Lum Wai Ming v. R.

CACC000329/1992

IN THE COURT OF APPEAL

1992, No. 329
(Criminal)

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Coram: Hon. Yang, CJ, Macdougall, V-P and Bokhary, J.A.

Date of hearing: 26 April 1994

Date of judgment: 26 April 1994

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J U D G M E N T

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Hon. Yang, CJ

1. Lum Wai Ming appeals against his conviction of two counts of possession of a dangerous drug for the purpose of unlawful trafficking contrary to Section 7 of the Dangerous Drug Ordinance, Cap 134. He was sentenced to concurrent terms of eight years and three years' imprisonment respectively. There was also a confiscation order.

2. The grounds of appeal turn on a passage in the judge's summing up which reads (at page P.11 K-R):

" The next stage is this. If the prosecution have proved that the defendant was in possession of that shopping bag in the back of his car and the laisee packet in the front of his car, the law of Hong Kong then states that you shall presume that the defendant was in possession of the substance inside those packages, and that he knew that those substances were drugs, unless, having heard ail the evidence, particularly that of the defendant, you conclude that it is more likely than not that he wasn't in possession of the white powder inside, and he did not know they were drugs, even though he was in possession of the bag and the packet."

3. The appellant through his counsel argues, and counsel for the Crown agrees, that the judge erred in applying the presumption provisions of Section 47(1) and (2) of the Dangerous Drug Ordinance, Cap 134 (as amended by Section 8 of the Dangerous Drug (Amendment) Ordinance No. 2, Ordinance No. 52 of 1992). The amending Ordinance came into force on 26th of June 1992 while the offences alleged have been committed by the appellant occurred on the 20th of December 1990. It is the argument of the appellant that the relevant provisions in the amending Ordinance had no retroactive effect and as such did not apply to the appellant. Counsel on both sides accept the correctness of the ruling in The Queen v. Tran Viet Van (1992) 2 HK Cr.L.R. 184 that the new presumptions in Section 47 of the Dangerous Drug Ordinance, Cap 134, do not have any retroactive effect so as to apply to events occurring before the date of the commencement of the Amending Ordinance.

4. We agree with counsel and allow the appeal, quash the conviction, set aside the sentences and the confiscation order. The Crown asks for a retrial. Counsel for the appellant opposes that application. In spite of the fact that the offences were committed some four years ago, we think that the interests of justice require that the appellant be retried. In the light of all the circumstances of the case including the available evidence against the appellant, we therefore order a retrial.

Representation:

Mr. J.P. Chandler (M/s Phyllis K.Y. Kwong & Co) for Appellant

Mr. S.R. Bailey for Crown/Respondent