Somchai Liangsiriprasert, Appellant and Government of the United States of America and Another, Respondents
Authoritative version published at:  1 A.C. 225
APPEAL FROM THE COURT OF APPEAL OF HONG KONG
SOLICITORS: Philip Conway Thomas & Co.; Macfarlanes.
JUDGES: Lord Templeman, Lord Roskill, Lord Griffiths, Lord Goff of Chieveley and Lord LowryDATES: 1990 May 14, 15, 16, 17; July 2
Hong Kong — Crime — Drugs — Drug trafficking — Thai national in Thailand trafficking in heroin and doing acts preparatory to exporting drugs to United States — Arrest in Hong Kong — Whether activities in Thailand constituting offences in Hong Kong — Dangerous Drugs Ordinance (Laws of Hong Kong, 1988 rev., c. 134), ss. 4(1), 391
On appeal to the Judicial Committee:&mmdash;S. 39 An person convicted of conspiracy to commit an offence under this Ordinance shall be liable to the penalty prescribed for that offence and any special rules of evidence which apply with respect to the proof of that offence under this Ordinance shall apply in like manner to the proof of conspiracy to commit such offence. [*226]
Held, dismissing the appeal in relation to crimes 1 and 3, (1) that the crimes were extradition crimes and so the magistrate applying Hong Kong law had to determine whether the evidence established a prima facie case against the appellant on the assumption that the drugs were to be imported into Hong Kong instead of the United States; that section 39 of the Dangerous Drugs Ordinance did not create a statutory offence of conspiracy to commit an offence under the Ordinance but merely related to the penalty for such common law conspiracy and the applicability of special rules of evidence; that the law of conspiracy in Hong Kong was the same as the common law of conspiracy in England, and that, accordingly, the conspiracy to traffic in a dangerous drug in Hong Kong entered into in Thailand could be tried in Hong Kong without any act pursuant to that conspiracy being done in Hong Kong (post, pp. 241G-H, 243G, 244A, 251D).
(2) That, whether or not the American agents and the Thai police officer were co-conspirators with the appellant and his cousin, they imported the heroin illegally in accordance with the agreement, thereby performing in the United States an overt act in pursuance of the conspiracy which also constituted trafficking in a dangerous drug in the United States; that, although the appellant could not have been extradited to the United States from Thailand for drug offences, he was voluntarily in Hong Kong and the correct extradition procedures had been followed, and so there was no oppression, abuse of judicial process or breach of international comity by the Government of the United States in seeking his extradition from Hong Kong; and that, therefore, the magistrates order for his detention to await extradition was justified in respect of crimes 1 and 3 (post, pp. 242C, 242G, 243D, 251F-H).
Dicta of Lord Salmon in Reg. v. Doot  A.C. 807, 832-833, H.L.(E.); of Lord Diplock in Director of Public Prosecutions v. Stonehouse  A.C. 55, 67, H.L.(E.) and of Roberts C.J. in Attorney-General v. Yeung Sun-shun  H.K.L.R. 987, 998, applied.
Dictum of Lord Keith of Kinkel in Director of Public Prosecutions v. Stonehouse  A.C. 55, 93, H.L.(E.) not applied.
Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24, D.C. distinguished.
But, (3) allowing the appeal in relation to crimes 2 and 4, that section 4(1) of the Ordinance had no extraterritorial effect and, since the trafficking in drugs by the appellant to which those crimes related occurred in Thailand, he thereby committed no offence under section 4(1) (post, pp. 252C, 253G).
Decision of the Court of Appeal of Hong Kong  1 H.K.L.R. 85 reversed in part. [*227]
APPEAL (No. 6 of 1990) with special leave by the applicant, Somchai Liangsiriprasert, from the judgment of the Court of Appeal of Hong Kong  1 H.K.L.R. 85 (Yang C.J., Fuad V.-P. and Hunter J.A.) given on 11 October 1989 dismissing the applicants appeal from the judgment of Sears J. delivered on 3 May 1989 in the High Court (Criminal Jurisdiction) whereby his application for a writ of [*228] habeas corpus ad subjiciendum was dismissed. The application arose as a result of the applicant having been committed into the custody of the second respondent, the Lai Chi Kok Reception Centre, by the magistrate, M.P. Burrell, prior to the applicants extradition at the request of the first respondent, the Government of the United States of America.
The facts are stated in the judgment of their Lordships.
Martin Thomas Q.C. and G. J. X. McCoy (of the English, Hong Kong and New Zealand Bars) for the appellant.This appeal involves important issues of law and practice. The extradition treaties between Thailand and the United Kingdom, and Thailand and the United States of America, contain no provision for extradition for drug offences, and so the appellant could not be extradited to the United States from Thailand for the alleged offences. The Government of the United States has attempted to plug that gap in the treaty between the United States and Thailand by devising a very careful plan in order to bring a Thai drug dealer before the courts of the United States, because the appellant was enticed to Hong Kong from where extradition to the United States for drug offences is possible. One of the issues therefore is whether in such circumstances it is permissible for the government to seek the appellants extradition from Hong Kong to the United States.
The appellants main contention is that he can only be extradited to the United States from Hong Kong if his conduct in Thailand would have been an offence in Hong Kong. Hong Kong can only claim jurisdiction over the appellant at common law or by statute. For a conspiracy to be triable in Hong Kong something has to happen in Hong Kong, because at common law there is no jurisdiction to prosecute a foreign national for what he has done in his own country. For example, if a Frenchman murders an Englishman in Paris the English courts have no jurisdiction to prosecute the Frenchman. There has been no reported case in which it has been held that a conspiracy formed abroad without any impact on England is justiciable in England. For Hong Kong to claim extraterritorial jurisdiction it must do so at common law by extending jurisdiction over conspiracy, or by statute under the Dangerous Drugs Ordinance.
Section 4 of the Dangerous Drugs Ordinance does not by its terms create extraterritorial jurisdiction and it cannot do so. By section 4(1) and (2) the other person referred to need not be in Hong Kong nor the dangerous drug but the activity of the person charged with drug trafficking must take place in Hong Kong.
According to the law of England a person cannot be prosecuted for a crime unless that crime has been committed within the jurisdiction, although there are certain statutory provisions to the contrary. At common law if acts pursuant to a conspiracy entered into in Thailand are carried out in Hong Kong, any conspirator caught can be tried in Hong Kong, because continuing the conspiracy in Hong Kong gives jurisdiction to the Hong Kong courts. The agreement is deemed to be a continuing one until it is discharged or frustrated. If acts are done in furtherance of the conspiracy in Hong Kong, the conspiracy is deemed [*229] to be continuing in Hong Kong. Overt acts are evidence that the agreement is continuing.
The principles relating to extradition are not in dispute. [Reference was made to sections 2, 10 and 26 of the Extradition Act 1870 and section 33 of the Misuse of Drugs Act 1971.] Regard must be had to the appellants conduct in Thailand to see if it constitutes an offence in Hong Kong since otherwise he cannot be extradited from Hong Kong to the United States. A conspiracy in Thailand to import drugs into Hong Kong is not actionable in Hong Kong if there are no overt acts in Hong Kong pursuant to that conspiracy.
The drug enforcement agents were not in law co-conspirators with the appellant and his cousin. An agreement between two or more persons that a course of conduct shall be pursued is a criminal conspiracy where that course, if carried out in accordance with their intentions, necessarily amounts to or involves the commission of an offence by one or more of the parties. Section 1 of the United Kingdom Criminal Law Act 1977 defined conspiracy and attempted to state in statutory terms the common law position. This agreement was not, and never would have been, carried out in accordance with the intentions of the appellant and his cousin. It was not the purpose of the agreement nor their intention that the drugs should be imported into the United States to be handed over to the drug enforcement agency. It would be impossibly artificial to aver that the physical importation of the drugs, being simply one step in the course of conduct envisaged, was part of their intention, so as to clothe the agents with the role of co-conspirators for that purpose alone. Certainly it was never the intention of the agents that the drugs should be imported for the purposes of a criminal conspiracy. The respondents appear to have conceded before Sears J. that the agents were not co-conspirators, and his findings assumed that to be the case. Reliance is placed on Reg. v. Cho Campo Juan En Kui (unreported), 24 December 1986, Court of Appeal of Hong Kong, Criminal Appeal No. 503 of 1985. The covert acts of the agents were not acts carried out in furtherance of the conspiracy.
Further, the agents were not innocent or unwitting agents of the conspirators like airline or post office officials, but were determinedly furthering the purposes of the Government of the United States. White v. Ridley (1978) 140 C.L.R. 342; Reg. v. Skewes  7 A.Crim.R. 276 and Reg. v. Wall  1 W.L.R. 930 can be distinguished. In the present case the causal link between the conspiracy and the importation into the United States was broken, because the drugs were taken into the custody of the Government of the United States before they left Thailand. The conspiracy was frustrated from the moment the drugs came into the agents hands.
If the agents were not co-conspirators no act in furtherance of the conspiracy was done in the United States, and therefore by the law of Hong Kong the United States courts have no jurisdiction to try the conspirators for a conspiracy entered into in Thailand. The situation is the same as if a conspirator had loaded the drugs onto an aircraft which crashed so that the drugs were never imported into the United States and accordingly no offence was committed in the United States. The [*230] essence of a conspiracy is that it is a course of conduct carried out in accordance with the intention of the conspirators, but the agents imported the drugs into the United States for their own purposes and not those of the conspirators, and did not deliver the drugs to the person the conspirators expected would receive them.
The conduct to which the courts of the country where extradition proceedings are brought must have regard is conduct, or acts, within the jurisdiction of the requesting country, which in the present case is the United States: see In re Nielsen  A.C. 606. The court must decide whether in accordance with its own domestic law an offence has been committed by the person whose extradition is being sought. This gives rise to three questions: (1) What conduct, if any, had the appellant been a party to in the United States? (2) Would the conduct of the appellant in Thailand give jurisdiction to the Hong Kong courts? (3) Did the visit to Hong Kong for the purpose of collecting a share of the proceeds give jurisdiction to the Hong Kong courts to extradite the appellant to the United States?
With regard to the first question, the only conduct relied on within the jurisdiction of the United States was that of the drug enforcement agents, and so the appellant was not a party to that importation. The Court of Appeal relied on Reg. v. David Yung Te Chow  30 A.Crim.R. 103 but that case is distinguishable.
The central issue is the second question. As to that, a conspiracy formed abroad to do an illegal act in Hong Kong cannot be tried in the courts of Hong Kong where no acts in furtherance of the conspiracy have been performed within its territorial jurisdiction. The position has been expressly reserved in England on this point by the House of Lords: see Reg. v. Doot  A.C. 807.
The basic principle is that law is territorial and jurisdiction in criminal law is territorial, although there are certain exceptions. It would be an extension of the common law for a conspiracy entered into abroad to be justiciable in England where no acts pursuant to the conspiracy take place in England. Such extension should only be made by statute. It is a matter of policy whether drug enforcement agents should be permitted to induce a drug dealer to go so far and then say he has attempted to illegally import drugs into the United States, so that if he can be arrested he can be prosecuted in the United States. The United States has assumed extraterritorial jurisdiction by passing legislation whereby once the appellant is in the United States he can be charged with trafficking in drugs in Thailand. At common law the English courts have no jurisdiction over a conspiracy abroad to import dangerous drugs into England if the attempt to carry out the importation fails either fortuitiously or due to the intervention of drug enforcement agents. [Reference was made to Reg. v. Treacy  A.C. 537; Director of Public Prosecutions v. Stonehouse  A.C. 55; Libman v. The Queen (1985) 21 C.C.C. (3d) 206; Reg. v. Sanders  1 N.Z.L.R. 636; Mharapara v. The State  L.R.C. (Const.) 235 and Attorney-General v. Yeung Sun-shun  H.K.L.R. 987.]
As to the third question, it may be that the appellant, by coming to Hong Kong with the intention of collecting his share, committed a [*231] criminal offence against the law of Hong Kong, but that is immaterial for the purposes of extradition proceedings to the United States. The Hong Kong court must consider the position as though the visit to collect the money had taken place in another jurisdiction.
Crime 1 charges the appellant with conspiracy to traffic in a dangerous drug contrary to common law and section 39 of the Dangerous Drugs Ordinance. The reference to section 39 shows that a statutory conspiracy is being alleged, and that cannot relate to a conspiracy outside Hong Kong. Crimes 2, 3 and 4 charge the appellant with offences contrary to section 4. The Ordinance does not have extraterritorial effect and cannot do so, since the Hong Kong legislature had no power to pass legislation with extraterritorial effect in relation to drug offences.
The basic principle is that a foreign national is not answerable to English criminal jurisdiction for an act done totally outside England, and neither on a British ship nor within British territorial waters. The exceptions are well recognised and are based on international law, and include piracy, hijacking and other offences against aircraft. There is a presumption that in the absence of clear and specific words to the contrary, an offence-creating section is not intended to make conduct outside the territorial jurisdiction of the Crown an offence triable in an English court. [Reference was made to Air-India v. Wiggins  1 W.L.R. 815; Stanley v. The Queen  L.R.C. (Crim.) 52 and Public Prosecutor v. Rajappan  1 M.L.J. 152.] Crimes 2 and 4 relate wholly to acts by a foreign national within his own country. It would be extraordinary if section 4 of the Ordinance conferred extraterritorial jurisdiction on the Hong Kong courts in respect of such acts.
It is oppressive and an abuse of process, and does not conform with international comity, for a government agency to entice a criminal to a jurisdiction from which extradition is available. It is contrary to the rule of law that a sovereign state such as the United States, appreciating that it cannot legally extradite a drug trafficker from Thailand, should employ an underhand method such as this. Where a sovereign state deems it necessary to try foreign nationals who are affecting its own national security or way of life, the rule of law demands that it should approach the country concerned and ask for the person to be handed over. Entrapment is not something which the law encourages law enforcement agents to do. This is a policy matter which shoud be taken into consideration in relation to whether or not the common law as to extraterritorial jurisdiction should be extended. [Reference was made to Reg. v. Hartley  2 N.Z.L.R. 199; Reg. v. Plymouth Justices, Ex parte Driver  Q.B. 95 and Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24.]
R. Alun Jones Q.C. and Michael Blanchflower, Senior Crown Counsel, Hong Kong, for the respondents. There is no issue between the appellant and the respondents about the extradition aspects of the case.
The historical background is important because it throws light on the applicability of the proposition that all crime is local. That has never been the ratio of any case other than those cases which deal with narrow [*232] issues of venue. In many cases in the English courts this century that phrase has been used, but in all of them some part of the crime had been committed in the United Kingdom.
The only jurisdictional condition for the trial of a common law crime is that the Queens peace is attacked or threatened: see Blackstones Commentaries on the Laws of England, 20th ed. (1841), book 4, p. 2. Conspiracy in Hong Kong is a common law crime. Formerly a second condition existed in the common law courts, because the crime, or part of it, had to have been committed within the county of trial. By reason of that second condition the first became unimportant. The old rules as to venue within a county have been used in recent times to say that the same rules apply to countries.
English law has always treated certain actions as criminal because an attack or threat to the Queens peace existed. English criminal law has always protected the Queens peace by penalising such attacks or threats from within or without the realm. Serious crimes were crimes in English law wherever committed. Serious crimes committed outside the realm were usually tried outside the common law courts, for example by the admiral, constable or marshal. Reliance is placed on Russell on Crime, 12th ed. (1964), vol. 1, p. 612; Cokes Institutes of the Laws of England, 19th ed. (1832), part 3, pp. 10-11 and 47-48; Reg. v. Martin  2 Q.B. 272; Reg. v. Treacy  A.C. 537; Statute of Treasons 1351 (25 Edw. 3, st. 5, c. 2); Treason Act 1541 (33 Hen. 8, c. 23); Act for the Trial of Treasons 1543 (35 Hen. 8, c. 2); Statute against the Forging and Counterfeiting of Foreign Coin 1570 (14 Eliz. 1, c. 3); Offences at Sea Act 1536 (28 Hen. 8, c. 15); Stephens History of the Criminal Law of England (1883), vol. 2, pp. 9, 12-14 and 18, and Rex v. Brisac (1803) 4 East. 164. These statutes show that the common law courts acquired the power to try serious crimes committed beyond the realm by the use of specific statutory exceptions to the usual rules as to venue.
Conspiracy is a common law crime and is, like the crime of attempt, an auxilliary offence attaching to the completed offence. There is no reason to suppose that at the time when conspiracy developed there was hostility by the common law towards extraterritorial jurisdiction. Now that the restrictions on venue have been abolished all common law crimes attacking or threatening the Queens peace can be tried without impediment. [Reference was made to Rex v. Casement  1 K.B. 98.]
It is not inconsistent with the comity of nations for someone to be prosecuted in England for conspiring abroad to attack the Queens peace. In many cases there are overlapping jurisdictions. Where there is such a conspiracy the accident of a person doing an act in England cannot be the basis for trial and punishment in England in relation to the whole conspiracy. The very act of agreement is the criminal offence, and so the conspirators can be prosecuted even if the conspiracy is abandoned. Overt acts are no more than evidence of the conspiracy; their commission is not a necessary ingredient of the offence. Under old statutes, which created specific offences relating to combinations, an overt act may have been expressly required, because there might be no [*233] direct evidence of a conspiracy, but in modern conditions there may be other evidence such as the tape recording of conversations.
If considerations of comity are relevant, they must be applied by the courts in accordance with 20th century standards. They are no bar to the exercise of jurisdiction in the present case. Although the appellant could not have been extradited from Thailand to the United States, the authorities in Thailand were investigating the matter and permitted him to go to Hong Kong, which was an act of international cooperation, and so there was no infringement of the rules of comity.
The expression all crime is local is misleading and has been cited out of context. It was asserted without authority in Macleod v. Attorney-General for New South Wales  A.C. 455, which in any event can be distinguished because it was asserted only in the context of the extent of a local, colonial statute. The statute referred to in Cokes Institutes of the Laws of England, 19th (ed.) (1832), part 3, p. 80, created both intraterritorial and exraterritorial liability. The words, at p. 80, the offence is locall in the commentary meant that the administration of justice was local rather than the crime itself.
The question in relation to crime 1 is not one relating to jurisdiction but to the nature of the common law crime of conspiracy. It is a creation of the common law courts after the Restoration, and it developed against a background of law which recognised extraterritorial crime. It is analogous to attempt, is preventative in character, and its utility lies in forestalling crime. [Reference was made to Mulcahy v. The Queen (1868) L.R. 3 H.L. 306.]
English courts can try conspiracies formed outside England to commit offences in England without evidence of any acts in furtherance or continuance in England. Reliance is placed on dicta of Lord Tucker in Board of Trade v. Owen  A.C. 602, 622-626, and Attorney-General v. Yeung Sun-shun  H.K.L.R. 987. This case is the reverse of the situation in Board of Trade v. Owen, and a conspiracy entered into abroad to commit offences in England is triable in England. [Reference was made to Reg. v. Warburton (1870) L.R. 1 C.C.R. 274; Reg. v. Treacy  A.C. 537 and Director of Public Prosecutions v. Stonehouse  A.C. 55.]
Parliament does not legislate for the territorial extent of inchoate crimes but leaves the subject to the courts. Section 1(1) of the Taking of Hostages Act 1982 provides that there is extraterritorial liability for hostage taking because the offence can be committed by any person, of whatever nationality, in the United Kingdom or elsewhere. In section 1 of the Criminal Attempts Act 1981 there is no suggestion that the offence of attempt to which that section relates may be extraterritorial, and so that is for the courts to determine.
Absurdity results from a strictly territorial approach to the crime of conspiracy. If three men agree in Belgium to murder persons in England, and on their way to Ireland for an innocent purpose they land in England owing to bad weather, are they indictable or must the police wait for a murder? If one of those three men comes to England to attend a funeral before the conspiracy is put into effect, and lawfully acquires a map of London, intending to use it to find the place of the [*234] funeral but also to use it later in connection with the conspiracy, is the conspiracy continuing in England? Do different principles apply if two of the conspirators buy the map, or if the other two in Belgium have asked him to buy it? Is it material that one of the conspirators comes innocently to England but then commits a crime such as applying for a passport in a false name for use in the conspiracy? These are all questions which cannot be resolved by the narrow ratio in Reg. v. Doot  A.C. 807. The conspirators would be indictable in any of these circumstances. In the first situation there are no overt acts, and in the others the actions are no more than overt acts of purely evidential importance in establishing the conspiracy. The possible range of overt acts, in themselves innocent or guilty, is infinitely variable. Many could be said to establish the conspiracy in England, though all are evidence of the conspiracy threatening the Queens peace.
If, therefore, (1) the conspiracy is complete when the agreement is made; (2) the commission of overt acts is not a necessary element of the crime and (3) the justification for the law forbidding the crime is the utility of forestalling and preventing a substantive crime to which the crime of conspiracy is auxiliary, then the place where the agreement was formed is irrelevant, provided that the substantive crime was to be committed in England.
Alternatively, there was in the instant case full agreement on all the essential elements of the contemplated offence, and the conspiracy was continued, either within the principle in Reg. v. Doot  A.C. 807, by virtue of the importation of the drugs into the United States, or through instruments of the appellant. There is no middle category between innocent and guilty agency. This applies also to crime 3.
In the further alternative, the appellants visit to Hong Kong to collect his money justified the magistrate in committing him to custody under section 10 of the Extradition Act 1870. By going to Hong Kong for that purpose the appellant was doing an act in Hong Kong.
With regard to crimes 2 and 4, the question of territorial extent depends on statutory construction. The principle that all crime is local is no longer an appropriate test. Section 4 of the Dangerous Drugs Ordinance is plainly intended to have extraterritorial effect. It can be contrasted with the United Kingdom Misuse of Drugs Act 1971 and the Customs and Excise Management Act 1979. Parliament adopts one of two approaches to extent. Either it says that the enactment shall apply anywhere in the world, or it remains silent, in which case construction of purpose is essential.
In a statute which plainly has an international element one should start with no presumption as to extent. Section 4(1) of the Dangerous Drugs Ordinance has the words no person and it should be construed widely because its scope is limited to activities aimed or directed at Hong Kong. Although no person must mean no person anywhere in the world, the persons activities must be directed at Hong Kong.
Reliance is placed on the interpretation of section 4 by the Hong Kong courts, to whom the legislation and its purpose are familiar. The Board should only interfere if that construction is plainly wrong. The courts [*235] courts of Hong Kong have applied a purposive construction of the Ordinance.
The respondents approach is consistent with the comity of nations. Where there is a threat to the Queens peace there is no breach of comity in punishing it. [Reference was made to articles 2 and 4 of the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1989) (Miscellaneous No. 14 of 1989) (Cmnd. 804).]
Thomas Q.C. in reply. The respondents proposition that a crime at common law exists whenever there is a threat to the Queens peace is inconsistent with the accepted principle that all crime is territorial with certain well established exceptions. Reliance is placed on the Law Commissions Working Paper No. 29 (12 May 1970), Second Programme Item 18, Codification of the Criminal Law, subject 3: Territorial and Extraterritorial Extent of the Criminal Law, pp. 2-4, 10-11, 33, 37-38, 47-48, 51-54.
The question is what is meant by a threat to the safety or peace of persons within the Queens realm? In Board of Trade v. Owen  A.C. 602 it was held that a conspiracy in England to commit a crime abroad was not justiciable in England. It is wrong to turn that round and say that a conspiracy abroad to commit a crime in England is without more justiciable in England. There must be an impact on the country concerned for it to be such a threat. It would be wrong for this country to assume jurisdiction to try a conspiracy formed abroad which had no impact on the people or institutions of this country. In Director of Public Prosecutions v. Stonehouse  A.C. 55 it was decided that what the defendant had done had had an impact in England. In the present case the activities of the appellant had no impact on the United States, assuming that the drug enforcement agents were not co-conspirators or innocent agents. The impact must be relevant in the sense of being related to the crime which is alleged, because otherwise the threat to the Queens peace would be a totally empty threat. There is no authority that at common law a conspiracy entered into abroad has always been justiciable here even though it has had no impact on this country.
Thailand was not a signatory to the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and the United Kingdom has not yet ratified the Convention. It is open to the United States, Thailand and the United Kingdom to make treaty arrangements for the extradition of persons from Thailand for drug offences.
Crimes 2 and 4 relate to specific statutory offences, which were only committed in Thailand. Unless the Dangerous Drugs Ordinance has extraterritorial effect the appellant cannot be guilty of crimes 2 and 4. If the Hong Kong courts sought to try the appellant, a foreign national, it would be in respect of acts done in a foreign territory. [Reference was made to Rediffusion (Hong Kong) Ltd. v. Attorney-General of Hong Kong  A.C. 1136 and Holmes v. Bangladesh Biman Corporation  A.C. 1112.] In England there is a presumption against legislation of this country having extraterritorial application. In Hong Kong the powers to legislate are more limited, and in criminal law such construction should be even more narrowly applied. [*236] The definition of trafficking in section 2 of the Ordinance is not a totally embracing one, because the word includes is used. To traffic in drugs there must be mens rea involving more than knowledge of possession and the nature of the drugs. There must be an intention to traffic illicitly in the drugs. To say that the drug enforcements agents were trafficking would be to strain improperly the language of the Ordinance. They were not acting as the instruments of the conspirators. An instrument is someone employed by another to effect a purpose. The agents were not effecting the purpose of the conspirators. It would be artificial to suggest that the conspirators purpose was that the drugs should be carried into United States airspace. Their purpose was the importation of the drugs into the United States for trafficking in them, and the agents did not import the drugs for that purpose. The agents own purpose broke the causal link between the conspiracy and the importation.
[LORD TEMPLEMAN. Their Lordships wish to hear submissions on the validity of the legislation, if it has extraterritorial effect.]
McCoy following for the appellant in relation to whether section 4 of the Dangerous Drugs Ordinance could have extraterritorial effect. Macleod v. Attorney-General for New South Wales  A.C. 455 is clear authority for colonial legislative incompetence to pass criminal laws having extraterritorial effect. That doctrine has been followed and applied by the Privy Council on a number of occasions. The respondents argued that that decision was without an ancestor, but in fact it was born of a distinguished pedigree, namely the common law, imperial statute law and the opinions of the English law officers.
The doctrine is still the major premise when colonial laws are passed by Parliament at Westminster: see the Admiralty Offences (Colonial) Act 1860 (23 & 24 Vict., c. 122) and section 3 of the Courts (Colonial) Jurisdiction Act 1874 (37 & 38 Vict., c. 27). Both those statutes were enacted on the basis that there was a territorial limit to colonial legislation. Section 3 of the Statute of Westminster 1931 for the first time enabled the Parliament of a dominion to make laws having extraterritorial operation. [Reference was made to the long title and sections 3 and 11 of the Act of 1931.] Section 3 was an enabling provision and did not apply to colonies: see British Columbia Electric Railway Co. Ltd. v. The King  A.C. 527.
The position of Hong Kong as to making extraterritorial laws remained the same as its position prior to the Statute of Westminster 1931. It had no jurisdiction to pass extraterritorial laws until the United Kingdom Parliament passed the Hong Kong Act 1985. [Reference was made to section 1.] Paragraph 3(1)(b) of the Schedule to the Act of 1985 authorises Her Majesty by Order in Council to make provision for enabling the legislature of Hong Kong to make laws having extraterritorial effect. Pursuant thereto the Hong Kong (Legislative Powers) Order 1986 was made, and it came into operation on 6 August 1986. Section 2(b) permits, for the first time, the Hong Kong legislature to make laws having extraterritorial operation in relation to civil aviation, merchant shipping and admiralty jurisdiction. The Hong Kong legislature can therefore only legislate with extraterritorial effect for those three matters. [*237] The whole thrust of colonial constitutional law is that only the United Kingdom Parliament may legislate for extraterritorial matters: see the dictum of Lord Diplock in Rediffusion (Hong Kong) Ltd. v. Attorney-General of Hong Kong  A.C. 1136B. To the extent that section 4 of the Dangerous Drugs Ordinance purports to extend to proscribing the conduct of foreign nationals abroad, it is ultra vires. [Reference was made to section 2 of the Colonial Laws Validity Act 1865.] The legislation is repugnant via the Colonial Laws Validity Act 1865 to the Hong Kong (Legislative Powers) Order 1986. Repugnancy may arise in respect of either antecedent or subsequent legislation.
Although it is an extradition case, this appeal focuses on the true parameters of the criminal law and the jurisdiction of colonial constitutional law. Hong Kong is still bound by limitations. Colonies do not enjoy full international personality and do not have legislative omnipotence. Apart from the Immigration Ordinance and the Prevention of Bribery Ordinance, which purport to expressly apply to acts committed in Hong Kong or anywhere outside Hong Kong, there is no Hong Kong legislation with a specific extraterritorial element. This is relevant in considering what is ordinarily embraced by Hong Kong legislative practice, and since only those two Ordinances in Hong Kong purport to have extraterritorial effect, there was a clear intention that the Dangerous Drugs Ordinance was not intended to operate outside Hong Kong.
Legislation does not ordinarily have extraterritorial effect. Reliance is placed on Halsburys Laws of England, 4th ed., vol. 6 (1974), para. 1075, pp. 514-515; Reference by the Governor in Council concerning the continental shelf offshore Newfoundland  L.R.C. (Const.) 159 and Thompson v. Commissioner of Stamp Duties  1 A.C. 320. Reg. v. Lau Tung-sing  1 H.K.L.R. 490 was wrongly decided. The Privy Council has held that there must be a relevant territorial connection to validate extraterritorial legislation. To allow the Hong Kong courts to adjudicate now over alleged criminal actions which take place, for example, wholly in Greenland, would be to give the Hong Kong legislature full sovereignty.
As a matter of construction it cannot be right that section 4 of the Dangerous Drugs Ordinance applies to any person anywhere in the world who engages in trafficking in a dangerous drug, because it would mean that no relevant connection with Hong Kong is required and so there would be no basis for the Hong Kong legislature passing such a law. If section 4 was intended to cover acts of foreigners committed abroad which have no impact on Hong Kong, section 4 is ultra vires to that extent. Crimes 2, 3 and 4 are substantive crimes fully completed in Thailand.
Blanchflower for the respondents with regard to section 4 of the Dangerous Drugs Ordinance. The operation of section 4 is not restricted to conduct within the territory of Hong Kong, so long as it is aimed or directed at Hong Kong, or there is a real and substantial link between the conduct and Hong Kong. Crimes 2, 3 and 4 fall within that category. Reliance is placed on Croft v. Dunphy  A.C. 156; Reg. v. Lau Tung-sing  1 H.K.L.R. 490 and Naim Molvan, Owner of Motor Vessel Asya v. Attorney-General for Palestine  A.C. 351. [*238] The preamble to the Hong Kong Act 1985 states that it was enacted to make provision for and in connection with the ending of British sovereignty and jurisdiction over Hong Kong. The Act of 1985 gave Parliament and the Hong Kong legislature power to establish Ordinances which would continue after 1 July 1997. Prior to the Act of 1985 the Hong Kong legislature could enact laws which had extraterritorial effect.
The Hong Kong Act 1985 and the Hong Kong (Legislative Powers) Order 1986 were passed to enable Hong Kong, in advance of 1997, to localise United Kingdom legislation which had been extended to Hong Kong and which had extraterritorial operation. Section 2 of the Hong Kong (Legislative Powers) Order 1986 has the words in addition to any other power conferred on the legislature of Hong Kong, and section 2(a) relates to a United Kingdom enactment which has become part of the law of Hong Kong. That was why the three categories civil aviation, merchant shipping and admiralty jurisdiction were referred to in section 2. Others will be added. Section 4 of the Dangerous Drugs Ordinance is not repugnant to any United Kingdom legislation and validly has extraterritorial effect.
McCoy in reply. The Hong Kong (Legislative Powers) Order 1986 does not cover offences relating to dangerous drugs.
Cur. adv. vult.
2 July. The judgment of their Lordships was delivered by LORD GRIFFITHS.
This appeal concerns the criminal international drug trade. The drug in this case is heroin. The Federal Drug Enforcement Administration of the United States have identified the appellant as a major criminal exporter of heroin from Thailand to the United States and seek his extradition from Hong Kong to strand trial in the United States. The magistrate in Hong Kong committed the appellant to prison to await extradition. The High Court dismissed the appellants application for habeas corpus in which he alleged that he had been unlawfully committed by the magistrate, and the Court of Appeal dismissed the appellants appeal from the judgment of the High Court. The appellant will therefore be extradited to the United States unless this appeal succeeds.
The unchallenged facts placed in evidence before the magistrate are summarised in the judgment of the Court of Appeal  1 H.K.L.R. 85, 90-91, which with some slight expansion their Lordships will adopt:
Acting upon information about the appellant received over a number of years by the Federal Drug Enforcement Administration of the U.S.A. ('D.E.A.'), in August 1988, a plan was devised that one of their undercover agents would be introduced to the appellant in Thailand. We will use the name Mike by which the agent was known. Mike, who is Chinese and was born in Hong Kong, was to pose as a member of a Chinese organisation in New York which is anxious to obtain a new source of heroin to supply to its customers in New York. [*239] Mike met the appellant on 14 September 1988 in Bangkok and asked if he could supply heroin for the organisations New York market. The appellant said that he had 40 pieces of stuff readily available, up North. This was understood as a reference to 40 units, (i.e. 28 kilos) of heroin. The appellant told Mike that he would go up North and have the stuff (the heroin) brought down to Bangkok in two or three days time. The appellant assured Mike that he had connections so there would be no problems in getting the heroin out of Bangkok. It could be sent to New York, via the Philippines, in two suitcases.
It was agreed that the heroin would be released on a down payment by Mike of U.S.$50,000. In answer to the appellants inquiry, Mike told him that they should be able to sell the heroin in New York for U.S.$65,000 per unit. The appellant agreed to this price. It was also agreed that if the heroin was successfully smuggled into New York in two suitcases each containing 20 units, Mikes share in the first suitcase shipment would be ten units; the appellant would have eight shares and the remaining two shares would be owned by the other man (also an agent) who was with Mike at the time of the discussions. The appellant agreed to meet Mike when the 40 units reached Bangkok.
On 16 September there was a meeting between Mike and Sutham Chokvanitphong ('S.C.') who is the appellants cousin. S.C. was there, he said, at the appellants behest, to tell Mike that the appellant would return to Bangkok on the following day after getting the package together.
On 17 September the appellant duly met Mike again and they talked about the appellants experience of imprisonment in the U.S.A. and the need to be careful in a number of ways. When they came to discuss the shipment of the heroin to New York, Mike (who again was accompanied by the other agent) said that his people had arranged for a diplomatic courier to come to Bangkok and take the heroin to New York. The appellant fell in with this new plan. The appellant offered to give the heroin to Mike that day but Mike said his people were not ready.
The appellant said that if he were to deliver the whole consignment in one, the U.S.$50,000 down payment would not be enough. The front price per unit would be U.S.$4,800. They talked about the appellants activities in the drugs world and arranged that the appellant would contact Mike about the delivery plans later that evening. S.C. met Mike in the evening and told him that the police had searched the place where the heroin was hidden but it had been moved to safety before the police arrived. On this occasion, too, Mike had the other agent with him. There were further discussions about delivery plans.
On 18 September S.C. met Mike and his companion again and informed him that the appellant was finalising the plan for delivery. The three men met again on the following day and had discussions about possible future deals. [*240] On the next day, 20 September, the same three men met again. This time the appellant was also present. The appellant told Mike that delivery would take place at the back of the parking lot of the hotel outside which they were talking while seated in the appellants car. At the appellants request, Mike went to his hotel room and came back with 1,200,000 Thai Bahts (the approximate equivalent of U.S.$50,000), which had been provided by the D.E.A. Mike gave the money, in a brown bag, to the appellant. The appellant said it would take between two to three hours for the delivery to be made and told Mike to wait for S.C. at the hotel. When these two eventually met at about midnight, S.C. informed Mike that delivery would have to take place on the next day because of police activities.
At about 6 a.m. on the following morning, 21 September, S.C. returned and took Mike to a side street near the hotel parking lot. Two men drove up in a car. S.C. said that they were his boys. The boot of the car was opened and S.C. invited Mike to inspect the heroin. Mike saw two bags in the boot. He opened them and looked at their contents — compressed bricks wrapped in brown paper and plastic. S.C. told his boys to drive Mike back to the hotel, which they did.
Mike took the two bags to his hotel room and opened them in the presence of another D.E.A. agent and a lieutenant of the Thai police. He counted a total of 20 compressed bricks. Two of the bricks were not of unit size. Mike went down to the coffee shop of the hotel where S.C. was waiting and told him of the discrepancy. S.C. said he would look into the matter and left. The bricks were counted again by the D.E.A. agent and the police lieutenant, and the latter took them away.
Later that day, the appellant met Mike at the hotel and said that he was pleased that everything had gone so well. The appellant acknowledged that the delivery, by weight, amounted to 19 units and not 20 as had been agreed. There were further meetings between Mike, the appellant and S.C. on 22 and 24 September. It was agreed that the two men would meet Mike in Hong Kong on or about 26 September to collect their share of the proceeds from the sale of the heroin in New York. The appellant said that the proceeds could be invested in the next shipment. Mike had paid the appellant another 70,000 Thai Bahts, the oustanding balance of the front money on 22 September.
On 23 September another agent took the 20 bricks from the Thai police lieutenant and put 10 of them into a diplomatic pouch. The two men then flew to New York with the pouch, arriving on the same day.
On 27 September, in accordance with arrangements made on 24 September, the appellant and S.C. met Mike at an hotel in Hong Kong and they were arrested by the Hong Kong police.
There was also affidavit evidence before the magistrate that the 10 bricks, which weighed 6.6 kilos contained heroin hydrochloride with a purity of 86 per cent. The evidence also showed that 20 units [*241] of that quality of heroin would command a wholesale price in New York of between U.S.$2,240,000 and U.S.$2,280,000. The approximate retail, or street level, value of the heroin would be between U.S.$22m. and U.S.$28m.
Upon these facts the appellant and S.C. were indicted by a grand jury in the United States for drug offences and a warrant for their arrest was issued in the United States for:
Conspiracy to import into the United States in excess of 1 kilogram of heroin ;
Importation into the United States of in excess of 1 kilogram of heroin ; and
Distribution in Bangkok, Thailand of in excess of 1 kilogram of heroin with intent the heroin be imported into United States
At the request of the United States the Governor of Hong Kong issued to the magistrate his order to proceed in accordance with the terms of the Extradition Acts 1870-1935 in respect of the following crimes:
Crime 1: Somchai Liangsiriprasert and Sutham Chokvanitphong (also known as Ah Bai'), on or about and between 1 September 1988 and 27 September 1988, both dates being approximate and inclusive, did conspire with other persons to traffic in a dangerous drug, contrary to common law and section 39 of the Dangerous Drugs Ordinance, c. 134.
Crime 2: Somchai Liangsiriprasert and Sutham Chokvanitphong (also known as Ah Bai'), on or about 21 September 1988, did traffic in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, c. 134.
Crime 3: Somchai Liangsiriprasert and Sutham Chokvanitphong (also known as Ah Bai'), on or about 23 September 1988, did traffic in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, c. 134.
Crime 4: Somchai Liangsiriprasert and Sutham Chokvanitphong (also known as Ah Bai'), between 14 September 1988 and 22 September 1988, both dates being approximate and inclusive, did do acts preparatory to trafficking in a dangerous drug, contrary to section 4(1)(c) of the Dangerous Drugs Ordinance, c. 134.
The Extradition (Hong Kong) Ordinance (c. 236) provides by sections 2 and 3 that the powers etc. given to the Secretary of State and the police magistrate in the United Kingdom by the Extradition Acts 1870-1935 may be exercised, respectively by the Governor of Hong Kong and by any magistrate.
It is common ground that these crimes are all extradition crimes and that the task of the magistrate was to apply Hong Kong law and to consider whether the evidence disclosed a prima facie case against the appellant upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States: see section 10 of the Extradition Act 1870 and In re Nielsen  A.C. 606.
Before turning to the appellants specific submissions relating to the four crimes it will be convenient first to deal with two submissions of a [*242] more general nature. The appellant submits that the D.E.A. agents were not in law co-conspirators with the appellant and S.C. The respondents did not argue to the contrary and the High Court judge and the Court of Appeal dealt with the case upon this assumption. Whether or not the D.E.A. agents should be regarded as co-conspirators is not an easy question. They were obviously not co-conspirators to a plan to sell heroin on the streets of the United States as were the appellant and S.C. On the other hand it can be argued that the D.E.A. agents had taken it upon themselves to break the law by importing heroin into the United States (Hong Kong) and however laudable their motives and however unlikely it is that they would be prosecuted or punished they are in law to be regarded as co-conspirators in the agreement to break the law by importing the drugs and thus to traffic in drugs; support for this view is to be found in the Australian cases of A. v. Hayden (No. 2) (1984) 156 C.L.R. 532 and Reg. v. David Yung Tee Chow  30 A.Crim.R. 103. For the purpose of deciding this appeal their Lordships do not find it necessary to decide this question and would not wish to do so without hearing full argument. Their Lordships will therefore assume as did the Court of Appeal that the D.E.A. agents were not co-conspirators with the appellant and S.C.
The second submission arises from the fact that the 1924 Extradition Treaty between the United States and Siam does not list drug offences as extraditable crimes. And so although the local police in Thailand were co-operating with the D.E.A., as appears from the recital of the facts, the appellant and S.C. could not be extradited to the United States from Thailand. It was obviously for this reason that the D.E.A. suggested payment in Hong Kong so that the appellant and S.C. could be arrested in Hong Kong and extradited from there to the United States.
The submission of the appellant is that it would be oppressive and an abuse of process and would not conform with international comity for a government agency to entice a criminal to a jurisdiction from which extradition is available. This submission was not made either before the magistrate or on the application for habeas corpus and although raised in the Court of Appeal it was not specifically dealt with in the judgment. Their Lordships are not surprised as in their view it is entirely without merit. Although drug offences have not yet been made an extradition crime between the United States and Thailand the death penalty for drug offences is still retained in Thailand and the Thai police were co-operating with the D.E.A. agents in their attempt to bring the appellant to justice in the United States which was the country destined to suffer from their drug dealings. In these circumstances to suggest that extradition should be refused on grounds of international comity is unsustainable. If Thailand had wished to deal with the appellant and S.C. they clearly had them within their grasp. The irresistible inference is that Thailand preferred to go along with the D.E.A. plan to bring the appellant and S.C. to justice in the United States.
As to the suggestion that it was oppressive or an abuse of process the short answer is that international crime has to be fought by international co-operation between law enforcement agencies. It is notoriously difficult [*243] to apprehend those at the centre of the drug trade; it is only their couriers who are usually caught. If the courts were to regard the penetration of a drug dealing organisation by the agents of a law enforcement agency and a plan to tempt the criminals into a jurisdiction from which they could be extradited as an abuse of process it would indeed be a red letter day for the drug barons. The appellant relied upon Reg. v. Bow Street Magistrates, Ex parte Mackeson (1981) 75 Cr.App.R. 24 but that was an entirely different case in which a British citizen wanted for fraud in England was removed from Zimbabwe-Rhodesia by unlawful means, namely by a deportation order which was in the circumstances a disguised form of extradition and which circumvented all the safeguards for an accused which are built into the extradition process. The Divisional Court, at pp. 31-32, cited with approval from the judgment of Woodhouse J. in Reg. v. Hartley  2 N.Z.L.R. 199, 216-217, in which he stressed the importance of following the correct statutory procedures for extradition, and exercised their discretion to prohibit the Bow Street magistrate committing the applicant to stand trial on charges preferred against him on his return under the deportation order: to do otherwise would have been to condone a flagrant abuse of extradition procedures.
In the present case the appellant and S.C. came to Hong Kong of their own free will to collect, as they thought, the illicit profits of their heroin trade. They were present in Hong Kong not because of any unlawful conduct of the authorities but because of their own criminality and greed. The proper extradition procedures have been observed and their Lordships reject without hesitation that it is in the circumstances of this case oppressive or an abuse of the judicial process for the United States to seek their extradition.
Their Lordships now turn to the appellants submissions in respect of the particular crimes with which he and S.C. were charged.
The charge is of a conspiracy to traffic in a dangerous drug contrary to common law and section 39 of the Dangerous Drugs Ordinance. One submission may be shortly disposed of. The appellant submitted that the reference to section 39 of the Dangerous Drugs Ordinance imported an allegation of statutory conspiracy and therefore had no application to a conspiracy entered into abroad or alternatively was ultra vires the powers of the Hong Kong legislature. This submission was neither raised in any lower court nor foreshadowed in the appellants case. It is without substance. Section 39 is not an offence-creating section but is a section which limits the penalty for conspiracy, which at common law is at large, to the penalty for the offence to which the conspiracy relates. It also provides that special rules of evidence which apply to proof of offences under the Ordinance shall also apply to proof of a conspiracy to commit such offences. The reference to section 39 in the charge does no more than alert the accused to those penalties and, more importantly in an extradition case, to the special rules of evidence. No point arises on evidence in this case and it is conceded that, subject to the submissions [*244] which follow, the evidence established a prima facie case of conspiracy against the appellant and S.C.
The law of conspiracy in Hong Kong is the same as the common law of conspiracy in England. The appellant submits that a conspiracy entered into abroad is not a common law crime unless either some overt act pursuant to the conspiracy takes place in England, or alternatively at least the impact of the conspiracy is felt in England. The appellant further submits that the actions of the D.E.A. agents in using the diplomatic bag to import the heroin into the United States did not constitute an overt act pursuant to conspiracy, because the D.E.A. agents were neither co-conspirators nor innocent agents of the appellant.
As a broad general statement it is true to say that English criminal law is local in its effect and that the common law does not concern itself with crimes committed abroad. The reason for this is obvious; the criminal law is developed to protect English society and not that of other nations which must be left to make and enforce such laws as they see fit to protect their own societies. To put the matter bluntly it is no direct concern of English society if a crime is committed in another country. It was for this reason that the law of extradition was introduced between civilised nations so that fugitive offenders might be returned for trial in the country against whose laws they had offended.
There have, however, from medieval times been a number of exceptions to this general principle, such as treason, piracy and murder committed by a British subject abroad. In more recent times the English Parliament has legislated to make certain crimes committed abroad triable in England, particularly those crimes which have been the subject of international conventions. There has as yet however been no decision in which it has been held that a conspiracy entered into abroad to commit a crime in England is a common law crime triable in English courts in the absence of any overt act pursuant to the conspiracy taking place in England. There are however a number of dicta in judgments and academic commentaries suggesting that it should be so.
In Board of Trade v. Owen  A.C. 602 the respondents had been convicted of a conspiracy entered into in London to defraud the export control department in the Federal Republic of Germany into granting an export licence for certain metals by fraudulently representing that the metals would be exported to Ireland when in fact they were to be exported to the Soviet bloc. The House of Lords upheld the decision of the Court of Appeal to quash the conviction and held that a conspiracy in England to commit a crime abroad was not indictable unless the contemplated crime was one for which an indictment would lie in England. In the course of his speech, with which all their Lordships agreed, Lord Tucker said, at p. 625:
The gist of the offence being the agreement, whether or not the object is attained, it may be asked why should it not be indictable if the object is situate abroad. I think the answer to this is that it is necessary to recognise the offence to aid in the preservation of the Queens peace and the maintenance of law and order within the realm with which, generally speaking, the criminal law is alone [*245] concerned. Furthermore, historically it apears to be closely allied in its development to the law with regard to attempts.
Then after citing a substantial passage from Holdsworths History of English Law (1945) Vol. v, Lord Tucker continued, at p. 626:
Accepting the above as the historical basis of the crime of conspiracy, it seems to me that the whole object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, and that it is all part and parcel of the preservation of the Queens peace within the realm. I cannot, therefore, accept the view that the locality of the acts to be done and of the object to be attained are matters irrelevant to the criminality of the agreement.
This reasoning leads to the conclusion that as the defrauding of Germans in Germany is not a threat to English society such a crime should be dealt with by the Germans and not by the English courts and that if the English courts will not allow an indictment for the substantive crime no indictment will lie in respect of the conspiracy. But looking at the obverse side of the coin what should be the position if a conspiracy is entered into in Germany to commit a crime in England? Such a conspiracy is obviously a threat to English and not to German society and it would appear that the Court of Criminal Appeal and Lord Tucker considered that such a conspiracy would constitute an indictable crime in this country for Lord Tucker cited, at p. 627, the following passage from the judgment of the Court of Criminal Appeal  1 Q.B. 174, 191:
In our opinion the true rule is that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here. That does not mean that there must always be found a statutory provision declaring that the crime is punishable here, because if persons do acts abroad for the purpose of defrauding someone in this country, they are indictable here and accordingly a conspiracy to do such an act would be indictable.
Lord Tucker also expressly reserved the following question, at p. 634:
I would, however, reserve for future consideration the question whether a conspiracy in this country which is wholly to be carried out abroad may not be indictable here on proof that its performance would produce a public mischief in this country or injure a person here by causing him damage abroad.
In Reg. v. Baxter  1 Q.B. 1 the defendant posted in Northern Ireland letters written by him and addressed to pools promoters in Liverpool falsely claiming that he had correctly forecast the results of certain competitions and was entitled to the winnings. The claims were unsuccessful and the defendant was charged on three counts of attempting to obtain money by deception. Before arraignment the defence submitted that the court had no jurisdiction to try the defendant as the attempts were completed when the letters were posted in Northern Ireland and that no criminal act had been committed within the jurisdiction of the [*246] English courts. The recorder ruled that the court had jurisdiction and the defendant was convicted. The Court of Appeal upheld the conviction on the ground that the attempt was a continuing offence and occurred at the moment of discovery when the three letters were seen by the pools promoters in Liverpool and accordingly the crime was committed within the jurisdiction; or alternatively a part of the attempt was the use of the post facilities within the jurisdiction. Commenting on this decision in Director of Public Prosecutions v. Stonehouse  A.C. 55, 67, Lord Diplock said:
For my part, I think there would have been jurisdiction in Baxters case even if the fraudulent claims had been intercepted in the post while still in Northern Ireland.
In Reg. v. Doot  A.C. 807 the respondents, American citizens, formed a plan abroad to import cannabis into the United States by way of England. Two vans in which cannabis was concealed were shipped from Morocco to Southampton. The cannabis in one van was discovered in Southampton and in the other van in Liverpool from whence it was intended to ship the vans to the United States. The respondents were charged with, inter alia, conspiracy to import dangerous drugs. At the trial they contended that the court had no jurisdiction to try them on that count since the conspiracy had been entered into abroad. Lawson J. overruled that submission but the Court of Appeal quashed the respondents convictions holding that the offence of conspiracy was completed when the agreement was made.
The following point was certified for consideration by the House of Lords, at p. 816:
Whether an agreement made outside the jurisdiction of the English courts to import a dangerous drug into England and carried out by importing it into England is a conspiracy which can be tried in England.
The House of Lords answered the question in the affirmative and restored the convictions.
As there had been acts performed in England, namely the importation of the cannabis, in pursuance of the conspiracy, Lord Pearson who gave the leading speech confined himself to that situation. He said, at p. 827:
On principle, apart from authority, I think (and it would seem the Court of Appeal also thought) that a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England.
Lord Wilberforce, at p. 818, expressly reserved his opinion on the question of whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented in England could be tried in England. The general tenor of Lord Salmons speech appears to be in favour of the view that a conspiracy entered into abroad to commit a crime in England is triable in England even if no other act pursuant to the conspiracy takes place in England. Lord Salmon started his discussion of the problem by saying, at pp. 832-833: [*247] It is obvious that a conspiracy to carry out a bank robbery in London is equally a threat to the Queens peace whether it is hatched, say, in Birmingham or in Brussels. Accordingly, having regard to the special nature of the offence a conspiracy to commit a crime in England is, in my opinion, an offence against the common law even when entered into abroad, certainly if acts in furtherance of the conspiracy are done in this country. There can in such circumstances be no doubt that the conspiracy is in fact as well as in theory a real threat to the Queens peace.
And he finished his discussion by saying, at p. 835:
My Lords, even if I am wrong in thinking that a conspiracy hatched abroad to commit a crime in this country may be a common law offence because it endangers the Queens peace, I agree that the convictions for conspiracy against these respondents can be supported on another ground, namely, that they conspired together in this country notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy. That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed.
In Director of Public Prosecutions v. Stonehouse  A.C. 55 the facts were that soon after insuring his life in England for the benefit of his wife the defendant, a man prominent in English public life, fabricated the appearance of his death by drowning abroad. He was charged in England with attempting to obtain in England property by deception. He was convicted and the Court of Appeal upheld his conviction but certified the following point of law, at p. 64:
Whether the offence of attempting on 20 November 1974 to obtain property in England by deception, the final act alleged to constitute the offence of attempt having occurred outside the jurisdiction of the English courts, is triable in an English court, all the remaining acts necessary to constitute the complete offence being intended to take place in England.׆
The House of Lords were unanimous in their view that the charge was justiciable in England. The majority laid stress upon the fact that the effects of the defendants actions were felt in England through the false reports of his death in the media which he intended and anticipated would result from his faked death and which would be followed by false claims being made upon the insurance companies.
The appellant relies in particular upon the following passage in the speech of Lord Keith of Kinkel, at p. 93:
In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he [*248] would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act. But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there. If, however the intended victim were aware of the rifle being pointed at him, and was thus put into a state of alarm, an effect would have been felt in England and a crime would have been committed there. The result may seem illogical, and there would appear to be nothing contrary to international comity in holding that an act done abroad intended to result in damage in England, but which for some reason independent of the actors volition had no effect there, was justiciable in England. But if that were to be the law, I consider that it would require to be enacted by Parliament.
Turning to the facts of this case, I am of opinion that the actions of the appellant in Florida, which consisted in staging a scene intended to deceive people into believing that he had drowned, had effects which were intentionally felt in England.
Lord Diplock, however, at pp. 66-68, expressed a different view. He pointed out that if the defendants plan had succeeded and the insurance companies had been defrauded his completed crime would have been justiciable in the English courts and he continued, at pp. 67-68:
The accused had done all the physical acts lying within his power that were needed to comply with the definition of a complete crime justiciable by an English court; and his state of mind at the time he did them also satisfied the definition of that crime. All that was left was for him not to be found out before the intended consequence could occur. Once it is appreciated that territorial jurisdiction over a result-crime does not depend upon acts done by the offender in England but on consequences which he causes to occur in England, I see no ground for holding that an attempt to commit a crime which, if the attempt succeeded, would be justiciable in England does not also fall within the jurisdiction of the English courts, notwithstanding that the physical acts intended to produce the proscribed consequences in England were all of them done abroad . If in order to found jurisdiction it were necessary to prove that something had been actually caused to happen in England by the acts done by the offender abroad a qualified answer to the certified question would be called for. I do not think that it is necessary. So I would answer with an unqualified Yes.
The editors of Smith and Hogans Criminal Law, 6th ed. (1988), support Lord Diplocks view of the law. They wrote, at p. 299:
It is submitted that, where D has gone beyond mere preparation, the better view is that it is immaterial that no effect occurs in England. Why should the result have been different if D had been [*249] rescued from the sea and confessed before any report of his death appeared in England?
The editors express a similar view in respect of conspiracy, at p. 269:
At common law, an agreement abroad to commit a crime in England is indictable if the parties act in England in concert and in pursuance of the agreement. Whether such a conspiracy is indictable if the parties take no steps in England to implement it has not been decided. It is submitted that the better view is that any of the parties entering the jurisdiction during the continuance of the agreement should be indictable at common law.
In Attorney-General v. Yeung Sun-shun  H.K.L.R. 987 the respondents had been charged with conspiracy to import elephant tusks into Hong Kong in breach of the Import and Export Ordinance and the Animals and Plants (Protection of Endangered Species) Ordinance. The respondents had agreed in Macau to ship the tusks to Hong Kong. They bribed the assistant purser to misdescribe the ivory on the cargo manifest. The offence was discovered when the vessel carrying the tusks was intercepted by customs officers in Hong Kong waters. A district judge who tried the case acquitted the respondents on the ground that not one act had been done by any conspirator in Hong Kong to faciliate the importation of the tusks into Hong Kong. The Court of Appeal reversed his finding. Roberts C.J. said, at p. 997:
As soon as the ivory was carried into Hong Kong waters, these were acts of performance of the conspiracy within the jurisdiction. They were innocent acts, in the case of the master of the vessel, who had no knowledge of the offence, and guilty acts by the assistant purser who had misdescribed the ivory on the manifest and knew what was contemplated.
The respondents rely upon the following obiter observations of Roberts C.J., at p. 998:
It has not been necessary for us to consider the further question of whether a conspiracy, formed abroad, to commit an offence in Hong Kong, is within the jurisdiction of the Hong Kong courts if no acts in furtherance of the conspiracy are committed within Hong Kong.
In principle, however, we are not unsympathetic to the view, expressed in recent cases, that the territorial basis for jurisdiction is becoming outmoded, and that in such circumstances the Hong Kong courts should assume jurisdiction upon the basis that: (a) the conspiracy is aimed at Hong Kong and intended to bring about a breach of the peace here; (b) since the conspiracy is not directed at the residents of the country where it is entered into, the courts of that country could raise no reasonable objection to this course on the ground of comity.
This approach finds suppport in Reg. v. Treacy  A.C. 537, 561-562 per Lord Diplock; Libman v. The Queen (1985) 21 C.C.C. (3d) 206, in the Supreme Court of Canada; and Mharapara v. The State  L.R.C. (Const.) 235, in Zimbabwe. [*250] Thus those who conspire in Macau to send a parcel bomb to Hong Kong should be triable here, even if for some reason the parcel does not arrive within the Territory.
The passage in Reg. v. Treacy  A.C. 537 to which Roberts C.J. refers is the celebrated discussion by Lord Diplock of the bounds of comity and the judgment of La Forest J. in Libman v. The Queen, 21 C.C.C. (3d) 206 contains a most valuable analysis of the English authorities on the justiciability of crime in the English courts which ends with the following conclusion, at p. 221:
the English courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting a crime take place in England, and restrict its application in such circumstances solely in cases where it can seriously be argued on a reasonable view that these activities should, on the basis of international comity, be dealt with by another country.
Apart from the dictum of Lord Keith of Kinkel in Director of Public Prosecutions v. Stonehouse  A.C. 55, 93, there is no affirmative statement in the authorities that an inchoate crime is not justiciable in England unless its effect or some action pursuant to the crime takes place in England, and there are the dicta of the Court of Appeal, Lord Diplock and Lord Salmon to the contrary effect. As Lord Tucker pointed out in Board of Trade v. Owen  A.C. 602, 626, inchoate crimes of conspiracy, attempt and incitement developed with the principal object of frustrating the commission of a contemplated crime by arresting and punishing the offenders before they committed the crime. If the inchoate crime is aimed at England with the consequent injury to English society why should the English courts not accept jurisdiction to try it if the authorities can lay hands on the offenders, either because they come within the jurisdiction or through extradition procedures? If evidence is obtained that a terrorist cell operating abroad is planning a bombing campaign in London what sense can there be in the authorities holding their hand and not acting until the cell comes to England to plant the bombs, with the risk that the terrorists may slip through the net? Extradition should be sought before they have a chance to put their plan into action and they should be tried for the conspiracy or the attempt as the case may be. Furthermore, if one of the conspirators should chance to come to England, for whatever purpose, he should be liable to arrest and trial for the criminal agreement he has entered into abroad.
The Law Commission in their Working Paper No. 29 — Territorial and Extraterritorial Extent of the Criminal Law published in 1970 said, at p. 54, para. 96:
As to conspiracies abroad to commit offences in England, we take the view that such conspiracies should not constitute offences [*251] in English law unless overt acts pursuant thereto take place in England.
But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England the crime is complete once the agreement is made and no further overt act need be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy.
Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. This then is a sufficient reason to justify the magistrates order under crime 1.
There is a further ground on which the magistrates order under crime 1 is justified and this applies also to the crime 3 which alleges trafficking contrary to section 4 of the Dangerous Drugs Ordinance on 23 September 1988. This was the date on which the D.E.A. agents took the drugs into the United States in the diplomatic bag and thus imported them into the United States (or Hong Kong for the purposes of the extradition proceedings).
The drugs were imported into Hong Kong (United States) in breach of section 4 of the Ordinance and in the manner intended by the appellant and S.C. If the D.E.A. agents had been co-conspirators or if they had been innocent couriers unaware of what they were carrying both the appellant and S.C. would have been criminally liable for the importation. The importation would have been an overt act carried out in pursuance of the conspiracy, thus bringing the case within the direct authority of Reg. v. Doot  A.C. 807 for the purpose of crime 1 and would have established trafficking by importation for the purpose of crime 3. The appellant however submits that the fact that the persons whom the appellant and S.C. believed were parties to their criminal plan to sell heroin in the United States were in truth law officers breaks the chain of causation and that the importation cannot be attributed to criminal activity on their part. Their Lordships cannot accept this submission. The heroin was imported illegally and as intended by the conspirators, the criminality of their intent never varied and they cannot be permitted to take advantage of the fact that those carrying out their [*252] plan intended to hand them over to justice. If the appellants submission is accepted it will go far to frustrate the actions of undercover law officers who penetrate drug dealing rings and obtain evidence by appearing to co-operate in their plans.
Crimes 2 and 4
These charges relate to the activities of the appellant and S.C. in Thailand. Crime 2 charges trafficking contrary to section 4 of the Ordinance on 21 September 1988 which was the day on which the heroin was handed to the D.E.A. agents in Bangkok. Crime 4 charges doing acts preparatory to trafficking in a dangerous drug contrary to section 4(1)(c) of the Ordinance between 14 September and 22 September 1988 which covers events in Thailand from the first meeting between the appellant and the D.E.A. agents, the appellants journey to the north of the country to collect the drugs and the payment of the balance of the upfront money for the heroin which the appellant handed over to the D.E.A. agents. The activities of the appellant covered by both crimes all took place in Thailand and it is submitted that they do not contravene the Ordinance because on its true construction section 4 of the Ordinance has no extraterritorial effect, or alternatively if it does purport to have extraterritorial effect it was ultra vires the power of the Hong Kong legislature to pass such legislation.
When approaching the construction of a statute, particularly a criminal statute there is a strong presumption that it is not intended to have extraterritorial effect and clear and specific words are required to show the contrary: see Air-India v. Wiggins  1 W.L.R. 815 and Holmes v. Bangladesh Biman Corporation  A.C. 1112. This presumption arises from the assumption that the legislature does not intend to intrude upon the affairs of other countries which should be left to order affairs within their own boundaries by their own laws.
Section 4, under which the charges are laid, provides:
(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. (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.
Section 2 defines trafficking and importing:
'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; 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. [*253] If this section is intended to have extraterritorial effect it would mean that the Hong Kong legislature has taken it upon itself to make the supply of a drug such as barbitone, (a dangerous drug within the meaning of Schedule 1) by a dentist to a patient in Bangkok a criminal act unless the dentist is registered under the Hong Kong Dentists Registration Ordinance (c. 156): see the definition of trafficking which includes supply and section 22 and section 2 which authorise a registered dentist to supply drugs for the purpose of his practice. Such an absurd example merely shows that it cannot have been the intention to take a power to treat, as criminal, activity taking place in its entirety in another country. Furthermore the wording of section 4(1) so far from expressing a clear extraterritorial effect points to the contrary conclusion. The words whether or not such other person is in Hong Kong in section 4(1) would be superfluous if the section was intended to have extraterritorial effect; the phrase is used in contrast to the person trafficking who is by implication assumed to be in Hong Kong.
It is true that the activity in Thailand covered by crimes 2 and 4 was intended to have the ultimate result of importation into Hong Kong (United States) but that feature of the activity cannot clothe section 4(1) with extraterritorial effect in respect of activity aimed at Hong Kong, because subsection (2) provides that subsection (1) shall apply whether or not the dangerous drug is to be imported into Hong Kong. So if subsection (1) is to be given extraterritorial effect it must cover all extraterritorial trafficking and not merely trafficking aimed at importing drugs into Hong Kong. Their Lordships are satisfied, for the reasons they have given, that section 4(1) cannot bear this construction and that it is limited to activity of an accused within the territory of Hong Kong.
In the light of this construction of the Ordinance it is unnecessary for their Lordships to express any view on the more far-reaching submission that it was in any event ultra vires the power of the Hong Kong legislature to legislate with extraterritorial effect.
Their Lordships will therefore humbly advise Her Majesty that the appeal ought to be dismissed in relation to the magistrates order on crimes 1 and 3 but that the appeal ought to be allowed in relation to the magistrates order on crimes 2 and 4 and the order quashed to that extent. In relation to crimes 1 and 3 the appellant ought to remain in custody to await extradition.