CHAN MING FAI v. HKSAR

FAMC No. 27 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACC NO. 308 OF 2000)

_____________________

_____________________

______________________________

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

______________________________

Mr Justice Bokhary PJ:

1. Mr Kwong and Ms Cheung for the applicant have donated their services under the auspices of the Bar Free Legal Service Scheme. We thank them and the Scheme.

2. The prosecution's case was a strong one. However, the Court of Appeal was unanimous in its view that the trial judge's directions to the jury were confusing. By a majority consisting of Mayo VP and Wong JA, the Court of Appeal applied the proviso. Keith JA declined to apply the proviso. He thought that the trial judge's directions were so confusing that the jury might have convicted simply on the basis that the applicant knew that the bag contained dangerous drugs and in the jury's mistaken belief that such knowledge amounted to possession of those dangerous drugs.

3. Even assuming that the directions complained of were capable of creating that measure of confusion when taken in isolation, there still remains the need to have regard to the summing-up as a whole. The directions complained of pertained to the statutory presumption as to possession. Elsewhere in his summing-up, the trial judge made it clear that the presumption did not arise unless the jury were sure that the applicant had indeed picked up the bag containing the dangerous drugs.

4. In the result, we are of the view that it is not reasonably arguable that applying the proviso was so serious a departure from accepted norms as to constitute a substantial and grave injustice to the applicant. The Court of Final Appeal does not sit as a second court of criminal appeal. This Committee cannot put the Court in a position where the Court would be doing that. The only question is whether it is reasonably arguable that there has been so serious a departure from accepted norms as to constitute a substantial and grave injustice to the applicant. Taking the view that that is not reasonably arguable, we refuse leave to appeal to the Court of Final Appeal.