Should the extended joint enterprise principle be retained? A critical evaluation of the divergent approaches between England and Wales and Hong Kong

Abstract

The extended joint criminal enterprise principle, also known as parasitic accessorial liability, had been widely recognised as an independent basis for attributing criminal liability in both England and Wales and Hong Kong. The paths of the two jurisdictions diverged in 2016 with the United Kingdom Supreme Court (UKSC) decision in Jogee and the Hong Kong Court of Final Appeal (HKCFA) decision in Chan Kam Shing. In Jogee, the UKSC abolished the application of the extended joint enterprise principle and restated an intention-based account of accessorial liability. In contrast, in Chan Kam Shing, the HKCFA refused to follow Jogee’s approach and retained the extended joint enterprise principle. This article examines why the HKCFA refused to follow Jogee and whether it was correct to do so. It is argued that the UKSC’s approach should be preferred and that the extended joint enterprise principle should be abolished.