HKSAR v. Lam Kwong Wai and Another

CACC 213/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2003

(ON APPEAL FROM DCCC NO. 1237 of 2002)

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BETWEEN

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Before : Hon Stuart-Moore Ag CJHC, Stock JA and Burrell J in Court

Dates of Hearing : 2 February 2005

Date of Judgment : 2 February 2005

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.Pursuant to our judgment handed down on 6 January 2005, there are two questions posed for certification pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. 

2.The first question, as appropriately amended by this Court, is as follows: 

“Is section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238 as and when read with section 20(3)(c) of that Ordinance consistent with the presumption of innocence prescribed by article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383, article 14.2 of the International Covenant on Civil and Political Rights (“ICCPR”) as applied by article 39 of Basic Law; and with the right to a fair trial protected by article 10 of the Hong Kong Bill of Rights Ordinance , article 14.1 of the ICCPR as applied by article 39 of the Basic Law, and article 87 of the Basic Law?”

We grant a certificate in the terms of the first question. 

3.The second posed question is framed as follows:

“Is the traditional burden of proof the appropriate test on the validity of a limitation on the presumption of innocence in constitutional law?” 

The second question makes little sense.  The validity of a limitation is a matter of law.  That being so, it is wholly inappropriate to address such a question in terms of a burden of proof.  Nor did this Court so address it.  Nor do we know what is intended by “the traditional burden”.  In that the person drafting this question had in mind the comments of this Court at para 31 of the judgment, that was an issue that addressed the nature of the burden on a state which seeks to justify a limitation, and that issue is not reflected by the question as drawn.  Quite apart from the fact that it is not this Court’s function to draw the type of precise question that needs to be drawn for certification, we would be disinclined in any event to grant a certificate for the issue which lies behind the proposal.  That is because, first, the tests now applied internationally for the standard of justification seems to us to be beyond any reasonable argument and do not in any event fall comfortably within concepts such as proof beyond reasonable doubt or proof on a balance of probabilities; and secondly, this issue can readily be canvassed before the Court of Final Appeal, if those appearing for the Government wish to do so, within the ambit of the argument that will flow from the first question certified.

4.So we refuse to certify the second question.

Mr Hylas Chung assigned by the Legal Aid Department for the Applicants

Mr Gavin Shiu, SADPP of the Department of Justice for the Respondent