HKSAR v. Tam Chun Fai

CACC302/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 302 OF 1998

(ON APPEAL FROM HCCC NO. 11 OF 1998)

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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 case has been referred to the Court by the Chief Executive pursuant to the provisions of section 83P of the Criminal Procedure Ordinance, Cap. 221.

2.On 21 May 1998 the appellant was convicted of an offence of trafficking in dangerous drugs after a trial before a judge and jury and sentenced to 21 years’ imprisonment.  He applied for leave to appeal against that conviction but by a notice dated 1 September 1998 he abandoned that application, wherefore the application stood dismissed.

3.However in July 2006, he made an application that was treated as an application that the abandonment be treated as a nullity and also forwarded a petition to the Chief Executive seeking a referral to this Court under section 83P.  Both matters are before us.

4.The alleged offence took place on 9 October 1997 when he was carrying a bag near Hung Hom Railway Station.  The bag contained a substantial quantity of heroin.  At his trial he said that he thought it contained video discs.

5.At trial, the prosecution was permitted toutilise the presumption contained in section 47(2) of the Dangerous Drugs Ordinance, Cap. 134, namely, the presumption of knowledge of the presence of a dangerous drug.  It was treated at trial as a persuasive burden.  This was a correct approach on the basis of the law as it was understood at the time of the trial but, in the event, was not a correct statement of the law as determined in HKSAR v Hung Chan Wa and Another (2006) 9 HKCFAR 614, which interpreted the statutory presumption as available as an evidential burden only.

6.For reasons stated in HKSAR v Fu Chiu Wa, CACC 452 of 2002, 3 October 2007, unreported, had this been an application for leave out of time, it is far from certain that leave would have been given.  As it is, however, the case must be treated by this Court for all purposes as an appeal.  The respondent concedes that in the light of the decision in Hung Chan Wa the appeal must be allowed.

7.Accordingly, we allow the appeal and quash the conviction.  The application to treat the abandonment as a nullity falls away and is dismissed.  An application is made for a retrial.  Although the appellant has served a significant proportion of the sentence, in the event of a conviction after trial and a sentence that reflected a similar term, a significant proportion would remain to be served.  However we are informed that the appellant intends to plead guilty and because of the likely consequences of sentence and time served in the event of the plea of guilty the matter, if we order a retrial, must be heard urgently.  The application for a retrial is not opposed and, we order that the appellant be tried on a fresh indictment for this offence, and that it be listed for hearing at 9:30am on 21 April 2008 for plea.  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