HKSAR v. Lau Suk Han and Another

FAMC No. 5 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 787 OF 1997)

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Date of Hearing: 8 May 1998

Date of Determination: 8 May 1998

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DETERMINATION

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Chief Justice Li:

1. This is the determination of the Appeal Committee upon an application for leave to appeal under section 32 of the Hong Kong Court of Final Appeal Ordinance ("the Ordinance"). This application raises the question whether leave should be granted by the Court where the Court of Appeal has already certified under section 32(2) of the Ordinance that a point of law of great and general importance is involved in its decision..

2. Each of the two applicants was committed for trial in the High Court on two counts. One count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, ("the trafficking count") and alternatively, one count in respect of the same lot of dangerous drugs, of being a person by whom a dangerous drug was imported in transit contrary to section 14(1)(a) of that Ordinance ("the import in transit count"). On 17 December 1997, the trial judge (V Bokhary J) directed that the applicants be discharged on the trafficking counts under section 16 of the Criminal Procedure Ordinance.

3. The Secretary for Justice brought an appeal under section 81E of that Ordinance. Having heard arguments which were much fuller than those put before the trial judge, the Court of Appeal (Hon Chan CJHC, Leong and Stuart-Moore JJA) unanimously, with each member giving a reasoned judgment, allowed the appeal and reversed the direction to discharge the applicants on the trafficking counts. Accordingly, they quashed their acquittals on the trafficking counts and ordered that they should be tried on those charges.

4. On 16 April 1998, on the applicants' application, the Court of Appeal certified that the following point of law of great and general importance is involved in its decision:

" In a situation where dangerous drugs are found on or belonging to a person who is in transit in Hong Kong and who has no intention of importing the drugs into Hong Kong for consumption, sale or any other purpose, has an offence been committed under Section 4(1)(a) of the Dangerous Drugs Ordinance, Cap. 134 ?"

5. On 20 April 1998, the applicants applied to the Court for leave to appeal. The application is opposed by the respondent.

6. The essential facts giving rise to the allegations were summarised thus in the judgment of Stuart-Moore JA in the Court of Appeal:

" On 14 January 1997, the applicants were en route from Cambodia to Canada. The plane which brought them to Hong Kong was a Dragonair flight. The applicants went to the Transit Lounge. As they went to board their Cathay flight to Toronto, the applicants were intercepted by Customs officials who were specifically looking for drugs. Their hand-luggage was searched and found not to contain any drugs. They were both then body-searched and again no drugs were found. When their personal belongings were searched, they were found to be carrying their airline tickets, boarding passes and luggage tags.

Subsequently, they were escorted to the open area adjacent to their intended flight. Each was asked to identify their baggage which they did. The respective suitcases matched the luggage tags attached to the airline tickets. As both suitcases were locked, the applicants were requested to open them for inspection. The 1st applicant opened hers with a key taken from her handbag, whereas the 2nd applicant provided the Customs and Excise officers with the Code Number of a combination lock which secured her case. The applicants' respective suitcases were then found to have sealed compartments which, when opened, revealed a total of over 8 kilos of a mixture containing a pure form of heroin hydrochloride, itself weighing over 8 kilos, divided almost equally between the two cases."

7. The question is essentially one of statutory construction of section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. It was conceded by the applicants that if section 4(1)(a) is held to cover dangerous drugs in transit, a prima facie case is revealed against each applicant. The Court of Appeal concluded, reversing the trial judge, that section 4(1)(a) covered dangerous drugs in transit.

Section 32

8. The material parts of section 32 of the Hong Kong Court of Final Appeal Ordinance provide:

"(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal ... that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal ... declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal."

9. Section 33 lays down the time limit for applications to the Court for leave to appeal.

10. In Tang Siu-man v. HKSAR [1997] 3 HKC 14 and Zeng Liang Xin v. HKSAR [1997] 3 HKC 1, the Appeal Committee dealt with the proper construction of these provisions. In the former case, we observed at 19E-F:

"Leave to appeal

The question whether the Court has the discretion to refuse leave, where the lower court has certified a point of law, does not arise in this case, and no arguments have been addressed on this point. We would only observe without expressing any concluded view that it appears that the Court has such discretion and that it could consider exercising it in circumstances such as that on analysis the certified point of law is not in substance a point of law or that the answer to it is plain and obvious."

11. As the Court of Appeal has certified a point of law, that question does arise in the present case and we have heard counsel on it.

12. In our judgment, even where the lower court has certified a point of law, the Appeal Committee has a discretion whether to grant leave. It is clear on the plain wording of section 32 and also section 33 that the granting of leave in relation to its criminal jurisdiction is a matter only for the Court exercised by the Appeal Committee. See section 18(2). Where the limb relied on is a point of law (as opposed to the substantial and grave injustice limb), an essential pre-condition for the grant of leave by the Appeal Committee is the certification of a point of law of great and general importance by the lower court or where the lower court declines to certify, by the Appeal Committee itself. Where the pre-condition has been satisfied by certification by the lower court, leave must be sought from the Appeal Committee and it is a matter for the Appeal Committee's discretion whether to grant leave.

13. In the exercise of that discretion, the Appeal Committee would consider all the circumstances. Where we are of the view that it is plain and obvious that the lower court's judgment on the certified point of law was correct, we could exercise our discretion to refuse leave.

14. Full arguments on the question of statutory construction were addressed to the Court of Appeal. In our view, the Court of Appeal was plainly and obviously right in allowing the appeal of the respondent.

15. Accordingly, in the exercise of our discretion, we refuse leave.

Representation:

Mr John McLanachan (assigned by the Legal Aid Department) for the applicants

Mr D G Saw SC, SADPP, leading Ms Catherine Ko, Government Counsel (of the Department of Justice) for the respondent