HKSAR v. Chan Chuen Ho

FAMC000012/1998

FAMC No. 12 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 458 OF 1997)

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Bokhary PJ

Date of Hearing: 11 September 1998

Date of Determination: 11 September 1998

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. The applicant's complaint is this. Although there is no presumption of trafficking, the trial judge told the jury that the applicant's failure to rebut the presumptions would result in his conviction for trafficking. That placed on the applicant the onus of disproving what was in truth for the prosecution to prove. It accordingly amounted to a misdirection in law. And such misdirection was of the kind in respect of which it would seldom be appropriate to apply the proviso.

2. All of that was accepted by the Court of Appeal. But that court nevertheless applied the proviso. It did so because it took this view. The jury, since it convicted, must have felt sure that the drugs were indeed in the applicant's possession. And once the jury felt sure of this, the conviction for trafficking was inevitable.

3. In our view, it is at least reasonably arguable that this was not inevitable.

4. Accordingly we grant leave on the alternative basis of a

reasonably arguable case of substantial and grave injustice having been done.

Representation:

Mr A Macrae (instructed by the Legal Aid Department) for the applicant

Mr Arthur Luk and Ms Lily Wong (of the Department of Justice) for the respondent