Court of Final Appeal grants leave to appeal against conviction for conspiracy to traffic in cocaine

On 18 January 2019, the Appeal Committee of the Court of Final Appeal (Ribeiro PJ, Cheung PJ and Stock NPJ) granted the Applicant in HKSAR v Lai Kam Fat [2019] HKCFA 4 leave to appeal on the following question of law of great and general importance:

“Where an indictment or charge of conspiracy to traffic in a dangerous drug (contrary to sections 4(1)(a), 4(3) and 39 of the Dangerous Drugs Ordinance, Cap 134, and sections 159A and 159C of the Crimes Ordinance, Cap 200), particularises a specific drug alleged to be the subject of the conspiracy, must the prosecution prove that the defendant charged with that conspiracy knew that that specific drug was the subject of the conspiracy or is it sufficient to prove that he knew that what was agreed to be trafficked was a dangerous drug?“

At trial, the prosecution laid an indictment charging the Applicant with one count of conspiracy to traffic in a dangerous drug, namely cocaine. In short, the prosecution case was that the Applicant was part of a conspiracy to traffic in 3 parcels containing 4.23kg in total of cocaine.

In summing up at the end of the trial, the trial judge (P. Li J) directed the jury that they only had to be sure that the Applicant knew that the parcels contained a dangerous drug. The judge stated that it was not necessary for the prosecution to prove that the Applicant knew that the parcels specifically contained cocaine.

The jury returned a unanimous guilty verdict. The Applicant was sentenced to 29 years’ imprisonment.

The Court of Appeal (Yeung VP, Poon JA and A. Wong J) upheld the trial judge’s direction to the jury as being the correct legal position regarding the required mental element (mens rea) for the offence of conspiracy to traffic in a dangerous drug.

The substantive appeal will be heard by the Court of Final Appeal on 3 September 2019.

The Applicant was represented by Osmond Lam, Benson Tsoi, Ernest Yuen and Dexter Leung, who were instructed by Messrs Or & Lau.

The full text of the determination by the Appeal Committee of the Court of Final Appeal can be found here.