HKSAR v. Chan Yat Fan

cacC 122/2005

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO . 122 of 2005

(on appeal from HCCC NO. 163 of 2004)

BETWEEN

Before: Hon Ma CJHC, Stock JA and McMahon J in Court

Date of Hearing: 10 January 2007

Date of Judgment: 10 January 2007

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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.On 24 February 2005 the applicant was unanimously convicted by a jury, after trial before Burrell J, upon one count of trafficking in a dangerous drug, namely 6,398.18 grammes of tablets containing 3,544.70 grammes of 3,4-methylenedioxymethamphetamine, commonly known as the drug Ecstasy.  He now seeks leave to appeal against that conviction on the basis that the trial judge, in summing-up, invoked a statutory presumption under section 47 of the Dangerous Drugs Ordinance, Cap. 134, as giving rise to a persuasive burden upon the applicant, when he ought not to have done so.  That the judge did invoke the provision as a presumption as to the knowledge of the nature of what the applicant admitted he was carrying is clear, and that he was, in the event, not correct in so doing has been established by the Court of Final Appeal by its judgment in HKSAR v Hung Chan Wa & Another [2006] 3 HKLRD 841, a decision reached well after the summing-up in this case, although the application for leave in this case was filed before that decision.  We hasten to make clear that no criticism attaches to the trial judge for the direction he issued followed a standard form, which only transpired to be inappropriate by reason of an issue not taken before him but subsequently decided in Hung Chan Wa.

2.It is common ground that in the light of the Court of Final Appeal’s decision, this conviction cannot stand.  Accordingly, we grant the applicant leave to appeal against conviction, and treating the hearing of the application as the appeal, we allow the appeal and quash the conviction upon Count 1 of the indictment.  There is an application for a retrial, which is not opposed.  We order therefore the applicant be retried for the offence thus charged.

Mr  Kevin P Zervos, SC, DDPP (Ag) and Mr W.T. Chiu, GC of Department of Justice for the Respondent

Mr  John McNamara, instructed by Messrs Lo, Wong & Tsui, assigned by DLA for the Applicant