HKSAR v. Lai Kam Fat

CAC C 95/2017

[2018] HKCA 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 95 OF 2017

(ON APPEAL FROM HCCC NO. 222 OF 2015)

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Before: Hon Yeung Ag CJHC, Poon JA and Wong J in Court

Date of the Written Submissions of the Applicant: 7 August 2018

Date of the Written Submissions of the Respondent: 29 August 2018

Date of the Written Reply of the Applicant: 12 September 2018

Date of Judgment: 4 October 2018

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.The applicant (Lai Kam-fat) was charged with the offence of conspiracy to traffic in a dangerous drug. The prosecution alleged that the applicant, between 19 September 2014 and 8 October 2014, conspired with “Ko Lo”, Tang Kwong-ho and other persons unknown, to unlawfully traffic in a dangerous drug, namely cocaine.

2.The applicant pleaded not guilty to the charge and stood trial before Patrick Li J sitting with a jury.  On 24 March 2017, the jury unanimously convicted the applicant as charged and on 27 March 2017, the applicant was sentenced to 29 years’ imprisonment.  The applicant sought leave to appeal against both conviction and sentence, but subsequently abandoned his application relating to sentence.  The Court of Appeal (the Court) heard the appeal on 29 May 2018 and reserved judgment.

3.On 26 June 2018, the Court handed down its judgment dismissing the applicant’s application for leave to appeal against conviction.  The Court pointed out, in its judgment, that for an offence of trafficking in a dangerous drug, the prosecution only need to prove that the defendant was aware that the substance he was trafficking was a dangerous drug and need not establish the defendant’s knowledge of the specific drug involved. (See R v Tam Chun Fai [1994] 2 HKC 397, HKSAR v Chui Chi Wai [1999] 3 HKLRD 841)

4.The Court had examined the wordings of the Dangerous Drugs Ordinance and the Crimes Ordinance and concluded that in the contexts of those ordinances, the prosecution, in the offence of conspiracy to traffic in a dangerous drug, need only to establish the defendant’s knowledge that the substance he was trafficking was a dangerous drug.  The Court rejected the contention that the prosecution must establish that the defendant was aware of the actual nature of the dangerous drug specified in the charge.

5.By a Notice of Motion filed on 12 July 2018, the applicant seeks certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance that the decision of the Court dated 26 June 2018 involves the following point of law of great and general importance, namely:

In a charge of conspiracy to traffic in a dangerous drug (contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap. 134 and sections 159A and 159C of the Crimes Ordinance, Cap.200), where a specific drug (in this case cocaine) is stipulated and particularised on the Indictment, whether: -

(i) The prosecution must prove that the defendant had knowledge of (and entered into an agreement to traffic in) that specific drug, but that mere knowledge of a dangerous drug without more specificity is not sufficient for conviction; and

(ii) For the purpose of directing the jury on mens rea, the trial judge must instruct the jury that the Prosecution must prove that the defendant had knowledge of (and entered into an agreement to traffic in) the specific drug stipulated and particularised on the Indictment.

6.We have considered the written submissions filed by both parties and the authorities referred to therein.  The authorities referred to by Mr Lam, counsel for the applicant in support of his argument that the prosecution must establish the applicant’s knowledge of the specific drug involved all concern the particular interpretation of domestic legislation of other jurisdictions and do not have general application.  They certainly do not have any application to our Dangerous Drugs Ordinance and Crimes Ordinance when the relevant statutory provisions are, materially and differently worded.

7.In our view, the actual nature of the dangerous drug, in an offence of conspiracy to traffic in a dangerous drug, just as in an offence of trafficking in a dangerous drug, is not an element of the offence that the prosecution is required to prove.

8.We are firmly of the view that in the contexts of the Dangerous Drugs Ordinance and the Crimes Ordinance, the proposed point of law, said to be of great and general importance, put forward by the applicant in his Notice of Motion is simply unarguable.

9.Further there was evidence that the applicant was actually aware that the drug involved was cocaine and in the circumstances, the conviction against the applicant is a safe one. 

10.The application for a certificate under s.32(2) of the Hong Kong Court of Final Appeal Ordinance is therefore refused.

Written submission by Mr Ned Lai SADPP, of the Department of Justice, for the respondent

Written submission by Mr Osmond Lam, Mr Benson Tsoi and Mr Ernest Yuen, instructed by Or & Lau Solicitors, for the applicant