法律援助署五十周年紀念特刊 | Legal Aid Department 50th Anniversary Commemorative Publication

香港應否跟從英國最高法院 就共同計劃的刑法法則所作的判決 Should Hong Kong follow U.K. Supreme Court’s decision on the doctrine of criminal joint enterprise 終審法院刑事上訴2016年第5號 FACC No.5 of 2016 上訴人：陳錦成 Appellant: Chan Kam-shing 答辯人：香港特別行政區 Respondents: Hong Kong Special Administrative Region (HKSAR) 終審法院判決日期：2016年12月16日 Date of Court of Final Appeal Judgment: 16 December 2016 類別：刑事法 Category: Criminal Law 個案重溫 Case Study 案件背景 ． 上訴人是三合會成員，他和幫會其他成員接到幫 會頭目的命令，要去找出和「斬」敵對幫派的成 員。上訴人到達現場時，死者已因之前被人用刀 襲擊和遭汽車輾過而躺在地上。 ． 案中並無證據證明上訴人在死者受襲期間在場， 也沒有證據證明上訴人曾作出任何行為導致死者 受傷或死亡。 ． 上訴人於原訟法庭被裁定謀殺罪名成立，理據為他 曾積極參與一個共同犯罪計劃，即與他人協議襲擊 敵對幫派成員，意圖對他們造成嚴重身體傷害。 ． 上訴法庭維持上訴人的定罪裁決，並裁定上訴人 的行為構成對幫會其他成員及實際兇手的鼓勵。 ． 上訴人上訴至終審法院，並獲得上訴許可。 Case Background ． The appellant was a triad member. Along with his fellow gang members, he received an order from their triad boss to locate and “chop” members of a rival faction. When the appellant arrived at the scene, the deceased was already lying on the ground after having been attacked by knives and also run over by a car. ． There was no evidence that the appellant had been present during the attack on the deceased or that he had himself done any act which caused injury to or death of the deceased. ． The appellant was convicted of murder by the Court of First Instance, based on his active participation in a joint criminal enterprise, which was an agreement with others to attack members of the rival faction with intent to cause them grievous bodily harm. ． The appellant’s conviction was upheld by the Court of Appeal which also held that his conduct constituted encouragement to the others in the gang, including the actual killers. ． The appellant took his case to the Court of Final Appeal and obtained leave to appeal. P.76 法治基石、彰顯公義 Legal Aid for the Rule of Law and Justice