R. v. LI KWOK-WA

------------------------

------------------------

J U D G M E N T

-----------------------

Kempster, JA (giving the judgment of the Court):

1. On 2 July 1991 in the District Court Li Kwok Wa was convicted by HH Judge Caird of possessing dangerous drugs for the purpose of unlawful trafficking; the offence having taken place on 16 November 1990.

2. On 30 July, on the verdict of a jury, Chiu Chi Wong was convicted by HH Judge Leonard (as he then was) sitting as a Deputy Judge of the High Court, of a like offence committed on 2 January 1991.

3. The trial in the District Court had commenced on 14 June and that in the High Court on 29 July. In arriving at his verdict Judge Caird relied on the evidential and procedural presumption enacted in s 46(d)(v) of the Dangerous Drugs Ordinance (Cap 134) and Judge Leonard directed the jury as to the same presumption as tell as to that enacted in s 47(3). No point was raised in either trial as to the valicity of those sections.

4. As was held by this court on 30 September 1991 the presumptions in question had been repealed as from 8 June pursuant to s 3(2) of the Bill of Right Ordinance ( No59 of 1991). The case was remitted to Ryan J with that finding. Implicit vas the direction that he should not rely upon these presumptions in relation to an offence alleged to have been committed on 28 July 1990. R v Sin Yau Ming HC 239 of 1990 (Unreported).

5. Since we cannot be sure that in relation to one application before us Judge Caird or in relation to the other the jury would inevitably have convicted on the basis of a different burden and standard of proof it must follow, as the Crown concedes, that both convictions were vitiated by error of law and are unsafe and unsatisfactory.

6. Insofar as may be necessary, the grounds relied upon involving questions of law alone, the applications for leave to appeal against conviction are granted and are treat this as the hearing of the appeals which are allowed. The convictions are quashed and the sentences set aside.

7. We will now hear counsel in relation to such consequential orders as it may fall to us to make but before doing so we would express our appreciation of their written submissions, particularly that prepared by Hr Kullick at the invitation of the Court, and observe that Provincial Court Judge Paradis reached a like conclusion in relation to very similar Canadian legislation in R v Campagna (1982) 70 CCC (2d) 236.