CHIU WING NAM, DICK v. HKSAR

FAMC No. 50 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 50 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 423 OF 2003)

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D E T E R M I N A T I O N

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Chief Justice Li:

1.  On 23 September 2003, after trial in the Court of First Instance (Gall J), the applicant was convicted of the offence of trafficking in a mixture weighing 705.90 grammes containing 295.42 grammes of heroin hydrochloride.  He was sentenced to 12 years and 6 months imprisonment.

2.  The offence was committed on 18 December 2002.  The applicant was found in physical possession of the heroin.  Approximately half of the amount was in the applicant’s shoulder bag and the other half was concealed in his underpants.  A number of facts were admitted.  The essential issue at trial was whether the applicant knew that he was carrying dangerous drugs.  The applicant’s case was that he was unaware that he was carrying drugs.  He thought he was carrying fake mobile telephone batteries, having been asked by a friend in Shenzhen to bring them into Hong Kong for a reward.

3.  The applicant appealed to the Court of Appeal.  The grounds relied on were in effect that the judge had misdirected the jury on the presumptions in s. 47 of the Dangerous Drugs Ordinance Cap 134 (“sec 47”) and their consequences.  On 7 May 2004, the Court of Appeal (Stuart-Moore VP, Yeung JA and Hartmann J) dismissed his application for leave to appeal.

4.  On 19 August 2004, the applicant applied to the Court of Appeal for a certificate that the following point of law of great and general importance was involved (“the point of law”).

“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?”

The point of law raises a constitutional issue regarding the statutory presumptions in sec 47 (“the constitutional issue”).  The constitutional issue had not been raised at trial or in the Court of Appeal.  On 22 September 2004, the Court of Appeal refused to grant the certificate.

5.  On 14 October 2004, the applicant applied to the Court, for leave to appeal on the point of law limb seeking a certificate of the point of law and for the necessary extension of time (“the present application”).

6.  By October 2004, when the present application was made, the constitutional issue had been raised in appeals to the Court of Appeal in HKSAR v Hung Chan Wa and Atsushi Asano (“Hung”) which were originally set down for hearing in November 2004.  The hearing was then adjourned.  The Court of Appeal heard the appeals in April 2005 and gave judgment on 23 June 2005 on the constitutional issue [2005] 3 HKLRD 291.  It heard submissions on the question of “prospective overruling” in January 2006 and gave judgment on 26 January 2006.  The matter was then appealed to the Court which gave judgment on 31 August 2006 [2006] 3 HKLRD 841.

7.  In view of the progress of Hung to the Court of Appeal and then to the Court, the Court adjourned the present application on successive occasions pending the outcome of Hung.  Chan PJ gave the directions for adjournment initially on 20 October 2004, within a week of the lodging of the application, and subsequently on 31 October 2005 and 29 March 2006.

8.  The successive adjournments of the applicant’s present application until the constitutional issue was decided by the Court in Hung was a course decided on by the Court.  The applicant should suffer no prejudice as a result of it.  It is therefore appropriate to consider the present application as at 14 October 2004 when it was filed.

9.  As at 14 October 2004, the present application was 4 months and 10 days out of time and the applicant was raising the constitutional issue for determination by the Court.  The question relating to extension of time should first be considered.

10.  In October 2004, the constitutional issue had not been decided even at the Court of Appeal level.  The outcome on that issue in the Court of Appeal and the Court was unknown.  At that time, although the issue had not been raised at trial or before the Court of Appeal, having regard to its public importance, the constitutional issue would have merited attention by the Court in the present case, if that issue were not already before the Court of Appeal in Hung.  As that issue would be determined in Hung, the course adopted by the Court to adjourn the present application until the outcome in Hung was obviously a sensible one.  In dealing with such an important constitutional issue in Hung, the Court would have the benefit of the judgment in the Court of Appeal. 

11.  The approach discussed in the Court’s judgment in Hung (at paras 23 to 25) is directed at applications for extension of time to appeal against conviction on the ground that the previous view of the statutory presumptions in sec 47 has now been authoritatively held to be incorrect.  Having regard to its unique circumstances, the present application for extension of time is not within the kind of applications contemplated in Hung and it is therefore inappropriate to apply the approach in Hung on extension of time.  Here, as at 14 October 2004 when the present application was filed, the applicant was not seeking to rely on any judgment holding the previous view to be incorrect.  There was no judgment for the applicant to rely on.  At that time, the issue had not been determined, even at the Court of Appeal level.  Indeed, the applicant was himself raising the issue of determination.

12.  Whether an extension of time should be granted in the present case depends on all the circumstances.  As has been noted, in October 2004, the constitutional issue merited determination by the Court.  As at 14 October 2004, the applicant was 4 months and 10 days out of time.  The time limit of 28 days for the present application to the Court had expired on 4 June 2004.  Between 7 May 2004 (the date of the Court of Appeal’s judgment) and 19 August 2004 (when the application to that Court for a certificate was filed), the time was taken up with the application for legal aid, the Legal Aid Department seeking advice from counsel, and taking about 25 days after receiving counsel advice before granting legal aid, and the preparation of documents by counsel after the legal aid certificate was issued.  After the Court of Appeal refused to certify on 22 September 2004, it took a further three weeks before the present application to the Court was filed on 14 October 2004.

13.  In the present case, all concerned, including the Legal Aid Department and counsel, did not act with the required promptness.  They should have acted with far greater expedition in order to comply or at least to maximise the prospect of complying with the statutory time limit.  However, in the unique circumstances of this case, the delay was not such as to justify refusal of extension of time.  Accordingly, the application for the necessary extension of time is granted.

14.  Although the present application filed on 14 October 2004 only sought leave on the point of law limb, Mr Bruce SC for the applicant was granted leave at the hearing to amend the notice of motion to rely on the substantial and grave injustice limb.

15.  In the unique circumstances of this case, it is now inappropriate to grant leave on the point of law limb, as Mr Bruce SC accepts.  The point of law has now been settled in Hung.  Leave should be granted on the substantial and grave injustice limb to enable the applicant to rely on Hung.  Accordingly, leave is granted on that limb.

16.  It should be noted that the respondent submits that in any event, the point of law could not be certified.  It is argued that since the point had not been raised in the Court of Appeal, the point is not “involved in the decision” of the Court of Appeal within sec 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Although the point does not arise for decision, it should be observed that the phrase “involved in the decision” in sec 32(2) should not be so narrowly construed to preclude the Court from entertaining a point of law of great and general importance which was not raised in the Court of Appeal.  Whether the Court wishes to exercise its discretion to do so is a different matter.

17.  In conclusion, it should be emphasised that time limits are there to be observed.  The time limit for an application for leave to appeal to the Court from a decision of the Court of Appeal in a criminal case is 28 days.  Section 33 (1) of the Hong Kong Court of Final Appeal Ordinance.  An applicant wishing to rely on the point of law limb must first apply to the Court of Appeal for a certificate.  Section 32 and Zeng Liang Xin v HKSAR (1997-98) 1 HKCFAR 12 at 22.  As this has to be dealt with within the 28 days, it is necessary for an applicant to apply to the Court of Appeal for a certificate promptly.  The relevant Practice Directions provide that where the Court of Appeal’s judgment is delivered, the application should be made immediately.  And where it is handed down, as is usual, the application should be made within 7 days.  See Practice Direction 2.2 para 3 (1 January 1998) and Practice Direction 4.3 para 4 (15 November 1999).  Applicants and those representing them are well advised to follow the relevant Practice Directions.  And the Legal Aid Department should urgently re-examine their processes and procedures, including the scope of legal aid certificates, so as to ensure that the interests of legally aided persons are not prejudiced as a result of a failure to comply with the 28 days time limit and to follow the relevant Practice Directions.