HKSAR v. Wong Tak Keung

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Press Summary (Chinese)

FACC No. 8 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2014 (CRIMINAL)

(ON APPEALFROM CACC NO. 220 OF 2011)

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Between

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REASONS FOR JUDGMENT

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Mr Justice Ribeiro PJ:

1.In this appeal, the appellant’s conviction for a conspiracy allegedly entered into in Hong Kong involving the commission of an offence abroad was called into question.  At the hearing, we allowed the appeal and quashed the conviction with reasons to be given later.  These are the Court’s reasons.

A.  The charge

2.On 23 May 2011, Wong Tak Wai and Lee Hoi Tong, John (referred to below and in these Reasons as D1 and D2 respectively), as well as the appellant Wong Tak Keung were convicted after trial before Barnes J and a jury[1] of various counts of conspiracy to traffic in a dangerous drug.[2] 

3.This appeal concerns only the appellant.  He was convicted of having conspired, between 1 December 2009 and 6 March 2010, with D1 and D2 and with Pang Chun Kit (“Pang”), Yeung King Wan, Ferrous (“Yeung”) and Au Yeung Hin Cheong (“Au Yeung”) to traffic unlawfully in 650 gm of methamphetamine, commonly called “ice”.  He was sentenced to 19 years’ imprisonment.

B.  The prosecution’s case

4.The prosecution’s case was that the trafficking which was the object of the conspiracy involved the export of ice from Hong Kong to Australia.  This comprised a process which began with D1 and D2 grooming Pang, then aged 15, to be a courier, having used him on three previous occasions to smuggle ice into Hong Kong from Shenzhen.  At the end of 2009, they organized his flight, provided him with money and 650 gm of ice, and equipped him to smuggle the drug into Australia.  D1 and D2 clearly conspired together and did those acts in Hong Kong.  They were duly convicted.  But there was no evidence that the appellant (who is D1’s brother) had played any part in that process. 

5.Pang arrived in Sydney on 1 January 2010 and succeeded in getting through Australian customs with the ice concealed in his shoes.  Between 2 and 17 January, Pang performed various acts pursuant to instructions received from D1 by telephone.  This included selling part of the 650 gm of ice he had smuggled in to someone called “Ah Leung”; receiving A$90,000 from Ah Leung; receiving a further 650 gm of ice from Au Yeung (one of the alleged co-conspirators); and paying Au Yeung A$89,000. 

6.On 22 January, someone stole the ice which was in Pang’s custody from the safe in his hotel room.  He reported this to D1 and was eventually, at the end of February 2010, taken by Yeung (another alleged co-conspirator) to a house where the appellant first came into the picture.  He had arrived in Australia on 26 February and, over several days, administered a series of brutal beatings and forms of torture on Pang, accusing Pang of having stolen the ice and demanding that he disclose its whereabouts.  That accusation was consistently denied by Pang.  Then, on 5 and 6 March, the appellant and Pang separately returned to Hong Kong.  Pang was then subjected to further torture by the appellant among others,  and told that he had to continue to smuggle drugs for D1 to make up for the drugs lost in Australia.  The maltreatment he had suffered was of such severity that Pang was driven to attempting suicide.  While recovering in hospital, he revealed what had happened, leading eventually to the arrest of D1, D2 and the appellant, and to Pang giving evidence against them under immunity.

7.It is of central importance to note (i) that there was no evidence of the appellant’s involvement until almost two months after the ice had been exported from Hong Kong; and (ii) that his conduct relied on by the prosecution for establishing liability occurred entirely in Australia.

8.These features of the case give rise to two major difficulties in the prosecution’s case: On what basis can it be established that the appellant was a party to the conspiracy charged?  Even assuming that he was party to the conspiracy entered into in Hong Kong and that his criminal conduct in Australia was one of the objects of the conspiracy charged, does the Hong Kong Court have jurisdiction over a conspiracy to commit the relevant offence abroad?

C.  Was the appellant a party to the conspiracy charged?

9.The conspiracy charged is a conspiracy to traffic in dangerous drugs.  The substantive offence of trafficking is created by section 4(1)(a) of the Dangerous Drugs Ordinance[3] which states:

“... no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong – traffic in a dangerous drug ...”

10.“Trafficking” is defined in section 2 of that Ordinance as follows:

“‘trafficking’, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and ‘traffic in a dangerous drug’ shall be construed accordingly...”

11.As previously noted, the trafficking in the present case was alleged to involve exporting from Hong Kong the 650 gm of ice.  The prosecution’s evidence, as we have seen, focusses on the steps taken by D1 and D2 in Hong Kong at the end of December 2009 to groom, equip and send Pang off as courier, culminating in the successful smuggling of the ice out of Hong Kong and into Australia. 

12.But the evidence against the appellant, which concerned only his assaults on Pang two months later, does not on its face indicate that he was a party to the conspiracy charged.  It was accordingly argued on the appellant’s behalf that the conspiracy to export the ice was complete upon Pang’s departure from Hong Kong on 1 January 2010 and that there was no evidence that the appellant was ever a party thereto.

C.1  Inferring that the appellant was a conspirator from the start

13.The respondent’s first answer was to contend that the appellant’s subsequent brutal treatment of Pang with a view to recovering the missing drugs justifies the inference that he had been a party to the original conspiracy from the start.  For that contention to be sustained, that inference must be the only reasonable inference which can be drawn on the evidence.[4]  Although the trial judge recognized this probative requirement, her direction to the jury on this point went seriously astray.  She stated:

“If you accept [Pang’s] evidence, the [appellant] and ‘Uncle Yeung’ were sent by the 1^st accused to put pressure on [Pang] to return the lost ‘ice’. In all the circumstances, can you draw the only reasonable inference that the [appellant] was a party to the conspiracy to traffic the 650 grammes? Is it a reasonable inference that the [appellant] and ‘Uncle Yeung’ just went to beat [Pang] up on instruction of the 1^st accused, and they had absolutely nothing to do with the conspiracy, nothing to do with the importing of the 650 grammes? Or is it the only reasonable inference is that the [appellant] and Yeung King-wai were parties to this conspiracy to traffic the 650 grammes of ‘ice’ out of Hong Kong into Australia? It is a matter for you.” (Italics supplied)

14.This had been presaged by the trial judge when, in a discussion with the appellant’s counsel, her Ladyship said:

“Well, the jury will be asked to draw the inference, if he had nothing to do with it, why would [he] go and beat up [Pang]?”

15.The direction was seriously defective since it suggests to the jury that unless they thought the appellant “had absolutely nothing to do with the conspiracy”, they could properly draw the inference that he had been party to the conspiracy as charged.  That was plainly erroneous. The inference could only be drawn if it was the only reasonable inference to be drawn from the evidence that some two months after the ice was exported, the appellant went to Australia and there administered the assaults on Pang.  It is obviously at least as reasonably to be inferred from such evidence that he only became involved after and separately from the original conspiracy, making it impermissible to infer that he was a party thereto.

16.A further error evident in the direction involves its reference to the conspiracy as one involving “the importing of the 650 grammes”.  In the present case, such “importing” could only mean importing into Australia.  That was not, and could not be, the object of the conspiracy charged.  As is evident from the statutory definition set out above, “trafficking” may consist (inter alia) of exporting drugs from Hong Kong or importing them into Hong Kong.  The only form of trafficking capable of constituting the actus reus of the substantive offence in the present case was exporting the ice from Hong Kong.  Of course, the exported drugs were intended to be smuggled, and thus imported, into Australia.  But such importation is not a constituent element of the substantive offence under Hong Kong law and it was not (and could not be) the legally relevant object of the conspiracy charged.  Importing drugs into a foreign country raises issues of extra-territorial jurisdiction and is not a form of trafficking penalised by sections 2 and 4(1)(a) of the Dangerous Drugs Ordinance. 

C.2  Inferring that the appellant subsequently joined the conspiracy

17.An alternative means by which the respondent sought to uphold the appellant’s conviction as a party to the original conspiracy involves the contention that, if not a party from the start, he subsequently became a party.  This was an argument favoured by Lunn JA in the Court of Appeal.  His Lordship held that the jury were entitled to convict the appellant “if they were satisfied that the [appellant’s] role was to seek to recover the lost ice” since they would be “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”.[5]  That proposition faces the same difficulties since there was no evidence and no basis for finding as an irresistible inference that the appellant had “become” a party to the pre-existing conspiracy to export.  Not surprisingly, Mr Gerard McCoy SC[6] was unable to say when the appellant allegedly joined the original conspiracy.  That causes the respondent difficulties since the object of a conspiracy to export would have been achieved when Pang departed from Hong Kong on 1 January 2010 with the ice, leaving no extant conspiracy for the appellant to join after that date.  In such circumstances, an inability to say when, if at all, the appellant became a party completely undermines the respondent’s argument.  We might add that it was a self-destructive argument to submit that the only reasonable inference was (i) that the appellant had been a party to the conspiracy from the start; and simultaneously, was (ii) that he had only joined it subsequently. 

C.3  The appellant’s acts as implementing an expanded conspiracy

18.Assuming (as we have held) that no proper basis exists for inferring that the appellant was from the start, or subsequently became, a party to the original conspiracy to export the drug, a more elaborate third alternative aimed at fixing the appellant with liability as a conspirator was advanced by the respondent.  This involved a two-stage argument. 

19.It was submitted first, that the conspiracy was not simply a conspiracy to traffic by exporting the drug, but a conspiracy which encompassed trafficking the drug in Australia and repatriating the proceeds to Hong Kong, the purpose of this argument being to provide a basis for contending that the appellant’s assaults on Pang came within the object of the expanded conspiracy. 

20.The respondent’s printed case formulates the expanded conspiracy in the following terms:

“152. The conspiracy alleged under Count 5 was an agreement among the three accused and the named co-conspirators to pursue a ‘course of conduct’, including:

(1) arranging PW1 to bring the 650 g of ICE from Hong Kong to Australia;

(2) instructing PW1 to sell the ICE in Australia;

(3) when the ICE was said to be lost by PW1, the departure of the Appellant and Uncle Yeung from Hong Kong to Australia to exact violence and interrogate PW1 to recover the missing ICE; and

(4)  arranging for the proceeds from the sale of ICE to be brought back to Hong Kong.”

21.This argument has to contend with extra-territorial difficulties since the appellant’s acts, even if properly regarded as something agreed upon by the conspirators in Hong Kong, were to take place only in Australia.  This necessitated the second stage of the argument designed to overcome those jurisdictional difficulties.  The suggested answer to those difficulties involved reliance on the Canadian Supreme Court’s decision in Libman v R,[7] to contend that the appellant’s acts in Australia were sufficiently linked to the original conspiracy to justify the assumption of jurisdiction by the Hong Kong courts.  We deal with that argument below.[8]

22.A similar approach had been adopted in the Court of Appeal with Lunn JA holding that “the object of the conspiracy was 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.”[9]  His Lordship also relied on Libman and certain other cases to provide an answer to the extra-territorial difficulties.

C.4  Expanded conspiracy impermissible

23.In our view, the argument advanced in support of the third alternative is bad at both stages.  To characterise the object of the conspiracy in such expanded terms goes far beyond the charge preferred in the indictment and indeed, alleges an offence which goes beyond the statutory definition of the substantive offence.  The indictment alleges a conspiracy to traffic in dangerous drugs which, as noted above, can only mean a conspiracy to export such drugs from Hong Kong in the present case.  It was impermissible for the respondent and the Court of Appeal to amend and expand the charge in the manner proposed. To do so involved upholding the conviction on a basis which the appellant was never confronted with at the trial.  More fundamentally, for the reasons given in the section which follows, this alternative approach postulates a conspiracy which was not justiciable in Hong Kong.

D.  Issues as to territorial jurisdiction

24.In widening the object of the conspiracy beyond export of the 650 gm of ice from Hong Kong so as to embrace as part of its object trafficking in Australia, involving also the appellant’s assaults on Pang, the respondent and the Court of Appeal were positing a conspiracy to commit offences abroad which falls outside the jurisdiction of the Hong Kong courts. 

D.1  Territorial jurisdiction at common law

25.As the Privy Council noted in Somchai Liangsiriprasert v Government of the United States of America,[10]the law of conspiracy in Hong Kong at common law is the same as the common law of conspiracy in England.

26.It is clearly established that at common law, a conspiracy to commit an offence abroad is not indictable in Hong Kong unless the contemplated offence is one for which an indictment would lie here.[11]  Accordingly, to determine whether a defendant can be tried on a conspiracy charge in Hong Kong, it is necessary to ascertain whether the contemplated substantive offence would, if committed, be itself indictable in Hong Kong.

27.The general rule is that the courts’ criminal jurisdiction is territorial.  As Lord Salmon pointed out, it is a –

“... well-established principle that crime is generally regarded as territorial, ie, punishable only in the jurisdiction in which it is committed. For example whilst A and B are both in the USA, A robs B (an English subject); if A subsequently comes to the UK he cannot be prosecuted here for that crime.” [12]

And as Lord Diplock explained, that principle rests upon the international rules of comity.[13]

28.This applies both to common law and statutory offences. Offence-creating statutes are construed applying a strong presumption against extra-territorial effect.[14] It follows that the jurisdiction of our courts to try conspiracies is generally limited to conspiracies to commit offences within Hong Kong. 

29.This rule is subject to statutory modification. In certain cases, there is express statutory authority to try offences committed abroad.  One example involves the offence of murder.[15]  Other examples include the offence of offering an advantage to a public servant contrary to the Prevention of Bribery Ordinance[16] and the offences of dishonesty listed in the Criminal Jurisdiction Ordinance (“CJO”).[17]  In such cases, since commission of the specified offences abroad is made indictable by statute, a conspiracy entered into in Hong Kong to commit such offences is also justiciable here.   No statutory exception applies to drug trafficking.

30.Where there is no express statutory provision, whether a person can be guilty at common law of conspiracy to commit an offence involving certain foreign elements depends on whether the contemplated substantive offence, if committed, would be indictable here. 

31.Usually, this does not cause any difficulty.  Four categories of cases may be noted. 

(a)  First and obviously, if the conduct constituting the substantive offence contemplated by the conspirators entirely occurs abroad, neither the substantive offence nor any conspiracy entered into in Hong Kong to commit it are indictable here.[18]

(b)  Secondly, if all the elements essential to establishing liability for the contemplated offence occur in Hong Kong, both the substantive offence and any conspiracy to commit it are indictable here.  This is so even if the defendant’s conduct may in fact produce certain consequences abroad.  Treacy v DPP,[19] is an illustration.  The House of Lords held that the posting of a letter in the Isle of Wight demanding money with menaces from the addressee in Germany constituted the substantive offence of blackmail since the making of such a demand was the essential criminal act occurring in England.  The fact that the letter was received and read in Germany was not essential to liability and did not deprive the English court of jurisdiction.

(c)  In a third category of cases, a conspiratorial agreement may be made abroad, with a view to committing an offence in Hong Kong.  In such cases, if one or more of the conspirators should come to Hong Kong they would be subject to indictment for the conspiracy here, just as they would be indictable for the substantive offence if and when they committed it here.  The Court asserts a protective jurisdiction to deter and punish offences intended to be carried out in Hong Kong.[20]

32.Pausing here, the position was conveniently summarised by Lord Bingham CJ in R v Jamshid Hashemi Naini,[21] in the following propositions:

“It seems to us that, in the light of all this authority, certain principles emerge. First, in determining issues of jurisdiction, a distinction is to be drawn between charges of substantive offences and charges of conspiracy. That we regard as supported by the decisions in Liangsiriprasert v Government of the United States of America and Manning.[22] Secondly, it is clear that the courts of England and Wales have no jurisdiction to try a defendant on a count of conspiracy if the conspiracy, although made here, was to do something in a foreign country, or which could only be done in a foreign country. That proposition is supported by Board of Trade v Owen, Cox[23] and Attorney-General's Reference (No 1 of 1982).[24] Thirdly, in our view the authorities establish that the courts of England and Wales do have such jurisdiction if the conspiracy wherever made is to do something here or to do something which may be done here, whether wholly or in part, even if no overt act pursuant to the conspiracy is done in England and Wales. The residence of the party who suffers the loss does not determine where the crime of defrauding takes place. That conclusion is in our judgment supported by Kohn,[25] Board of Trade v Owen, Cox, Liangsiriprasert v Government of the United States of America, Sansom[26] and Manning.”

33.It is only in relation to a fourth category of cases that controversy has arisen and that the law has developed.  This category involves cases where some of the constituent elements of the offence occur within the jurisdiction while other essential elements occur outside. Such cases concern what are sometimes called “result crimes” where a defendant does a prohibited act producing a prohibited result (such as obtaining property by an act of deception) and the act and the result occur in two different jurisdictions.[27]

(a)  The traditional view was that offences in this category were deemed to have been committed only in the place where the offence was completed – where the final essential element occurred – often called the “terminatory approach”.  This is illustrated by R v Harden,[28] where the defendant, operating in England, was charged with obtaining cheques by false pretences.  The cheques were held to have been obtained by him at the moment when they were posted to him in Jersey.  It was consequently held that the offence was completed abroad and that there was no jurisdiction to try it in England.  This “terminatory approach” is traceable to R v Ellis[29] and had support in (amongst other authorities) DPP v Stonehouse[30] and R v Manning.[31]

(b)  However, in recent English cases stemming from the judgment of Lord Woolf CJ in R v Smith (Wallace Duncan) (No 4)[32] a wider approach has been adopted whereby the substantive offence is held to be committed within the jurisdiction and thus justiciable by the English courts if “substantial activities constituting the crime” occurred within the jurisdiction, even if other essential elements of the offence also occurred abroad.  This approach was approved by Lord Hope of Craighead in R (Purdy) v Director of Public Prosecutions[33]and subsequently applied by the English Court of Appeal in R v Sheppard.[34] 

(c)  As we point out below,[35] it is this controversy which provides the context of the Canadian Supreme Court’s decision in R v Libman, La Forest J preferring this wider approach to the earlier “terminatory” theory.

34.Leaving aside for the moment the Libman approach, it is clear that at common law, the appellant could not validly be indicted as a party to the expanded conspiracy formulated by the Court of Appeal and by the respondent.  Even assuming (contrary to what we have held) that the evidence established a conspiracy in Hong Kong that the appellant should fly to Sydney to assault Pang with a view to recovering the missing drugs, it would be a non-justiciable conspiracy having (so far as the appellant was concerned) the object of committing a substantive offence entirely in Australia. 

D.2  Crimes Ordinance, section 159A

35.Jurisdiction to try conspiracies involving a course of conduct in a foreign jurisdiction is now governed by section 159A of the Crimes Ordinance[36] which materially provides as follows:

(1)   Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions ...

(a)   will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement ...

he is guilty of conspiracy to commit the offence or offences in question.

...  

(3)   In this section ‘offence’ means any offence triable in Hong Kong and includes murder notwithstanding that the murder in question would not be so triable if committed in accordance with the intentions of the parties to the agreement.”

36.Section 159A enacts the general common law rule limiting extra-territorial jurisdiction in conspiracy cases and provides that a conspiracy is justiciable in Hong Kong only if the agreed course of conduct involves committing a substantive offence which would be triable in Hong Kong. It therefore excludes conspiracies to commit offences abroad which are not triable here.  Murder is expressly dealt with since, as we have seen, extra-territorial jurisdiction is granted by statute.

37.It follows that the respondent’s third alternative argument for establishing the appellant’s liability as a conspirator falls foul of section 159A just as it falls foul of the common law rule against extra-territorial jurisdiction.

D.3  Purported reliance on R v Libman

38.Lunn JA (writing for the Court of Appeal) mentions, but does not examine the provisions of, section 159A.  His Lordship apparently considered the jurisdictional problem solved by invoking the dictum of La Forest J in Libman v R,[37]where His Honour stated:

“The English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred and where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.”

39.Emphasising the words “a substantial measure of the activities constituting a crime take place in (Hong Kong)”, Lunn JA expressed the view that “[many] significant steps in furtherance of the conspiracy took place in Hong Kong” detailing them as follows:

“... 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 1st 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.”[38]

40.His Lordship concludes:

“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.”[39]

41.This line of argument was adopted by Mr McCoy as the second stage of his argument in support of his third alternative basis for finding the appellant guilty as a conspirator.  On the premise (which we have rejected) that the conspiracy encompasses as one of its objects, the appellant’s assaults on Pang in Australia with a view to recovering the missing drugs, the argument is that the foreign location of such conduct does not deprive the Hong Kong courts of jurisdiction because those acts form part of an agreed course of conduct, a “substantial measure” of which had taken place in Hong Kong, giving a sufficiently substantial link with Hong Kong to justify the assumption of criminal jurisdiction.

42.The argument is, with respect, untenable.  The Hong Kong activities detailed by Lunn JA were those involving D1, D2 and Pang in exporting the drug from Hong Kong, completed long before the appellant came onto the scene.  It is a misapplication of R v Libman to suggest that the test referring to “a substantial measure of the activities” of a conspiracy somehow assists the respondent’s case.  As we seek to explain in the section which follows, the Libman test operates in a different analytical context.  In any event, it can only operate in relation to activities in which the defendant was implicated.  The defendant must be implicated in the activities, a “substantial measure” of which occurred within the local jurisdiction.  The appellant was not so implicated in the export activities of D1 and D2 in Hong Kong.

D.4  The effect of R v Libman

43.The Libman approach does not assist the respondent.  There is no conflict between the dictum of La Forest J in Libman and either the general common law rule against extra-territorial jurisdiction or the statutory rule enacted by section 159A.  The defendant in Libman operated a scheme for defrauding persons residing in the United States by making fraudulent sales pitches by telephone from a room in Toronto.  Those who were victims of the fraud were persuaded to send money to Costa Rica and Panama to buy gold mining shares that were in fact worthless.  The defendant would periodically travel to those countries to collect the profits and, on his return to Toronto, distributed to his telephone operatives their share of the same.  He was charged with seven counts of fraud and one count of conspiracy to commit fraud. It was in that context that La Forest J noted that English authorities[40] considered it sufficient in cases of trans-national fraud for “a substantial measure of the activities constituting a crime [to] take place in England”.  He concluded:

“I might summarize my approach to the limits of territoriality in this way. As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a ‘real and substantial link’ between an offence and this country, a test well known in public and private international law...”[41]

44.In the light of Mr McCoy’s submissions considered below,[42] it is worth emphasising that La Forest J favoured the assumption of jurisdiction where “a significant portion of the activities constituting [the relevant substantive] offence took place in Canada”.  He was not concerned with matters which were not constituent elements of the offence.

45.His Honour was favouring Lord Woolf’s wider approach over the earlier “terminatory approach” in cases where the essential elements of a result crime occur partly within and partly outside the jurisdiction.  The Libman decision has no application in a case like the present where the conspiracy involves the appellant’s criminal conduct occurring entirely outside Hong Kong.  We comment in passing that while this Court noted, but expressed no view on, the terminatory approach controversy in B v The Commissioner of the Independent Commission against Corruption,[43] the wider approach derived from Smith (Wallace Duncan) (No 4),was, in our view correctly, preferred by Deputy High Court Judge Stuart-Moore in HKSAR v Chan Shing Kong,[44] and approved obiter by the Court of Appeal in HKSAR v Krieger.[45]

46.The Court of Appeal’s approach below also fails to derive any support from the Privy Council’s decision in Somchai Liangsiriptasert v Government of the United States of America.[46]  In that case, undercover agents of the United States Drug Enforcement Agency entered into a purported conspiracy with the appellants in Thailand to export heroin supplied by the appellants from Bangkok to New York.  Since drug offences were not extraditable as between Thailand and the United States, the appellants were lured to Hong Kong to obtain payment and were arrested here. In the extradition proceedings which followed, the Court was required to examine the justiciability under Hong Kong law of the offence of conspiracy to traffic in dangerous drugs, transposing Hong Kong for New York.[47]  In other words, the appellants were notionally treated for the purposes of the extradition proceedings as having conspired in Thailand to cause the drugs to be exported to Hong Kong.

47.Somchai Liangsiriptasert therefore is about a conspiracy hatched abroad to import drugs into Hong Kong, the converse of the situation that we are concerned with.  That is a crucial difference since the harm intended by the conspirators would occur in Hong Kong when the drugs were smuggled here, a situation calling for the courts to assume jurisdiction to protect Hong Kong society.

48.In the English jurisprudence, it had previously been held that a foreign conspiracy was indictable in England where it was wholly or partly performed in England, or where, viewed as a continuing offence, the conspiracy continued its existence in England.[48] The important question in Somchai Liangsiriptasert was whether a conspiracy hatched abroad and intended to be implemented in Hong Kong, was triable in Hong Kong before any overt act forming part of its implementation was done in Hong Kong.  It was in that context that Libman and the Hong Kong Court of Appeal’s decision in AG v Yeung Sun-shun,[49] were cited with approval, the Privy Council holding that an un-executed conspiracy aimed at Hong Kong is indictable in Hong Kong.[50] Somchai Liangsiriptasert has no bearing on the issue under discussion.

49.Accordingly, with respect, the attempt by the Court of Appeal and the respondent to sustain jurisdiction in Hong Kong on the basis of R v Libman was erroneous.

D.5  An extravagant submission by the respondent

50.At one stage, Mr McCoy advanced the startlingly extravagant argument that the Hong Kong courts have jurisdiction over a conspiracy which has as its object the commission of an offence, every essential element of which occurs abroad, so long as it is possible to point to some “real and substantial link” between that offence and Hong Kong.  Counsel then proceeded to outline a series of “factors” which he suggested might provide such a link. Mr McCoy purported to cite R v Libman as authority but, as we have emphasised, R v Libman is concerned with favouring the wider approach over the terminatory approach to cases where essential elements of offences occur in different jurisdiction.  It provides no support for Mr McCoy’s submission suggesting that jurisdiction can be established by reference to “factors” other than the constituent elements of the offence.  It is a submission inconsistent with common law precedent of the highest authority[51] and inconsistent with section 159A(3).  It is also at odds with the provisions of the CJO which demonstrate the need for express statutory provision to confer jurisdiction over a conspiracy to commit an extra-territorial offence on the basis of acts in Hong Kong which are not constituent elements of that offence.[52]  When asked why, if his submission was correct, such provisions were needed, Mr McCoy was driven to submitting that the CJO was an otiose statutory confirmation of the position at common law.  His submission was patently unsustainable.

E.  Conclusion

51.For the aforesaid reasons, the Court concluded that there was no valid basis upon which the appellant’s conviction as a party to the conspiracy charged could be sustained and that the appeal had to be allowed and his conviction quashed.  The only justiciable conspiracy that could properly be envisaged by the indictment was one to export drugs.  There was no evidential basis for concluding that the appellant was party to any contemplated or actual criminal activity until after the object of that conspiracy was fulfilled.  Accordingly, there was, in our judgment, no case to answer, let alone a basis which could properly found a conviction upon the indictment.

Ms Margaret Ng, Mr Kay Chan instructed by Alan Ho & Co., for the Appellant

Mr Gerard McCoy SC, Mr. Martin Hui SADPP, Mr. Ivan Cheung PP of the Department of Justice for the Respondent.