This judgment is now reported in (2019) 22 HKCFAR 289.

On 18 October 2019, the Court of Final Appeal handed down its judgment in HKSAR v Lai Kam Fat (黎錦發) [2019] HKCFA 36 examining the physical and mental ingredients of the substantive and conspiracy drug trafficking offences under the Dangerous Drugs Ordinance (Cap. 134).

Delivering the Court’s judgment, Mr Justice Fok PJ held that to establish the actus reus of the offence of trafficking in a dangerous drug or offering to traffic or doing acts preparatory to trafficking (contrary to section 4(1)(a), (b) or (c) of the Ordinance), the prosecution only has to prove that the substance concerned was a dangerous drug rather than the specific type of drug alleged in the indictment/charge. The reason is that no distinction is made in the Ordinance between different classes of drugs. The differing sentencing tariffs for trafficking in different types of drugs are a matter of judicial precedent and are not laid down in the Ordinance.

Similarly, the Court held that in relation to the mens rea of those offences, the prosecution only has to prove that the accused knew that the substance was a dangerous drug rather than the specific type of drug alleged in the indictment/charge.

The same actus reus and mens rea elements apply to the offence of conspiracy to traffic in dangerous drugs. The analysis is unaffected by section 159A(2) of the Crimes Ordinance (Cap. 200), which is equivalent to section 1(2) of the Criminal Law Act 1977 in the UK, nor by any common law principle.

Thus, the particular nature of the dangerous drug is given in the indictment/charge to inform the accused of the case against him/her, not because it is an essential actus reus or mens rea ingredient of the substantive or conspiracy offence.

However, in some situations, it may be necessary for the prosecution to prove that the substance concerned was the particular type of drug specified in the indictment/charge. One example is where the defence case is that the accused believed that the substance was one with a lesser sentencing tariff than the one alleged by the prosecution. Another example is where there are multiple charges on an indictment alleging different conspiracies involving types of dangerous drugs.

Further, if the wrong drug was identified in the indictment/charge, the appropriate course would be for the prosecution to apply to amend the indictment/charge.

On the facts of this case, the Appellant, Mr Lai Kam Fat, was alleged to have been involved in a single conspiracy involving a single type of drug (cocaine). Therefore, there was no error of law or risk of unfairness arising from the Judge’s direction to the jury that the prosecution only had to prove that the Appellant knew that a dangerous drug was involved, rather than cocaine specifically. Accordingly, the Appellant’s conviction was sound and the appeal was unanimously dismissed by the Court.

Osmond Lam, Benson Tsoi, Ernest Yuen and Dexter Leung appeared for the Appellant, instructed by Messrs Or & Lau.

The full judgment can be found here.