HKSAR v. LAU SUK HAN AND ANOTHER

CACC787/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.787 OF 1997

(ON APPEAL FROM ORDER FOR DISCHARGE IN

HIGH COURT CASE NO. 218 OF 1997)

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J U D G M E N T

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Stuart-Moore, J.A. :

1. This is an appeal brought under section 81E of the Criminal Procedure Ordinance Cap.221, by the Secretary for Justice against a direction made by Bokhary J. for the discharge of both Respondents on charges of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2. The Respondents were committed on 9th July 1997, for trial in the High Court, on a total of 4 charges. On 17th December 1997, the judge discharged the 1st Respondent on count 1 and the 2nd Respondent on count 3 of the indictment, pursuant to the provisions of section 16 of the Criminal Procedure Ordinance, Cap.221. Counts 2 and 4, which remained on the indictment against the 1st and 2nd Respondents respectively, were laid as "alternative" charges. The Statement of Offence in each of those counts alleged:

"Being a person by whom a dangerous drug was imported in transit, contrary to section 14(1)(a) of the Dangerous Drugs Ordinance, Cap.134."

3. It is apparent from the transcript with which we have been provided that the initiative for the application for discharge on counts 1 and 3 came from the judge at a pre-trial hearing when she invited the Respondent's counsel, Mr. McLanachan, to make an oral application. As a result, there was no compliance with Rules 4 and 5 of the Criminal Procedure (Application under section 16) Rules (Cap.221, section 9). These are Rules dealing with the form of the application and service of Notice on the Attorney-General giving notice that it is to be made not less than 14 days before the hearing. It seems, however, that these Rules were waived under the terms of Rule 12. One consequence of this has been that the full argument which has been presented before us has incorporated some matters which were not considered in the court below in the depth that they have been canvassed before us. This is in no sense a criticism of the trial judge or of counsel who appeared on the application for discharge. There has been considerable time for reflection since the application was made and we wish to express our gratitude to counsel on both sides for the assistance they have been able to provide to the court during the course of their able submissions. The point at issue is not by any means straightforward, and for this reason we have taken time in which to consider our decision.

4. The relevant parts of section 16 of the Criminal Procedure Ordinance for present purposes are as follows:

"16. Discharge of accused after committal without a hearing

(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap.227) ......, the accused may at any time -

......(b) after the filing of the indictment and prior to his arraignment thereon, .....

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap.227) ......, as read with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge. (Emphasis added.)

... (3) the judge may, after perusal of the document, and after hearing any representations which the accused and the (Secretary for Justice) may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged."

5. The Appellant submits that there was evidence that clearly established a prima facie case and that accordingly there was no basis for discharging the Respondents.

6. The essential facts giving rise to the allegations can be described very briefly.

7. On 14th January 1997, the Respondents were en route from Cambodia to Canada. The plane which brought them to Hong Kong was a Dragonair flight. The Respondents went to the Transit Lounge. As they went to board their Cathay flight to Toronto, the Respondents were intercepted by Customs officials who were specifically looking for drugs. Their hand-luggage was searched and found not to contain any drugs. They were both then body-searched and again no drugs were found. When their personal belongings were searched, they were found to be carrying their airline tickets, boarding passes and luggage tags.

8. Subsequently, they were escorted to the open area adjacent to their intended flight. Each was asked to identify their baggage which they did. The respective suitcases matched the luggage tags attached to the airline tickets. As both suitcases were locked, the Respondents were requested to open them for inspection. The 1st Respondent opened hers with a key taken from her handbag, whereas the 2nd Respondent provided the Customs and Excise officers with the Code Number of a combination lock which secured her case. The Respondents' respective suitcases were then found to have sealed compartments which, when opened, revealed a total of over 8 kilos of a mixture containing a pure form of heroin hydrochloride, itself weighing over 8 kilos, divided almost equally between the two cases.

9. The issue which confronted the court below, and which has now come before us for our consideration, is whether in the present circumstances there was a prima facie case to support an allegation of trafficking under s.4(1)(a) and (3) of the Dangerous Drugs Ordinance.

10. Mr. Grossman S.C., on behalf of the Respondents, submits that Bokhary J. correctly found that no prima facie case of trafficking was established because, taking the effect of the ruling, to have drugs in transit with no intention of bringing them into Hong Kong beyond the confines of the cargo holds of two aircraft, did not constitute an offence under section 4(1)(a). His argument is that the judge was correct in finding that the facts precisely covered a situation envisaged by section 14(1). Those "alternative" charges, as the prosecution in the court below had been calling the section 14(1) offences, are the appropriate offences to charge in the present circumstances, he submits, if section 14(1) is not to be seen as wholly redundant.

11. It is conceded that if section 4(1)(a) is held to cover dangerous drugs in transit, as alleged on the present facts, that a prima facie case is revealed against each Respondent.

12. In order to determine this vexed question, it is necessary to turn to the relevant statutory provision.

13. Section 4 of the Ordinance comes under Part II of the Dangerous Drugs Ordinance which is headed:

"CONTROL OF IMPORT, PROCURING, SUPPLY,
DEALING IN OR WITH, MANUFACTURE AND
POSSESSION OF DANGEROUS DRUGS"

14. The section provides:

"4. Trafficking in dangerous drug -

(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) traffic in a dangerous drug;

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

(c) do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in a substance he believes to be a dangerous drug. (Amended 37 of 1980 s.2).

(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.

(3) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and shall be liable -

(a) on conviction on indictment, to a fine of $5,000,000 and to imprisonment for life; and

(b) on summary conviction, to a fine of $500,000 and to imprisonment for 3 years. (Amended 43 of 1974 s.2).

(4) This section does not apply to -

... (b) a dangerous drug which is in transit and

(i) is in course of transit from a country from which it may lawfully be exported to another country into which it may lawfully be imported; and

(ii) was exported from a country which is a party to the Conventions and is accompanied by a valid export authorization or diversion certificate, as the case may be (Replaced 7 of 1984 s.2)." (Emphasis added.)

15. "Import" and "in transit" and "trafficking" for the purposes of the Dangerous Drugs Ordinance are defined by section 2(1) of the Ordinance as follows:

"'Import' means to bring or cause to be brought into Hong Kong or any other country, as the case may be, by land, air or water.

'In transit' means imported into Hong Kong for the sole purpose of being exported from Hong Kong to another country.

'Trafficking', in relation to a dangerous drug includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking and 'traffic in a dangerous drug' shall be construed accordingly." (Emphasis added.)

16. Mr. Saw, S.C., on behalf of the Appellant, submits that any person bringing dangerous drugs into Hong Kong imports such and thereby commits an act of trafficking in those drugs.

17. It is his submission that any person who imports a dangerous drug by causing it to be brought into Hong Kong, including where the drugs are brought into Hong Kong in transit, commits the offence of trafficking in dangerous drugs for the purpose of section 4 of the Ordinance. The effect of section 4(4) is that dangerous drugs imported into Hong Kong are only exempted from the consequences of section 4(1) where, in addition to being drugs imported in transit, that is to say where they are brought into Hong Kong solely to be exported, a further two conditions are met, namely those set out in subsections (i) and (ii).

18. Nowhere, he argues, is it suggested, nor could it be, that the Respondents or the dangerous drugs concerned in the present case came within those exceptions so that the act of importing of itself amounts to trafficking with no further act or acts on the part of the Respondents being needed to satisfy the provisions of the Ordinance.

19. To add weight to this argument, Mr. Saw has drawn our attention to the legislative history which led to the present wording of the section.

20. Prior to 1984, section 4 of the Dangerous Drugs Ordinance differed in only one significant particular. This was to be found in subsection (4), which read:

"(4) This section does not apply to the import or export of a preparation specified in Part II of the First Schedule or of a dangerous drug which is in transit" (Emphasis added.)

The section was otherwise in identical terms. It was amended by section 2 of Ordinance No.7 of 1984 by the substitution of the wording already quoted of section 4(4)(b)(i) and(ii).

21. Clearly that amendment was made for a reason. It is Mr. Saw's submission that this was to restrict the use of section 4 to cases of trafficking except where the dangerous drug in question has been lawfully exported from the country of origin for lawful importation into the country of destination, and where a valid authorization or diversion certificate has been issued by the exporting country which must itself be a party to the Conventions. Only in these circumstances could the dangerous drug be held in transit without committing an offence under section 4.

22. It seems to me that these amendments may have come about as the direct result of the judgments of the Court of Appeal in McDonald Maceon Irving v R (1983) HKLR 64 and Mayer v R (1977) HKLR 536. In each case, a passenger in transit was found to be in possession of dangerous drugs which gave rise to the allegation of trafficking. Not surprisingly, as the law then stood, the Court held in each case that if the drugs were in transit, no offence of trafficking arose under section 4. However, as the Court pointed out in Mayer's case:

"An amended charge under section 14 must almost inevitably have succeeded ..... The Crown proceeded under the wrong section and failed, when the status of 'in transit' became apparent, to apply for amendment to the appropriate section."

23. This conveniently leads to a consideration of section 14(1)(a) of the Dangerous Drugs Ordinance which is to be found in Part III under the heading:

"ISSUE OF LICENCES AND CERTIFICATES, REQUIREMENTS
IN CONNECTION WITH LAWFUL IMPORT AND EXPORT OF
DANGEROUS DRUGS, AND DANGEROUS DRUGS IN TRANSIT"

24. Turning to the Part III offences in section 14(1), this reads:

"14. Dangerous drug in transit

(1) If a dangerous drug which in transit -

(a) is not in course of transit from a country from which it may lawfully be exported to another country into which it may lawfully be imported; or

(b) was exported from a country which is a party to the Conventions and was not accompanied by a valid export authorization or diversion certificate, as the case may be,

the person by whom the dangerous drug was imported shall, unless in the case of a contravention of paragraph (b), he shows that he had taken all practicable steps to ensure that the said paragraph was complied with, be guilty of an offence and shall be liable on conviction on indictment, to a fine of $100,000 and to imprisonment for 10 years and on summary conviction, to a fine of $10,000 and to imprisonment for 3 years. (Amended 46 of 1978 s.3)"

25. The argument advanced by the Appellant is that, irrespective of the legislative amendments which have been made to cure the loophole which enabled traffickers who were in transit to avoid prosecution under section 4, the intent of the Ordinance is clear.

26. Put very simply, the Appellant submits that any person who imports a dangerous drug into Hong Kong in circumstances justifying a charge of trafficking, commits that offence even when the drugs are in transit. Most importantly, Mr. Saw argues that the real significance of the expression "in transit", where it is used in a charge brought under this Ordinance, is limited to the type of situations contemplated by Part III of the Ordinance. In other words, whether or not the drugs are in transit, it is trafficking if section 4(1)(a) is breached and where it is shown that section 4(b)(i) and (ii) do not apply. The section 14 offences under Part III are reserved for importation of drugs in transit, as envisaged by the wording of subsections (a) and (b) which fall into a less culpable bracket, carrying smaller maximum sentences that reflect the nature of Part III offences generally.

27. Bokhary J., in the course of her ruling, expressed her perception of what distinguished the apparent conflict between sections 4 and 14 of the Ordinance in the following terms, to be found at p.31K in the transcript, giving three reasons to support her judgment:

"Of course, there are a number of things that can be done in relation to dangerous drugs in transit apart from bringing them in or causing them to be brought in, for example, re-packaging them in the transit area. A specific example would be of dangerous drugs brought in from, say, Thailand to Hong Kong in transit but destined eventually for Australia. Suppose a syndicate brings them in pineapple boxes and fears that the Australian police had been tipped off to search for pineapple boxes from Thailand. So the syndicate instructs some person working in the airport transit area in Hong Kong to re-label and re-package the boxes making them look like sewing machine boxes. The person re-labelling or re-packaging those boxes could well be trafficking in those dangerous drugs in transit other than by importing.

But in cases where the allegation is only of importing which is the only or only viable allegation in the present case - then it would be odd if a charge could be laid under section 4 of the Dangerous Drugs Ordinance as well as section 14 of the same Ordinance.

In my judgment, the oddity does not exist for this basic reason. In the case of dangerous drugs in transit where the only or only viable allegation is of importing, then section 14 is the only section under which a charge can be laid. The inter-relationship of section 4 and section 14 operates to bring that about. That is so for the following supporting reasons.

First of all, section 14 is specific and tailor-made for the situation while section 4 is general. The relevant maxim is "generalibus specialia derogant". That maxim is neatly explained thus in Bennion: Statutory Interpretation, 2nd Edition (1992) at page 810:

'Where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision. This is expressed in the maxim generalibus specialia derogant (special provisions override general ones). Acts very often contain general provisions which, when read literally, cover a situation for which specific provision is made elsewhere in the Act. This maxim gives a rule of thumb for dealing with such a situation: it is presumed that the general words are intended to give way to the particular. This is because the more detailed a provision is, the more likely is it to have been tailored to fit the precise circumstances of a case falling within it.'

Secondly - and this is tied in with the first reason there is a specific defence on a charge under section 14 of showing that one has taken all practicable steps to ensure compliance with certain requirements. That special defence is not available under section 4 (for which the maximum penalties are even heavier). Thus what would constitute a defence under section 14 would only be mitigation under section 4 if one could be charged under section 4 in circumstances such as the present. But the accused would of course still be left with a conviction of drug trafficking. It matters not whether the specific defence is raised in any given case. The law cannot be subject to such fine distinctions. What I have illustrated is how unsatisfactory the position would be generally if the interpretation which I favour were not adopted.

I am unable to ascribe to the Dangerous Drugs Ordinance the effect of bringing about a situation in which, at the choice of the prosecution as to which charge to bring, persons may, on the same facts, be rendered liable to a lower or higher penalty or even availed of or denied a defence.

Thirdly, there is the canon of construction (which one sees being applied by the Court of Criminal Appeal in the case of R v Chapman [1931] 2 KB 606 at page 609) to the effect that in a criminal statute, any ambiguity which ultimately leaves a reasonable doubt as to the statute's true meaning must be resolved in favour of the accused. And there is, in my judgment, at least such a doubt as to the correctness of the construction of section 4 contended for by the prosecution in resisting these applications for discharge."

28. Mr. Saw effectively concedes that, as drafted, section 14(1)(a) seems to add little or nothing to the legislation which is not already covered by section 4(1)(a). He agrees that it is difficult to conceive of a case in which an allegation brought under section 14(1)(a) would not also be trafficking under the amended terms of section 4. Section 14(1)(b), on the other hand, has different considerations because of the special defence which is therein provided. I do not need to refer to that section as it is not relevant to my consideration on the present indictment beyond perhaps demonstrating that section 14, taken as a whole, was intended to add something to the legislation.

29. Mr. Saw emphasizes, as stated earlier, the wording of the preamble to Part III as being indicative that the Ordinance was concerned to deal in this section with the licences and certificates in connection with lawful importation and exportation of dangerous drugs, and dangerous drugs in transit. He submits that there is nothing to prevent the prosecution deciding to prosecute under section 4 in the proper exercise of its discretion where there is evidence to show trafficking as opposed to an offence more akin to a breach under Part III. He further submits that if a defendant is aggrieved at this decision, he has a remedy in the form of an application to stay the proceedings relating to trafficking. This would allow a defendant to show that the prosecution has abused the process of the court by opting to prosecute for the graver offence under section 4 where the evidence reveals not trafficking in drugs but a less grave offence.

30. Having regard to the submissions on both sides, I have concluded that the terms of section 4 are clear and specific. The legislative changes to section 4 were, by the use of plain and unequivocal language, intended to cover dangerous drugs which are in transit provided they do not come within the exceptions in sections 4(4)(b)(i) or (ii). The words "import", "in transit" and "trafficking" also bear clear meanings.

31. In my judgment, the judge misdirected herself where she said, in a passage quoted earlier:

"But in cases where the allegation is only of importing ....",

which followed the example she gave of how drugs in transit might be the subject of a charge of trafficking under section 4 where re-packaging was involved.

32. Trafficking specifically includes importation and I take the view that no act beyond importation is required.

33. Secondly, I find that the judge misdirected herself by holding that the maximum "generalibus specialia derogant" applied as between sections 4(1)(a) and 14(1)(a) of the Ordinance. The provisions as to trafficking clearly take this case into the realms of a section 4 offence. In the unlikely event that a section 14(1)(a) offence, based on entirely different facts to the present case, might ever sensibly be charged, the remedy lies in a stay application if a section 4 offence has been charged in its place or as a more serious alternative. Whilst every section 14(1)(a) offence may technically as it seems to me involve trafficking, it might well be held to be an abuse of process to prefer a charge of trafficking in drugs where the essence of the alleged offence is a breach of the requirements in respect of lawful import and export of dangerous drugs.

34. It may be that section 14(1)(a) is redundant, as Mr. Saw submits it is in the present circumstances. I agree with him that these charges should never have been included in the indictment. Unfortunately, in the court below no such concession was made because they were then being treated by the prosecution as "alternative" offences.

35. I am, in any event, wholly satisfied that the prosecution was at liberty to prefer a charge under section 4(1)(a) and fully justified in doing so. It follows, therefore, that there was the clearest evidence of trafficking and that, if the judge had correctly directed herself, she would have found a strong prima facie case in support of both the charges on which the Respondents were discharged.

36. For these reasons, I would allow this appeal, and reverse the direction given by Bokhary J. to discharge the Respondents on counts 1 and 3. Accordingly, under the terms of section 81E(3) of the Criminal Procedure Ordinance, I would quash the acquittals of the first Respondent on count 1 and the second Respondent on count 3 and order that they should be tried on those charges.

Chan, CJHC :

37. I agree. Since we are disagreeing with the learned judge's conclusion, I would also like to say something on the matter.

38. It is not disputed by the parties that under section 16 of the Criminal Procedure Ordinance, Cap.221, a judge can only discharge an accused on the ground that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance, Cap.227 is not sufficient to establish a prima facie case against him for the offence with which he is charged. As I understand it, the trial judge in the present case did not, as alleged by the Secretary for Justice, hold that an offence under section 4 of the Dangerous Drugs Ordinance, Cap 134 had not been made out from the documents before her. At page 31 of the transcript she said:

"In the case of dangerous drugs in transit where the only or only viable allegation is of importing, then section 14 is the only section under which a charge can be laid. The inter-relationship of section 4 and section 14 operates to bring that about."

39. What she meant, and this is clear from the reasons which she gave following the above passage, was that because of the presence of section 14 in the Dangerous Drugs Ordinance, it could not have been the intention of the legislation that section 4 covers the present situation, that section 4 should not be construed as covering drugs in transit which was obviously the case here and that the accused in this case could only be charged with section 14 offences. In other words, the learned judge was in effect holding that importing dangerous drugs into Hong Kong for the purpose of exporting the same to another country did not amount to trafficking in dangerous drugs under section 4. Hence, the two accused must be discharged for that offence.

40. The main issue in this appeal is whether the trial judge was correct in her construction of section 4.

41. Section 4 is contained in Part II of the Ordinance which is headed :

"CONTROL OF IMPORT, EXPORT, PROCURING, SUPPLY,
DEALING IN OR WITH, MANUFACTURE AND
POSSESSION OF DANGEROUS DRUGS".

42. Under section 4(1), save under and in accordance with the Ordinance or a licence granted by the Director, no person shall, inter alia, traffic in a dangerous drug. In section 2, trafficking is defined to include importing into Hong Kong. "Importing" is in turn defined to mean "to bring or cause to be brought into Hong Kong ...". "In transit" means "imported into Hong Kong for the sole purpose of being exported from Hong Kong to another country".

43. In my view, it is quite clear that section 4(1), on the face of its wording, catches the importing of dangerous drugs into Hong Kong as well as other forms of trafficking. It is equally clear that there is no restriction or qualification in the definition of "importing" with regard to the amount of time during which any dangerous drug is or remains in Hong Kong or the purpose for which the dangerous drug is brought into Hong Kong, that is to say, whether the drug is to be used in Hong Kong or to be exported immediately or at a later stage to some other places for use. On the face of the clear wording of section 4(1) and the definitions in section 2, section 4(1) is wide enough to cover a dangerous drug in transit. This may of course be subject to any other relevant provisions in the Ordinance.

44. Prior to 1984, section 4(4) provided that section 4 "does not apply to the import or export of .... a dangerous drug which is in transit." It was then quite clear that the operation of section 4(1) was excluded by the express provision in section 4(4) in the case of a dangerous drug in transit. This was confirmed by the Court of Appeal in the cases of Mayer v. R. [1977] HKLR 536 and McDonald Maceon Irving v. R. [1983] HKLR 84. As a result of these two decisions, section 4(4) was amended to read as follows :

"This section does not apply to -

(a) .....; or

(b) a dangerous drug which is in transit and -

(i) is in course of transit from a country from which it may lawfully be exported to another country into which it may lawfully be imported; and

(ii) was exported from a country which is a party to the Conventions and is accompanied by a valid export authorization or diversion certificate, as the case may be."

45. Section 4(4)(b) is obviously intended to cover what is commonly regarded as lawful transit. In my view, by making this amendment, it is the clear intention of the legislation that section 4(1) is to punish any form of trafficking in dangerous drugs including a drug in transit which falls outside the new section 4(4)(b), i.e., in unlawful transit.

46. What then is the inter-relationship between section 4 and section 14? What is the effect, if any, of section 14 on the construction of section 4? This is obviously the concern of the trial judge.

47. It must be noted that section 14 has been in the Ordinance all along even prior to 1984. It is contained in Part III of the Ordinance which is headed :

"ISSUE OF LICENCES AND CERTIFICATES,
REQUIREMENTS IN CONNECTION WITH LAWFUL
IMPORT AND EXPORT OF DANGEROUS DRUGS, AND
DANGEROUS DRUGS IN TRANSIT"

48. A careful examination of all the sections in Part III shows that all the sections there, with the possible exception of section 14, deal with licences, certificates and requirements in connection with the lawful import and export of dangerous drugs. Section 14, apart from creating two offences in section 14(1), also deals with such certificates in the rest of the section.

49. The first offence created is in section 14(1)(a) which punishes a person who imports a dangerous drug which is in transit but which is either not from a country from which it may be lawfully exported or not to a country into which it may lawfully be imported or both. It is important to note that section 14 uses the word "import" which also appears in section 4. This is an indication that a drug in transit can still be regarded as being imported into Hong Kong which is included in the definition of trafficking.

50. In my view, a drug in transit can be caught by section 4(1) as well as section 14(1)(a). There is nothing in the Ordinance, whether in Part III or in section 14 which indicates an intention on the part of the legislation that section 4(1) and section 14(1)(a) are mutually exclusive. It would seem that every situation which is covered by section 14(1)(a) would also fall within section 4(1). It is true that in an appropriate situation, the prosecution has a choice to lay a charge under either section 4(1) or section 14(1)(a) or both in the alternative. The consequence upon conviction is of course quite different, one having a maximum of life imprisonment and the other only ten years. However, even if the prosecution chooses to charge only under section 4(1) and the court or jury convicts an accused under that section instead of section 14(1)(a), the true seriousness of the offence can be reflected in the sentence which is likely to be imposed. A person who imports a dangerous drug into Hong Kong for use in Hong Kong is, understandably from our point of view, more culpable and hence deserves a heavier sentence under the guidelines in Lau Tak Ming and other cases than a person who imports a dangerous drug into Hong for the purpose of exporting it to another country. It is not uncommon that a particular factual situation can amount to a more serious as well as a less serious offence under a criminal statute. I do not think there is anything objectionable in giving a choice to the prosecution or even the jury.

51. The second offence created by section 14 is in subsection (1)(b). This provision punishes a person importing a dangerous drug which is in transit, which may be lawfully exported (this must be the case if the country is a party to the Conventions) and which was not accompanied by a valid export authorization or diversion certificate. In other words, this offence covers a situation where a drug which is in transit from a country from which it may be lawfully exported but that a valid authorization or certificate is absent due to one reason or another. The destination country must clearly be one into which the drug may lawfully be imported since if it is otherwise, this would already be an offence under section 14(1)(a). Section 14(1) (b) provides for a defence to the person charged under that subsection if he can show that he had taken all practicable steps to ensure that the export was accompanied by a valid export authorization or diversion certificate.

52. Again there is nothing in section 14 (1)(b) which suggests that this provision and section 4(1) are mutually exclusive.

53. The first reason given by the trial judge in excluding section 4 from drug in transit is that section 14 is specific and tailor-made for the present situation while section 4 is general. She relied on the maxim : "Generalibus Specialia Derogant". She also referred to Bennion : Statutory Interpretation, 2nd edition (1992) at page 810. With respect to the learned judge, I do not agree that the maxim is applicable in the present case. This is because without clear words of exclusion, I do not think the operation of section 4 should be excluded. On the contrary, looking at the previous provisions and the amendment in 1984, it is quite clear that section 4(1) is intended to cover a dangerous drug in transit as well.

54. The trial judge also gave a reason which, in my view, is not without substance in support of her construction of section 4. It is said that while there is a defence to a charge under section 14(1)(b), this would not be available to an accused under section 4. This, of course, is correct. However, as counsel for the Secretary for Justice submits, an accused, faced with such a situation, can apply to the court for a stay of the section 4 charge as an abuse of the process of the court. It is quite clear that if a person who can be charged with a lesser offence to which he has a defence is charged with a more serious offence to which he cannot put up that defence, he is genuinely aggrieved. I am sure that the Court would come to his rescue. It would seem therefore that the trial judge's concern is overstated.

55. The third reason given by the trial judge is that there is a canon of construction which is applied in the case of R. v. Chapman [1931] 2 KB 606 to the effect that in a criminal statute, any ambiguity which ultimately leaves a reasonable doubt as to the statute's true meaning must be resolved in favour of an accused. There is no dispute on this principle. However, the short answer to this is that there is no ambiguity in section 4 even if it is read in conjunction with section 14.

56. In my view, it is not the intention of the legislation that section 4 and section 14 are mutually exclusive. The most that can be said is that section 14(1)(a) seems to be redundant after the amendment to section 4(4) and section 14(1)(b) deals with a particular situation of lawful transit. This is not the case here. In any event, no prejudice or injustice will be caused to the accused if they are charged with section 4(1) and section 14(1)(b) in the alternative.

57. In the circumstances, for these reasons, I take the view that with respect to the trial judge, she has given a wrong construction to section 4. There is no justification in discharging the respondents of the charges under section 4. I too would allow the appeal and make the order as proposed by my Lord, Stuart-Moore, J.A.

Leong, J.A. :

58. I have read the judgments of my Lords, P. CHAN, the Chief Judge and Stuart-Moore, J.A. I agree that the appeal should be allowed. In my opinion, the crux of the matter is the interrelationship between s.4 and s.14(1) of the Dangerous Drugs Ordinance, Cap 134. S.4 applies to all dangerous drugs in transit i.e. brought into Hong Kong for the purpose of exporting to another country, except where the drug is in transit in circumstances covered under section 4(4)(b). This is because of the definitions of "trafficking", "import" and "in transit" in the Ordinance.

59. Section 4(4)(b) provides that section 4 does not apply to drugs in transit if

(i) it is from a country from which it may lawfully be exported to another country into which it may lawfully be imported; and

(ii) it is exported from a "Conventions country" and accompanied by a valid licence etc.

60. The terms of s.4 are clear and there is no room for consideration under the principles in R. v. Chapman [1931] 2KB 606. Thus, where the drug is found in the transit lounge or the airport apron (as in the present case), it is prima facie trafficking under s.4 unless the exception in subsection (4)(b) applies.

61. S.14(1)(a) envisages the following situations where an offence is committed.

a.	Drugs in transit from A to B through Hong Kong.
	Export from A is lawful.
	Import into B is unlawful.
	A may be a "Conventions country" and there may be an export licence from A. Nevertheless, an offence is committed.

Alternatively

b.	Drugs in transit from A to B through Hong Kong.
	Import into B is lawful.
	Export from A is unlawful despite the fact that A may be a "Conventions country" and a valid licence has been issued because it is not in accordance with the terms of the licence. An offence is committed.

62. In both cases, the situation may be one coming under s.4(1)(a) because the requirements to invoke the exception in s.4(4) are not fulfilled. To this extent, s.14(1)(a) overlaps with s.4(1)(a), although a distinction may be drawn between the person having the drugs in transit in the course of trade and the "normal" trafficker.

63. S.14(1)(b) envisages this situation:

Drugs in transit from A to B through Hong Kong.

A is a "Conventions country" and an export licence accompanied the drugs. Whether or not it is lawful to import into B is immaterial and it does not matter that the lack of the licence is due to the Authority refusing to issue it or through inadvertence, the person having the drugs in transit has failed to secure a licence or there has been a licence but lost. An offence is committed.

64. It would appear that in such a case, the export is also unlawful if the drug cannot be exported without a licence. This also amounts to an offence under s.4(1)(a) as well as under s.14(1)(a). But it is a statutory defence to a paragraph (b) offence if it can be shown that the person having the drug in transit has taken all practicable steps to comply with this paragraph. A situation where he has obtained the licence when he left the country of origin but the licence is lost on the way through no fault of his, may well be sufficient to invoke this statutory defence.

65. From these illustrations, one can readily see why the maximum penalty under s.14 is much less than that for an offence under s.4(1)(a). It would appear that s.14 intends to cover situations where the evidence can show prima facie that it is not likely that the offender is dealing with the drugs in the way a drug trafficker in transit normally will do. S.4(1)(a) and s.14(1) are not therefore mutually exclusive. Thus, where drugs are found on a person in transit, it will be for the Authority to decide under which section the offender should be prosecuted and this should depend on the circumstances of the case. It may be that if the amount is large and there is other evidence to show that even though the drug is not intended for Hong Kong, it is destined to other countries as part of the lucrative drug trade, world wide or otherwise, then a s.4 prosecution rather than a s. 14 prosecution is the case. If the quantity is small and there is evidence to show that it is intended for medical or otherwise legitimate use at the point of destination or for the offender's own use medically but through ignorance or misunderstanding of the law relating to drugs in the country of destination, the drug is brought through Hong Kong without complying with the necessary requirement such as licence, the more appropriate offence would be one under paragraph (a) or (b) of s. 14 as the case may be.

66. The evidence in the present case is sufficient to show a prima facie case under s.4(1)(a) and there is insufficient ground for discharge on counts 1 and 3 under s.16 of the Criminal Procedure Ordinance. It may be that the alternative counts 2 and 4 under s.14(1)(a) on the indictment are redundant, given the large quantity involved and that there is no evidence that the country of export is a Conventions country and it is not likely that the jury will find this a case covered by s.14. This is reinforced by the fact that the original indictment contained these alternative counts but they were later deleted. It is unfortunate that the prosecution saw it necessary to put them back subsequently. Be that as it may, their inclusion does not prejudice the defendants in any event. For these reasons, the order of discharge should be set aside.