UNIVERSITY OF HONG KONG

Faculty of Law

2023-24

CRIMINAL LAW I & II

LLAW2003 – Criminal Law I

LLAW2004 – Criminal Law II

TOPIC 9
EXTENDING CRIMINAL RESPONSIBILITY

COMPLICITY
- PARTICIPATION LIABILITY -

I. PRINCIPALS
II. SECONDARY PARTIES

- ACCESSORIES -

Liability based on Helping or Encouraging

the principal to commit an Offence

(‘Aiding, Abetting, Counselling & Procuring’)

(Second Semester – Weeks 9 & 10)

(Thursday, 14 & 21 March 2024)

Course Co-ordinator: Michael Jackson

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 Criminal Law I & II 2023-24

TOPIC 9: EXTENDING CRIMINAL RESPONSIBILITY

COMPLICITY : PARTICIPATION LIABILITY

I. PRINCIPALS
II. SECONDARY PARTIES : ACCESSORIES
- Helping & encouraging
another (Principal) to commit an offence -
So far, we have examined the context and general content of criminal law doctrine, including the
basic principles used to construct and assess liability and some of the offences under HK law.
Most of this has been directed at the person who allegedly committed the offence, whom we call
the ‘principal’. But in addition to this person, criminal law provides for the prosecution and
conviction of others who are complicit - who participate - in the commission of the offence in
various ways. Think, for example, of a gang of bank robbers - one drives the car, another keeps
watch outside, while two others go into the bank, one of whom points a gun at the bank teller
while the other takes money from the teller’s desk. It seems natural to say they have all committed
robbery, but there are clearly differences between the ‘parties’ - the two inside the bank have
jointly performed the acts constituting the external elements of robbery (one threatens force, the
other steals the money), but the other two have not. On what basis then can we prosecute and
convict these other two of robbery?

In this topic, we will examine this question. We will see that criminal liability extends beyond the
person(s) who commit the offence (in the sense of performing its actus reus with mens rea) (whom
we call the ‘principal(s)’) to others who participate in its commission:

either as ‘secondary parties’ (or ‘accessories’): by ‘helping’ or ‘encouraging’ (or, more

traditionally, ‘aiding, abetting, counselling or procuring’) the principal(s) to commit the offence

or as parties to a ‘joint enterprise’ (‘JE’) : by agreeing with the principal(s) to commit a crime,
which the principal(s) then commits pursuant to and while carrying out the JE (‘joint enterprise
liability’)

Importantly, we will see that secondary party (‘accessory’) liability is essentially ‘derivative’ (ie.
it depends on proof of the commission of an offence by the principal offender), and that it is based
on proof of conduct and mental fault elements that are different from those constituting the actus
reus and mens rea of the offence committed by the principal.

By contrast, ‘joint enterprise liability’ is now regarded in HK as a distinct basis of liability, which
includes liability not only for the offence(s) which the parties to the joint enterprise set out to
commit (‘basic joint enterprise’), but also for additional offences committed by one of the parties
while carrying out the joint enterprise if they were ‘contemplated’ by other parties ‘as possible
incidents’ of carrying out the joint enterprise, and they still participated.

This Handout deals with Principals, and with Secondary Party (or ‘Accessory’) liability.

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Learning Outcomes

By the end of this part of Topic 9, students should:

1. Be familiar with and able to explain in considerable detail the notion of accessory liability
under the criminal law of Hong Kong, and its nature as a substantive basis of liability which
differs from that applicable to a principal (P);
2. More specifically, be able to explain in detail the nature and elements of accessory liability
based on helping or encouraging another (the principal) to commit an offence (or, using
traditional language) liability for ‘aiding, abetting, counselling and procuring’);
3. Be able to outline why ‘procuring the actus reus of an offence with mens rea of that offence’
may constitute a new common law offence;
4. Be able to outline and assess the circumstances in which an accessory may successfully
withdraw or disassociate from liability for an offence which he may have helped or encouraged
by conduct prior to its commission;
5. Be familiar with and able to outline the basis of liability for conduct after commission of
an offence.

Required reading:
 A-G’s Ref (No.1/1975) [1975] QB 773 (EWCA)) [CB2 715]
 Calhaem [1985] 1 QB 808 (EWCA) [CB2 718]
 HKSAR v. Chan Kam Shing (2016) 19 HKCFAR 640 [CB2 722]

INTRODUCTION
General Reading:
M Jackson, Criminal Law in Hong Kong, Chap. 8, pp.329-402
1. Terminology
Principal/Primary offender
- the perpetrator – ‘the one who, with the necessary fault elements, does the acts
constituting the external elements of the offence’

Prior to abolition of distinction between felony and misdemeanour:

- Principals - in the first degree - in the second degree
- Accessory before the fact / Accessory after the fact

Secondary parties : secondary liability

- persons who may be convicted of an offence other than as a principal

Accessories (also ‘accomplices’)

- secondary parties who ‘participate’ in the commission of an offence by helping or
encouraging another (principal) to commit the offence

Complicity in/participation in (noun)

- the fact or condition of being involved with others in an unlawful activity

Parties
- all those who participate in, and are liable for, the commission of a criminal offence (ie.
whether as a principal or secondary party)

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[Note: hereafter, we will use P to refer to principal, and D2 to refer to an accessory]

NOTE For a detailed discussion of the law in Hong Kong up to 2011, see J Brabyn, ’Secondary
Party Criminal Liability in Hong Kong’ (2011) 40 HKLJ 623-657

I. LIABILITY AS A PRINCIPAL (P)

- principal offender: liability based on commission of AR of offence with MR
- 'joint principals': where two (or more) persons each commit acts amounting to the AR
or each do part of the A/R

- 'innocent agent' : exceptionally, someone who does not personally commit the
AR may be treated as the principal

Bourne (1952) 36 Cr App R 125

R v. Wheelhouse [1994] Crim LR 756 (Eng CA) [CB2 713]

nb. in some circumstances it may not be ‘legally’ possible to hold D2 liable as

the principal

eg. Ram & Ram (1893) 12 Cox CC 709

Cogan & Leek [1976] QB 217

Cf. DPP v. K & B [1997] 1 Cr App R 36 (Eng QBD) [CB2 736]

ALWAYS IDENTIFY THE PRINCIPAL AND HIS or HER OFFENCE

FIRST : THEN TURN TO CONSIDER PARTICIPATION LIABILITY

II. SECONDARY LIABILITY (D2) : ACCESSORIES – LIABILITY

FOR HELPING & ENCOURAGING

1. General foundation of secondary liability

Liability for ‘helping’ and ‘encouraging’ (including ‘causing’) the principal to
commit an offence – based on D2’s individual conduct

 Smith & Hogan (14th ed., 2015) calls this ‘basic secondary liability’ (p.213)

(a) Nature

Common law in origin, now (partially) codified in s 89 CPO (cap 221), using traditional
terminology:

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'Any person who aids, abets, counsels or procures the commission by

another person of any offence shall be guilty of the like offence.'

Note: historically, persons who ‘aided and abetted’ were called ‘principals in the second
degree’ and persons who ‘counselled and procured’ were called ‘accessories before the
fact’ : now no difference in the applicable principles of liability

(b) Derivative liability

(i) ‘the commission by another person of any offence’ : ie. the principal (P)

(ii) ‘shall be guilty of the like offences’

- s.89 does not create an offence of 'aiding, abetting, counselling or procuring'

- exceptionally, ‘aiding’, ‘abetting’, ‘counselling’ or ‘procuring’ may expressly

constitute the elements of a distinct offence

eg. s.33B, OAPO : ‘aiding, abetting, counselling or procuring the suicide of another’ :
since ‘committing suicide’ is no longer an offence, someone who helps, encourages,
or procures a suicide cannot be liable as a secondary party. Instead, ‘aiding, abetting,
counselling or procuring’ constitute the elements (AR and MR) of the offence created
by s.33B (pf. with the same meaning as these terms used in s.89)

eg. s. 135, CO : ‘causing’ or ‘encouraging’ prostitution with a person under 16 : here,

‘causing’ and ‘encouraging’ are elements of the offence

- some ordinances reproduce s.89 (or something similar to it) for the purposes of
the particular ordinance (or a particular Part of it)

eg. Part V, Crimes Ordinance (Cap 200), deals with Perjury : s.38(1) provides : ‘Any
person who aids, abets, counsels, procures or suborns another person to commit an
offence against this Part shall be liable to be proceeded against, indicted, tried and
punished as if he were a principal offender.’ [note: ‘suborn’ means ‘to induce by
bribery’]

- Note also in the UK: ‘intentionally encouraging or assisting an offence’ +

‘encouraging or assisting offences believing one or more will be committed’
became offences in their own right, pursuant to Part 2, Serious Crime Act 2007 :
these offences involve ‘inchoate’ liability (ie. liability as a principal for what D
does prior to actual commission of an offence, even if intended offence is not
actually committed) : these offences replaced the common law offence of
incitement, which continues to exist in HK

(c) Accessory liability : based on D2’s own individual conduct

Liability based on proof D2 ‘helped or encouraged’ P by D2’s individual conduct/acts

before or during the commission of the offence by P (ie. under s.89)

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cf. liability based on proof D2 ‘participated’ in a ‘joint enterprise’ with P to commit the
offence - often overlaps with aiding, abetting, counselling or procuring - but regarded in
HK as a distinct basis of liability (see Topic 9 : III. Joint Enterprise Liability)

 note: this alternative basis of liability was abolished in the UK (see Jogee : below) –
instead, proof D2 was a party to a ‘JE’ simply provides evidence which P may rely on
to establish D2’s liability as an accessory for aiding, abetting, etc

2. Conduct after commission of offence

At common law, liability (as an ‘accessory after the fact’) existed in relation to felonies
(but not misdemeanours) : abolished and replaced by the following statutory offences

(i) Assisting or helping after commission of offence : s. 90 CPO (see Appendix)

- note: imposes liability on D as a principal for assisting or helping after offence

(but a person who helps, encourages or causes P to assist or help might be liable
as a secondary party to the commission of an offence against s.90)
(ii) See also concealing (and false reporting) : s. 91 CPO (see Appendix)

cf. offences in Police Force Ordinance (cap.232) :

 s.63 : includes misleading officer by false information
 s.64 : making false report of commission of offence, etc.

3. ‘Helping or encouraging’ : ‘A/A/C/P’ : ‘ordinary meanings’

AG's Ref (No. 1 of 1975) (1975) QB 773 (Eng CA) [CB2 715]

‘We approach [s 89] on the basis that the words be given their ordinary meaning, if possible. We
approach the section on the basis also that if four words are employed here, ‘aid, abet, counsel or
procure,’ the probability is that there is a difference between each of those four words and the other
three, because, if there were no such difference, then [LEGCO] would be wasting time in using four
words when two or three would do.’ [at 693]

(a) ‘AR’ : Conduct element

Aiding : assistance or help at time of commission of offence : may be provided by acts
done prior to or during the commission of the offence : generally, D2 is present at the
scene when offence committed (but not an absolute requirement)

Abetting : encouragement, instigation, incitement : given at the time of the commission

of the offence : pf. D2 present

- ‘Presence’ as basis of liability?

 ‘presence’ can ‘assist’ (eg. by providing ‘force of numbers’), or ‘encourage’, but Pros.
must prove that D2 ‘actively’ assisted or encouraged D1 by D2’s presence
 must be ‘voluntary’ presence : more than ‘mere presence’

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Coney (1882) 8 QBD 534; Allen [1965] 1 QB 130

HKSAR v. Nanik (Aug 2018) [2018] HKCA 500, CACC 114/2016 [CB2 732]

Counselling : encouragement, instigation, incitement : given before the commission of

the offence : D2 may or may not then be present at the scene

- exceptionally liability may rest on on ‘passive encouragement’ : ie. not stopping P

eg. where D2 under duty to control

National Coal Board v. Gamble [1959] 1 QB 11

Tuck v. Robson [1970] 1 All ER 1171
HKSAR v. Chu Wai San (2008) CACC 311/2006 (HKCA), [2008] HKLR 18 [CB2
725]

Procuring : 'produce by endeavour' : causing the commission of offence : generally based

on conduct prior to the commission of the offence

AG's Ref (No. 1 of 1975) (1975) QB 773 (Eng CA) [CB2 715]

Connection between principal and party?

- generally speaking, not necessary to prove D2’s conduct ‘caused’ D1 to commit the
offence : instead, must be a ‘connection’ between D2 and D1

- aiding : must show D2’s conduct ‘contributed to’ commission of offence by D1, but no
further need for either mental or causal connection

- abetting/counselling : requires consensus : ‘mental connection’ : ‘meeting of minds’

(but no need for causal connection) : R v. Calhaem [1985] 1 QB 808 (Eng CA) [CB2
718]

- procuring: must prove D2’s conduct ‘brought about’ the commission of offence by D1 :
pf. this is a causal connection (no need for consensus)

Based on actual conduct : what D2 has done (not what D2 intends to do) :
HKSAR v. Chung Yiu Lam [2020] HKCA 435

(b) ‘MR’ : Mental/fault element

- No need to prove D2 had the same M/R required to convict P (of offence as principal)

HKSAR v. Chan Kam Shing (2016) (CFA) [CB2 722]

HKSAR v. Chu Wai San (2008) [CB2 725]

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- Instead, broadly speaking prosecution must prove:

 D2 ‘knew’ all the ‘essential matters’ which made/would make P’s conduct an
offence

Johnson v. Youden [1950] 1 KB 544 : ‘wilful blindness’ may suffice

 strictly applied, this would require the prosecution to prove BRD that D2 knew P’s
intended offence in ‘detail’ : ie. knew what P was going to do, when, in what
circumstances, and with what MR
 but the courts have adopted a broader MR position, according to which the
prosecution may prove P’s [actual] offence was:

 ‘type’ of offence which D2 ‘knew’ P would commit : R v. Bainbridge [1960] 1 QB

129 : eg. ‘burglary’ : need not know ‘details’

 within the ‘range’ of offences D2 ‘knew’ (or ‘contemplated’?) P ‘would commit’

: DPP for NI v. Maxwell [1978] 1 WLR 1350 (HL)

 note: prior to Jogee in the UK (UKSC) and Chan Kam Shing in HK (CFA),
some courts formulated an even weaker MR position based on ‘recklessness’
(foresight) : based on D2 having ‘contemplated a real risk’ that P ‘would’
commit an offence (note: contemplating a ‘real risk P would’ = contemplating
‘P might’)

 note: some HK cts have ‘adopted’ this view : see eg. HKSAR v. Nanik
[2018] HKCA500, CAAC 114/2016 [CB2 732], in which the HKCA affirmed a
trial direction given in the terms set out in such terms following the (then)
Specimen Directions approved by the Judicial Institute

 now rejected in light of Jogee / Chan Kam Shing : see also revised
Specimen Directions (Nov 2020)

and

 D2 intended to help or encourage (or ‘procure’) P to ‘do the things which

constitute the offence’

Clarkson [1971] 3 All ER 344

HKSAR v. Chan Kam Shing (2016) (CFA) [CB2 722]

pf. this requires proof that when D2 did acts which factually helped or
encouraged P to commit the offence (or ‘procured’ P to do so) , D2:

(i) knew D2’s conduct was capable of helping or encouraging (or causing) P to
act; AND
(ii) D2 intended D2’s conduct to have that effect (rather than to hinder or obstruct
the commission of the offence)

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note: in most cases, proof of (i), along with D2’s deliberate decision to go ahead
with acts of assistance/encouragement/procuring, will justify an inference of (ii)

Cf. Gillick v West Norfolk & Wisbech Area Health Auth’y [1986] AC 112 (HL)

- inferring intention from presence?

Coney (1882) 8 QBD 534; Allen [1965] 1 QB 130

HKSAR v. Nanik (Aug 2018) [2018] [CB2 732]

- reliance on oblique intention?

HKSAR v. Chung Yiu Lam [2020] HKCA 435

see also Simister, ‘The Mental Element in Complicity’ (2006) 122 LQR 578

(c) Relevance of D1 and D2 acting pursuant to a ‘joint enterprise’?

- If D1 and D2 (and others) set out with an agreement to ‘commit an offence’, this amounts
to a ‘joint enterprise’ between them. How is the existence of this joint enterprise, and D2’s
participation in the ‘joint enterprise’ relevant in proving D2’s liability as a secondary
party/accessory by virtue of aiding, abetting, counselling or procuring?

- In Jogee, the UK SC explained the relevance as follows:

‘[78]. As we have explained, secondary liability does not require the existence of an
agreement between D1 and D2. Where, however, it exists, such agreement is by its nature
a form of encouragement and in most cases will also involve acts of assistance. The long
established principle that where parties agree to carry out a criminal venture, each is liable
for acts to which they have expressly or impliedly given their assent is an example of the
intention to assist which is inherent in the making of the agreement. Similarly, where
people come together without agreement, often spontaneously, to commit an offence
together, the giving of intentional support by words or deeds, including by supportive
presence, is sufficient to attract secondary liability on ordinary principles. We repeat that
secondary liability includes cases of agreement between principal and secondary party, but
it is not limited to them.’

- but what if D1 commits a ‘different’ offence to that which the parties to the joint
enterprise set out to commit? How can D2’s ‘intention’ to assist or encourage D1 to commit
that different offence be established? In Jogee, the UK SC elaborated on this ‘difficulty’,
relying for this purpose on ‘conditional intention’, as follows:

‘[94]. If a jury is satisfied that there was an agreed common purpose to commit crime A,
and if it is satisfied also that D2 must have foreseen that, in the course of committing crime
A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the
conclusion that D2 had the necessary conditional intent that crime B should be committed,
if the occasion arose; or in other words that it was within the scope of the plan to which
D2 gave his assent and intentional support. But that will be a question of fact for the jury
in all the circumstances.’

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[Note: Jogee’s reliance on ‘conditional intention’ to explain liability in such cases

is one of the key criticisms of Jogee by the HKCFA in Chan Kam Shing; see next
Outline]

(d) ‘Overwhelming supervening act’ (‘OSA’) :

Uncertainty : can D2 claim that what D1 did was an ‘overwhelming supervening event’,
such that D2 should be absolved of liability for D1’s act (and the offence based on
commission of that act)? If so, in what circumstances?

 note: prior to abolition in the UK of ‘joint enterprise liability’ as a separate basis of

liability as a party, parties to a joint enterprise resulting in death often argued that
‘D1’s conduct (resulting in death) involved a ‘fundamental difference’ from the
acts which the parties had set out to do pursuant to the ‘joint enterprise’ : ‘OSA’
has effectively taken up this same argument, but in relation to accessory liability,
rather than joint enterprise liability
 for discussion, see Laird + Fortson, Case Comment, ‘Reflections on Jogee:
overwhelming supervening act’ (2021) Arch. Review 7 (UK), in which the authors
discuss several cases since Jogee which have judicially confronted this issue
 see also Umar Azmeh, Case Commentary, ‘Overwhelming supervening act: R v
Grant (Tony Lee) [2022] Crim LR 167

 In HK, arguments about OSA are less significant, since joint enterprise liability
remains part of HK law

4. Withdrawal or disassociation by D2
Whitefield (1983) 79 Cr App R 209; cf Becarra (1976) 62 Cr App R 212
Rook [1993] 2 All ER 955

see also discussion by HKCA in HKSAR v. Lee Kwan Kong & Ors (1 Feb 2006)
CACC 198/2004 at paras. 70-88

5. Unforeseen consequences of contemplated offence?

In general, D2 will be liable not only for the offence which D2 intended to help or
encourage (or cause) P to commit (ie. by AACP) , but also for any additional/aggravated
offence(s) based simply on the unforeseen consequences of P’s commission of that offence

eg. D2 helps or encourages P to commit a battery on V : D2 will be liable as an

accessory for battery (since D2 ‘aided, abetted, counselled’ P, within s.89, CPO)
Now suppose V dies:
 Assuming P is thereby liable for manslaughter (death caused by UDA)
 D2 will also be liable for manslaughter (since an accessory to P’s UDA)

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6. Special rules
(i) D2's MR (intention and knowledge) must be proved even if the offence D2 helped
or encouraged or procured P to commit is strict liability

Callow v. Tillstone (1900) 83 LT 411

(ii) Negligence insufficient

Smith v. Jenner [1968] Crim LR 99

(iii) If D2 is an accomplice to P, D3 cannot be vicariously liable for D2’s acts

Ferguson v. Weaving [1951] 1 KB 814

P = customer [offender (drinking after hours)]
D2 = waiter [aiding and abetting offender]
D3 = licensee (who was unaware of the matter) [not vicariously liable]

(iv) If D2 helps or encourages P to commit an offence ‘against D2’, but is regarded as a

‘protected party’ – ie. as the ‘intended victim’ of the offence - then D2 will not be liable

See R v. Tyrrell [1894] 1 QB 710

Cf. Keane v. SA Police [1997] SASC 6358 [CB2 739]
see also R v. Gnango (14 Dec 2011) [2011] UKSC 59, in which the UK SC re-stated
the limits of this common law rule.

7. Procuring the commission of A/R with M/R : a new basis of

liability?
DPP v. K & B [1997] 1 Cr App R 36 (Eng QBD) [CB2 736]

M Jackson
March 2024

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Appendix

Criminal Procedure Ordinance (Cap. 221)

Section 89

Any person who aids, abets, counsels or procures the commission by another person of any
offence shall be guilty of the like offence. [cf. 1861 c. 94 s. 8 U.K.; 1952 c. 55 s. 35 U.K.]

Section 90 Penalties for assisting offenders

(1) If a person has committed an arrestable offence, any other person who, knowing or believing
him to be guilty of the offence or of some other arrestable offence, does, without lawful authority
or reasonable excuse, any act with intent to impede his apprehension or prosecution shall be
guilty of an offence.
(2) If on the trial of an indictment for an arrestable offence the jury are satisfied that the offence
charged (or some other offence of which the accused might on that charge be found guilty) was
committed, but find the accused not guilty of it, they may find him guilty of any offence under
subsection (1) of which they are satisfied that he is guilty in relation to the offence charged (or
that other offence).
(3) A person guilty of an offence under subsection (1) shall be liable-
(a) on conviction on indictment, to imprisonment for 10 years; or
(b) on summary conviction, to a fine of $5000 and to imprisonment for 2 years.
(4) No proceedings shall be instituted for an offence under subsection (1) except with the consent
of the Secretary for Justice.
(5) Nothing in subsection (4) shall prevent the arrest, or the issue of a warrant for the arrest, of any
person for an offence under subsection (1), or the remand in custody or on bail of a person
charged with such an offence. [cf. 1967 c. 58 s. 4 U.K.]

Section 91 Penalties for concealing offences

(1) If a person has committed an arrestable offence, any other person who, knowing or believing
that the offence or some other arrestable offence has been committed, and that he has
information which might be of material assistance in securing the prosecution or conviction of an
offender for it, accepts or agrees to accept for not disclosing that information any consideration
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2
years.
(2) If a person causes any wasteful employment of the police by knowingly making to any person
a false report tending to show that an offence has been committed, or to give rise to
apprehension for the safety of any person or property, or tending to show that he has information
material to any police inquiry he shall be guilty of an offence and shall be liable on conviction to
a fine of $2000 and to imprisonment for 6 months.
(3) No prosecution shall be instituted for an offence under subsection (1) except with the consent
of the Secretary for Justice.
(4) The compounding of an offence other than treason shall not be an offence otherwise than
under this section. [cf. 1967 c. 58 s. 5 U.K.]

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