Read the full judgment text of FACC 1/2019 on BabelCite. This Court of Final Appeal judgment was delivered on 18 October 2019 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Reed NPJ.
Criminal law – dangerous drugs – conspiracy to traffic – statutory interpretation – mens rea – s.159A(2) Crimes Ordinance – s.4(1)(a) Dangerous Drugs Ordinance – particulars of offence – three postal parcels from Bolivia containing 4.23 kilogrammes of cocaine with aggregate market value of approximately HK$4.8 million – controlled delivery to Tang Kwong Ho in Sham Shui Po – appellant arrested nearby with five mobile phones including screenshots of parcel tracking, call records linking to Tang and the customs officer, and three pieces of paper with air waybill numbers and recipient names – Tang pleading guilty and giving accomplice evidence that the appellant asked him to receive parcels containing 'coke' in return for a split of HK$100,000 – appellant denying any knowledge of dangerous drugs and saying he had been told the parcels were 'not guns, not stoves, not dangerous drugs' – whether on a charge of conspiracy to traffic in a dangerous drug where the indictment particularises a specific drug the prosecution must prove the defendant knew that specific drug – held no, it is sufficient to prove the defendant knew that what was agreed to be trafficked was a dangerous drug rather than the specific drug particularised, subject to fair trial qualifications – essence of the substantive trafficking offence under s.4(1)(a) of the Dangerous Drugs Ordinance is trafficking in a dangerous drug and not in any specific type or class of drug – the Dangerous Drugs Ordinance makes no statutory distinction between different dangerous drugs and the maximum penalty for trafficking in any dangerous drug is the same – mens rea of the substantive offence requires only knowledge that the substance is a dangerous drug – the specific drug identified in the indictment is a particular informing the accused of the case to meet, not an ingredient of the offence – s.159A(2) of the Crimes Ordinance raises the mental element where the substantive offence has a lesser mens rea, such as recklessness, negligence or strict liability, but does not impose any greater burden where the substantive offence already requires full knowledge that the substance is a dangerous drug – English authorities (R v Siracusa, R v Patel, R v Ayala) do not establish a general common law rule to the contrary and are distinguishable because the UK Misuse of Drugs Act 1971 creates separate offences for different classes of drug attracting different maximum penalties – in Hong Kong no such statutory distinction exists – Canadian (R v Saunders) and Australian (R v LK, Quaid v The Queen) authorities turn on fair trial requirements and the proper construction of the relevant statutory provisions, not on a general common law rule – single conspiracy involving single type of drug with no fair trial concerns – trial judge's direction that the prosecution needed only to prove the appellant knew the parcel contained a dangerous drug, not which kind, was correct – appeal unanimously dismissed.
Legal issues: Whether knowledge of the specific particularised drug is required for conspiracy to traffic in a dangerous drug
Outcome: Appeal against conviction unanimously dismissed; the appellant's conviction for conspiracy to traffic in a dangerous drug upheld.
Cited by 4 cases · Cites 8 cases