HKSAR v. Chan Chuen Ho

Case No.

Court

Date03 Jul 1998

Judge—

Case Document

100%Judiciary

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.458
(Criminal)

	IN THE MATTER OF an application for leave to appeal to the Court of Final Appeal by CHAN CHUEN HO, pursuant to Section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Chapter 484

	And

	IN THE MATTER OF the decision of the Court of Appeal dated 12th day of June 1998 in Criminal Appeal No. 458 of 1997

BETWEEN
	HKSAR	Respondent/Respondent

	AND

	CHAN CHUEN HO	Applicant/Appellant

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Coram: Hon. Power, Ag. Chief Judge H.C., Liu and Leong, JJ.A.

Date of Hearing: 3 July 1998

Date of Decision: 3 July 1998

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D E C I S I O N

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Power, Ag. Chief Judge H.C. (giving the decision of the Court):

1. The applicant comes before this court asking it to certify that the decision of the Court of Appeal in this matter involved a point of great and general importance.

2. Mr. Macrae, who appears for the applicant, states the proposition which he is advancing as follows:

"Whether a misdirection as to the onus and standard of proof, namely that a failure to rebut the presumptions of possession and knowledge would result in a defendant's conviction for trafficking in dangerous drugs, justifies the application of the proviso to s.83(1), Criminal Procedure Ordinance, Cap.221."

3. The statement of law upon which he places reliance is set out succinctly in the headnote to Kwan Ping-pong v. R., (1979) 2 W.L.R. 433, where it states:

"Per curiam, The Judicial Committee will only interfere with a decision of the local court of criminal appeal as to whether or not to apply a proviso in the terms of that contained in section 83(1) in cases where it appears that the decision was based upon an error involving some principle of general importance to the administration of criminal justice. A misdirection as to the onus of proof of an essential fact in issue at the trial is seldom a proper case for the application of the proviso."

4. As it is not suggested that the Court of Appeal in the present case misunderstood the law, but rather than it misapplied the law to the facts, we do not consider that we could properly certify that a point of law of great and general importance is involved and we, therefore, refuse this application.

(N.P. Power)	(B. Liu)	(A. Leong)
Ag. Chief Judge H.C.	Justice of Appeal	Justice of Appeal

Representation:

Mr. Arthur Luk, D.D.P.P. & Miss Winsome Chan, G..C.(D.P.P.) for the Respondent.

Mr. Andrew Macrae assigned by D.L.A. for the Applicant.