R. v. FANG YEE KWOK

IN THE COURT OF APPEAL

1996, No.17
(Criminal)

HEADNOTE

Meaning of the words "offer to traffic" in s.4 and s.4A of Dangerous Drugs Ordinance. The words have the same meaning in each section. An offence is committed in each when an offer is made.

IN THE COURT OF APPEAL

1996, No.17
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant, represented by Miss Remedios, pleaded guilty before Saied J. to one count of offering to traffic in a dangerous drug, it being alleged that he on 12th January 1995 in Hong Kong offered to traffic in a dangerous drug namely heroin. It was the case of the applicant, with which no issue was taken, that although he had offered to traffic in heroin he had never intended to supply any heroin pursuant to the agreement reached. It was submitted on his behalf that "this defendant at no stage had the ability or the intention to supply those drugs, and that he went into this in a desperate attempt to raise funds to repay Jackie WONG and other debtors". He was charged pursuant to s.4(1)(b) of the Dangerous Drugs Ordinance. There was considerable argument before the trial judge as to whether that section applied to circumstances where the person charged was contending that he had no intention to supply the drugs. At the conclusion of that argument the trial judge held:

"... I was able to look up this case Haggard v. Mason [1976] 1 All E.R. at p.337. Now, that's a decision of the Queen's Bench Division. And that also deals with this point, and at page 340 Mr. Justice Lawson said this:

'In my judgment, the offence was completed at the time when to follow the findings of the justices, the appellant met Heward and offered to sell him a quantity of lysergide. To my mind, that was a clear situation in which the justices were right to find that there was an offer to supply a controlled drug. An offer made by the appellant to Heward, the person to whom the offer was made. It matters not in relation to the offence of offering to supply that what is in fact supplied pursuant to the offer, the offer having been accepted, is not in fact a controlled drug.'

Of course, if the charge had been supplying a controlled drug, it is clear that the fact that a controlled drug was not in fact supplied would mean that that offence could not have been established. So the decisions are virtually the same, really.

I see no problem or difficulty in adopting the decisions of the English Court of Appeal insofar as the definition of offer and the context of our legislation is concerned, and that is my ruling."

It was in consequence of this ruling that the applicant pleaded guilty. The applicant through Mr. Mullick, who appears for him in this court, now contends that the judge was wrong in holding as he did. It is contended that s.4(1)(b) requires the Crown to establish that the offender "had intended to offer to traffic in a dangerous drug, in that he either 'knew' or 'believed' that the substance he had offered to supply was a dangerous drug". The trial judge relied on Haggard v. Mason and in the more recent case of Goodard [1992] Criminal Law Review 588, the court, dealing with a similar situation, held:

"There is nothing in section 4(1)(b) which provides that the person who makes the offer must intend to supply the controlled drug. The offence is complete when the offer to supply a controlled drug is made, quite regardless of whether the offerer intends to carry the offer into effect by actually supplying the drug. The construction contended for by the applicant would make it almost impossible for the Crown to meet a defence that the defendant did not intend to carry out the offer. That could not have been the intention of Parliament and it was contrary to the plain meaning of the words. If a defendant having been convicted of this offence persuaded a judge that it was not his intention to carry the deal into effect, that may be a matter of mitigation but it could not be a defence."

2. The commentary on this decision in the Criminal Law Review states:

"The actus reus of the offence is the making of the offer and the appellant intended to make the offer, even if he did not intend to carry it out. An intention to cause the actus reus of an offence is generally a sufficient mens rea in the absence of any specific requirement of an ulterior intent."

3. It is the submission of Mr. Mullick that because of the difference between the English legislation and that in Hong Kong, the English cases have no application. The English authorities hold that under s.4 of the Misuse of Drugs Act 1971 an offence is committed when an offer is made to supply a controlled drug to another, i.e. that it is an offence simply to make the offer. Mr. Mullick submits that there is no such offence in Hong Kong as under our more complicated legislative framework there are two sections prohibiting trafficking - s.4 which deals with trafficking in dangerous drugs and s.4A which deals with trafficking in purported dangerous drugs.

4. These sections are as follows:

"4. Trafficking in dangerous drugs.

(1) Save under and in accordance with this Ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong -

(a) ............................................;

(b) offer to traffic in a dangerous drug or in a substance he believes to be a dangerous drug; or

(c) ........................................... .

(2) Subsection (1) shall apply whether or not the dangerous drug is in Hong Kong or is to be imported into Hong Kong or is ascertained, appropriated or in existence."

"4A. Trafficking in purported dangerous drug.

(1) No person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong -

(a) ...............................................;

(b) offer to traffic in any substance represented or held out by him to be a dangerous drug but which is not in fact a dangerous drug; or

(c) ............................................... .

(2) Subsection (1) shall apply whether or not the substance represented or held out to be a dangerous drug is in Hong Kong or is to be imported into Hong Kong or is ascertained, appropriated or in existence."

It is Mr. Mullick's submission that the words "offer to traffic" have a different meaning in each section which is governed, in each case, by looking at the intention of the offender. An offence under s.4(1) is committed when an offer is made whether or not there is an intention to traffic in dangerous drugs. Under s.4A(1) an offence is committed when an offer is made even if the substance offered was knowingly misrepresented to be dangerous drugs.

5. He contends that the charge, where a person had no intention to supply dangerous drugs, must be laid under s.4A. He argues that his submission is given support by s.4A(2) which applies the section whether or not the purported drugs be in existence. It is to be noted however that a similar subsection exists under s.4.

6. We reject the submissions of Mr. Mullick and are satisfied that the words "offer to traffic" must be given the same meaning in s.4 and s.4A. and that, for the reasons set out in Goodard, the offence, in the case of each section, is complete when an offer to supply is made. Both s.4 and s.4A hinge upon the making of the "offer". An intent to traffic is not a statutory ingredient for a s.4 or s.4A offence. If the evidence which the prosecution intends to lead would establish an unqualified offer then the offender should be charged under s.4. If, on the other hand, it would establish a bogus offer then the offender should properly be charged under s.4A. It is Mr. Mullick's argument, if that be so, that an offender whose own evidence established either that he had no intention to supply dangerous drugs or an intention to supply only bogus dangerous drugs might be wrongly charged and convicted under s.4. We do not agree. Such an offender would have been rightly charged and convicted under s.4. The bogus nature of the substance revealed by the evidence would then be matter going to mitigation of sentence. A court being satisfied that he was only offering a bogus substance would, when assessing punishment, have to bear in mind the penalty set out in s.4A.

7. We are satisfied that the conviction is neither unsafe or unsatisfactory. The application is refused.

8. The judge in the present case said, when sentencing, that he accepted the fact that the defendant "did not intend to carry out the deal into effect". He went on to adopt the words used in R. v. Chapman and Denton [1989] Criminal Law Review 846, where it was said, when dealing "with the element of entrapment", that if an offender had been "encouraged to begin to deal" in dangerous drugs the "mitigating effect of the factor will be considerable". He went on:

"The other mitigating factor is his plea of guilty. The explanation why he went into this deal with Mr.SHUM, that is to recover his gambling losses, is not a mitigating factor, though his previous clear record may be.

Considering the gravity of the offence and the circumstances of this case, and that he is a man of clear record, I am of the opinion that a starting point of nine years will be appropriate. And I'll make the following allowances: three years for his plea of guilty; one year for not intending to carry out the deal; and two years for entrapment. Accordingly, he is sentenced to three years' imprisonment."

Mr. Mullick submits that the judge having accepted that the applicant "did not intend to carry the deal into effect" should have had in mind the penalties provided by s.4A. He submits that the criminality of an offender whose offer is hollow, his intention being to deliver no drugs or bogus drugs, is not as great as that of a person who offers to supply drugs or substances he believes to be drugs and that this is recognized by the legislature in s.4A. There is considerable merit in this submission. In this case, the judge was prepared to act upon the basis that the applicant in truth offered no drugs. Under s.4A an offender is liable on conviction on indictment to a fine of $500,000 and to imprisonment of seven years. In the present case we think, bearing in mind the above considerations, that the proper starting point should have been five years. Giving a one-third reduction for the plea, we are satisfied that the sentence should be reduced to one of three years and four months. We feel bound to honour the approach of the judge and to give a further reduction for the "element of entrapment". We are satisfied that one year would be appropriate in this regard. The proper sentence overall should, therefore, in our view, have been two years and four months.

9. The hearing of the application for leave to appeal against sentence is allowed and is treated as the hearing of the appeal. The sentence is varied from imprisonment for three years to imprisonment for two years and four months.