• In the case of Yip Chiu Cheng [1995] 1 AC 111, the principle established was that one could be convicted for a drug trafficking conspiracy in a situation, where his fellow conspirator is in fact an undercover agent following orders from the authorities above him
  • This is a case involving an appeal from the Court of Appeal of Hong Kong, hence, the Privy Council was called up to adjudicate on this international criminal case upon D’s appeal 

Facts of the Case

  • An American undercover drugs enforcement officer, pretending to be D’s (A – the appellant, in this case) co-conspirator, met D in Thailand, after which D was to travel to Hong Kong to collect five kilograms of heroin
  • D was to transport this drug to Australia in exchange for a financial reward ($16,000 USD)
  • Initially, this operation was to be conducted with the knowledge of the relevant authorities
  • Eventually, this plan was abandoned
  • D was arrested and convicted of a conspiracy with the agent (contrary to common law and s.4 of the Dangerous Drugs Ordinance 1)
  • The definition of trafficking included exporting from Hong Kong
  • The agent was not prosecuted
  • With regards to the agent, he had missed his flight to Hong Kong and had discontinued his plan of breaking a drug ring
  • The agent had informed the Hong Kong authorities of his mission and they agreed to let him transport the heroin from Hong Kong to Australia so as to supply D

Issues in R v Saik [2006] UKHL 18

  • D argued that the agent could not be a conspirator as he did not possess the necessary mens rea
  • By relying on this, D sought to absolve himself of liability too

Held by the Court of Appeal   

  • Appeal dismissed and conviction upheld
  • No power of the executive to authorise a breach of the law
  • Although the agent was not prosecuted, this did not mean that he lacked the intent to commit this offence
  • It was held that the agent intended to commit a criminal offence, so a conspiracy existed 
  • The case was distinguished from R v Anderson (William Ronald) [1986] AC 27, [1985] 7 WLUK 153

Lord Griffiths

Lord Griffiths widely considered the role of Needham, the undercover agent in declaring that the appeal should be dismissed

  • “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.” [at p.928]
  • “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.” (at p.929]

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