Court of Final Appeal Decision

FACC No 8 of 2014

Hong Kong : Drugs, Conspiracy and Jurisdiction

On 16 February 2015 the Court of Final Appeal handed down an important decision on the law of conspiracy and the jurisdiction of the Hong Kong Courts. In the case of Wong Tak Keung (FACC No.8 of 2014), Wong had been convicted of one count of conspiracy to traffic unlawfully in ice. The prosecution’s case was that the 2nd defendant had recruited a 15-year-old boy (“Pang”) to export 650g of ice for the 1st defendant from Hong Kong to Australia. Having successfully smuggled the ice into Australia, Pang had it stolen from him. Wong went to Australia some two months after Pang’s arrival in that country and tortured Pang for a number of days, accusing him of having stolen the ice himself.

In handing down the unanimous judgment of the Court, Mr. Justice Ribeiro observed that there was no evidence that Wong was involved in the process of exporting the ice from Hong Kong. His involvement as a party to the conspiracy from the start could only be proved if such involvement was the only reasonable inference to be drawn from the evidence. Such an inference could not be the only one drawn since it was at least as reasonable to infer from his assaults on Pang in Australia that Wong only became involved after and separately from the original conspiracy.

In the alternative, the Prosecution submitted that Wong had subsequently joined the conspiracy by seeking to recover the lost ice. This argument also foundered as there was still no evidence or basis for irresistibly inferring that Wong had become a party to the pre-existing conspiracy to export. The entire conduct of the appellant relied on by the prosecution to establish liability occurred in Australia.

As a further alternative, the Prosecution submitted that the conspiracy encompassed not only exporting the drug from Hong Kong but also its trafficking in Australia and repatriating the proceeds to Hong Kong. The characterization of the conspiracy in this way impermissibly went beyond both the charge preferred in the indictment and the statutory definition of the substantive offence.

The appeal was allowed and the conviction quashed.

Please see HERE for the full judgment