Somchai Liangsiriprasert v. The Government of United States of America and Another
Read the full judgment text of CACV 73/1989 on BabelCite. This Court of Appeal judgment was delivered on 20 September 1989.
1. This is an appeal from the order of Sears, J. dated 3rd May 1989 whereby he dismissed an application by Somchai Liangsiriprasert ("the applicant") for a writ of habeas corpus. At the conclusion of the hearing we dismissed the appeal and now give our reasons.
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CACV000073/1989
Extradition - Extradition Acts 1870 to 1935 as applied to Hong Kong - United States of America (Extradition) Order 1976 - proper test for making extradition order - whether acts alleged would constitute an extraditable offence under Hong Kong law. Constitutional law - whether s.4 (2) of Dangerous Drugs Ordinance intra vires the law making power of the Hong Kong legislature.
BETWEEN
_________ Coram: Yang, C.J., Fuad, V.-P. & Hunter, J.A. Dates of hearing: 19 and 20 September 1989 Date of judgment: 20 September 1989 Reasons for judgment handed down: 11 October 1989 ______________ J U D G M E N T ______________ Fuad, V.-P. (giving the judgment of the Court) 1. This is an appeal from the order of Sears, J. dated 3rd May 1989 whereby he dismissed an application by Somchai Liangsiriprasert ("the applicant") for a writ of habeas corpus. At the conclusion of the hearing we dismissed the appeal and now give our reasons. 2. The applicant is a Thai national whose extradition is sought by the Government of the United States of America. After a two-day hearing, the magistrate (Mr. M.P. Burrell) on 20th January 1989 committed the applicant to prison to await the warrant of the Governor of Hong Kong for his surrender to the USA. 3. The magistrate exercised jurisdiction under the Extradition Act 1870 of the United Kingdom as amended, and as modified in its application to Hong Kong. By an Order in Council made under the enabling Provisions of the Act, the Extradition Acts 1870 to 1935, as amended or extended, were directed to apply, inter alia, to Hong Kong in accordance with the Treaty dated 8th June 1972 entered into between the Governments of the United Kingdom and of the United States of America ("the Treaty"). This is the United States of America (Extradition) order 1976, S.I. 1976 No. 2144 which came into operation on 21st January 1977. The text of the Treaty is set out in Schedule 1 to the order. The Extradition (Hong Kong) Ordinance, Cap.236, provides by ss.2 and 3 that the powers etc. given to the Secretary of State and the police magistrate in the HK by the Extradition Acts may be exercised, respectively, by the Governor of Hong Kong and by any magistrate. 4. We mention here that another Thai national, Sutham Chokvanitphong, was committed to prison by the magistrate in the same proceedings to await the Governor's warrant for surrender. He made no application to the High Court in respect of the magistrate's order. Nor convenience we refer to him as "S.C.". 5. The "extradition crimes" alleged by the Government of the USA against the applicant and S.C. which founded the requisition are fully explained and defined in the affidavit of Catherine E. Palmer, an Assistant US Attorney, which was before the magistrate. The warrants of arrest issued by the United States'District Court on 14th November 1938 for the Eastern District of New York, give the relevant statutory references (to the United States Code) and describe them as follows:
6. Ms. Palmer also exhibits a copy of the indictment against the applicant and S.C. preferred by the Grand Jury. 7. Article III, para.(1) of the Treaty provides that "extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule ....". Item 12 of the Schedule reads: "Any offence against the law relating to narcotic drugs, cannabis sativa L, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs." Article III para. (2) allows extradition for conspiracy to commit an offence listed in the Schedule. Article III (l) permits extradition for other offences if certain conditions are satisfied, and for the purposes of para. (1)(a) and (c), and para. (2), of Article III of the Treaty, Ms. Palmer certifies that the alleged offences are all felonies and each is punishable by imprisonment for a term exceeding one year. 8. Ms. Palmer also certifies, for the purposes of para. (l)(b) of Article V, that since the indictment alleges offences occurring between 1st and 27th September 1988, prosecution is not barred by the statutory 5-year limitation period. Ms. Palmer's evidence (and, indeed, all the evidence put before the magistrate in the proceedings before him) was not controverted or challenged in any way. 9. Under the Extradition Acts, the following are included in the list of "extradition crimes" in the First Schedule:
In the light of the issues which are before us, it is also necessary to note that s.3 of the Extradition Act 1873 provides:
10. By the opening words of the First Schedule to the Extradition Act, the "list of crimes is to be construed according to the law existing [in Hong Kong] at the date of the alleged crime, whether by common law or by statute made before or after the passing of this Act". Common law conspiracy has not been abolished in Hong Kong. The material part of s.4 of the Dangerous Drugs Ordinance, Cap.134, is as follows:
11. The following definitions, to be found in s.2 of the Ordinance, are relevant:
12. The Governor's order to proceed directed to the magistrate was made on 24th November 1988 (and amended by a supplementary order dated 6th January 1929). The orders specified the crimes in respect of which the magistrate was required to issue his warrant for the apprehension of the fugitive criminals (under s.7 of the Extradition Act) in the following terms:
13. The following is a summary of the evidence contained in the affidavits which were placed before the magistrate on behalf of the requesting Government. Acting, upon information about the applicant received over a number of years by the Federal Drug Enforcement Administration of the USA ("DEA"), in August 1988, a plan was devised that one of their undercover agents would be introduced to the applicant in Thailand. We will use the name "Mike" by which the agent was known. Mike, who is Chinese and was born in Hong Kong was to pose as a member of a Chinese organisation in the New York area anxious to obtain a new source of heroin to supply to its customers in New York. 14. Mike met the applicant on 14th September 1988 in Bangkok and asked him if he could supply heroin for the organisation's New York market. The applicant said that he had "40 pieces of stuff" readily available, "up North". This was understood as a reference to 40 units, (i.e. 28 kilos) of heroin. The applicant told Mike that he would go "up North" and have the "stuff" (the heroin) brought down to Bangkok in 2 or 3 days time. The applicant assured Mike that he had connections so there would be no problems in getting the heroin out of Bangkok. It could be sent to New York, via the Philippines, in two suitcases. 15. It was agreed that the heroin would be released or a down payment by Mike of US$50,000. In answer to the applicant's enquiry, Mike told him that they should be able to sell the heroin in New York for US$65,000 per unit. The applicant agreed to this price. It was also agreed that if the heroin was successfully smuggled into New York in two suitcases each containing 20 units, Mike's share in the first suitcase shipment would be 10 units; the applicant would have 8 shares and the remaining 2 shares would be owned by the other man (also an agent) who was with Mike at the time of the discussions. The applicant agreed to meet Mike when the 40 units reached Bangkok 16. On 16th September there was a meeting between Mike and S.C. who is the applicant's cousin. S.C. was there, he said, at the applicant's behest, to tell Mike that the applicant would return to Bangkok on the following day after getting the package together. 17. On 17th September the applicant duly met Mike again and they talked about the applicant's experience of imprisonment in the USA and the need to be careful in a number of ways. When they came to discuss the shipment of the heroin to New York, Mike (who again was accompanied by the other agent) said that his people had arranged for a diplomatic courier to come to Bangkok and take the heroin to New York. The applicant fell in with this new plan. The applicant offered to give the heroin to Mike that day but Mike said his people were not ready. 18. The applicant said that if he were to deliver the whole consignment in one, the US$50,000 down payment would not be enough. The "front price" per unit would be US$4,800. They talked about the applicant's activities in the drugs world and arranged that the applicant would contact Mike about the delivery plans later that evening. S.C. met Mike in the evening and told him that the police had searched the place where the heroin was hidden but it had been moved to safety before the police arrived. On this occasion, too, Mike had the other agent with him. There further discussions about delivery plans. 19. On 18th September S.C. met Mike and his companion again and informed him that the applicant was finalising the plans for delivery. The three men met again on the following day and had discussions about possible future deals. 20. On the next day, 20th September, the same three men met again. This time the applicant was also present. The applicant told Mike that delivery would take place at the back of the parking lot of the hotel outside which they were talking while seated in the applicants car. At the applicant's request, Mike went to his hotel room and came back with 1,200,000 Thai Bahts (the approximate equivalent of US$50,000), which had been provided by the DEA. Mike gave the money in a brown bag, to the applicant. The applicant said it would take between 2 to 3 hours for the delivery to be made and told like to wait for S.C. at the hotel. When these two eventually met at about midnight, S.C. informed Mike that delivery would have to take place on the next day because of Police activities. 21. At about 6:00 a.m. on the following morning, 21st September, S.C. returned and took Mike to a side street near the hotel parking lot. Two men drove up in a car. S.C. said that they were his "boys". The boot of the car was opened and S.C. invited Mike to inspect the heroin. Mike saw two bags in the boot. He opened them and looked at their contents - compressed bricks wrapped in brown paper and plastic. S.C. told his "boys" to drive Mike back to the hotel, which they did. 22. Mike took the two hags to his hotel room and opened them in the presence of another PEA anent and a Lieutenant of the Thai police. He counted a total of 20 compressed bricks. Two of the bricks were not of "unit" size. Mike went down to the coffee shop of the hotel where S.C. was waiting and told him of the discrepancy. S.C. said he would look into the matter and left. The bricks were counted again by the DEA agent and the police Lieutenant, and the latter took them away. 23. Later that day, the applicant met Mike at the hotel and said that he was pleased that everything had gone so well. The applicant acknowledged that the delivery, by weight, amounted to 19 units and not 20 as had been agreed. There were further meetings between Mike, the applicant and S.C. on 22nd and 24th September. It was agreed that the two men would meet Mike in Hong Kong on or about 26th September to collect their share of the proceeds from the sale of the heroin in New York. The applicant said that the proceeds could be invested in the next shipment. Mike had paid the applicant another 70,000 Thai Bahts, the outstanding balance of the "front money" on 22nd September. 24. On 23rd September another agent took the 20 bricks from the Thai police Lieutenant and put 10 of them into a diplomatic pouch. The two men then flew to New York with the pouch, arriving on the same day. 25. On 27th September, in accordance with arrangements made on 24th September, the applicant and S.C. met Mike at an hotel in Hong Kong and they were arrested by the Hong Kong police. 26. There was also affidavit evidence before the magistrate that the 10 bricks, which weighed 6.6 kilos contained heroin hydrochloride with a purity of 86%. The evidence also showed that 20 units of that quality of heroin would command a wholesale price in New York of between US$2,240,000 and $2,280,000. The approximate retail, or "street level", value of the heroin would be between US$22 million and 28 million. 27. Leading Counsel for the applicant and S.C. before the magistrate submitted that once the D.E.A. agents had been involved, and certainly once the heroin ultimately transported to New York came into their possession, the conspiracy had been frustrated since the agreement could not have been carried out, Moreover, if the conspiracy became impossible to carry out then it become equally impossible for any substantive offence to be committed. Neither, fugitive had gone to the USA and they had performed no overt acts in the USA. The DEA's officers could only be agents of the DEA and not agents of the conspirators. Since no acts in furtherance of the conspiracy had been committed in the USA, the fugitives could not be indicted in Hong Kong and therefore extradition would not lie. 28. In a carefully reasoned judgment, the magistrate discussed the authorities cited to him and examined the evidence in relation to each of the crimes in the Governor's orders to proceed. He rejected Counsel's submissions because in his view the evidence showed that at all times until their arrest the fugitives intended the conspiracy to continue and maintained the belief that it was continuing; and they came to Hong Kong in that belief. The acts they had planned in furtherance of the conspiracy did in fact occur. It was never part of their plan to go to the USA. If the plan had succeeded they would not have gone there and it was always part of their plan that others would take the drugs to the USA. In his view, the fact that they were duped by the DEA agents could not be turned to their advantage. 29. Sears, J., in his reserved judgment, discussed, against the authorities, the role of the magistrate in extradition proceedings, and the role of the High Court on an application for habeas corpus arising from such proceedings. In relation to the latter role, one of the cases to which he referred was Lorrein Osman (Transcript CO/1006/87 dated 30th March 1988) and he adopted the reasoning of Lloyd, L.J. sitting with French, J. in the Divisional Court. After discussing the "apparently differing views" revealed by the cases, Lloyd, L.J. observed that the correct approach of the Divisional Court to the magistrate's findings was best defined in "Wednesbury terms. 30. After some preliminary remarks about modern day crime extending over national boundaries, the evils of international drug smuggling and the dictates of public policy, Sears, J. went on to consider each of the crimes specified in the Governor's orders to proceed, in turn. 31. In respect of Crime 1 (Conspriacy to traffic in a dangerous drug, contrary to common law, punishable under s.39 of the Dangerous Drugs Ordinance) the judge said that on the assumption that the undercover agents were not co-conspirators, the object was to export large quantities of drugs from Thailand to America; and not only the bricks which were actually exported but other drugs as well. He cited a passage from the speech of Lord Pearson in D.P.P. v.Doot [1973] AC 807, at p.827 which concludes:
32. The judge then referred to Attorney General v. Yeung Sun-shun and Another [1987] HKLR 987 and adopted the obiter dictum of Roberts, C.J. who gave the judgment of the Court, at p.998, to the effect that a conspiracy formed abroad to commit an offence in Hong Kong was within the jurisdiction of the Hong Kong Courts even if no acts in furtherance of the conspiracy had been committed in Hong Kong. Sears, J. held that (transposing Hong Kong for the USA for the purposes of the Extradition Act) a Hong Kong Court could try the actual conspirators on the facts before the magistrate. 33. If he were wrong, the judge said, the evidence showed that the conspirators had come to Hong Kong for the express purpose of recovering the "pay-off" from the sale of the heroin in the USA. The visit was part of the continuing conspiracy, and was an act in furtherance of the conspiracy. Similarly, the transportation of the drugs to the USA was such an act. It mattered not that an undercover agent had carried the drugs and not one of the conspirators, or an agent of a conspirator. Although the police would not be prosecuted in the circumstances here, they did, nevertheless commit a crime unless some statutory provision expressly excused their conduct. 34. The judge then referred to a decision of the New South Wales Court of Criminal Appeal -David Yung Te Chow [1987] 30 A Crim R 103 and cited passages from the Court's judgment at pp .108 and 110. He adopted the reasoning there set out. I will not here read out the passages. The judge observed that the applicant was as much a party to the carriage by air of the drugs as anyone else; it was the plan to get the drugs to the USA. He held that there was clear evidence before the magistrate on the charge of conspiracy. 35. Turning to Crime 2 (trafficking [in Thailand] in a dangerous drug, contrary to s.4 of the Dangerous Drugs Ordinance) the judge remarked upon the wide meaning given to the word "traffic" by s.2 of the Ordinance. The evidence revealed that the applicant had agreed to supply the undercover agent with drugs. He had arranged for the heroin to be brought from the North of Thailand to Bangkok where it was stored. He was paid money "up front" and arranged for the delivery. He later came to Hong Kong to get his share of the proceeds. The judge was of the opinion that there was clear evidence before the magistrate to justify his decision on this charge. 36. As regards crime 3 (which also averred trafficking, contrary to s.4 of the Ordinance but which was related to the date when the drugs were flown from Bangkok to New York) he held that since the applicant had obtained the drugs, had been paid money and had agreed with the method of importation, there was clear prima facie evidence that he had imported the drugs. 37. The judge regarded Crime 4 (doing acts preparatory to trafficking in a dangerous drug, contrary to s.4(1)(c) of the Ordinance) as being similar to a charge of attempting to traffic, or to conduct which fell short of trafficking. It was clear that the applicant intended throughout that the drugs would be imported. 38. The judge therefore held that on all the four crimes there was clear evidence to support a prima facie case being found, that the applicant was properly within the jurisdiction of Hong Kong and that these were extradition crimes. The application was therefore refused. 39. By the Amended Notice of Appeal it is averred that there is no authority either at common law or by statute which gives jurisdiction to the Courts of Hong Kong to try an alien for a conspiracy formed abroad to do an illegal act in Hong Kong unless acts in furtherance of the conspiracy are done in Hong Kong. Therefore in respect of the conspiracy allegation in Crime 1 the conduct of the applicant in Thailand would be outside the jurisdiction of the Courts of Hong Kong, even if the purpose had been to import drugs into Hong Kong. 40. The Notice goes on to say that the DEA agents (Mike and the agent who took the drugs into the USA in the diplomatic pouch) were never co-conspirators. Their acts in accepting delivery and importing the drugs into the USA were done for the purposes of the Government of the USA and not in furtherance of any conspiracy. The agents' object is inciting the applicant to traffic in drugs in Thailand was to frustrate their importation into the USA. The agents did not commit any crime in importing the drugs; there was neither actus reus or mens rea. 41. It is also said that there was no overt act performed within the jurisdiction of the USA in furtherance of the alleged conspiracy, whether by innocent agent or otherwise. 42. As regards Crimes 2, 3 and 4, the Notice argues that not a single part of the actus reus was alleged to have occurred in the USA. The conduct of the applicant alleged in those charges was wholly confined to acts within Thailand. In such circumstances the Hong Kong Courts had no jurisdiction. There were, moreover, no acts or omissions in the USA on the part of the applicant which could be treated as having take place in Hong Kong. 43. For all these reasons, it is said, the applicant had not been shown, even prima facie, to have committed an extradition crime. The Notice also has it that s.4(2) of the Dangerous Drugs Ordinance (set out earlier in this judgment) is ultra vires as being statutory law Purporting to grant Hong Kong Courts jurisdiction over extraterritorial acts. 44. Finally, it is said that in any event the chain of evidence was broken since there was no admissible evidence before the magistrate, either on oath or affidavit, as to the transmission of the packages allegedly containing drugs from Mike in Thailand on 21st September to the DEA agent who took the drugs over in New York from the agent who had brought then there in the diplomatic pouch. 45. The evidential point was not taken before the magistrate but it was raised during the hearing of the application before Sears, J., although he did not expressly deal with the matter in his judgment. For convenience we will deal with it first. Mike's affidavit stated that he had placed his initials (M.C.S) and the date (21st September 1988) on each of tie bricks of drugs he had taken from the car, in the presence of S.C., to his hotel room. The Thai police Lieutenant then took custody of them. 46. The magistrate heard oral evidence on oath from another DEA agent who explained the surveillance duties he performed in Thailand in connection with the case. He said that on 21st September he was in Mike's hotel room when Mike and the police Lieutenant arrived with the bags of drugs. He took custody of the bags when Mike left the room and he saw Mike put his initials and the date on each of the 20 bricks on his return. He took the drugs, accompanied by the police Lieutenant, to the Crime Suppression Division office of the Thai Police. He saw the bricks put into a locked cabinet. Later, on 22nd September, he and the agent who later took the drugs to the USA, together put "a sample from the 20 bricks" into a diplomatic pouch (a normal embassy bag used for diplomatic purposes) and the pouch was sealed. The pouch was placed in the embassy's locked vault - which is guarded by US Marines. On 23rd September he was with the agent who was to fly to the USA when the pouch was taken out of the locked vault. The seal was intact. They went together to Bangkok airport and he saw his colleague board a plane bound for New York in the company of the Thai police Lieutenant. 47. The agent who was to pose as a US diplomat also gave evidence before the magistrate. He testified that he and the previous witness put bricks wrapped in brown paper and plastic into a diplomatic pouch which was then sealed and placed in the embassy's vault. This was on 22nd September. On the following day he saw the sealed diplomatic pouch again which has not been tampered with. He was joined by the police Lieutenant and together they boarded the plane for New York. He kept the pouch with him all the time and arrived at 6:00 p.m. at the John F. Kennedy airport in New York. There he met another colleague. On 24th September he was present when the seal of the pouch was opened in Washington D.C. by an officer of the State Department. The pouch contained the bricks he had put in it in Bangkok. He handed them over to his colleague. 48. That colleague also gave evidence. He said that he met the agent travelling as a diplomatic courier and the Thai police Lieutenant off the plane from Bangkok on 23rd September. He saw the diplomatic pouch in the agent's hands and went with the agent to the State Department in Washington, DC. The pouch, which was still sealed, went with them. He was present when an officer opened the pouch during the early hours of the morning of 24th September. He took over the pouch and the 10 bricks it had contained, wrapped in brown paper and plastic. Each brick had the initials M.C.S. on it and bore the date 21.9.1988. 49. This witness continued his evidence by saying that he put the bricks into the DEA's safe at the National Airport in Washington and left them there until later that day when he was able to arrange a flight to New York. He took the bricks there and, upon arrival, locked them in a safe in a DEA office. On 26th September he took the bricks, still wrapped as they were, with the same initials and date upon each, to the DEA laboratory. He marked them as Exhibit l from File No. C1-88-Z001. 50. There was also an affidavit from a chemist employed by the DEA in the New York Laboratory. She examined, and gave a report, on 10 bricks of white powder wrapped in brown paper and plastic, marked Exhibit 1 from File No. C1-88-Z001. 51. In his affidavit, Mike had sworn that on 10th November he had gone to the same laboratory and inspected Exhibit 1 from File No. C1-88-Z001. The exhibit consisted of 10 bricks of compressed powder wrapped in brown paper and clear plastic. He saw his initials and the dates he had written on the bricks and was able to say that these bricks were some of the 20 bricks which had been delivered to him on 21st September, in Bangkok, by S.C.. 52. It is important to remember that none of the evidence led before the magistrate on behalf of the Government of the USA was challenged or contradicted. The witnesses who gave oral testimony were not cross-examined. Neither the applicant nor S.C. elected to give, adduce or call any evidence during the proceedings in the Magistrate's Court although given the opportunity. 53. Mr. McCoy, who did not represent the applicant in either of the Courts below, submitted that the chain of evidence had been broken fatally since there was no evidence as to who had been responsible for the alleged drug exhibit, where and how it was kept and who had access to it. It was the possibility of tampering which was the fatal defect. 54. Section 10 of the Extradition Act requires the magistrate to commit the fugitive offender to prison if "... such evidence is produced as would....justify [his] committal for trial". Section 85(2) of the Magistrates Ordinance obliges the magistrate to commit the accused for trial if he is of the opinion that the evidence before him "is sufficient to put the accused upon his trial ...". 55. As is well known, the function of committal proceedings is to make sure that the accused person is not ordered to stand trial unless a prima facie case has been made out against him. We do not Know what, evidence will be led before any court which might ultimately try the applicant. Nor are we required to consider what view a trial Court would take of the sufficiency or otherwise of the evidence we have reviewed about the handling of the drugs, if witnesses testify to the facts which were placed before the magistrate without any additional evidence being led. However, we find it quite impossible to hold that a reasonable magistrate could have decided that the applicant's committal for trial would not have been justified merely on account of the supposed defects to which Mr. McCoy has drawn attention. We would go so far as to say that in our view, as the evidence stood, a failure to commit for those reasons would have been perverse and, contrary to law. 56. In re Nielsen [1984] AC. 606 and Government of the United States of America v. McCaffery [1984] 1 WLR 867 the House of Lords, in single speeches delivered by Lord Diplock, and approved by the other Lords of Appeal hearing the cases, held that the duty of the magistrate under s.l0 of the Extradition Act 1870 was to decide whether on the evidence produced to him the conduct in question would, if it had been committed in England, have constituted a crime falling within one or more of the descriptions of offences in the list of offences in Schedule l of the Act so as to justify the committal of the fugitive criminal for trial for an offence specified by the Secretary of State in his order to proceed. 57. These authorities which effectively bind this Court were applied in Lawrence Louis Levy v. The Attorney General [1987] HKLR 777, where Roberts, C. J., who crave the judgment of the Court, said this, at pp.779-780:
58. Substituting Hong Kong for England it seems to us that the magistrate had to be satisfied that there was before him prima facie evidence that the conduct of the applicant amounted to the commission of an offence or offences according to the law of Hong Kong. It is to be noted that the effect of s. 10 is that the magistrate, for this purpose, applies the fiction that the crime of which the fugitive offender is accused had been committed in Hong Kong. 59. There is, we feel, helpful guidance on this point in the judgment of Lloyd L.J. in the Divisional Court in Lorraine Osman. Although that was a case under the Fugitive offenders Act 1967, the corresponding provisions of the Extradition Act are to the same effect-contrast the first paragraph of s.10 of the Extradition Act with s.7(5)(a) of the Fugitive offenders Act. We respectfully adopt the views expressed by Lloyd, L.J. at pp. 39-40 of the transcript of is judgment:
60. As regards Crime 1 (conspiracy to traffic in a dangerous drug) there is relevant authority in Hong Kong. In Attorney General v. Yeung Sun Shun [1987] HKLR 987 the respondents had been charged with conspiracy to import unmanifested cargo (elephant tusks) otherwise than in accordance with the relevant provisions of the Import and Export Ordinance Cap.60, and the Animals and Plants (Protection of Endangered Species) Ordinance, Cap.187. The case for the Crown was that the respondents had agreed in Macau to ship the tusks to Hong Kong. They arranged for the tusks to be sent to Hong Kong through the medium of a shipping agent. One of the respondents handed over the tusks to him; the other paid him money as "a personal incentive". The vessel bearing the tusks was intercepted by customs officers in Hong Kong waters. No one came to collect the tusks. 61. The District Judge who tried the case acquitted the respondents because on the evidence not one act has been done by any conspirator in Hong Kong to facilitate the importation of the tusks into Hong Kong. The act of putting the tusks on board the vessel for their transportation to Hong Kong was the last act done in furtherance of the conspiracy. The acts designed to be done and the object to be achieved were not done in Hong Kong but were acts to facilitate the possession of the illegally imported tusks. 62. The Court of Appeal (Roberts, C.J., Hunter and Power, JJ.A.) reversed the judge's decision on a case stated. Roberts, C.J., delivering the judgment of the Court, stated, at p.993, that the important issue was whether, and in what circumstances, a conspiracy formed out of Hong Kong, to commit a crime in Hong Kong, was indictable in Hong Kong. Roberts, C.J. discussed D.P.P. v. Doot and Others [1973] AC 807 and cited passages from the speeches of Lord Wilberforce, Viscount Dilhorne, Lord Pearson and Lord Salmon, and reached the conclusion that the case established that a conspiracy formed abroad to commit an offence in England is triable in England if acts in furtherance of the conspiracy are carried out in England. He pointed out that the House of Lords was dealing with a case where the conspirators themselves had done acts in England in furtherance of the conspiracy; their Lordships had not been called upon to decide whether it would be sufficient to give jurisdiction to England Courts if acts in furtherance of the conspiracy were done, not by a conspirator, but by an agent innocent or guilty. 63. The Chief Justice referred to R. v. Brisac (1803) 4 East 154, where it was held that the defendants, who in furtherance of a conspiracy entered into on the high seas, had caused vouchers to be delivered with the intention of defrauding persons in Middlesex through innocent agents, were liable to be convicted since, by reason of the acts of the agents, the conspirators could be taken to have committed offences in Middlesex. 64. Roberts, C.J. also cited the Australian case of White v. Ridley (1978) 140 CLR 342 where the applicant had delivered a box containing a prohibited import to an innocent air carrier in Singapore for carriage to Australia. The applicant returned to Australia before the package left Singapore. The box was impounded by the authorities on its arrival in Australia. The Chief Justice read the following passage from the judgment of Gibbs, J. (as he then was):
65. Roberts, C.J. went on to cite with approval from the judgment of Richardson, J. in the New Zealand case of R. v. Johnson, Crim.App. No.49 of 1986, decided in the Court of Appeal on 18th July 1986. There an agreement was entered into in England by the appellant and some friends to send some hashish to him in New Zealand by post. After the appellant had returned to New Zealand, a letter addressed to him containing hashish was intercepted by customs officers when it reached Auckland. The Court held that the conspiracy was triable in New Zealand although no acts in furtherance of it had been taken by a conspirator. This is the passage cited:
66. R. v. Skewes (1981) 7 A Crim R 276, a decision of the Court of Criminal Appeal of Victoria was also referred to by Roberts, C. J., and the following passage from the judgment of Young, C.J., was cited:
Young, C.J., and Anderson, J. who gave a separate judgment rejecting the challenge to the jurisdiction, relied, inter alia, on Brisac's case and D.P.P. v. Doot. Although we do not set it out, in our respectful view what Anderson, J. had to say at pp.286-290 repays reading.
67. At p.998 the Chief Justice made the following obiter observations upon which Sears, J. partially relied:
68. Mr. McCoy conceded that on the proper application of the doctrine of stare decisis this Court was bound by the decision in Yeung Sun Shun but submitted that the acts of the DEA undercover agents in taking the drugs into the USA were not acts in furtherance of the conspiracy. The importation of the drugs was entirely for the purposes of the Government of the USA. All that had happened was an elaborate charade. The applicant took no part in carrying the drugs into the USA-nor were they taken in by a co-conspirator or agent. The prima facie evidence before the magistrate was that the drugs were imported into the USA legally, that is to say for Government purposes and not for the purpose of unlawful trafficking. 69. Mr. McCoy contended that the right question for the magistrate to ask himself, therefore, was whether, if Hong Kong police officers, with the knowledge and prior approva1 of the government, brought prohibited drugs into Hong Kong, only for the purpose of securing evidence to support a prosecution, would they have been engaging in criminal conduct? 70. Mr. McCoy also argued that the activities of the undercover agents in bringing the drugs into the USA had the object and result of preventing the commission of the substantive offence. The agents had no intention of permitting the commission of the offence. The conspiracy, he suggested, had been frustrated by their actions. The crime of conspiracy had been committed and completed in Thailand. 71. From our citation above of s.4 of the Dangerous Drugs Ordinance it will have been seen that no person is permitted to traffic in a dangerous drug (therefore to import it into Hong Kong-see the definition of "traffic" in s.2) except under the Ordinance or by virtue of a licence granted by the Director of Medical and Health Services. There was no evidence before the magistrate that the heroin was lawfully imported notionally into Hong Kong. 72. We have no doubt that Yeung Sun Shun (which, incidentally, we think was correctly decided) binds us to hold that the importation of the drugs into the USA must be regarded as an act done within that jurisdiction in furtherance of the conspiracy. The drugs were taken in to the USA while the conspiracy was still continuing; the applicant agreed with Mike as to how this should he done; the importation was effected in the manner agreed. The agent whom the applicant thought to be a diplomatic courier was his instrument. In law it is as if the applicant took the drugs to New York himself. 73. Lord Diplock's observations at p.872 of McCaffery are, we feel, as relevant to tie conspiracy crime in the Governor's order to proceed as they are to Crime 3 which relates (as can be seen from the date averred) to the actual illegal importation of the drugs into the USA. This is what Lord Diplock said:
74. As regards the effect of the involvement of the US agents in accepting delivery of the drugs in Bangkok and their importation into the USA, the decision of the New South Wales Court of Appeal referred to by the judge is instructive and supports our conclusions. In David Yung Te Chow [1987] 30 A Crim R 103 one of the arguments raised by the appellant in his appeal was that since the importation of heroin by air into Australia by a police informer was part of an organised police attempt to locate and arrest persons alleged to be involved in drugs offences and that it was with the co-operation of the police that he was permitted to bring the drugs into Australia, the importation became an importation by the Commonwealth of Australia and thus not an importation in contravention of the relevant statute. 75. The Court rejected these submissions. They referred to a number of previous decisions in their jurisdiction which stressed that police and other law enforcement officers were not excluded from the operation of the criminal law of the country, and had this to say at p. 108:
and later at p.110:
76. In relation to Crimes 1 and 3, we find support for our approach, too, in Reg. v. Wall [1974] 1 WLR 930, a decision of the English Court of Appeal. The facts appear sufficiently from the headnote :
77. The material parts of the relevant statutory provisions are set out in the opening passage of the judgment of Cairns L.J., who gave the judgment of the Court:
78. We will cite two short passages from what Cairns, L.J. had to say at p.934:
79. After reading a passage from the judgment of Sachs, L.J. in Baxter, Cairns, L.J. continued:
80. We have reached the conclusion that Mr. McCoy's submissions in respect of Crimes l and 3 are not sustainable in the light of the law we have sought to address and apply, and the unchallenged evidence which was before the magistrate. We do not feel called upon to, decide whether or not the undercover agents could properly be regarded as co-conspirators on the facts of this case or what would have been the position had no act in furtherance of the conspiracy been done in the USA [Hong Kong]. 81. We turn now to consider Crimes 2 and 4. The only issue here is whether, making the same factual substitution of Hong Kong for the USA, and the necessary adaptation to the language of s.10 of the Extradition Act 1870:
Effectively the whole conduct alleged against the applicant in respect of these crimes took place in Thailand. Such conduct, submitted Mr. McCoy, does not fall within the criminal jurisdiction of the Hong Kong courts. The Dangerous Drugs Ordinance, Cap.134, should not, he submitted, be construed as haing any extra-territorial effect and in particular any such effect upon a foreigner. Further, so construed the Ordinance would be ultra vires the competence of the Hong Kong legislature. 82. The governing principles here are not in dispute. They are:
83. Further when considering these competing principles it is relevant to bear in mind the advice of Lord Diplock in Reg. v. Treacy [1971] AC 537, 562:
84. The pernicious effect of international drug trade and the threat it poses to Hong Kong are notorious. The Hong Kong legislature could readily conclude that it was in the interests of "order and good government" that it should do everything in its power to meet this threat by legislating against conduct in relation to dangerous drugs which was aimed or directed at Hong Kong. Such conduct is properly "the business" of the 1egislature. If A, for reward transfers a quantity of heroin to B with the intent that it should be taken into Hong Kong and there distributed and sold to the profit of both, the conduct of both A and B is aimed and directed at Hong Kong. The potential "harmful consequences" to Hong Kong are the same whether the transfer takes place just within Hong Kong; just across the border; or at some greater distance away; and whether A or B are Hong Kong citizens or foreigners. 85. We have no doubt that in relation to dangerous drugs the Hong Kong legislature was e powered to enact legislation which was intended to have and had extra-territorial effect, and that Cap.134 was manifestly enacted with such intent. This is apparent from the terms of s.4, and from the definitions of "trafficking", "export" and "import". these are wide and intended to be of wide application, Attorney General v. Lau Chi-sing [1987] HKLR 703. 86. As regards Crime 2 (the alleged trafficking on 21st September in Thailand) the evidence showed, prima facie, that the applicants supplied 20 units of heroin to Mike in Bangkok on payment of US$50,000. It was plain that this heroin was intended to be imported hypothetically into Hong Kong. It was then to be sold and the applicant would be paid his agreed share of the proceeds. 87. When ss.4(1)(a) and 4(2) of the Dangerous Drugs Ordinance are read together with the above definitions, it seems clear to us that these facts showed that the applicant was causing heroin, which was not then in Hong Kong, to be imported into Hong Kong, and was also supplying and dealing with heroin for this purpose and to this intent. 88. Much the same considerations apply to Crime 4 (doing acts preparatory to trafficking contrary to s.4(1)(c) of the Dangerous Drugs Ordinance). Obtaining the drugs from the North or Thailand, transporting them within Thailand, storing them and later handing the over to Mike in Bangkok against payment, were acts performed by the applicant "preparatory to or for the purpose of trafficking" hypothetically by importation into Hong Kong. We therefore conclude that both crimes fall within the criminal jurisdiction of the Hong Kong courts. 89. We were of the opinion for these reasons that, in turn the magistrate and the judge came to the right conclusion. We therefore dismissed the appeal. Representation: Mr. G. McCoy (So & Karbhari) for the Appellant. Mr. M. Blanchflower and Mrs. A. Au (Attorney General) for the Respondents. |