisfied that D1 had the intention to kill the victim. On the other hand, finding D2 and D3 guilty of manslaughter means the jury was satisfied that D2 and D3 were involved in an unlawful act, but was unsure as to whether they had the intent to cause at least grievous bodily harm. In this context, the jury verdict indicates D2 and D3 might have only intended to rob the victim.
As summarised by the HKCFA in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at [52], basic joint enterprise “involves the co-adventurers simply agreeing to carry out and then executing a planned crime (emphasis added).” In parallel, the Hong Kong Judiciary's specimen direction for jury trial states that the finding of basic joint enterprise requires proving the defendants had an agreement to carry out a specific charged crime (at [101–7]).
The trial judge's direction that the jury should find a basic joint enterprise between D1–D3 if there was an agreement “to apply DCH into the victim's body” is highly problematic. First of all, it should be noted that extended joint enterprise is not applicable here because no further crime was committed and the foresight test under extended joint enterprise was never engaged. More importantly, as discussed above, the essence of basic joint enterprise lies in the mutual agreement to commit the charged crime. It is also trite law that mens rea is a critical component of most crimes, including murder. Thus, there simply could not be a mutual agreement to carry out the charged crime of murder when D1 intended to commit murder (Crime A) while D2 and D3 intended to commit robbery (Crime B). As D1–D3 all intended to apply the substance into the victim, there was indeed a basic joint enterprise for assault. However, the defendants were charged with murder, not assault. Proving a mutual agreement to apply DCH is far from establishing a mutual agreement to kill or cause at least grievous bodily harm to the victim. It is unfortunate that the trial judge's direction, which disregarded the crux of joint enterprise as having a mutual agreement to commit a specific charged crime, was unquestioned by the HKCA. It is even more surprising for the HKCA to state that D1–D3 could properly be found to be in a joint enterprise when their individual intentions differed. On the contrary, the distinguishable intentions of the individual defendants ought to be detrimental in establishing a case of basic joint enterprise.
A possible explanation (but not a justification) of the trial judge's approach in the present case is to avoid circularity when asking the jury whether D1–D3 have participated in a joint enterprise of murder. The properly formulated basic joint enterprise direction would arguably be inherently flawed as it engages in circular reasoning. On a proper application of the principle, the jury would be directed that the charge of murder against a defendant can be proven if the jury is convinced that the defendant participated in the basic joint enterprise of murder, meaning that the defendant participated in the agreement to commit murder and had the intention to do so. However, if such participation and the intention to kill can be proven against D1–D3 individually, it would be sufficient to secure a murder conviction without relying on basic joint enterprise, on the basis that D1–D3 have participated in perpetrating the crime of murder “in one way or another” (i.e., either as a principal or an accessory) (Chan Kam Shing at [24]–[25]; Jogee at [88]). When a person has been proven to have participated in an agreement to carry out a crime (and that the crime was eventually carried out), the person has already at least assisted or encouraged the commission of that crime. Accordingly, the person's criminal liability can already be established under traditional accessorial liability. The circularity in a proper direction is therefore that the defendant must be proven to have committed the crime in order to establish his/her participation in the basic joint enterprise, and yet participation in the basic joint enterprise is in turn used to prove the crime. Basic joint enterprise is therefore a redundant concept that completely overlaps with the orthodox principal-accessorial liability. The fact that basic joint enterprise is a problematic principle should however lead to its abolition, not further expansion.
On the facts of this case, it is not necessary to rely on joint enterprise to secure the same conviction. Given that the actus reus of killing was performed and D1 had the intention to kill, he must have participated in the murder “in one way or another”. Thus, he can be convicted either as a principal or accessory to murder (Chan Kam Shing at [24]–[25]; Jogee at [88] and R v Gianetto [1997] 1 Cr App R 1). D2 and D3 could still be convicted of the alternative charge of manslaughter given their participation in applying DCH was an unlawful and dangerous act that led to the victim's death. The further expansion of basic joint enterprise principle is therefore unnecessary and unwarranted.
Another problematic issue in framing a basic joint enterprise as something less than the charged crime would be the trifling of the fundamentally different test (see R v Powell and English [1999] 1 AC 1). While Jogee has abolished the fundamentally different test, it has likely remained good law in Hong Kong as Jogee was not followed by HKCFA. Under the principle, if an accomplice committed a crime that is fundamentally different from what the defendant had contemplated, the defendant should be acquitted of any resulting charges. For example, in AG Reference No.3 of 2004 [2005] EWCA Crim 1882, it was held that when A recruited B to discharge a gun near C to threaten C but, beyond A's contemplation, B deliberately used the gun to kill C, A would not be guilty even of manslaughter. As B's act was of a fundamentally different type to that contemplated by A, B's act falls outside the scope of the joint enterprise. Applying the same logic to Tsang Cheung Yan, D1's intention to kill the victim was possibly fundamentally different from what was contemplated by D2 and D3. If the fundamentally different defence is recognised, one may go as far as to argue that D2 and D3 should be acquitted even of manslaughter when charged under basic joint enterprise. Tsang Cheung Yan's approach has therefore clearly deviated from the well-established case law and has the practical implication of no longer recognising the fundamentally different test. However, it is doubtful as to whether the HKCA has considered this far-reaching implication when approving the judge's direction.
To conclude, Tsang Cheung Yan marks the dangerous expansion of the basic joint enterprise principle in Hong Kong. Insofar as there was an agreement to perform something illegal, parties can now be treated as under the same joint criminal enterprise even when a mutual agreement to commit the charged crime has not been reached. HKCA's approval of the trial judge's direction that there would be a basic joint enterprise if there was an agreement among the defendants to apply DCH is arguably made per incuriam. It ignores the fact that D1–D3 might have intended to commit two different crimes, which sits uncomfortably with the authorities emphasising that mutual agreement to commit the charged crime is the essence of basic joint enterprise. The decision might also have the implication of effectively abolishing the fundamentally different defence which goes hand in hand with joint enterprise. However, such an effect has not been discussed by the HKCA and is very likely to be unintended. It is therefore important for the Hong Kong courts to carefully reconsider the scope of basic joint enterprise and how it should be applied in the future.