HKCFA 36
Court of Final Appeal
Ma CJ, Fok PJ, Ribeiro PJ, Cheung PJ, Reed NPJ
18 October 2019
Conspiracy and knowledge of specific drug
Hong Kong Customs and Excise officers carried out a controlled delivery operation of parcels arriving from overseas and arrested a man. The appellant was arrested nearby. Certain items were seized from the appellant which associated him with the first arrested man and the parcels. The appellant was charged with one count of conspiracy to traffic in a dangerous drug, namely cocaine. The appellant pleaded not guilty. At trial, the appellant maintained that he was asked by another co-conspirator to receive the parcels. He did not know that the parcels contained dangerous drugs. The trial judge directed the jury that the prosecution only needed to prove that the appellant knew the parcels contained a dangerous drug and that the prosecution did not need to prove knowledge of the type of drug. The jury unanimously found the appellant guilty and he was sentenced to 29 years’ imprisonment. The Court of Appeal dismissed the appellant’s application for leave to appeal against his conviction.
The appellant appealed to the Court of Final Appeal arguing that the trial judge’s direction that the prosecution did not need to prove knowledge of the particular type of drug was wrong. He contended:
1) that the fact that the substance being trafficked in is the dangerous drug as particularised in the indictment is a fact necessary for the commission of the substantive offence of trafficking in a dangerous drug. Section 159A(2) of the Crimes Ordinance (Cap. 200) requires the prosecution to prove that a defendant charged with conspiracy had knowledge of this fact .
2) English, Canadian and Australian cases established a general common law principle such that the prosecution must prove that a defendant charged with conspiracy had knowledge of the type of drug being trafficked in.
Held, dismissing the appeal
Section 4 of the Dangerous Drugs Ordinance (Cap. 134) created the offence of trafficking in a dangerous drug. The particular type of dangerous drug is not an essential element of the offence. The prosecution is only required to prove that the defendant trafficked in a dangerous drug. For the mental element, the prosecution must prove that the defendant knew he was trafficking in a dangerous drug. It is not necessary to prove knowledge of a particular type of dangerous drug.
Section 159A(1) of the Crimes Ordinance provides for the statutory offence of conspiracy. Under s. 159A(2), the prosecution must prove that a defendant charged with conspiracy knew or intended that a fact or circumstance necessary for the commission of the substantive offence will exist where the substantive offence has a mental element less than knowledge or intention, such as recklessness or negligence. As a result, a defendant charged with conspiracy would not be found guilty unless he intended to carry out the substantive offence.
The substantive offence of trafficking in a dangerous drug does not have a lesser mental element than knowledge. The only fact or circumstance necessary for the commission of trafficking in a dangerous drug is that a dangerous drug, rather than a particular type of dangerous drug, will be trafficked in. Section 159A(2) therefore does not operate to require the prosecution to prove any additional mental element.
The English, Canadian and Australian cases do not establish any general common law principle as the appellant contended.
The Court observed that it may be necessary for the prosecution to prove that the substance concerned was the particular type of drug specified in the charge. One example may arise in a Newton hearing where the defence case is that the accused believed that the substance was one with a lesser sentencing tariff than the one alleged by the prosecution. Another example is where there are multiple charges on an indictment alleging different conspiracies involving types of dangerous drugs. If for some reason the wrong drug was identified in the charge, the appropriate course would be for the prosecution to apply to amend the charge.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: HKSAR-v-Lai Kam Fat