HKSAR v. Chu Ho Yin

CACC76/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 76 OF 2001

(ON APPEAL FROM HCCC NO. 130 OF 2000)

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

Date of Hearing : 7 March 2008

Date of Judgment : 7 March 2008

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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.This appeal comes before us pursuant to a reference by the Chief Executive under section 83P of the Criminal Procedure Ordinance, Cap. 221.

2.After trial before Beeson J and a jury the appellant was convicted on 15 February 2001 of the offence of trafficking in dangerous drugs and sentenced to a term of 18 years’ imprisonment.  

3.He subsequently applied for leave to appeal against conviction but abandoned that application in February 2002.  Then he applied in January 2006 to have his notice of abandonment treated as a nullity and also for leave to appeal out of time.  Those applications were dismissed by another division of this Court on 4 May 2007.  However on 3 July 2007 the Chief Executive referred the case, as we say, under section 83P so that it is now before us for all purposes as an appeal.

4.This is another one of those cases which seeks to benefit from the decision in HKSAR v Hung Chan Wa and Another (2006) 9 HKCFAR 614, which held that certain presumptions under section 47 of the Dangerous Drugs Ordinance, Cap. 134 were to be read not as persuasive onuses but as evidential ones.  In this particular case such a presumption was relied upon as persuasive (a reflection of the law as it was generally then understood and applied) and the respondent concedes that the jury may well have relied upon it in deciding to convict.  Accordingly, the appeal is not opposed.

5.We therefore allow the appeal and quash the conviction.

6.An application is made for a retrial.  The appellant has served a substantial part of the term of imprisonment imposed but in the event of a conviction and a sentence of the type that might be imposed for the quantity of drugs involved, there would remain a significant term yet to serve.  The application for a retrial is not opposed and we think it is in the interests of justice, and so order, that the appellant be retried upon a fresh indictment for the same alleged offence; the matter to be listed within two months of the date hereof for a date to be fixed within six months of today.  The appellant is remanded in custody pending the retrial.

Mr John McNamara instructed by Messrs. Chong, Fu & Co., assigned by DLA for the Appellant

Mr John Reading SC, DDPP & Mr Alvin H Y Chui, GC of the Department of Justice for the Respondent