HKSAR v. Wong Tak Wai and Another

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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BETWEEN

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D E C I S I O N

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

1.On 14 March 2014 we dismissed the applicants’ applications, and that of Wong Tak Keung, for leave to appeal against their convictions on 23 May 2011 after a trial before Barnes J and a jury of various counts 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. The 1^st applicant was convicted of Counts 2-6, the 2^nd applicant of Counts 3-6 and Wong Tak Keung of Count 5 only.

2.By a Notice of Motion filed on 11 September 2014, the applicants seek 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, namely :

“ Whether the principle that a court in Hong Kong has jurisdiction to try a crime ‘a substantial measure of the activities’ of which took place within [the] jurisdiction stated in HKSAR v Krieger and Another (CACC 99/2012, unrep., 18 December 2013, at §122) citing R v Smith (Wallace Duncan) [2004] QB 1418 at 1433H-1434B has the effect of extending the ambit of s. 159A(3) of the Crimes Ordinance (Cap. 200) such that in a conspiracy to traffick 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.”

3.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 seven days of the handing down of judgment.  The 1^st and 2^nd applicants filed applications for the grant of legal aid to make an application to this court on 26 March and 7 April 2014 respectively.  On 1 August 2014 those applications were refused.  However, on 12 August 2014 the Appeal Committee of the Court of Final Appeal granted Wong Tak Keung leave to appeal, inter alia, in respect of the question of law for which certification is sought from this Court.  Thereafter, the applicants renewed their applications for the grant of legal aid, which were granted on 20 August 2014.  The respondent has not objected to the applications, which we grant.

5.Although it is not so stipulated in the written submissions of Mr Philip Wong, on behalf of the applicant, nevertheless it is clear that the question of which certification is requested addresses the circumstances arising in Count 5 only.  That was the only count in which it was alleged by the prosecution that there was a conspiracy “to traffic unlawfully in dangerous drugs from Hong Kong to a place outside Hong Kong”.  The evidence adduced by the prosecution of Wong Tak Keung’s participation in the conspiracy the subject of Count 5 was his conduct in Australia after the courier Pang Chun Kit had delivered the methamphetamine hydrochloride from Hong Kong to Australia.  By contrast, as Mr Martin Hui for the respondent pointed out in his submissions, there was substantial evidence adduced by the prosecution of acts of the applicants done with Pang Chun Kit in Hong Kong in furtherance of the conspiracy: the 1^st applicant recruited Pang Chun Kit in Hong Kong to deliver methamphetamine hydrochloride from Hong Kong to Australia; the 2^nd applicant provided him in Hong Kong with money to buy an airline ticket to Australia and on two occasions in Hong Kong provided him with shoes in which methamphetamine hydrochloride was concealed; the 1^st attempt by Pang Chun Kit to fly to Australia with the methamphetamine hydrochloride was aborted when the shoes failed, but the 2^nd attempt was successful.

6.Clearly, the evidence adduced by the prosecution against the applicants in respect of Count 5 was evidence of their conduct in Hong Kong only.  In our judgment the resolution of the question of law posed in behalf of the applicants will not impact on the safety of their convictions on Count 5.

Conclusion

7.Accordingly, we dismiss the application.

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

Mr Philip Wong instructed by Leung & Lau, assigned by Director of Legal Aid, for the 1^st applicant and the 2^nd applicant