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Yip Chiu-Cheung Appellant v. The Queen Respondent Privy Council PC

Lord Jauncey of Tullichettle, Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley 1994 April 20, 21; June 16 [Appeal from the Court of Appeal of Hong Kong] Crime--Conspiracy--Mens rea--Conspiracy to traffic in dangerous drug-- Undercover agent agreeing with defendant unlawfully to export drugs from Hong Kong--Agent intending to carry out agreement for justifiable motive--Whether agent co--conspirator-Whether defendant rightly convicted of conspiracy with agent--Dangerous Drugs Ordinance (Laws of Hong Kong, 1992 rev., c. 134), ss. 2(1), 4(1) The defendant was arrested in Hong Kong and charged with conspiracy to traffic in a dangerous drug, contrary to common law and to section 4 of the Dangerous Drugs Ordinance. [FN1] By section 2 of the Ordinance 'export' meant, inter alia, taking out of Hong Kong by air and 'trafficking' in relation to a dangerous drug included exporting it from Hong Kong. The prosecution case was that an American undercover drug enforcement agent had met the defendant and H. in Thailand and had arranged that the agent would fly to Hong Kong where he would be met by the defendant and supplied with heroin which the agent was to take from there by aeroplane to Australia. The agent testified that he had intended to carry out the agreement but after missing the prearranged flight to Hong Kong he had not proceeded further with the plan, that he had been trying to break a drug ring, and that he had informed the Hong Kong and Australian authorities and they had agreed not to prevent him from taking the heroin out of Hong Kong and into Australia. The judge directed the jury that if they accepted the agent's evidence they could convict the defendant of a conspiracy with H., and if they were sure that the agent had intended to carry the heroin out of Hong Kong he was a co-conspirator and they could convict the defendant of a conspiracy with the agent. The defendant was convicted of conspiracy to traffic in a dangerous drug but separate verdicts were not given with regard to conspiracy with H. and the agent. On the defendant's appeal against his conviction to the Court of Appeal of Hong Kong on the ground that the defendant could not in law be a co-conspirator because he lacked the necessary mens rea for the offence the Crown conceded that if the agent were held not to be a conspirator it could not uphold the conviction on the basis of a conspiracy between the defendant and H. because the jury might have founded their verdict on the conspiracy with the agent alone. The Court of Appeal dismissed *112 the appeal, holding that the agent was capable of being a conspirator. FN1 Dangerous Drugs Ordinance, s.4(1): see post, p. 116A-B On the defendant's appeal to the Judicial Committee:Held, dismissing the appeal, that an agreement between two or more persons to commit an unlawful act with the intention of carrying it out constituted the crime of conspiracy; that there was no power to authorise a breach of the provisions of the Dangerous Drugs Ordinance so as to prevent the export of heroin from Hong Kong by the agent from being a criminal offence, and since the agent had intended unlawfully to traffic in a dangerous drug by taking heroin out of Hong Kong by air without a licence he had the requisite mens rea to be a conspirator even though his motive in so doing was to try to arrest drug

dealers and suppliers; and that, accordingly, the judge had not misdirected the jury and they had been entitled on the evidence to find the defendant guilty of a conspiracy with H. or with the agent, or with both of them, and the defendant had been properly convicted (post, pp. 117E, 118A-C, E-F). Dictum of Gibbs C.J. in A. v. Hayden (No. 2) (1984) 156 C.L.R. 532, 540 applied. Reg. v. Anderson (William Ronald) [1986] A.C. 27, H.L.(E.) distinguished. Decision of the Court of Appeal of Hong Kong [1993] 1 H.K.C.L.R. 133 affirmed. The following cases are referred to in the judgment of their Lordships: A. v. Hayden (No. 2) (1984) 156 C.L.R. 532 Reg. v. Anderson (William Ronald) [1986] A.C. 27; [1985] 3 W.L.R. 268; [1985] 2 All E.R. 961, H.L.(E.) The following additional cases were cited in argument: Liangsiriprasert (Somchai) v. Government of the United States of America [1991] 1 A.C. 225; [1990] 3 W.L.R. 606; [1990] 2 All E.R. 866, P.C. Mulcahy v. The Queen (1868) L.R. 3 H.L. 306, H.L.(I.) Reg. v. Cho Campo Juan En Kui (unreported), 24 December 1986; Court of Appeal of Hong Kong, Criminal Appeal No. 503 of 1985 Reg. v. David Yung Te Chow (1987) 30 A.Crim.R. 103 Reg. v. Kamara [1974] A.C. 104; [1973] 3 W.L.R. 198; [1973] 2 All E.R. 1242, H.L.(E.) Reg. v. Latif , The Times, 17 March 1994, C.A. Reg. v. O'Brien [1955] 2 D.L.R. 311 Reg. v. Thomson (1965) 50 Cr.App.R. 1 Reg. v. Tolson (1889) 23 Q.B.D. 168 United States of America v. Escobar de Bright (1984) 742 F.2d 1196 Williams v. The Queen (1979) 23 A.L.R. 369 APPEAL (No. 9 of 1994) with special leave by the defendant, Yip Chiu-Cheung, from the judgment of the Court of Appeal of Hong Kong (Silke V.-P., Power J.A. and Kaplan J.) given on 15 May 1992 dismissing his appeal against his conviction on 27 March 1991 in the High Court of Hong Kong before Duffy J. and a jury of conspiracy to traffic in a dangerous drug, contrary to common law and to section 4 of the Dangerous Drugs Ordinance. The facts are stated in the judgment of their Lordships. *113 Lord Hooson Q.C. and Robert Britton for the defendant. The Court of Appeal assumed wrongly, in the light of the terms of the judge's direction to the jury, that the jury must necessarily have accepted the agent's evidence as to intention. They could have rejected that part of the evidence and based their verdict on a conspiracy between the defendant and H. Since it is impossible to know whether the jury convicted on the basis of a conspiracy with the agent or with H., and the prosecution conceded before the Court of Appeal that they did not seek to uphold the conviction based on a conspiracy with H., the defendant's conviction cannot be sustained. The principal issue is whether the crime of conspiracy is established when a person enters into an agreement with an undercover agent who lacks the necessary mens rea in that he has no intention of carrying out the agreement but is engaged in reporting the facts to the authorities with a view to eventually frustrating the objectives of the conspiracy. The question was specifically left open in Liangsiriprasert (Somchai) v. Government of the United States of America [1991] 1 A.C. 225. To constitute a criminal conspiracy there must be a criminal purpose held in common between the conspirators, because conspiracy is essentially a meeting of guilty minds. Each participant must have a guilty intent in assenting to the commission of an unlawful act. The agent was not a coconspirator because he did not enter into the agreement with a guilty mind since he intended to disclose what was happening to the relevant authorities. A drug enforcement agent is in reality exempt from criminal liability in respect of his undercover activities. Conspirators must not only intend to perform the agreed unlawful act, but must also intend a criminally successful conclusion to what they intended to do.

In considering whether or not the agent could be a co-conspirator regard must be had to the general principles of English criminal law, one of which is the rule that no one can be convicted of a criminal offence unless he has mens rea. [Reference was made to Reg. v. Tolson (1889) 23 Q.B.D. 168; Reg. v. Thomson (1965) 50 Cr.App.R. 1; Reg. v. Anderson (William Ronald) [1986] A.C. 27; A. v. Hayden (No. 2) (1984) 156 C.L.R. 532; Reg. v. David Yung Te Chow (1987) 30 A.Crim.R. 103; Reg. v. O'Brien (1954) 110 C.C.C. 1; Gillies, The Law of Criminal Conspiracy, 2nd ed. (1990), pp. 19-20; Law Commission Working Paper No. 50: Inchoate Offences, Conspiracy, Attempt and Incitement, 5 June 1973, pp. 23-26, paras. 37-42 and the Report of the Law Commission on Conspiracy and Criminal Law Reform (1976) (Law Com. No. 76), pp. 13-14, 17, paras. 1.26, 1.27, 1.31 and 1.39.] The intention of every participant in a criminal conspiracy cannot be anything less than the will to attain the object of the agreement. If a person said to be a participant in a conspiracy intends to achieve the physical objective thereof but under the belief on reasonable grounds that he is exempt from prosecution, he does not have the necessary mens rea to be a conspirator. James Guthrie Q.C. and Stephen Wong, Senior Assistant Principal Crown Counsel, Hong Kong, for the Crown. In the Court of Appeal the defendant's main ground of appeal was that the agent could not be a co-conspirator. It was only in relation to that ground that the prosecution conceded that they were not relying upon there having been any conspiracy *114 other than that said to have been established between the defendant and the agent. The prosecution were thus indicating that, should the Court of Appeal hold that the agent could not in law be a conspirator, there could be no question of the court dismissing the appeal on the ground that no miscarriage of justice had actually occurred. That concession followed inevitably from the manner in which the judge had directed the jury, since the precise basis upon which the jury had convicted the defendant could not be divined. In the light of the judge's direction that the jury could accept part of the evidence of a witness, and also reject part, the possibility must exist that the jury convicted on the basis of a conspiracy between the defendant and the agent, whilst not being prepared to accept H. as a conspirator. Further, the possibility cannot be excluded that the jury, having decided to convict on the basis of a conspiracy between the defendant and the agent, did not proceed to decide the precise role of H. The prosecution did not abandon the possibility of the jury having convicted the defendant on the basis of a conspiracy with H. To prove the offence of conspiracy at common law the prosecution must prove an agreement between the two or more persons to commit an unlawful act. Mens rea is an essential ingredient in the crime of conspiracy and consists of the intention to execute the illegal elements in the conduct contemplated by the agreement in the knowledge of those facts which render the conduct illegal. The agent at all times intended to carry through the common design of the conspiracy as agreed between himself, the defendant and H. The agent was not simply pretending to agree to the plan devised with the coconspirators, nor was he intending to frustrate the commission of the crime. He intended to commit the offence of conspiracy to traffic in a dangerous drug in Hong Kong, although his motive was to try to arrest those involved and break the drugs ring. The fact that he and the defendant had different motives for conspiring together was irrelevant. An unlawful act is not deprived of its unlawful character merely because it is committed with the ostensible authority or connivance of law enforcement authorities. [Reference was made to Mulcahy v. The Queen (1868) L.R. 3 H.L. 306; Reg. v. Kamara [1974] A.C. 104; Reg. v. O'Brien [1955] 2 D.L.R. 311; Fridman's article 'Mens Rea in Conspiracy' (1956) 19 M.L.R. 276, 282-283; Report of the Law Commission on Conspiracy and Criminal Law Reform (Law Com. No. 76), pp. 15-17, paras. 1.34 and 1.38; Smith and Hogan, Criminal Law, 7th ed. (1992), pp. 272-274; Williams v. The Queen (1979) 23 A.L.R. 369; Reg. v. Cho Campo Juan En Kui (unreported), 24 December 1986; Court of Appeal of Hong Kong, Criminal Appeal No. 503 of 1985; Liangsiriprasert (Somchai) v. Government of the United States of America [1991] 1 A.C. 225; A. v. Hayden (No. 2), 156 C.L.R. 532; Reg. v. David Yung Te Chow, 30 A.Crim.R. 103 and Reg. v. Latif, The Times, 17 March 1994.] The agent had intended to take dangerous drugs out of Hong Kong contrary to section

4(1)(a) of the Dangerous Drugs Ordinance and so he was a co-conspirator. The defendant had properly been convicted. Lord Hooson Q.C. in reply. In many situations there is a clear difference between motive, intention and purpose, but in other situations they are virtually synonymous. Motive is the ultimate reason for a person doing what he or she has agreed to do. In the context of conspiracy there *115 must be an intention both to do the acts agreed in order to fulfil a common design and an intention to attain the object of the conspiracy, i.e. to break the law. Each co-conspirator must so intend. There are strong public policy reasons for not allowing an undercover agent, who intends to frustrate the object of the conspiracy, or to build up evidence for a case, to be a coconspirator. It is impossible to distinguish between an agent who intends to prevent the commission of an offence, and one who intends to carry out the unlawful act believing that he will not be charged and in order to frustrate the object of the conspiracy at a later stage. In the present case the agent did not have the requisite overall guilty intent. The material time with regard to intention is when the agreement was made, and at that time the agent's state of mind was such that he was not a co-conspirator. [Reference was made to United States of America v. Escobar de Bright (1984) 742 F.2d 1196 and Reg. v. Latif, The Times, 17 March 1994.] Furthermore, the Board should consider the implications of this case on our domestic law. Cur. adv. vult. 16 June. The judgment of their Lordships was delivered by LORD GRIFFITHS. On 27 March 1991 the defendant was convicted of conspiracy to traffic in heroin and on 28 March sentenced to 15 years' imprisonment. His appeal was dismissed by the Court of Appeal of Hong Kong on 15 May 1992 and he now appeals from that decision. The indictment charged the defendant as follows: 'Statement of offence. Conspiracy to traffic in a dangerous drug, contrary to common law and section 4 of the Dangerous Drugs Ordinance, c. 134. 'Particulars of offence. Yip Chiu-Cheung, between 19 August 1989 and 15 November 1989 in Thailand and Hong Kong, conspired with Philip Needham and another person unknown to traffic in a dangerous drug, namely salts of esters of morphine commonly known as heroin.' The relevant provisions of the Dangerous Drugs Ordinance, c. 134, are: '2(1) In this Ordinance, unless the context otherwise requires . . . ' Director' means the Director of Health, Deputy Director of Health or an assistant director of health; . . . 'export' means to take or cause to be taken out of Hong Kong or any other country, as the case may be, by land, air or water; . . . '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 . . . and 'traffic in a dangerous drug' shall be construed accordingly; 'unlawful' or 'unlawfully,' in relation to trafficking in or manufacturing or storage of a dangerous drug, means otherwise than under and in accordance with this Ordinance or a licence issued thereunder; . . .' *116 '4(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.' The prosecution case was based primarily on the evidence of Philip Needham who was an undercover drug enforcement officer of the United States of America and named in the indictment as a co-conspirator. The other conspirator, referred to in the indictment as a person unknown, was introduced to Needham by the defendant under the name of Hom. In outline Needham's evidence was that he had a series of meetings in Thailand with the defendant, at one of which Hom also took part, at which it was arranged that Needham would act as a courier to carry five kilos of heroin from Hong Kong to Australia, travelling by air.

The arrangement was that Needham would fly to Hong Kong on 22 October 1989 under the name of Larsen, where he would be met by the defendant. He would then stay at the Nathan Hotel in Kowloon for a few days and then fly on to Australia with five kilos of heroin supplied by the defendant. For this service he would be paid U.S.$16,000. In fact Needham did not fly to Hong Kong on 22 October because the flight was delayed and he missed the rescheduled flight. Needham said he had no way of contacting the defendant in Hong Kong and had been advised by the Hong Kong authorities that the Nathan Hotel would be a dangerous place for him to stay. Needham therefore proceeded no further with the plan, and did not go to Hong Kong. The defendant was arrested in Hong Kong on 15 November, a piece of paper with the name Larsen was found in the defendant's possession and it was admitted that he had come to the airport to meet Needham's flight on 22 October. Needham said that throughout his dealings with the defendant and Hom he kept the authorities in Hong Kong and Australia informed of the plans and they agreed that he would not be prevented from carrying the heroin out of Hong Kong and into Australia. It was obviously the intention to try to identify and arrest both the suppliers and the distributors of the drug. The defence was that there had been no arrangement to carry any drugs, and the defendant was to assist Needham to buy travellers cheques that had been reported lost. He agreed that on one occasion Hom had been present when he met Needham. In his summing up the judge directed the jury that, if they accepted Needham's evidence, it was open to them to convict the defendant of a conspiracy with Hom, and if they were sure that Needham had intended to carry the heroin out of Hong Kong he was in law a co-conspirator and they could convict the defendant of a conspiracy with Needham. The jury found the defendant guilty, but they were not asked to bring in separate verdicts in respect of conspiracy with Hom and Needham. *117 The defendant raised a number of grounds of appeal before the Court of Appeal all of which failed, and only one of which is now pursued before the Board, which is that Needham, the drug enforcement officer, cannot in law be a co-conspirator because he lacked the necessary mens rea for the offence. Before, however, turning to consider this ground of appeal, it will first be convenient to deal with a further ground of appeal arising out of a concession made by the prosecution in the Court of Appeal. The prosecution told the Court of Appeal that, if the appeal succeeded, they would not seek to uphold the conviction by relying upon a conspiracy between the defendant and Hom. The defendant submitted that this concession was fatal to the conviction, the argument being that the jury might have convicted only on the conspiracy with Hom and might not have been satisfied that Needham ever had the necessary intent to carry the heroin to make him a conspirator; therefore, it is said, if the conspiracy with Hom is not upheld the conviction cannot stand. Their Lordships are satisfied that this argument is based on a misunderstanding of the nature of the concession made by the prosecution. There was no attack in the Court of Appeal upon the judge's direction that the jury could on the evidence find a conspiracy between Hom and the defendant. But if the appeal succeeded in establishing that Needham was not in law a co-conspirator, there was no way of knowing whether the jury had convicted on the basis of the conspiracy with Hom or with Needham. In these circumstances the prosecution rightly said they would not seek to rely on the conspiracy with Hom if the conspiracy with Needham failed, because the jury might have founded their verdict on the conspiracy with Needham. If, however, Needham was capable in law of being a co-conspirator with the defendant there was ample evidence to support the jury's verdict of guilty either on the grounds of conspiracy with Hom or Needham or both of them. As, for the reasons that follow, Needham was rightly held to be capable of being a conspirator this ground of appeal fails. On the principal ground of appeal it was submitted that the trial judge and the Court of Appeal were wrong to hold that Needham, the undercover agent, could be a conspirator because he lacked the necessary mens rea or guilty mind required for the offence of

conspiracy. It was urged upon their Lordships that no moral guilt attached to the undercover agent who was at all times acting courageously and with the best of motives in attempting to infiltrate and bring to justice a gang of criminal drug dealers. In these circumstances it was argued that it would be wrong to treat the agent as having any criminal intent, and reliance was placed upon a passage in the speech of Lord Bridge of Harwich in Reg. v. Anderson (William Ronald) [1986] A.C. 27, 38-39; but in that case Lord Bridge was dealing with a different situation from that which exists in the present case. There may be many cases in which undercover police officers or other law enforcement agents pretend to join a conspiracy in order to gain information about the plans of the criminals, with no intention of taking any part in the planned crime but rather with the intention of providing information that will frustrate it. It was to this *118 situation that Lord Bridge was referring in Reg. v. Anderson. The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator. The facts of the present case are quite different. Nobody can doubt that Needham was acting courageously and with the best of motives; he was trying to break a drug ring. But equally there can be no doubt that the method he chose and in which the police in Hong Kong acquiesced involved the commission of the criminal offence of trafficking in drugs by exporting heroin from Hong Kong without a licence. Needham intended to commit that offence by carrying the heroin through the customs and on to the aeroplane bound for Australia. Neither the police, nor customs, nor any other member of the executive have any power to alter the terms of the Ordinance forbidding the export of heroin, and the fact that they may turn a blind eye when the heroin is exported does not prevent it from being a criminal offence. The High Court of Australia in A. v. Hayden (No. 2) (1984) 156 C.L.R. 532 declared emphatically that there was no place for a general defence of superior orders or of Crown or executive fiat in Australian criminal law. Gibbs C.J. said, at p. 540: 'It is fundamental to our legal system that the executive has no power to authorise a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer.' This statement of the law applies with the same force in England and Hong Kong as it does in Australia. Naturally, Needham never expected to be prosecuted if he carried out the plan as intended. But the fact that in such circumstances the authorities would not prosecute the undercover agent does not mean that he did not commit the crime albeit as part of a wider scheme to combat drug dealing. The judge correctly directed the jury that they should regard Needham as a conspirator if they found that he intended to export the heroin. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. Representation Solicitors: Edwin Coe; Macfarlanes. (S. S. ) (c) Incorporated Council of Law Reporting For England & Wales [1995] 1 A.C. 111 END OF DOCUMENT