HKSAR v. Leung Kwok Hung

HCMA 234/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 234 OF 2012

(ON APPEAL FROM KCCC 3676/2011)

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D E C I S I O N

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1.The following is my judgment on the matter.

2.There is a change in the wording of the question of law in the amended motion.  In substance, however, the motion is still premised on the correct application or otherwise of the doctrine of joint enterprise.

3.Where joint enterprise is alleged, all the accused persons are co-principals.  They are responsible for their own acts and where the appropriate conditions are fulfilled, also responsible for the acts of others.  This doctrine brings within the reach of the law co-principals whose acts are less immediately apparent in forming the actus reus of the offence.  It does not exempt from criminal liability a co-principal whose own act is sufficient to ground his or her conviction – in the event that the allegation of joint enterprise comes to nothing.

4.The appellant (D1) comes within the second of the above‑mentioned categories of co-principals.  His conviction does not fall away because on appeal, the common design required to establish joint enterprise is found lacking in support on the evidence as regards the other accused persons (D2 to D5).

5.By up-holding the appellant’s conviction on Charge (3) and, for that matter Charge (4), this Court has not as alleged convicted him on a basis different from that in the trial.  The point of law whose certification the appellant now seeks is misconceived.  His application is dismissed.

Mr William Tam, DDPP & Mr Cliff Ip, PP of the Department of Justice, for the respondent

Mr Martin Lee, SC leading Ms Linda Wong & Ms Annie Leung instructed by Ho Tse Wai, Philip Li & Partners, for the applicant

Please refer to FAMC38/2014 for the relevant appeal(s) to the Court of Final Appeal.