Read the full judgment text of FACC 1/2019 on BabelCite. This Court of Final Appeal judgment was delivered on 18 October 2019 before Ma CJ, Li VP, Fok PJ, Cheung PJ, Lord Sumption NPJ.
Criminal law – conspiracy to traffic dangerous drugs – statutory interpretation – Dangerous Drugs Ordinance (Cap 134) ss.4(1)(a), 4(3), 39, 2, 4A, 47(1), 47(2) – Crimes Ordinance (Cap 200) ss.159A(1), 159A(2), 159C, 159E(1), 159E(2) – mens rea – s.159A(2) – common law – appeal from Court of Appeal (CACC 95/2017) – three parcels from Bolivia containing 4.23 kg of cocaine worth about HK$4.8 million – controlled delivery to Sham Shui Po address – co-conspirator Tang Kwong Ho arrested on collection – appellant arrested nearby with five mobile phones, tracking screenshots, call records with Tang and air waybills – whether the prosecution must prove the defendant knew of the specific drug named in the indictment, or only that the agreed substance was a dangerous drug – whether s.159A(2) of the Crimes Ordinance imposes additional mental element requirements on a conspiracy charge where the substantive offence already requires full knowledge – single conspiracy charge for a single drug (cocaine) – whether English, Canadian and Australian authorities establish a general common law rule – whether s.4(1)(a) of the Dangerous Drugs Ordinance makes the specific type of drug a constituent element of the offence – reliance on R v Tam Chun Fai, R v Saik, R v Churchill (No.2), R v Siracusa, R v Patel, R v Ayala, R v Saunders, R v LK, Quaid v The Queen, HKSAR v Mohammed Saleem, HKSAR v Hung Chan Wa, HKSAR v Yung Lai Lai, HKSAR v Lung Ming Chu, HKSAR v Zou Bicai, HKSAR v Chen Keen – holding that s.4(1)(a) does not require knowledge of the particular dangerous drug trafficked, only knowledge that the substance is a dangerous drug – s.159A(2) only applies where the substantive offence carries a mental element lower than knowledge; since trafficking already requires full knowledge, s.159A(2) adds no further burden – English authorities distinguishable because UK statutes classify drugs into separate categories constituting distinct offences, and the different statutory framework in Siracusa, Patel and Ayala – Canadian and Australian authorities turned on fair trial requirements, not a general rule – fair trial exception may arise if the defence is that the defendant believed the drug was a less serious type, or where there are multiple conspiracy charges relating to different drugs – in this case, single conspiracy, single drug, no such risk – appeal dismissed – conviction upheld – original sentence of 29 years' imprisonment maintained.
Legal issues: Whether, in a conspiracy to traffic dangerous drugs charge where the indictment specifies a particular drug, the prosecution must prove the defendant knew of that specific drug
Outcome: Appeal against conviction dismissed unanimously by the Court of Final Appeal. The appellant's conviction for conspiracy to traffic dangerous drugs and the original sentence of 29 years' imprisonment were upheld.
Cited by 9 cases · Cites 7 cases