HKSAR v. Chiu Wing Nam, Dick

CACC 423/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.423 OF 2003

(ON APPEAL FROM HCCC 113 of 2003)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yeung JA and HartmannJ

Date of Hearing:   22 September 2004

Date of Judgment:  22 September 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.This is an application, several months out of time, under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate that a point of great and general importance was involved in the decision of this court on 7 May 2004.  No acceptable reason for the delay in making this application has been provided.

2.The proposed point of law which is set out in the Notice of Motion is in these terms:

“On the basis that the standard of proof required before the presumptions provided for in section 47(1) and in section 47(2) of the Dangerous Drugs Ordinance, Cap. 134, are rebutted requires proof on the balance of probabilities, in relation to a person charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance is the required standard of proof inconsistent with the rights of such a person in the Basic Law and elsewhere to be presumed innocent, to equality and to a fair trial?”

3.Neither at trial nor in the application for leave to appeal against conviction before this court was any assertion made that the statutory presumptions, provided by section 47 of the Dangerous Drugs Ordinance, Cap. 134, were inconsistent with the Basic Law.  The point of law now being put forward was not, therefore, involved in the decision of this court although it is right to say that essentially the same point is to be raised, at this court’s instigation, in two (consolidated) appeals which are due to be heard on 12 November 2004 (CACC 61/2004 and CACC 411/2003).

4.In the present circumstances, we decline to certify and this application is dismissed.

Mr Gavin Shiu, SADPP and Ms Ada Chan, GC, of the Department of Justice, for the Respondent.

Mr Andrew Bruce, SC, instructed by Messrs Yip, Tse & Tang,  assigned by Director of Legal Aid, for the Applicant.