This article argues that joint enterprise liability should be conceptualised under the doctrine of omissions as conceived in the recent case of Evans. As such, liability under joint enterprise is to be triggered when one is under a duty to rectify a dangerous situation and eventually fails to prevent a prohibited outcome from occurring. This analysis would overcome the two fundamental difficulties pervading the law on joint enterprise: (i) the overly harsh mens rea requirement as the law of joint enterprise currently stands, and (ii) the sheer arbitrariness of the fundamental difference rule. The authors suggest that in view of legislative inaction, the judiciary should take an active role to extend the reasoning in R v Evans so as to cover joint enterprise cases.

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One area of Hong Kong law which has received surprisingly little attention is how far its human rights provisions reach into the private sphere. This issue is commonly known as ‘horizontal effect’. It will be argued that in the Hong Kong context, courts are under an obligation to develop the common law with a view to achieving maximum consistency with the Hong Kong Basic Law, even when a purely private dispute is involved. As such, judges should not feel constrained by legislative inaction, but should take the initiative to fill perceived gaps in the common law in order to fulfil their obligation to adjudicate in accordance with the Basic Law. In the final analysis, it is suggested that this obligation may even necessitate the creation of a new cause of action or require the judge to rule inconsistently with a superior court’s decision.