HKSAR v. TSOI FOR

HCCC 312/2019

[2020] HKCFI 3014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 312 OF 2019

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BETWEEN

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RULINGS:

(1) ON ADMISSIBILITY TO THE EVIDENCE
OF PREVIOUS CRIMINAL CONDUCT

(2) AS TO DIRECTIONS AS TO THE
KNOWLEDGE ON THE PART OF THE
ACCUSED AS TO THE ILLEGALITY
OF GAMMA-BUTYROLACTONE

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ISSUES FOR DETERMINATION IN THE TRIAL: WRITTEN REASONS

1.  In the course of these proceedings, two issues arose on which rulings were given and I undertook to give written reasons for this ruling a later stage. Set out below are my rulings on those 2 issues.

OBJECTION TO ADMISSIBILITY OF EVIDENCE OF PREVIOUS CRIMINAL CONDUCT BY THE ACCUSED

The Objection

2.  The prosecution wishes to adduce WhatsApp communications between Tsoi For, the Accused, and Diao Jun Hua (“Mr Diao”). The communications occurred prior to the date in the charge, the subject of Count 1. They occur between the dates of Counts 2 and 3.

3.  A very brief summary of the contentions on behalf of the Accused is that the WhatsApp communications reveal drug-trafficking transactions which are not the subject of the indictment and are, by reason of that, inadmissible. The communications, the subject of objection are contended to be of greater prejudicial effect than any probative value they may have. The contention of the prosecution is that consistent with well-known (and binding) authority, notwithstanding that the communications reveal drug-trafficking on earlier dates, the communications are probative of the drug-trafficking alleged in Count 1 and are supportive of the allegations and the money laundering counts.

4.  I heard submissions from the parties on this issue and, on 19 June 2020 I ruled that the communications were admissible and I undertook to provide written reasons for that ruling in due course. These are those reasons.

Procedural history

5.  The Accused, was arraigned on an indictment alleging 4 counts as follows:

(1) Count 1: trafficking in dangerous drugs. The particulars alleged that on 14 May 2018 at premises at 66 Peel Street, Central, the Accused with Mr Diao, unlawfully trafficked in a range of drugs including methamphetamine hydrochloride (“ice”), gamma-butyrolactone, cocaine, ketamine, ecstasy, various forms of cannabis, and phenazepam;

(2) Count 2: dealing with property known or reasonably believed to represent proceeds of an indictable offence. The particulars alleged that between 12 December 2016 on 10 May 2018, the Accused and Mr Diao dealt in $4,252,188 Hong Kong currency in a joint bank account between the Accused and Mr Diao knowing or having reasonable grounds to believe that this sum represented in whole or in part the proceeds of an indictable offence.

(3) Count 3: dealing with property known or reasonably believed to represent proceeds of an indictable offence. The particulars alleged that between 27 July 2017 and 10 May 2018, the Accused dealt in $597,897 Hong Kong currency in a bank account in the name of the Accused knowing or having reasonable grounds to believe that this sum represented in whole or in part the proceeds of an indictable offence.

(4) Count 4: dealing with property known or reasonably believed represent the proceeds of an indictable offence. The particulars alleged that on 14 May 2018, the Accused and Mr Diao dealt in $375,920 Hong Kong currency in cash knowing or having reasonable grounds to believe that this sum represented in whole or in part the proceeds of an indictable offence.

For reasons which will shortly appear, the date of the trafficking charge, the fact that it is a joint charge and the date range averred in Count 2 together with the joint nature of the account are of significance.

Factual background

6.  In order to understand the issues for determination, it is necessary to review the facts which the prosecution hopes to prove. The case for the prosecution is that on 14 May 2018, offices of the Customs & Excise Service went to the premises at 66 Peel Street, Central. They had earlier intercepted a package which they suspected contained dangerous drugs. The drug in question is a substance known as gamma-butyrolactone. The street name of this substance is G-water. That substance is, under the Dangerous Drugs Ordinance, a dangerous drug. The documents on the package suggested that it came from Lithuania. It was addressed to Mr Diao at the Peel Street address.

7.  As a result of their suspicions, the Customs officers took the package to the Peel Street address disguised as UPS delivery offices. Following his acceptance of the package, Mr Diao was arrested and Customs officers obtained entry into the premises.

8.  The Accused lived together with Mr Diao at this premises. The Accused is the leaseholder.

9.  In the premises, a search was conducted and a range of dangerous drugs, Part 1 poisons, a large number of envelopes and plastic bags and scales, consistent with packaging dangerous drugs was found. Also, the paraphernalia consistent with the ingestion of drugs such as Ice was found but would be open to the jury to conclude that quantity of paraphernalia for consumption might well be present to be retailed to others. The drugs found include Ice, G-water, cocaine, ketamine, ecstasy, various forms of cannabis and phenazepam. The principal locations of these items was in the bedroom which appears to be that of Mr Diao, together with the refrigerator in the open kitchen in the premises and in the living room. No drugs were found in the bedroom of the Accused.

10.  The Accused has denied all knowledge of the drugs. He asserts that the drugs are Mr Diao’s. He made those denials to the Customs officers when he was arrested at the scene and at later stages. The position of the Accused remains the same at trial.

11.  Also found in the Peel Street premises was the cash, the subject of Count 4. In total that amounts to $375,920, although it was found in different locations throughout the premises. Count 2 on the indictment alleges that, in effect, the Accused and Mr Diao dealt in $4,252,188 knowing or having reasonable grounds to believe that proceeds were the product of an indictable offence.

12.  The Peel Street premises are occupied under a lease in the name of the Accused. The monthly rental on the premises is $50,000. That rental amounts to just under the total annual income of the Accused in the previous tax year in which he reported income.

13.  Count 1 faced by the Accused alleges that he trafficked in the dangerous drugs with Mr Diao. This count is very narrowly drawn and the prosecution must prove that on the specific day averred in the count, the Accused was trafficking with Mr Diao. The depositions and the additional evidence notified by the prosecution does not reveal any specific acts such as buying and selling dangerous drugs on the part of the Accused. The case for the prosecution is that the Accused was aiding and abetting the drug trafficking of Mr Diao. The prosecution is faced with proving acts of assistance on the part of the Accused knowing and intending those acts to assist Mr Diao in his drug trafficking. The practical effect of this would be a requirement to prove, amongst other things, that the Accused knew of the store of drugs in the bedroom of Mr Diao. It is axiomatic that the analysis of the evidence, the subject of objection must be assessed against the background of not just the charges laid against the Accused, but the manner in which the prosecution proposes to prove that charge. If ever there was a case where that proposition had real meaning, this is that case.

14.  It is also pertinent to note that Mr Diao faced an indictment alleging trafficking. The drugs are, but for one detail, the same as in Count 1 on the indictment faced by the Accused. At one detail is that Count 1 faced by the Accused is not include an allegation that the gamma-butyrolactone received in the controlled delivery by Mr Diao was jointly trafficked by the two of them.

15.  So far as the WhatsApp messages, it is accepted that the messages, the subject of objection, are communications between Mr Diao and the Accused. These messages date from mid July 2017 to 26 April 2018. In other words, they end about 3 weeks before the date of the offence on Count 1. If the jury were to see these communications, it would be open to them to conclude that Mr Diao and the Accused were communicating about the supply of dangerous drugs. In the communication on 15 July 2017^[1] concerns “G-water”. In that communication, although the dominant player is Mr Diao, it is open to the conclusion that the Accused by his responses including sending photographs of medicine bottles is going along with what Mr Diao proposing and, if accepted as true, demonstrates either drug trafficking or aiding and abetting drug trafficking. There is also a reference in that communication to “2 small bags” and a photograph of those bags and it would be open to the jury to conclude that the communication was about a white crystalline substance was drugs.

16.  In the communication on 19 July 2017, the focus of the communication is on G-water. On 25 September 2017, the contents concern G-water and ecstasy. It would be open to a jury to conclude that the Accused was content to assist Mr Diao by trafficking. On the September date, Mr Diao was not in Hong Kong and so the entrance would be open that on that date the Accused was, as it were minding the shop. The next communication of relevance is on 29 January 2018. On that date the Accused is being asked to assist Mr Diao in relation to ice and G-water. In relation to ice, there are 2 photographs taken by Accused which are of significance. The first of these is a photograph of a plastic container and fingers holding a small plastic bag. There is at least arguably a white crystalline substance inside the bag. It is accompanied by a query to the effect that “is this what you want?”. However, the 2nd photograph is by far the more significant because that appears to be a picture taken by the Accused, from what appears to be a different location asking whether this is the correct item.

17.  There is a further exchange later on in which the Accused agrees to assist Mr Diao in the sale of G-water at a price of $16,000.

18.  The case for the prosecution is that the communications are capable of permitting the inference that from mid July 2017 until about 3 weeks before the date of the Count 1 on the indictment that:

(1) the Accused knew that Mr Diao was trafficking in dangerous drugs;

(2) the Accused was familiar with where Mr Diao kept his supply of drugs such as ice and ecstasy (this is important because part of the defence being foreshadowed is that the Accused not only did not know of the extensive cache of drugs in Mr Diao’s bedroom but that despite the suggestion that the bedroom door was always locked by Mr Diao that the Accused did not have access);

(3) the words and pictures in context support the inference that the Accused was assisting Mr Diao in his drug trafficking; and

(4) the fact that the trafficking was for money and, on at least one occasion, a substantial amount of money supported the inference of knowledge on the part of the Accused that the proceeds of at least the joint account were the proceeds of an indictable offence or strengthens the inference that the Accused had reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence.

All of this is to go against the context of the evidence that the Accused and Mr Diao lived in the same flat. Further, that the search of the flat included a search of the refrigerator where a substantial quantity of G-water was stored. There was a further substantial storage of G-water in one of the kitchen cupboards.

19.  Of course, it has been foreshadowed that one of the contentions of the Accused will be that he did not know the G-water was a dangerous drug and that he positively believed that it was not a dangerous drug. In the event that this becomes a real issue in the trial, it may be necessary to tailor directions about the use of the WhatsApp communications to which reference is made to take account of that contention.

Principles

20.  Generally, the previous criminal conduct of an Accused is inadmissible in criminal proceedings. That general rule extends to discreditable conduct, which is not strictly criminal and to the bad character of the Accused. Generally speaking, there are two bases for this approach:

(1) the previous criminal conduct (or serious non-criminal misconduct or bad character) of the Accused is not relevant to the facts in issue in a criminal trial; and

(2) even if relevant, that the prejudicial effect of such evidence outweighs any probative value that such evidence may have in the trial.

This is articulated in Makin v A-G for New South Wales [1894] AC 57 where the Privy Council held that there was an exclusionary rule in relation to such evidence. This rule barred evidence of the Accused’s bad character or propensity to commit the offence in question. The second part of the judgement of the Privy Council referred to the circumstances in which such evidence might be admissible, namely, if it was relevant to an issue in the case, for reasons other than to show a mere propensity to commit another offence.

21.  The principles were extensively reviewed in HKSAR v Zabed Ali (2003) 6 HKCFAR 192 where the Court of Final Appeal articulated how these principles operate in Hong Kong. Li CJ, giving the judgement of the Court, held that if such evidence was to be admitted, it must be under strict and focused conditions. Li CJ observed:^[2]

“22. In Makin v A-G for New South Wales [1894] AC 57, Lord Herschell observed (at p.65) that in applying the principles, ‘it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other’. It has been persuasively argued that:

… many of the difficulties experienced by the courts in their attempts to apply Lord Herschell’s remarks in Makin might have been eliminated if his two famous sentences had been delivered in the converse order, making it clear that the second was not so much an exception to the first, as the first to the second.

See Cross and Tapper on Evidence (9th ed., 1999) p.339. See also Schiff, Evidence in the Litigation Process (4th ed., 1993) Vol.2, p.1187 and McNamara ‘Dissimilar Judgments on Similar Facts’ (1984) 58 ALJ 143. The approach suggested is that the relevance of the evidence to the issues in the case should first be considered. After all, relevance is the cardinal test in the law of evidence. One should then apply the exclusionary rule to bar evidence which is mere propensity evidence. This approach was in fact adopted by Stock JA in his judgment in the present case (para.116).

23. The argument in favour of this approach has considerable force. On this approach, taking into account the test in DPP v P [1991] 2 AC 447, the question of admissibility should be considered along the following lines.

(1) The matters in issue which the prosecution has to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to and any specific defence raised by the accused would be taken into account. However, in the well-known words of Lord Sumner in R v Thompson [1918] AC 221 at p.232:

The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.

Obviously, if a fact which the prosecution has to prove is accepted by the defence, it would not be in issue.

(2) The evidence the admissibility of which is in question should be focused on.

(3) The following questions should then be asked: what is the matter in issue to which the evidence is said to be relevant and why, that is, what is the reason for saying that the evidence is probative of that matter in issue?

(4) If in answer to those questions, it is concluded that the evidence is relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it is not mere propensity evidence, then the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible: whether its probative force in support of an allegation against the accused is sufficiently great to make it just to admit it, notwithstanding that it is prejudicial to the accused. It is only where the test is satisfied that the evidence would be ruled admissible as a matter of law. If it is not satisfied, the evidence would be ruled inadmissible. But if in answer to the above questions, it is concluded that it is mere propensity evidence, then it would be inadmissible on the basis of the exclusionary rule.

24. This appeal is only concerned with the question of admissibility. But it should be observed that if the evidence of bad character or propensity is admitted in accordance with the principles discussed above, it would be necessary for the judge to give an adequate direction to the jury as to how to approach the evidence. The jury should be directed as to the matter in issue to which such evidence might be relevant and how it might be relevant. And the jury should be told that the fact that the accused has a bad character or the propensity as shown by such evidence does not mean he is guilty of the offence charged. See Archbold: Criminal Pleading, Evidence and Practice 2003, para.13-41.

25. If the evidence is ruled admissible as a matter of law, whether the judge still has a residual discretion to exclude the evidence on the ground that its prejudicial effect would outweigh its probative value is a much-debated question. See Archbold: Criminal Pleading, Evidence and Practice 2003, para.13-27a, Cross and Tapper on Evidence (9th ed., 1999) p.374, Phipson on Evidence (15th ed., 2000) para.17-48. Some argue that the judge still has such a discretion. Others argue that no such discretion remains as the test for admissibility in DPP v P [1991] 2 AC 447 already provides for the balancing exercise between probative value and prejudicial effect. This question does not arise in the present case and no view is expressed on it.”

22.  Both parties also rely on the decision of the Court of Appeal in HKSAR v Kwok Hing, Tony [2010] 3 HKLRD 769. In that case, the Court of Appeal held that another basis for admissibility might be that the court could admit such evidence “…if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events, in circumstances including: (i) to prove the setting and context in which the offence occurred…”.

23.  The decision of the Court of Appeal in HKSAR v Kwok Hing, Tony (above) also made the points:

(1) if the evidence of previous misconduct (whether criminal or otherwise) or bad character is to be admitted, it would be necessary to prove such conduct beyond reasonable doubt before the jury could act on it; and

(2) the court of trial would have to give suitable directions to (a) ameliorate any possible prejudice; (b) to ensure that the jury clearly understands that it may only use the evidence for specific and identified purposes and (c) to make the point that the jury could not use the evidence on the basis merely that accused had a propensity to commit such offences.

24.  In HKSAR v Zabed Ali (above), Li CJ made the point that there remained an issue of principle which was not resolved in that case. That was whether if a court determining whether such evidence was potentially admissible in accordance with the principles articulated by the Court of Final Appeal was also obliged to consider whether the prejudicial effect of such evidence was such as to outweigh the probative value of it. The reason of this issue was unresolved in Zabed Ali (above) was because the issue did not arise, because the evidence, the subject of objection in that case, did not meet the primary test of admissibility.

25.  Li CJ in Zabed Ali (above), in declining to resolve this issue referred to DPP v P [1991] 2 AC 447. The answer to whether there was a further or additional requirement to determine whether the evidence has sufficient probative value to outweigh its prejudicial effect should be viewed in the context of DPP v P where Lord Mackay LC observed:^[3]

“Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

That passage appears to me to support the proposition that in the consideration of whether evidence of previous criminal conduct, previous disreputable non-criminal conduct or bad character is admissible, there is no requirement for an additional further consideration of whether the evidence has sufficient probative value to outweigh its prejudicial effect, because that is a required consideration in the test for determining the admissibility of such evidence.

26.  The discretion to exclude otherwise relevant and admissible evidence on the basis that the prejudicial effect outweighs the probative value of that evidence is exercised upon the basis that prejudice is not related to the tendency of evidence to inculpate an accused, but in the risk that the impugned evidence will be used in an improper manner by the jury and tend to divert the tribunal of fact from its task such as by placing more weight on the evidence than it deserved: R v Christie [1914] AC 545, 559 and 564; Noor Mohamed v R [1949] AC 182, 191; R v Sang [1980] AC 402; SJ v Lam Tat-ming & Anor [2000] 2 HKC 693, [2000] 2 HKLRD 431, 441; Festa v R (2001) 208 CLR 593; R v Handy [2002] SCC 56; Kissel v HKSAR [2010] 2 HKC 367, [2010] 2 HKLRD 435, (2010) 13 HKCFAR 27; Dupas v R (2012) 218 A Crim R 507. At the heart of the concerns articulated in the foregoing cases, is that the accused be accorded a fair trial. That, so it seems to me, is precisely the issue being addressed in the principles articulated in DPP v P and HKSAR v Zabed Ali (above) in relation to the specific kinds of evidence under consideration in cases such as those. In such cases, the concern so far as prejudice is concerned focuses on, amongst other matters the risk that such evidence might be misused by a jury as evidence of propensity. The focus is, of course, not limited to that concern. The principles articulated in DPP v P and Zabed Ali (above) require an especially focused concentration on the probative force of the evidence.

27.  In my judgement, the issue of whether evidence has sufficient probative value to outweigh its prejudicial effect is plainly to be considered in the context of determining the admissibility of evidence of this type in accordance with the Zabed Ali (above) principles. Given the issues in the present case, I cannot imagine any circumstances where a separate and further consideration of whether the evidence has sufficient probative value to outweigh its prejudicial effect could possibly produce any different result.

Determination

28.  Accordingly, subject to one further consideration, the issues to which the prosecution contended that such evidence be directed justify the reception into evidence of the WhatsApp communications. In my judgement, any risk that the specific evidence, the subject of consideration in this case, may be misused as to tendency or propensity is relatively low but in any event, that is something which I consider can be dealt with by appropriate directions in the summing-up as to the limited use of such evidence and a direction as to what the evidence may not be used for.

29.  The further consideration is the terms of the summing-up. That is best formulated against the background of the evidence as it unfolds. This is particularly so because a major component of the defence case may be a positive case as opposed to a case, which is primarily focused on putting the prosecution to strict proof. Indeed, there have been suggestions that the positive case extends to one specifically dealing with the WhatsApp communications event that they were admitted. This aspect of the summing-up will also have to specifically require that jury be sure that the earlier acts of drug trafficking are themselves proved beyond reasonable doubt before the jury may act on them in accordance with the directions on how jury may (and may not) use this evidence. It would be prudent to show the terms of the proposed direction on this topic to counsel for comment in advance of the summing-up.

30.  Against that background, I order that prosecution be permitted to adduce evidence of the WhatsApp communications, the subject of objection.

RULING AS TO DIRECTIONS AS TO THE KNOWLEDGE BY THE ACCUSED AS TO WHETHER GAMMA-BUTYROLACTONE WAS A DANGEROUS DRUG

The issue

31.  In the course of exchanges between the Court and counsel for the parties in relation to the nature and scope of legal directions to be given in the summing-up, the issue arose as to the appropriate direction to be given concerning the issue of the asserted belief by the Accused that he did not know that gamma-butyrolactone (G-water) was a dangerous drug and, indeed, specifically believed that it was not a dangerous drug. That was a substantial feature of his testimony. It was supported by the testimony of Mr Diao, who also gave evidence for the defence. These contentions were also an important component of the closing speech by counsel for the Accused.

Factual and legal background

32.  In the course of his testimony, the Accused told the Court that he did not know that G-water was a dangerous drug and, indeed, positively believed that it was not a dangerous drug. Substantial quantities of G-water were found in the flat that the Accused shared with Mr Diao when the officers from the Customs & Excise Service search the premises on 14 May 2018. These quantities were found in the refrigerator, in the open kitchen, in the premises and in a cupboard in the kitchen.

33.  One of the first references to G-water occurs in one of the WhatsApp communications on 15 July 2017. In that communication, Mr Diao asked the Accused to assist him in dealing with G-water, so that he could pass this to another person. Although money is not referred to in that specific communication, in the context it would be beyond obvious that money was involved. Further, on the premise that G-water was a dangerous drug, it would be open to the jury to infer from this communication that, the agreement of the Accused to the request by Mr Diao was an agreement to either traffic in the substance, or aid and abet the trafficking of Mr Diao.  Despite the terms of the WhatsApp communication, the Accused testified that he specifically refused to assist Mr Diao in the trafficking of this substance. He testified that he felt somewhere between uncomfortable and suspicious about this process. The evidence was that the Accused had a conversation with Mr Diao where he was assured that G-water was indeed legal. The Accused testified that on this assurance from that moment on he believed that G-water was not a dangerous drug and, positively believed that it was “legal”.

34.  In his testimony on behalf of the Accused, Mr Diao confirmed that he had said these things to the Accused and that he himself believed that G-water was a perfectly legal substance. The basis for his belief was that although he could not find a source of G-water in Hong Kong, he had imported it from outside Hong Kong without difficulty in the past. The package, which attracted the attention of the Customs & Excise Service on the occasion of 14 May 2018 was the first time he had ever have any trouble with this substance. The substance, the subject of events on 14 May 2018, had been imported from Lithuania. There was no evidence as to where earlier importations by Mr Diao had come from.

35.  The Accused then assisted Mr Diao with his sales of G-water. Plainly, those sales were for money and, it is noteworthy that the last sale revealed in the WhatsApp communications was for a substantial quantity of G-water to be sold to one of Mr Diao’s customers for $16,000. On the case for the Accused, it is important to note in this context that while the Accused assisted Mr Diao in selling the G-water as evidenced by the Watts app communications tendered by the prosecution, it is also a case for the use that in some of those communications there were requests by Mr Diao to assist him in the trafficking of ecstasy and ice. The effect of the testimony of the Accused was that he knew these were dangerous drugs and, he expressly and emphatically refused to assist Mr Diao in trafficking in those dangerous drugs.

36.  It is also of relevance that whatever effect G-water may have when ingested by a human being, it had previously been used as a chemical solvent used for cleaning. Both the Accused and Mr Diao said that, they believe that the ingestion of G-water by a person gave them a feeling of sexual well-being. It is to be recalled that leaving aside the extensive trafficking of other dangerous drugs by Mr Diao (a fact which was openly admitted by him in his testimony in support of the Accused), he sold a range of substances to the gay community of Hong Kong, many of which were said to contribute to feelings of sexual well-being during intercourse. There were also sales of steroids which was devoted to other purposes.

37.  The prosecution did not specifically or directly challenge these assertions on the part of the Accused. There were some challenges to Mr Diao’s testimony in this regard. Given the overall tenor of the cross examination by the prosecution of both the Accused and Mr Diao, neither they nor the jury could have been left in any doubt that the testimony of both was untrue.

38.  What the jury may have made of this evidence is anyone’s guess. For present purposes, these reasons proceed upon the assumption that the understanding by the Accused of the legality or otherwise of G-water was an issue for the jury to consider.

39.  As to the specific legal position of G-water, gamma-butyrolactone is a dangerous drug and appears in the First Schedule to the Dangerous Drugs Ordinance, Cap. 134, with the notation that it was added to the Schedule by Legal Notice 101 of 2012. Under section 50 of the Dangerous Drugs Ordinance, the Chief Executive may amend the First Schedule to the Ordinance to designate a particular substance to be a dangerous drug. This notice has a background.

40.  In March 2001, the United Nations Commission on Narcotic Drugs added Gamma-hydroxybutyric acid (GHB) (also called “liquid ecstasy”) to the Convention of Psychotropic Substances of 1971 which applies to Hong Kong. The Hong Kong Legislative Council received a brief from the Chief Executive that it was intended to amend the First Schedule to the Dangerous Drug Ordinance to include G-water. It is helpful to note that in the 2001 Legislative Council Brief, the nature, pharmacological effect and withdrawal symptoms of G-water, abuses in other jurisdictions.^[4] The pharmacological effect of G-water is, in substance, a date-rape drug.

41.  Despite the stated intention in the Brief to the Legislative Council that there was an intention to amend the First Schedule, the amendment by the Chief Executive did not occur until 2012 when the amendment was effected by the Dangerous Drugs Ordinance (Amendment of First and Third Schedules) Order 2012 (Legal Notice 101 of 2012). The order came into effect on 14 July 2012.

Legal issues

42.  The position of the prosecution is that ignorance of the law is no excuse. The prosecution contends that the Accused plainly knew that he was either trafficking in or aiding and abetting the trafficking by Mr Diao of this substance. Further, the case of the prosecution is that given the context of Mr Diao enlisting the assistance of the Accused in other drug-trafficking ventures contention that he did not know G-water was a dangerous drug rings a little hollow. The prosecution makes the point that the asserted belief by the Accused is based on the assurances of a self-confessed trafficker.

43.  The position of the defence is that on the true construction of the Dangerous Drugs Ordinance, it is necessary to prove that the Accused knew that the substance was a dangerous drug.

Principles

44.  The principles which govern the situation may be seen in HKSAR v Lai Kam Fat (2019) 22 HKCFAR 289.  While the case is not precisely on all fours with the present situation, the principles enunciated by the Court of Final Appeal are clearly applicable. The case directly concerns the interaction between section 159A of the Crimes Ordinance, Cap. 200, which creates the statutory offence of conspiracy and section 4 and section 39 of the Dangerous Drugs Ordinance, Cap. 134, which creates the offence of trafficking in dangerous drugs. For the purposes of this decision, the central point is to be found in the observations of Fok PJ as follows:^[5]

“25. It is material to note that the mens rea of the offence under s.4(1)(a) of the Dangerous Drugs Ordinance is a full mens rea in the sense that the prosecution is required to prove a defendant’s knowledge that the substance being trafficked in is a dangerous drug…”

The point is confirmed by Fok PJ at the conclusion of his judgement as follows:^[6]

“74. The essential ingredients of the offence of trafficking in a dangerous drug are addressed in Section C above. The specific type of dangerous drug, as particularised in the indictment, was not an essential ingredient of that offence. The mental element of the substantive offence was satisfied upon proof that the [accused] knew that the contents of the parcels were a dangerous drug, as defined in the Dangerous Drugs Ordinance.”

45.  Further, in HKSAR v Shum Wai Kee (2019) 22 HKCFAR 11 case concerning instruction of section 37(a) of the Crimes Ordinance, as to the crime of making a false declaration, the accused had been convicted of making a false declaration in an application for employment, in which he declared that he had not been convicted of any offence punishable with imprisonment in Hong Kong. In truth, the accused had been convicted of an offence, but that offence involved a penalty which the accused believed did not require him to disclose this offence, as a result of the Rehabilitation of Offenders Ordinance, Cap 297. Indeed, the evidence was that the accused had obtained legal advice that he was not obliged to make such a disclosure by reason of that Ordinance. The advice was misconceived. In the course of giving the judgement of the Court of Final Appeal, Fok PJ held that “there is no rule or principle that ignorance or mistake of law is not a defence to a criminal charge. Instead, there is only the self-evident truism that if, as a matter of construction, the requisite mens rea for a given offence does not include knowledge that it was wrongful, the prosecution does not have to prove that the accused knew it was wrongful. Whether such knowledge is required or not depends upon the construction of the language of the statute creating the offence.”^[7] The plain implication of that decision in a case of full mens rea is that there must be a direction that prosecution must prove that the accused knew that the G-water was a dangerous drug.

46.  For completeness sake, it is appropriate to note that what is necessary is that the accused must be proved to have known that he was trafficking in a dangerous drug. The fact that he thought that he was trafficking in a drug different to that which he actually trafficked in is immaterial: R v Tam Chun Fai [1994] 2 HKC 397.

47.  This accords with the current iteration of the Specimen Directions (see §61.2).

48.  Of course, the Accused faces issues of fact which point the other way. Ultimately the issue is one for the jury.

Determination

49.  The jury will be directed accordingly.