COMPLICITY LIABILITY: ENGLISH AND CHINESE APPROACHES COMPARED

Abstract: This article compares the English and Chinese approaches to criminal liability of participants in crime. The differential approach of the English law considers the criminal liability of an accessory as derived from the liability of the principal offender of the crime. In contrast, the unitary approach punishes each participant according to their level of participation. While it is debatable which approach Chinese law has adopted, Chinese courts are empowered to draw a distinction between the principal offender and other participants in crime at the sentencing stage. This article will show that while there are many similarities between English law and Chinese law of complicity liability, there are significant differences as well. For instance, while English law requires that the accessory must have intended to encourage or assist in the commission of the crime, Chinese law considers it sufficient that the accessory intended or was reckless as to the commission of the crime. It focuses on the liability of accessories in situations where the principal offender is not liable for, or has deviated from, the intended crime. In such situations, both English and Chinese legislation seem to impose an inchoate form of liability for assistance or encouragement. To analyse situations where a person intending a crime to be committed procures an innocent agent to perpetrate the intended crime, this article argues that the doctrine of innocent agency is much preferable to the differential approach of imposing derivative liability on the accessory. It also considers whether the accessory could be found liable for a lesser-included offence when the principal has deviated from what was assisted or encouraged.

Keywords: derivative complicity; common intention; foresight; innocent agency; lesser-included offence; fair labelling; collateral crime; inchoate offence of assisting and encouraging