HKSAR v. Wong Tak Keung

CACC 220/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 220 OF 2011

(ON APPEAL FROM HCCC NO. 302 OF 2010)

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D E C I S I O N

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Hon Lunn JA (giving the decision of the court):

1.On 14 March 2014 we dismissed the applicant’s application for leave to appeal against a conviction for an offence of conspiracy to traffic unlawfully in a dangerous drug, contrary to section 4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and section 159A and 159C of the Crimes Ordinance, Cap. 200 (Count 5). The Particulars of Offence averred that on and between 1 December 2009 and 6 March 2010 the applicant, together with his co-defendants at trial Wong Tak Wai and Lee Hoi Tong, John, conspired together and with Pang Chun Kit, Yeung King Wan Ferrous and Au Yeung Hin Cheong to traffic unlawfully in 650 grammes of methamphetamine.

2.By a Notice of Motion filed on 9 April 2014, the applicant seeks leave to make an application out of time for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.  484, that a point of law of great and general importance is involved in our decision.

3.At the suggestion of Court, and with the consent of the parties, we deal with the applications on the papers without an oral hearing.

4.The application for an extension of time to make the application arises because Practice Direction 4.3 requires that an application for a certificate be made within 7 days of the handing down of judgment.  Those representing the applicant have explained in their written submissions that, although they used their best endeavours to comply with the time limit, they fail to do so.  The respondent has not objected to the application, which we grant.

5.The point for which certification is sought is posed in the following questions :

“ Whether

(a) the principle that a court in Hong Kong has jurisdiction to try a crime “a substantial measure of the activities” which took place within the jurisdiction stated in HKSAR v Krieger and Another (CACC 99/2012, unreported, 18 December 2012, at para 122) citing R v Smith (Wallace Duncan) [2001] QB 1418 at 1433H-1434B) has the effect of extending the ambit of s.159A(3) of the crimes Ordinance, Cap. 200 such they are in a conspiracy to traffic unlawfully in dangerous drugs from Hong Kong to a place outside Hong Kong, any part of the conspiracy which although considered on its own is exclusively extraterritorial is triable in Hong Kong;

(b) If the answer to (a) is in the affirmative, whether it is relevant to consider the proximity of a part which is exclusively extraterritorial to the alleged conspiracy; accordingly

(c) Whether an accused who participated only in a part of the conspiracy which is considered on its own is entirely extraterritorial can be tried and convicted of conspiracy under s. 159 A by a court in Hong Kong; and if so

(d) Whether the answer depends on the proximity of the acts he participated in; and

(e) Whether the Court of Appeal erred in misdirecting itself in holding their participating in extraterritorial acts to recover dangerous drugs which were lost was sufficiently proximate for an accused to be tried in a court in Hong Kong.”

6.Part of the excerpt adopted by this Court in its judgment from the judge’s description in her summing up of the prosecution case relevant to Count 5 serves to describe the ambit of the evidence advanced at trial.  Pang Chun Kit was referred to by the judge as “Ah Kit”, the 1^st defendant as “Fat Gor” and the applicant as the 3^rd accused.  The judge said:[1]

“ The prosecution case, in a nutshell, was that the 2^nd accused Sang Gor who was a tenant of Ah Kit’s father, recruited Ah Kit to smuggle drugs, ‘Ice’, from Shenzhen to Hong Kong. The 1^st accused, Fat Gor, was the boss......

After Ah Kit had smuggled ‘Ice’ into Hong Kong from Shenzhen on three occasions, he was then asked by Fat Gor to deliver drugs to Australia. Fat Gor promised to pay him HK$30,000.00 for this pull. Ah Kit agreed.

After an aborted trip due to the bursting of the seam of one of the shoes containing ‘Ice’, Ah Kit successfully entered Australian territory on his second attempt, thus arriving on 2 January 2010.

There, in Sydney in early January, Ah Kit was engaged in delivering drugs to someone with the codename ‘Ah Leung’ and receiving a pair of shoes with 650 gms of ‘Ice’ inside from a middle‑aged man, (said to be Au Yeung Hin Cheong from a photographic identification by PW1) at the Four Seasons Hotel. He also received a total of AUD$90,000 from Ah Leung and finally delivered AUD$89,000 to the middle‑aged man in Brisbane.

While he was in Sydney on 22 January, after the Brisbane trip, the ‘Ice’ which he had stored in a safe inside the hotel room went missing.  This ice was made up of the unsold portion of the 650 gms which Ah Kit had taken to Australia from Hong Kong plus the 650 gms collected from the Four Seasons hotel.  Fat Gor accused him of hiding the ‘Ice’ and eventually he was taken by someone called ‘Uncle Yeung’ to a house at Dora Street at the end of February 2010 where he was beaten up and tortured by Uncle Yeung and the 3^rd accused Ah Keung, or Keung Gor.”

7.As was noted in our judgment, no issue was taken in the appeal [2] nor is it in this application [3], that the courts of Hong Kong had jurisdiction to try the applicant and his co-defendants on Count 5.  In accepting that the concession was well made, we said: [4]

“ Clearly, the conspiracy contemplated trafficking unlawfully in 650 grammes of ice in two different jurisdictions, namely Hong Kong and Australia. Many significant steps in furtherance of the conspiracy took place in Hong Kong: the ice was obtained packaged in sports shoes; then, an unsuccessful attempt was made by Pang Chun Kit to take the ice to Australia in December 2009; the failure was the result of the fastening on the shoes coming loose, exposing the concealed packets of ice and occurred before he reached the airport in Hong Kong; then, the ice was retrieved only to be returned to Pang Chun Kit concealed in a pair of sports shoes shortly before his re‑booked flight from Hong Kong on 1 January 2010; thereafter, the 1^st applicant gave Pang Chun Kit regular instructions by telephone from Hong Kong in respect of the storage and disposal of the ice and the remittance of the proceeds.”

8.We noted that the judgment of La Forest J in the Supreme Court of Canada in Libman v R [5], in respect of the approach of the English courts to the justifiability of crime, namely that they now seek to apply the English criminal law where a “substantial measure of the activities” constituting a crime take place in England, had been cited with approval in the opinion of the Privy Council in Liangsiriprasert v Government of the United States of America [6], by Lord Woolf CJ in the judgment of the Court of Appeal of England and Wales in R v Smith (Wallace Duncan) [7] and in the judgment of this Court delivered by Stock VPin HKSAR v Krieger & Another [8].  Then, having regard to the “significant steps in furtherance of the conspiracy” which had taken place in Hong Kong enumerated earlier, we said:[9]

“ Clearly, the activities described above as having occurred in Hong Kong in furtherance of the conspiracy fall within the phrase “a substantial measure of the activities”, so that there was jurisdiction to try the offence in Hong Kong.”

9.We noted that the role of the applicant in Count 5 was limited, as described in the evidence of Pang Chun Kit and set out in the judge’s summing up :

“ There was indeed no mention of the 3^rd accused by ‘Ah Kit’ until he was taken to the bungalow at Dora Street, which was towards the end of February, almost 2 months after ‘Ah Kit’ had exported the 650 grammes of ‘Ice’ from Hong Kong into Australia.”

10.There was no dispute that the applicant did not leave Hong Kong travel to Australia until the end of February 2010 returning a few days later.[10] We went on to note of the judge’s summing up in respect of the treatment meted out to Pang Chun Kit, after he had been attacked by the applicant in the Dora Street bungalow :

“ Pang Chun Kit testified that the 3^rd applicant said to him, “You have taken Fat Gor’s goods (the 1^st applicant), don’t pretend.” Then, as the judge went on to remind the jury, in a telephone call on the speakerphone the 1^st applicant told Pang Chun Kit, “(to) own up, confess where he had hidden the goods and to surrender the goods as soon as possible”.

11.In that context, we noted that:[11]

“ ...the issue taken before this court was whether or not at that time, namely late February and early March 2010 there was an extant conspiracy to traffic unlawfully to which the 3^rd applicant could become a party. Or, was the conspiracy complete, it having come to an end when the dangerous drugs were exported from Hong Kong...” [12]

12.In the result, we were satisfied the ambit of the conspiracy averred in Count 5 and triable in Hong Kong was: [13]

“ …to smuggle the ice out of Hong Kong and into Australia, distribute it in Australia, storing it safely until that was done, and to deal with the proceeds of sale.”

13.Accordingly, we were satisfied that the judge was correct in leaving the matter to the jury on the basis that, if they were satisfied that the 3^rd applicant’s role was to seek to recover the lost ice, they were entitled to conclude that he had become a party to the conspiracy to traffic unlawfully in the 650 grammes of ice as particularised in Count 5.

14.With respect to counsel, the judgment of this court did not involve a point of law of great and general importance as set out in Question 1(a).  Rather, it involved a consideration of whether or not, if the jury accepted the prosecution case, they could be satisfied that the applicant had joined a conspiracy that had its genesis in Hong Kong and from which it was directed by the 1^st applicant throughout.  We do not deal with questions 1(b) to (e), which are predicated on an affirmative answer to question 1(a).

Conclusion

15.Accordingly, we refuse the application for a certificate.

Mr Martin Hui SADPP and Mr Ivan Cheung PP, of the Department of Justice, for the respondent

Ms Margaret Ng and Mr Kay K. W. Chan, instructed by Alan Ho & Co, for the applicant

[1] Judgment; pages 3 J - 4 G, paragraph 6.

[2] Judgment; page 7, paragraph 10.

[3] Applicant’s Written Submissions, paragraph 7.

[4] Judgment; page 9 D-N, paragraph 14.

[5] Libman v R (1985) 21 DLR (4^th) 174 at 189.

[6] Liangsiriprasert v Government of the United States of America [1991] 1 AC 225 at 250.

[7] R v Smith (Wallace Duncan) [2004] QB 1418 at 1433 H – 1434 B.

[8] HKSAR v Krieger & Another (CACC 99/2012; unreported, 18 December 2012) at paragraph 122.

[9] Judgment; page 10 J-L, paragraph 17.

[10] Judgment; page 17, paragraph 36.

[11] Judgment; page 18 D-G, paragraph 37.

[12] Repeated in the Applicant’s Written Submissions, paragraph 7.

[13] Judgment; page 19 D-E, paragraph 39.