CHIU WING NAM, DICK v. HKSAR

FACC No. 10 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 FINAL APPEAL NO. 10 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NO. 423 OF 2003)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  At the conclusion of the hearing, we allowed the appeal, quashed the conviction, ordered a retrial and remanded the appellant in custody pending his retrial.  We now hand down our reasons, which are given by Sir Noel Power NPJ for the Court.

Sir Noel Power NPJ :

The facts at trial

2. On 23 September 2003 the appellant, Chiu Wing nam, Dick was convicted after trial before Gall J and a jury in the Court of First Instance, by a majority of 6 to 1, of trafficking in a dangerous drug and sentenced to imprisonment of 12 years and six months.

3. He had been arrested on a staircase in a building in Yuen Long and was found to be carrying 705.90 grammes of a mixture containing 295.42 grammes of heroin hydrochloride some of which was in a shoulder bag and some concealed in his underpants.  He maintained to the police, and at trial, that he thought that he was carrying counterfeit mobile telephone batteries which he had agreed to bring into Hong Kong from Shenzhen for a reward of $1,000 dollars.

4. At trial he further maintained that he was schizophrenic and that, at the time when he had agreed to carry the batteries, he had not taken his medication and was suffering from hallucinations.  Medical evidence called by the prosecution was that it was unlikely that this would have been so.

The issue at trial

5. The real issue at trial was whether it had been established that the appellant knew that he was carrying dangerous drugs and the prosecution relied, when so proving, upon s.47(2), the presumption of knowledge section, in the Dangerous Drugs Ordinance, Cap. 134.

Court of Appeal decision

6. An appeal to the Court of Appeal was dismissed on 7 May 2004.  The principal submission made on behalf of the appellant, as set out in the judgment of Stuart-Moore V.P. who delivered the judgment of the court, was that the judge had misdirected the jury by “unduly emphasising the evidential burden” on the appellant under s.47 of the Dangerous Drugs Ordinance which may, it was submitted, have led to confusion about the burden and standard of proof required to rebut the statutory presumption.

7. The judgment, which proceeded upon the basis of the effect of s.47 as it was then understood, held that the trial judge had “set out the law and its consequences with clarity” and dismissed the appeal.

Refusal by Court of Appeal to certify

8. On 19 August 2004 an application was made to the Court of Appeal for a certificate on a point of law of great and general importance namely that s.47 was inconsistent with the provisions of the Basic Law.  The contention was that “On the basis that the standard of proof required before the presumptions provided for in [section 47]… are rebutted requires proof on the balance of probabilities, in relation to a person charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, is the required standard of proof inconsistent with the rights of such a person in the Basic Law and elsewhere to be presumed innocent, to equality and to a fair trial?”.  This point had not been raised at the trial or before the Court of Appeal.  On 22 September 2004 to Court of Appeal refused to certify.

Application to Court of Final Appeal

9. On 14 October 2004 an application was made to the Court of Final Appeal seeking leave to appeal on the point of law set out above and seeking an extension of time as the application was by then 4 months and 10 days out of time.  By the time of this application the point of law had already been raised in an appeal to the Court of Appeal in HKSAR v. Hung Chan Wa and Atsushi Asano (“Hung’s case”).  This Court then successively adjourned this application to await the outcome of the appeal in Hung’s case.  Judgment was given on the point of law issue in Hung’s case by the Court of Appeal on 23 June 2005 [2005] 3 HKLRD 291.  The matter was then appealed to this Court which gave judgment on 31 August 2006 (2006) 9 HKCFAR 614. 

10. The application in the present appeal was eventually heard by the Appeal Committee on 11 December 2006.  It involved both the application for an extension of time and the application for leave.

11. The application for extension of time was, in the special circumstances obtaining, granted.  It is not necessary for present purposes to refer to the judgment of the Chief Justice which was concerned with such power as may exist in the courts to engage in retrospective overruling.  The application for leave to appeal on the point of law limb was refused, as that point had already been resolved in Hung’s case, but the Committee allowed Mr Bruce SC who then, as now, appeared for the appellant to amend his notice of motion to rely on the “substantial and grave injustice” limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484. 

The issue in the appeal : Persuasive or evidential onus?

12. We come thus to the present appeal.  In Hung’s case Sir Anthony Mason NPJ gave the judgment, in which the other members of the Court concurred, on the construction of s.47 which is the issue with which we are here concerned. 

 “S.47 provides :

(1) Any person who is proved to have had in his physical possession :

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug,

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.”

13. The Court in Hung’s case was called upon to decide whether s.47(1) and (2) reversed the onus of proof so as to impose a persuasive (legal) burden on an accused or whether they imposed only an evidential onus.  If the former was so it was argued that this would derogate from the presumption of innocence and the right to a fair trial which are guaranteed by the Basic Law and the Hong Kong Bill of Rights.  If the latter was so no reverse onus would be placed upon the accused but only an evidential onus which would do no more than require that there be evidence which raised the issue.  The onus of proof beyond reasonable doubt would remain squarely on the prosecution and there would then be no infringement of the Basic Law and the Bill of Rights.

14. Having canvassed the arguments for each side and referred to the majority decision in R. v. Lambert [2002] 2 A.C. 545 Sir Anthony Mason was satisfied “that the persuasive burdens imposed by s.47(1) and (2) are disproportionate and that in each subsection, an evidential onus would be a sufficient means of achieving the legitimate objective.”  It was accordingly held that the Court of Appeal had been right to apply a remedial interpretation to s.47(1) and (2) by treating the burdens of proof as creating an evidential onus only.

15. In the present case the appellant did place evidence before the trial court, both from himself and from his witness, which, if believed, could be taken to support his defence and the judge did, more than once, clearly direct the jury that the onus of proving guilt beyond reasonable doubt rested on the prosecution.  It is submitted, however, that the judge did also, on a number of occasions, tell the jury that, because of s.47, there was a persuasive onus resting upon the appellant and that, given the decision in Hung’s case, a substantial and grave injustice has been done to the appellant.

16. Particular reliance is placed upon the passage where the judge said “So you have to look at the evidence, both in the case for the prosecution and in all that has come from the defence, and decide whether it is more likely than not that he was unaware of the nature of the drugs.”  Reliance on the appellant’s behalf might equally well have been placed upon the passage which immediately preceded that set out above which reads “If he is proved or presumed to have those drugs in his possession, until the contrary is proved, he is presumed to know what they are, to know they are drugs.  Therefore given the evidence which is not in dispute, and given this presumption, unless it is proved to the contrary, the accused had possession and knew what he had.”  (emphasis supplied)  Further the judge, in later passages, more than once clearly placed a persuasive burden on the appellant.  It must in fairness be said that the judge, when so doing, was following the view, which was then universally held by prosecutors, by defence counsel and by the courts, that s.47 imposed a persuasive burden on a defendant which he had to discharge on the balance of probabilities.

17. The respondent conceded that the summing-up was, prior to the decision in Hung’s case, a “standard direction” which placed the burden of proof on a balance of probabilities on the appellant.  Given the uncertainty that must exist as to the extent to which the jury’s decision was affected by that direction he felt unable to submit that this was an appropriate case for the application of the proviso.

18. The appellant did, in the circumstances, suffer a substantial and grave injustice.  The appeal must be allowed and the conviction quashed.  Mr Bruce for the appellant submitted that a retrial should not be ordered as the appellant has served almost 4 years and 7 months of his sentence of 12 years and six months which taking into account the remission for good behaviour would result in a sentence of 8 years and 4 months.

19. Mr Zervos for the respondent submitted that the interests of justice require that a retrial be ordered.  This Court agreed and ordered a retrial.  Mr Bruce accepted that it would be appropriate to remand the appellant in custody pending his retrial if one were ordered.  Accordingly, the appellant was so remanded.

20. There will be an order for retrial and the appellant will be remanded in custody.