HKSAR v. Mok Swee Chuan and Another

CACC 22/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 22 OF 2004

(ON APPEAL FROM HCCC NO. 365 of 2002)

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BETWEEN

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Before:   Hon Ma CJHC, Stuart-Moore VP and Stock JA

Date of Hearing: 6 November 2006

Date of Judgment: 6 November 2006

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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.On 2 January 2004, the applicants (D1 and D2 respectively) were convicted by a jury of trafficking in a crystalline solid containing 2.52 kilogrammes of methamphetamine hydrochloride.  They each sought leave to appeal against conviction.  However, on 24 February 2005, D2 abandoned his application.  This was followed, on 7 March 2006, by an affirmation in which D2 gave his reasons to support an application to treat his previous notice of abandonment as a nullity.

D1’s application

2.Firstly, with regard to D1’s application, the case was originally listed for hearing on 4 March 2005.  At the court’s instigation, the proceedings were adjourned pending the resolution of Hung Chan-wa and Anor (CACC 411/2003 and 61/2004), now reported at [2005] 3 HKLRD 291.  These appeals concerned the constitutionality of the presumptions as to possession and knowledge contained in section 47(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134.  Judgment was given on 23 June 2005 and both appeals were allowed.  The Court of Appeal later certified that a point of great and general importance was involved in its decision and the matter duly proceeded to the Court of Final Appeal where the prosecution’s appeal was rejected on 31 August 2006 (see: HKSAR v Hung Chan-wa and Anor [2006] 3 HKLRD 841), affirming the earlier decision of the Court of Appeal that section 47(1) and (2) was to be read only as imposing an evidential burden.

3.Prior to these decisions, the presumptions in section 47 had always been taken to impose a legal or persuasive burden on a defendant.  Hence, the summing up in the present case, delivered before Hung Chan-wa and Anor was decided, contained what then amounted to a standard direction on the presumptions where the burden of proof on a balance of probabilities (the persuasive burden) was put on the defence.  Here, the issue was knowledge and the burden was on D1 to show that he lacked knowledge that dangerous drugs were contained inside his travel bag.

4.Within a week of the Court of Appeal’s decision in Hung Chan-wa, amended perfected grounds of appeal were filed on D1’s behalf in which complaint was made that the summing up contained misdirections as to the presumptions.

5.Ms Anna Lai has accepted on the respondent’s behalf that there was a material misdirection having regard to the decision reached in Hung Chan-wa and Anor and she has not sought to argue that this is an appropriate case in which to apply the proviso.

6.Accordingly, treating the hearing of D1’s application as the appeal, we allow the appeal and quash the conviction and 21-year sentence imposed for it.  Having heard counsel, we order a retrial on a fresh indictment pending which the applicant, who is a Malaysian with no right of abode in Hong Kong, will remain in custody.

D2’s application

7.The application by D2 to treat his abandonment of his application for leave to appeal against conviction as a nullity is supported by an affirmation dated 7 March 2006 which, so far as it is relevant, reads:

“The application for appeal was abandoned on 24 February 2005 because at that time I did not have my defence counsel and there were insufficient grounds for appeal.  I filed an application for abandonment of my appeal to avoid the obstruction on the operation of the court and on the application for leave to appeal submitted by the other defendant in my case.”

8.In a later affirmation, dated 16 October 2006, again dealing only with that part which is relevant, he stated:

“As I was not granted legal aid for my appeal against conviction, and as I did not have the financial means to engage any private lawyer to assist me in my appeal, I could not do anything but to give up my right to appeal, and withdrew my application to the Court of Appeal (for leave) to appeal against conviction.”

9.For present purposes, if we were to find that D2’s abandonment was a nullity, we would have to be satisfied that what he did was not the result of a deliberate and informed decision or, to put this another way, that his mind did not go with the act of abandonment  (see: HKSAR v Lai Siu-cheung [2005] 1 HKLRD 1).  However, the terms of D2’s affirmations make it abundantly plain that he was well aware of what he was doing.

10.Accordingly, D2’s application is dismissed.

Ms Anna Y K Lai, SGC, of the Department of Justice, for the Respondent.

Mr David Boyton, instructed by Messrs Tang, Wong & Cheung, for the 1^st Applicant (D1).

The 2^nd Applicant (D2), in person.