HKSAR v. LEUNG KWOK HO

CACC 67/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 67 OF 2003

(ON APPEAL FROM HCCC NO. 324 OF 2002)

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BETWEEN

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REASONS FOR JUDGMENT

Hon Cheung JA (giving the reasons for judgment of the Court):

1.  On 7 February 2003, the appellant was convicted before Deputy High Court Judge Derek Pang (as he then was) and a jury of two counts of Trafficking in a Dangerous Drug and was sentenced to 21 years’ imprisonment.

2.  On 20 February 2003, the appellant filed an application for leave to appeal against her conviction, but subsequently she abandoned the application.  The High Court, based on her Notice of Abandonment, dismissed the application on 13 May 2004.  Later, on 16 October 2006, the appellant applied to the Court of Appeal for an order that her Notice of Abandonment should be treated as a nullity.

3.  On 27 May 2008, the Court of Appeal dismissed that application by reason that the grounds she put forward did not meet the requirements for obtaining the Court’s approval of such application, but advised her that she could apply to the Chief Executive in accordance with section 83P of the Criminal Procedure Ordinance for a direction that the Court was to re-open the appeal.  The appellant did make such an application to the Chief Executive afterwards.  The Chief Executive granted her application and directed the Court to re-open the appeal.

Facts

4.  On 4 July 2002, the appellant was stopped and searched by Customs Officers when she entered the territory through the Lowu Checkpoint.  The Customs Officers found in the backpack which the appellant was carrying on her back 972.08 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (commonly known as ‘ice’) (‘the first charge’).  The Customs Officers further found inside the appellant’s underpants another packet, containing 19.57 grammes of a substance later confirmed to be the dangerous drug methamphetamine hydrochloride (‘the second charge’).

5.  The appellant now only appeals against the conviction in respect of the first charge.  The ground she relies on relates to the direction given by Deputy Judge Derek Pang to the jury about the legal presumptions provided for in section 47(1) and (2) of the Dangerous Drugs Ordinance in relation to the dangerous drug found in her backpack.  What Deputy Judge Derek Pang said was that if a bag containing dangerous drug was in the direct custody of the applicant [sic] at the time, then under the law she would be presumed to possess the dangerous drug in the bag.  Deputy Judge Derek Pang also gave the following direction as to how the appellant could rebut this presumption:

“The applicant [sic] has to persuade the jury that she did not know there was dangerous drug inside the backpack. She should be acquitted if she is able to disprove it. Otherwise, she was in possession of the dangerous drug brought from Shenzhen and should be convicted of the first charge.”

6.  As stated in the judgment dated 27 May 2008 given by this Court, in HKSAR v. Hung Chan Wa and another [2006] 9 HKCFAR, the Court of Final Appeal held that the legal presumptions laid down in that Ordinance infringed the presumption of innocence and the right to a fair trial to which a defendant to a criminal charge was entitled under the Basic Law and the Hong Kong Bill of Rights Ordinance. The Court of Final Appeal held that the burden imposed upon the appellant by the legal presumptions was only an “evidential burden” and not a “persuasive burden of proof”.

7.  In our judgment, on the principles laid down in Hung Chan Wa, Deputy Judge Derek Pang’s direction, which imposed on the appellant a “persuasive burden of proof” rather than a mere “evidential burden”, rendered the appellant’s conviction on the first charge unsafe.

8.  The relevant legal principle is that if it is held in a subsequent judgment that the Court’s understanding of the law in a previous case is incorrect, an appellant in that previous case who is affected by the subsequent judgment cannot successfully apply for leave to appeal out of time by relying only on that judgment.  He must further prove that there are exceptional circumstances in the case before the Court will grant his application.  However, when the Court of Appeal is dealing with a case referred to it by the Chief Executive, the case must be treated as an appeal to the Court of Appeal by the appellant and it is not necessary to consider whether there are exceptional circumstances in the case. This is because this condition is required only in the case of an application for appeal out of time.  Similarly, the Court of Appeal does not need to bother about whether the previous judgment concerning the appellant was final or whether his previous abandonment of an appeal was a nullity (see HKSAR v. Fu Chiu Wa, CACC 452/2002).

9.  Mr. Lai, Senior Public Prosecutor, acting for the respondent, indicated that he would not object to this appeal; we therefore allow the appeal and quash the conviction.

Application for retrial

10.  Mr. Lai asked the Court to order a retrial, but Mr. Hung, counsel for the appellant, objected to a retrial.

11.  Under section 83E of the Criminal Procedure Ordinance, if “the interests of justice so require”, the Court may order the case to be retried.  In considering whether a retrial should be ordered, the Court must consider and balance a number of factors, some of which weigh in favour of a retrial and some weigh against it. The interests of justice are not confined to the interests of the prosecution or of the defendant, but include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape punishment merely because of a technical error by the judge in the conduct of the trial or his summing-up to the jury.  The Court does not need to catalogue all the factors which should be taken into consideration (see: Ting James Henry v. HKSAR [2008] 4 HKLRD 850, approving the principles concerning a retrial expounded in Au Pui Kuen v. AG [1979] HKLR 16).

12.  Mr. Hung submitted that if a retrial was ordered, the counsel for the appellant would certainly advise the appellant that if she pleaded guilty at the retrial, she would be entitled to a ⅓ or a bit smaller discount of her sentence.  According to HKSAR v. Chok King Foh CACC 351/2008, the starting point for 972.08 grammas of ice is about 19 years.  Assuming that 19 years is the starting point, with a ⅓ discount, she has to serve a sentence of about 12½ years.  From 4 July 2002 (when the appellant was arrested) up to the present, she has already served about 8 years.  Furthermore, if the appellant is of good conduct in prison, she can have an early release from prison (i.e. ⅓ remission of sentence).  In that case, the actual term of imprisonment which she is required to serve is around 8 years and 5 months.  Mr. Hung contended that even if there was no retrial, the appellant would not be so lucky as to be able to avoid serving the sentence she was required to serve; and that a retrial would be a sheer waste of resources and money.

13.  We are of the view that a defendant who pleads guilty only at a retrial is not likely to have a ⅓ discount of his sentence.  Depending on the facts of a particular use, the Court generally will give a 20 % to 25% discount.  If the appellant is given a 25% discount of her sentence, then even assuming that at the retrial the Court uses 19 years as the appropriate starting point, she still has to be imprisoned for about 14 years.

14.  We think that the Court should not consider the factor that the appellant may have an early release because she is given remission for her good conduct.  The reason is that the appellant’s conduct may not be good when she is serving her sentence, and therefore may not be able to have an early release.  Even if she pleads guilty at the retrial and is sentenced to 14 years’ or 12½ year’s imprisonment, that term will still be considerably longer than the 8 years which she has already served.

15.  A serious crime was involved in this case.  The appellant was found to have a substantial quantity of ice on her person.  We allow the appeal only because the judge did not give the jury a proper direction about the legal presumptions.  After considering all the circumstances, we order that the case be retried.