HKSAR v. Wong Tak Wai and Another

FAMC No. 70 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 70 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 220 OF 2011)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro Ag CJ:

1.We dismissed this application for leave to appeal at the hearing for the reasons which we now supply.

2.On 16 February 2015, the Court[1] allowed the appeal of Wong Tak Keung, against his conviction[2] for conspiracy to traffick in a dangerous drug by exporting the same from Hong Kong.  The Court did so on the basis that the evidence against him did not support the inference contended for by the prosecution that he had been a party from the outset, or had subsequently become a party, to the conspiracy as it was hatched and implemented in Hong Kong.  It was moreover held that Wong Tak Keung’s conduct involving the inflicting of severe beatings and torture on the 15 year old drug courier named Pang was not indictable in Hong Kong since that conduct had occurred exclusively in Australia and was therefore incapable of sustaining the conspiracy charged.

3.The present application was brought by the two defendants who were charged as Wong Tak Keung’s co-conspirators. They had been convicted of various conspiracies between themselves and others to traffick in dangerous drugs.  By this application, they sought to challenge their conviction for the conspiracy alleged to have been entered into by them with Wong Tak Keung.  The applicants’ appeals (alongside that of Wong Tak Keung) were dismissed by the Court of Appeal[3] which also refused them a certificate.[4] 

4.They put forward[5] as a question said to be of great and general importance the following:

“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)[6] 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.”

5.The meaning of this question is not entirely clear.  But while it may conceivably be relevant to a person in Wong Tak Keung’s situation, it has no bearing on the position of the present applicants.  As the Court pointed out in HKSAR v Wong Tak Keung:[7]

“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 [the present applicants] 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. [The present applicants] clearly conspired together and did those acts in Hong Kong. They were duly convicted. But there was no evidence that [Wong Tak Keung] (who is [the 1^st applicant’s] brother) had played any part in that process.”

6.At the hearing, Mr Philip Wong sought to argue that since the relevant charge alleged a wide-ranging conspiracy covering a period and conduct which extended beyond the mere export of drugs from Hong Kong, the applicants’ convictions were similarly tainted with extra-territorial flaws.

7.As the Court explained in HKSAR v Wong Tak Keung,[8]  the charge was cast widely to accommodate an expanded conspiracy aimed at encompassing the criminal conduct of Wong Tak Keung in Australia.  Such an expanded conspiracy – which was only relevant to Wong Tak Keung – was not indictable since the only evidence against him involved conduct exclusively outside the jurisdiction.  But none of those difficulties affected the case against these applicants.  All the elements of a conspiracy to traffick in dangerous drugs were proved against them on the basis of their conduct here in Hong Kong and they were duly convicted.  Neither the formulated question nor Mr Wong’s argument based on the width of the charge provides any basis for leave to appeal.

8.The applicants also sought leave to appeal on the substantial and grave injustice basis contending that evidence of Wong Tak Keung’s brutal treatment of Pang in Australia constituted highly prejudicial and inadmissible evidence wrongly admitted as proof of the other conspiracies of which these applicants were convicted.

9.That ground is not reasonably arguable.  As indicated in the passage from this Court’s judgment in HKSAR v Wong Tak Keung cited above, the applicants’ conviction was founded on evidence of their grooming Pang as a courier, organizing his flight, supplying him with money and 650 gm of ice and equipping him to smuggle the drug into Australia.  Such evidence provided an overwhelming basis for their convictions. The evidence led against Wong Tak Keung concerning his conduct in Australia was peripheral to the case against them and did not in any way render their convictions unsafe. 

Mr Philip Wong, instructed by K.B. Chau & Co., assigned by the Director of Legal Aid, for the 1^st and 2^nd Applicants

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