Chapter 3  
Case of Public Interest or Concern

HKSAR v Chan Kam Shing (FACC No. 5 of 2016)

The doctrine of joint enterprise in criminal law as applied in Hong Kong has been based for many years on the Privy Council’s decision in Chan Wing Siu v R,1 endorsed by the Court of Final Appeal in Sze Kwan Lung v HKSAR2.

This doctrine came under the scrutiny of the Court of Final Appeal of Hong Kong (CFA) in HKSAR v Chan Kam Shing in FACC 5/2016. The question in the appeal was whether the doctrine of criminal joint enterprise should continue to be applied in the light of the decision of the United Kingdom Supreme Court in R v Jogee and R v Ruddock3 disapproving Chan Wing Siu.

The UK Supreme Court in R v Jogee and R v Ruddock held that Chan Wing Siu was wrongly decided and that the doctrine of joint enterprise should be abolished. It has confined mens rea for secondary liability to intentional assistance or encouragement to a principal offender, that criminal liability for participation in the other person’s offence be established by applying a different set of principles involving aiding, abetting, counseling or procuring the other person’s crime.

In Chan Kam Shing, the appellant, a triad member, along with his fellow gang members received an order from their triad boss to locate and "chop" members of a rival faction. They armed themselves with weapons and set off in two cars to search for their rivals. Having heard that gang members in the other car had located the intended victims, those in the appellant’s car immediately drove to the scene to assist. When the appellant arrived at the scene, the deceased was already lying on the ground after having been attacked by four or five persons with knives as well as 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 or death of the deceased.

The appellant was convicted of murder, based on his active participation in a joint criminal enterprise, meaning an agreement with others to attack the followers 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 CFA with the assistance of legal aid and obtained leave to appeal to the CFA on the following question of law: -

“What is the law of Hong Kong regarding the doctrine of joint enterprise, namely should Chan Wing Siu v R [1985] 1 AC 168 and Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475 continue to be applied in the light of R v Jogee and R v Ruddock [2016] 2 WLR 681.”

Applicability of the decision of Jogee is an issue of great and general importance to the development of criminal justice in Hong Kong. The Queen’s Counsel instructed by Jogee was briefed to represent the appellant in the CFA.

Having heard arguments, the CFA respectfully disagreed with Jogee for three reasons. First, it did not accept that the joint criminal enterprise doctrine over-extended the accomplice’s liability. It considered that persons who participated in a criminal joint venture foreseeing that in the course of carrying it out, one of the joint venturers might commit a more serious offence (such as murder) and proceeded with the joint venture with such foresight should be treated as gravely culpable and held liable as an accomplice. Secondly, the CFA considered that the abolition of the joint criminal enterprise doctrine would leave a serious gap in the law of criminal complicity depriving it of valuable principles for dealing with evidentially unclear and fluid situations arising in relation to crimes committed by more than one person. Thirdly, the CFA considered that the concept of “conditional intent” introduced in the Jogee decision caused conceptual and practical difficulties. The CFA therefore concluded that Jogee should not be adopted and that the joint criminal enterprise doctrine as expounded in Chan Wing Siu continues to apply in Hong Kong. As the appellant’s guilt was properly established both on principles of accessorial and joint criminal enterprise liability, the CFA dismissed the appeal accordingly.
 
Note:

1. [1985] 1 AC 168
2. (2004) 7 HKCFAR 475
3. [2016] 2 WLR 681

 

Yung Chi Keung v Protection of Wages on Insolvency Fund Board
and Commissioner for Labour (FACV 14/2015)

In 1985, the Protection of Wages on Insolvency Fund (“the Fund”) was established under Section 6 of Protection of Wages on Insolvency Ordinance, Cap. 380 (“PWIO”). The Fund is administrated by the Protection of Wages on Insolvency Fund Board (“the Board”) under Section 3 of PWIO. If an employer has become insolvent (i.e. in bankruptcy, winding up or receivership), an employee may apply for an ex-gratia payment from the Fund in respect of his wages, wages in lieu of notice, severance payment, accrued holiday remuneration or other sums due from the insolvent employer.

The Appellant was employed by his former employer as a driver from 1999 to 2011. On 7.10.2011, his former employer went into voluntary liquidation. The Appellant together with 48 fellow employees filed claims with the Labour Department for arrears of wages, wages in lieu of notice and severance payment. The Appellant was granted and received ex-gratia payment in relation to the claims under arrears of wages and wages in lieu of notice. For severance payment, no ex-gratia payment was granted by the Commissioner for Labour and the decision was upheld by the Board on review.

With the assistance of legal aid, the Appellant applied to the High Court to judicial review the decision of the Board. His application was dismissed. The Appellant’s appeal was also dismissed by the Court of Appeal. The Appellant obtained leave to appeal to the Court of Final Appeal (“the CFA“) on the ground that the true interpretation of Section 16(1) and other related provisions in PWIO regarding how the amount of an ex-gratia payment should be fixed is of great general or public importance. On 17.5.2016, the CFA quashed the decision of the Board in refusing to pay ex-gratia payment on account of the severance payment to the Appellant and declared that the Appellant is entitled to severance payment of $25,377.50.

By virtue of Section 15(1)(c), 16(1)(b) and 16(2)(f)(i) of PWIO, an employee who is owed severance payment by his employer may apply to the Board for an ex-gratia payment from the Fund. Section 15(1)(c) stipulates the situation in which an application can be made for the ex-gratia payment. Section 16(1)(b) authorizes the Commissioner for Labour to effect the ex-gratia payment. Section 16(2)(f)(i) provides the calculation of the maximum amount of the ex-gratia payment that the Commissioner can pay out of the Fund to the applicant. The upper limit provided under Section 16(2) is: first $50,000 plus 50% of the employee’s entitlement to severance payment in excess of $50,000.

It is not disputed that the Appellant was entitled to severance payment calculated under Section 31G of the Employment Ordinance, Cap 57 (“EO”) at $131,696.54 and he had received mandatory provident fund (employer’s contribution) (“MPF”) amounted to $106,319.04 under Section 31I of the EO (“the Section 31I benefits”).

According to the calculation of the Commissioner for Labour, the maximum amount of ex-gratia payment payable to the Appellant under Section 16(2)(f)(i) was :-

  $50,000 + ($131,696.54 – $50,000) ÷ 2 = $90,848.27

The Commissioner for Labour submitted that according to Section 31I of the EO, the employer’s accumulated MPF benefit for the employee could be used to offset the severance payment. Since the Appellant had already received $106,319.04 of MPF benefit to offset the amount of severance payment due to him by his employer, the Appellant’s entitlement to severance payment exceeds the maximum ex-gratia payment of $90,848.27. Hence the Appellant was not awarded any ex-gratia payment in respect of his severance payment.

  $90,848.27 – $106,319.04 = (- $15,470.77)

The Appellant did not dispute in the Commissioner’s calculation of the upper limit of the ex-gratia payment. However, the Appellant argued that construing Section 15(1)(c) and 16(1) of PWIO as a whole, the severance payment mentioned in Section 16(1) of the PWIO must be the part of the severance payment that is outstanding after the deduction of the Section 31I benefits because if the Section 31I benefits should wholly offset the severance payment, there would be no unpaid severance payment payable. It was therefore wrong in law for the Commissioner for Labour to deduct the Section 31I benefits from the ex-gratia payment.

The Appellant further submitted that if the amount of the unpaid severance payment exceeds the upper limit of the amount calculated under the PWIO, the Commissioner for Labour shall make an ex-gratia payment equivalent to the upper limit. If the amount does not exceed the upper limit, the Commissioner for Labour must then pay the full amount of the unpaid severance payment as an ex-gratia payment.

Since the Appellant’s unpaid severance payment $25,377.50 (i.e. $131,696.54 - $106,319.04) is less than the maximum ex-gratia payment of $90,848.27 payable to him, he argued that he was entitled to this amount as ex-gratia payment.

The question before the CFA was one of statutory interpretation and how to calculate (for the purposes of applying the said formula) the appropriate amount of severance payment to which the Appellant was entitled in order to arrive at the amount of ex-gratia payment (if any) that can be made under the PWIO. The specific question was how and at what stage to take account of the Section 31I benefits.

It was held by the CFA that given the statutory definition of severance payment in Section 2 of PWIO and the wordings of Section 16(1), Section 16(1B) and Section 16(2)(f)(i)of PWIO, it is clear that the financial limit set out in Section 16(2)(f)(i) of PWIO is to be applied to the actual amount of severance payment owing to an employee. In the Appellant’s case, the actual or net amount of severance payment due to him is the original entitlement to severance payment calculated under Section 31G of the EO less the Section 31I benefits. This net amount will accordingly be the figure in respect of which the financial limits in Section 16(2)(f)(i) of PWIO are to be applied. As the net amount of severance payment to which the Appellant was entitled was less than the financial limits, the CFA allowed the Appellant’s appeal, quashed the decision of the Broad and declared that he was entitled to be paid an ex-gratia payment under PWIO in the sum of $25,377.50 on account of the severance payments.
 
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