HKSAR v. CHAN CHUEN HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.458
(Criminal)

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D E C I S I O N

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Power, Ag. Chief Judge H.C. (giving the decision of the Court):

1. The applicant comes before this court asking it to certify that the decision of the Court of Appeal in this matter involved a point of great and general importance.

2. Mr. Macrae, who appears for the applicant, states the proposition which he is advancing as follows:

"Whether a misdirection as to the onus and standard of proof, namely that a failure to rebut the presumptions of possession and knowledge would result in a defendant's conviction for trafficking in dangerous drugs, justifies the application of the proviso to s.83(1), Criminal Procedure Ordinance, Cap.221."

3. The statement of law upon which he places reliance is set out succinctly in the headnote to Kwan Ping-pong v. R., (1979) 2 W.L.R. 433, where it states:

"Per curiam, The Judicial Committee will only interfere with a decision of the local court of criminal appeal as to whether or not to apply a proviso in the terms of that contained in section 83(1) in cases where it appears that the decision was based upon an error involving some principle of general importance to the administration of criminal justice. A misdirection as to the onus of proof of an essential fact in issue at the trial is seldom a proper case for the application of the proviso."

4. As it is not suggested that the Court of Appeal in the present case misunderstood the law, but rather than it misapplied the law to the facts, we do not consider that we could properly certify that a point of law of great and general importance is involved and we, therefore, refuse this application.