• In the case of Chan Wing-Siu v The Queen [1985] AC 168, the Privy Council ruled that if the defendant foresees that the principal may commit the offence then through joint enterprise, the defendant is guilty of homicide.
  • This case concerned the principle of accessory liability.
  • This criminal law case was about conviction for murder and wounding with intent.

Facts of the Case

  • The three alleged perpetrators were charged with murder contrary to common law and with wounding with intent after stabbing someone in their place of residence.
  • While the defendant simply took part in this armed robbery and burglary, he claimed that he was not the one who stabbed him instead another perpetrator did.

Issues

  • Was the accused guilty of murder?
  • Was there joint enterprise?
  • Can this be proven beyond reasonable doubt?

Held by Privy Council

  • Appeal dismissed – the defendant is liable for foreseeing the chance that the principal may commit the offence.

Sir Robin Cooke

Foresight

  • “[A] secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be expressed but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.”

Remoteness

  • “Although a risk of a killing or serious bodily harm has crossed the mind of a party to an unlawful enterprise, it is right to allow for a class of case in which the risk was so remote as not to make that party guilty of a murder or intentional causing of grievous bodily harm committed by a co-adventurer in the circumstances that in the event confronted the latter. But if the party accused knew that lethal weapons, such as a knife or a loaded gun, were to be carried on a criminal expedition, the defence should succeed only very rarely.”
  • “In cases where an issue of remoteness does arise it is for the jury (or other tribunal of fact) to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal. Various formulae have been suggested, including a substantial risk, a real risk, a risk that something might well happen. No one formula is exclusively preferable; indeed it may be advantageous in a summing up to use more than one. For the question is not one of semantics. What has to be brought home to the jury is that occasionally a risk may have occurred to an accused’s mind, fleetingly or even causing him some deliberation, but may genuinely have been dismissed by him as altogether negligible.”

Editor’s Notes

  • The joint enterprise position was then established by R v Jogee [2016] UKSC 8 thereby overruling the outcome of this case.

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