R. v. LAM WAN-KOW

Headnote

BORO not retrospective.

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J U D G M E N T

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Hon. Yang, C.J.:

1. This judgment concerns two applications for leave to appeal against conviction which we heard together. The applicant, Yuen Chun Kong, also seeks leave to appeal, should it be necessary, against his sentences of three years imprisonment. The applicant, Lam Wan Kow has abandoned a similar application. The common issue which called for consideration in both applications was, the effect of the Hong Kong Bill of Rights Ordinance 1991 ("the Bill Rights Ordinance") on the presumption in s. 46 of the Dangerous Drugs Ordinance, Cap. 134 in respect of convictions come to for offences of possession of dangerous drug for the purpose of unlawful trafficking before the coming into effect of the Bill of Rights Ordinance on 8th June 1991.

2. The applicant in Criminal Appeal No. 201 of 1991 is Lam Wan-kow ("Lam"). He was convicted, on the 24th April 1991, after trial on a charge of possession of a dangerous drug for the purpose of unlawful trafficking. He was also convicted on his own plea of a charge of possession of apparatus fit and intended for injection of a dangerous drug. These offences were committed on the 17th August 1990. Two grounds of appeal were advanced, namely, (1) the trial judge was prejudiced against him, and (2) the trial judge was in breach of the Bill of Rights Ordinance in applying the presumption in s. 46 of the Dangerous Drugs Ordinance.

3. The applicant in Criminal Appeal No. 266 of 1991 is Yuen Chun-kong ("Yuen"). He was convicted, on the 27th May 1991, after trial also of a charge of possession of a dangerous drug for the purpose of unlawful trafficking. The date of the alleged offence was the 23rd of December 1990. Four grounds of appeal were advanced: (1) the trial judge was prejudiced against him, (2) the prosecution did not have sufficient evidence, (3) the judge did not give full consideration to the discrepancies in the evidence of the prosecution witnesses, and (4) he (Yuen) did not contact any person or did anything. The issue in connection with the Bill of Rights Ordinance, and the presumptive sections of the Dangerous Drugs Ordinance was raised by this Court differently constituted at an earlier hearing.

4. At the hearing before us, on the general issue, Lam had nothing to say. Yuen confined himself to saying that the first and second prosecution witnesses had given evidence of keeping surveillance but both said Yuen did not do anything or associate with anything.

5. The facts of these two cases were simple.

6. In the case of Lam, whilst he admitted to simple possession for his own consumption, he denied trafficking. On the 17th August 1990, a police party entered Room 332 of Shun Hing House, Hing Wah Estate, Chai Wan and found Lam the only person inside. In various places inside the room, the police found 10.50 grammes of a mixture containing 8.95 grammes of salts of esters of morphine in 102 drinking straws, and also syringes, needles, phials, scissors, clips and other paraphernalia. In finding Lam guilty of possession of the dangerous drug for the purpose of unlawful trafficking, the judge applied the presumption in s. 46 of the Dangerous Drugs Ordinance.

7. In Yuen's case, the police carried out certain surveillance activities on the 23rd December 1990 at Ngau Tau Kok Urban Council Complex and observed Yuen walking in and out of a stall. Upon being intercepted and searched by the police, Yuen was found to have on his person 28 packets containing 6.36 grammes of a mixture containing 5.48 grammes of salts of esters of morphine. The trial judge found that "the quantity and quality raised the presumption that the same were for the purpose of unlawful trafficking".

8. We found nothing in the two applicants' general grounds of appeal and did not feel the need to call upon the Crown to address us on those points. We now come to the Bill of Rights Ordinance point.

9. At the hearing before us, we had the benefit of an amicus in the person of Mr. Dykes, whose written submission was of immense help. We were also much indebted for Mr. Cross' written submission. He had, quite independently, come to a conclusion similar to that of Mr. Dykes.

10. The issues were two fold: First: Article 11(4) of the Bill of Rights provides that:

"Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

11. Does that mean according to the law as it stood at the time when the conviction was reached or as it stands at the time when it is reviewed by the "higher tribunal". What is meant by "according to law?"

12. Second: Article 2(3) of the Bill of Rights provides that:

"On interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the Law of Hong Kong of the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong and ancillary and connected matters."

13. The Covenant was applied to Hong Kong on 20th May 1976. It was incorporated into the Laws of Hong Kong on 8th June 1991. Did that incorporation act retrospectively so as to affect convictions come to prior to 8th June 1991?

14. The first question to be considered is therefore the meaning of Art. 11(4). What does the phrase "according to law" signify? Does it refer to the law as it stood at the time of conviction by the court, or to the time when the conviction is reviewed by a higher tribunal? Or, as both Mr. Cross and Mr. Dykes suggest, does it mean the fundamental principles of the rule of law? Mr. Cross puts his proposition in these words: "the words 'according to law' mean no more than that there must in law be provided a proper framework for appeal to the higher tribunal." Mr. Dykes submits that the phrase requires the court to have regard to the adequacy of existing appeal procedures to see whether they are consistent with the rule of law and basic notions of fairness; it is not felt that the word "law" refers to any particular law.

15. In Hong Kong it is now settled law that, by virtue of s. 3(2) of the Bill of Rights Ordinance and Art. 11(1) thereof, the presumptive provisions of the Dangerous Drugs Ordinance were repealed as from 8th June 1991. [c.f. R. v. Sin Yau Ming Cr app.289/90] Art. 11(1) repeats Art. 14(2) of the International Covenant on Civil and Political Rights 1966 (ICCPR), which the United Kingdom accepted as a treaty obligation since the 20th of May 1976, and is in the same terms.

16. The interpretation given to the words "according to law" by Mr. Cross and Mr. Dykes finds support in General Comment 13(21) of the United Nations Human Rights Committee concerning Art. 14 of the ICCPR. In the Comment, the Human Rights Committee observes that when States Parties report to the Committee on the implementation of the Covenant, the major concern of the Committee with regard to the right in question is the adequacy of the domestic legal system giving effect to that right. Referring to Art 14(5) of the ICCPR (which is repeated by Art. 11(4) of the Bill of Rights Ordinance), the General Comment at para. 17 has this to say:

" In this connection not enough information has been provided concerning the procedures of appeal, in particular the access to and powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgment, and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of Article 14."

17. Art. 14(1) deals with such matters as equality before the law, fair and public trials, publication of judgments and limitation of the tribunal's discretion to exclude the press and the public.

18. In Communication No. 64/1979 under the Optional Protocol to the Covenant, the Human Rights Committee said that what is determined "according to law" in Art. 15(4) of the ICCPR is the modalities by which the review by a higher tribunal is to be carried out (para. 1o.4).

19. In Salabiaku v France (1988) 13 EHRR 379, the European Court of Human Rights was concerned with the right to be presumed innocent until proven guilty "according to law" (European Covenant on Human Rights, Art. 6(2)). The Court said (at para. 28) that the phrase "according to law" was intended to enshrine the fundamental principle of the rule of law.

20. In Winterwerp v The Netherlands (1979) 2 EHRR 387, the same Court considered Art. 5(1) of the European Covenant on Human Rights which provides that no one shall be deprived of his liberty save in a number of specified cases and in accordance with a procedure prescribed by law. It was held that the notion underlying the phrase in accordance with a procedure established by law is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (para. 45).

21. Under the Canadian Charter of Rights and Freedoms, rights and freedoms guaranteed therein can only be subject to limitations which are "prescribed by law" (s.1). The Supreme Court of Canada has considered the meaning of the phrase in a number of cases. We adopt the following principles extracted by Mr. Dykes on the authorities cited:

(i) That a limit on a right or freedom is prescribed by law if it is expressly provided for by statute or regulation or results by necessary implication from the terms of a statute or regulation. (R v Therens (1984) 18 C.C.C. 478).

(ii) That the common law (including equity) is a source of law which can limit Charter rights and freedoms. (RWDSU Local 580 v Dolphin Delivery Ltd. (1986) 33 D.L.R. (4th) 174).

(iii) That a statute authorising an administrative body to exercise a discretion may be a source of law capable of limiting Charter rights. Legislation which confers an imprecise discretion on a decision maker should be interpreted so as not to allow Charter rights to be infringed. (Slaight Communications Inc. v Davidson (1989) 59 D.L.R. (4th) 416).

(iv) That laws which restrict guaranteed rights and freedoms must be accessible and intelligible and should not grant plenary discretions to authorities enabling them to do whatever seems appropriate in a wide set of circumstances. Government policies and directives are not law. (Committee for the Commonwealth of Canada v Canada (1991) 77 D.L.R. (4th) 385).

22. From the way supra-national and national tribunals monitor the implementation of human rights treaty obligations and municipal courts interpret a constitutional instrument, there appears a degree of similarity in all their approaches, by the insistence on certain basic standards of legality and fairness.

23. The conclusion which Mr. Dykes came to, and which we accept, is:

" As regards the present appeal the relevant 'law' is contained in Part IV of the Criminal Procedure ordinance; cap. 221 the Criminal Appeal Rules made under section 9 of the principal ordinance and any Practice Directions and, arguably, case law. When all of these are taken together they enable a superior court of law (this Court) to review both convictions and sentences from the High Court and District Court within a coherent legal framework where the basic rule of law is observed. This almost certainly suffices as regards the international obligation and the scheme would probably pass the tests applied in the Canadian cases to determine what is 'law'."

24. "According to law" therefore does not relate to the specific offence laws applicable at the time of conviction or at the time of the appeal but means, as is indicated above, the laws which exist and existed to enable the court of appeal to exercise its appellate functions.

25. The next question is whether or not s. 2(3) of the Bill of Rights Ordinance is to be given retrospective effect. There is nothing in the Ordinance which indicates that it should be retrospective. That there is a presumption against retrospective operation of laws is a long established principle. And it is unlikely that the legislature in Hong Kong, having refrained from domesticating the provisions of the ICCPR in May 1976, decided in June 1991, and without clear and express provision, to do exactly this by means of retrospective legislation. "Treaties and declarations do not become part of our law until they are made law by parliament" per Lord Denning M.R. in R. v Chief Immigration Officer Heathrow Airport exparte Salamal Bibi [1976] 1 W.L.R. 979 and 984. Further, the legislature expressly isolated six ordinances from the effect of the repealing provision of s. 3 of the Ordinance for a period of 12 months from the date of the Ordinance coming into force: see s. 14,and the Schedule. There would therefore appear to be little point in saving ordinances from present repeal or a revised satisfactory construction (s. 3) or from claims for relief (s. 6) if s. 2(3) permitted these courts to reach back in time and apply the Ordinance to convictions come to in the past under the authority of those laws. The relevant law, as Mr. Cross puts it, is the law, be it procedural or substantive, which prevailed at the trial. There cannot properly be separate bodies of law applicable at trial and at appeal.

26. The two applicants' convictions were perfectly lawful at the relevant dates. In our judgment, s. 2(3) of the Bill of Rights Ordinance does not have retrospective application to rights and obligations which existed before it came into force.

27. A number of authorities, Hong Kong, Canadian and English were cited, all pointing to the presumption against retrospectivity. The principle being abundantly clear, we do not propose to further refer to those authorities here.

28. For the reasons given, we would therefore dismiss the applications for leave to appeal against conviction.

29. We shall now hear Yuen as to sentence.