Yip Chiu-Cheung v The Queen

Facts

The appellant agreed with N, an undercover agent working with the drug enforcement authorities, that N would carry heroin by air from Hong Kong to Australia. The authorities in both places had agreed to let the drugs through so that the distribution network could be identified. In the event N did not travel to Hong Kong and the plan was not carried out. The appellant was charged with conspiracy to traffic in a dangerous drug; N was the only other party to the agreement.

History

The appellant was convicted in Hong Kong and his appeal to the Court of Appeal of Hong Kong was dismissed. He appealed to the Privy Council.

Issue

Whether there can be a criminal conspiracy where the only other party to the agreement is an undercover officer who intends the agreed course of conduct to take place but only to expose the offenders.

Held

Appeal dismissed. N was a co-conspirator because he intended to carry the drugs, so there was a conspiracy to which the appellant was a party.

Ratio

• A conspiracy requires that the parties agree on a course of conduct and intend that it be carried out; an undercover officer who intends to commit the act agreed upon has the necessary mens rea even though his motive is to expose the crime and he would not in practice be prosecuted, so his agreement with the defendant constitutes a conspiracy.

The judgments

Key reasoning

• Agreement and intention to carry it out are the essential elements of conspiracy; the conduct agreed must amount to an offence if carried out.
• N intended to export the heroin, so he possessed the mental element of the offence, and his good motive of identifying the traffickers did not alter that intention.
• Neither the police nor customs had authority to permit N to commit the offence of trafficking, so his conduct would have been criminal even if no prosecution would follow; the lack of a prosecution reflected discretion, not the absence of an offence.

Where it fits in the module

In the inchoate liability topic the case is read with Anderson on the mens rea of statutory conspiracy under the Criminal Law Act 1977, and with the rule that a conspiracy requires at least two parties with the requisite intention. It raises questions about undercover policing, entrapment and the distinction between motive and intention familiar from the general principles of mens rea.

Criticisms

• Treating a law enforcement officer as a co-conspirator who commits a crime fits poorly with the reality that the operation was authorised and he faced no risk of prosecution.
• The line between an officer who intends the crime to occur in order to expose a network and one who joins intending to frustrate the plan is fine, and makes the defendant's liability depend on the officer's private state of mind.
• The decision, as a Privy Council advice on Hong Kong law, does not formally bind English courts to depart from Anderson, leaving some uncertainty about the mens rea of statutory conspiracy.