Read the full judgment text of FAMC 000021/1999 on BabelCite. This FAMC judgment was delivered on 7 September 1999 before Litton Ag CJ, Ching PJ, Bokhary PJ.
Criminal law – conspiracy to traffic in dangerous drugs – leave to appeal out of time to Court of Final Appeal – whether Court of Appeal erred in finding no material irregularity in trial judge providing jury with copies of sections of Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 – whether failure to direct jury on ingredients of trafficking in dangerous drugs was fatal – restraint order freezing applicants' assets as ground for extension of time – application for certification of points of law of great and general importance – The applicants sought leave to appeal out of time from their convictions for conspiracy to traffic in dangerous drugs, after the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA) dismissed their appeal in CACC 415/1997. The conspiracy involved the supply of large quantities of heroin from Hong Kong to Sydney-based conspirators, with the drug packed in water supply equipment and air freighted. On arrival, the heroin was unpacked, processed and sold, with proceeds shared back to Hong Kong. Australian National Crime Authority raids on two Sydney premises recovered 3.863 kilos of pure heroin, a hydraulic press, processing equipment, cash and remittance records in one, and 7.9 kilos of heroin in the other. A chartered accountant's tracing exercise established that HK$46.9 million had been remitted to Hong Kong, of which HK$14.8 million was received directly or indirectly by the 1st applicant. The applicants attributed their delay in applying to the Court of Final Appeal to a restraint order freezing their assets, saying their lawyers had only recently been put in funds. – First ground – whether the Court of Appeal erred in finding no material irregularity arising from the trial judge supplying the jury with copies of relevant sections of the Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 without specific directions on their use. The Court of Final Appeal held that the Court of Appeal had not so ruled. On the contrary, the trial judge had given a detailed explanation of the sections and had directed the jury on how the law should be applied, so that the provision of copies was merely an aide memoire rather than leaving the jury to interpret the material themselves. Whether the trial judge's directions were sufficient was primarily a matter for the Court of Appeal as an intermediate appellate court, and there was no proper basis for challenging that assessment in a final appeal. – Second ground – whether the Court of Appeal erred in finding the trial judge's direction on the law of conspiracy sufficient notwithstanding the failure to direct the jury on the ingredients of trafficking in dangerous drugs, the substantive offence that was the object of the alleged conspiracy. The Court of Final Appeal held that the omission was not even reasonably arguable as fatal in the circumstances, given the overwhelming evidence of a conspiracy along the lines charged. The only real issue at trial was whether the 1st applicant had been a party to it, and there was a plenitude of circumstantial evidence. The conspiracy could not have been for any purpose other than to traffic in dangerous drugs. – Observation by the Appeal Committee that there may be advantages in supplying jurors with copies of relevant statutory provisions, but attendant risks must be borne in mind, and trial judges must ensure that such copies do not become more than a means of refreshing memory. – Both applications for certification and leave to appeal out of time dismissed.
Legal issues: Whether providing jury with statutory sections without specific directions on use amounted to material irregularity · Whether failure to direct jury on ingredients of trafficking in dangerous drugs was fatal
Outcome: Both applicants' applications for certification and leave to appeal out of time were dismissed; no foundation for a final appeal.