HKSAR v. KWANG SAU FAN ANNIE AND ANOTHER

CACC 179/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 179 OF 2001

(ON APPEAL FROM DCCC NO. 1090 OF 2000)

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J U D G M E N T

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1. I refuse the 1st Applicant leave to appeal against her conviction. In my opinion, it is not arguable that the judge erred in law when he concluded that he should attach no weight to the exculpatory statements which she had made at the time of her arrest and when she was interviewed. The judge was not saying that no weight could in law be attached to them. On the contrary: he had already said that the weight to be given to them was a matter for the court. The judge was simply saying that, in the circumstances of the present case, he was not going to attach any weight to them. Those circumstances were that, once the 1st Applicant was found to have been in possession of the parcels, the burden was on her to rebut the presumption that she had known that the parcels contained dangerous drugs. Despite that, she chose not to give evidence. That election could not in itself be evidence on which the prosecution could rely as the judge himself recognised. But I do not think it is arguable that when a defendant elects not to give evidence in court on an issue on which the burden of proof is on him, a judge errs in law in choosing in those circumstances not to give any weight to exculpatory statements previously made by the defendant out of court. For those reasons, I refuse the 1st Applicant leave to appeal against her conviction.

(After further argument)

2. I grant the Applicants leave to appeal against their sentences. In my opinion, it is arguable that the use of the Hong Kong postal service to import the herbal cannabis into Hong Kong was not an aggravating factor. Moreover, even if it was an aggravating factor, it is in my opinion arguable that its importation into Hong Kong (as opposed to its distribution within Hong Kong) should not have been held to be attributable to either of the Applicants, having regard (a) to the date on which, according to the charge, the offence was committed and (b) to the way the case of trafficking was put, namely, possession of the herbal cannabis with intent to supply rather than its importation. In addition, although the judge recognised that the cannabis was in herbal form and was not either resin or oil, it is arguable that the relatively modest discount which he gave on that score shows that he did not take sufficient account of that important distinction. For those reasons, I grant both the Applicants leave to appeal against their sentences.

(After further argument)

3. I have not discerned any arguable grounds on which the 2nd Applicant can challenge his conviction, and his application for leave to appeal against his conviction is dismissed.