HKSAR v. Hung Chan Wa Atsushi Asano and Another

FAMC No. 83 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 83 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NOS 411 OF 2003 and 61 OF 2004)

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Between:

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FAMC No. 103 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION  

MISCELLANEOUS PROCEEDINGS NO. 103 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NOS 411 OF 2003 and 61 OF 2004)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 11 January 2006

Date of Determination: 11 January 2006

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ

1.The Court of Appeal has certified the involvement of four points of law of great and general importance.  Those points are set out in the Court of Appeal’s certificate dated 30 September 2005 and need not be recited in the determination which we are now giving.  The first two were certified on the application of the prosecution while the last two were certified on the application of the defendants.  

2.It is the prosecution alone which seeks the reversal of the result at which the Court of Appeal arrived, namely that the convictions be quashed and the defendants be retried.  So leave to appeal is granted to the prosecution alone.  But that does not preclude the defendants from pursuing the points certified on their application.  The Court of Final Appeal will consider whether s.47 of the Dangerous Drugs Ordinance, Cap. 134, constitutionally shifts the persuasive burden itself or constitutionally shifts the evidential burden only or is wholly unconstitutional. 

3.This appeal and FACC No. 4 of 2005 (concerning s.20 of the Firearms and Ammunition Ordinance, Cap. 238) will be heard together.  The hearing dates will be 13, 14 and 17 to 20 July 2006.  It is prudent to make that amount of time available for this reason.  The question of whether the effect of the decision can be made prospective only has been argued before the Court of Appeal.  Presumably they will soon give their decision on that question.  It is a question which is likely to reach the Court of Final Appeal.  And it should be dealt with by the Court of Final Appeal at the same time as the other questions in this appeal.  

Mr Gerard McCoy SC (instructed by the Department of Justice) and Mr Gavin Shiu (of the Department of Justice) for the applicant

Mr Clive Grossman SC and Mr Hanif Mughal (instructed by Messrs M.L. Tam & Co. and assigned by the Legal Aid Department) for the respondents