TSANG WAI MAN v. HKSAR

FACC No. 4 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2002 (CRIMINAL)

(ON APPEAL FROM CACC NO. 190 OF 2001)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. On 19 March 2003 we allowed this appeal so as to (i) quash the conviction for trafficking in dangerous drugs, (ii) set aside the sentence of five years' imprisonment passed thereon, (iii) substitute a conviction for simple possession and (iv) impose a fine of $100 with 14 days to pay. I then gave our reasons for dealing with sentence in that way. Shortly stated, they are as follows. The appellant has already served the time appropriate for simple possession. So he should be released straightaway. But it would seem that any custodial term for simple possession, even one no longer than the time already served, could only be imposed after the delay of sending for a report.

2. As to conviction, we said that we would hand down our reasons later. We now do so by the judgment of Sir Noel Power NPJ.

Sir Noel Power NPJ:

3. The appellant was convicted in the District Court (H.H. Judge Z.E. Li) of trafficking in dangerous drugs consisting of 24.19 grammes of heroin hydrochloride in a mixture with a total weight of 28.92 grammes. His appeal to the Court of Appeal (Leong CJHC and Woo and Yeung JJA) was dismissed. By leave of the Appeal Committee granted under the "substantial and grave injustice" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, he then appealed to this Court.

4. Briefly, the facts were as follows. On 14 October 2000 the appellant was apprehended with two other persons after a police raid on a room in Shanghai Street. He was searched and the drugs, in 51 packets contained in 3 larger packets, were found on his person. Paraphernalia associated with the taking of dangerous drugs was found in the room. It was the appellant's defence that he had bought the drugs for $5,000 for personal consumption. There seems to have been no issue that the market price of such drugs would have been $12,000 but the appellant contended that his bulk purchase enabled him to obtain a more favourable price. The trial judge rejected the evidence of the appellant and found him guilty as charged.

5. When this matter came on for hearing the Court turned immediately to a matter very fairly and properly raised by Mr Cheung Wai-sun for the respondent in his printed case. He pointed out that the judge had said at p.10 of his reasons:

"In conclusion I find that the Defendant's explanation, even according to the lower standard of proof in civil cases, was unbelievable. Hence, I do not accept his explanation."

There being no presumption applicable this ruling was plainly wrong, and constituted a departure from accepted norms such as to warrant an appeal to this Court on the "substantial and grave injustice" ground. Mr Cheung conceded that this was so, but invited us to apply the proviso. At the outset we called upon Mr Cheung to address us on this matter.

6. Fundamental to the propriety of a conviction is the application of the correct onus and standard of proof. It is the right of every defendant to have his defence properly considered. No onus lies upon him to establish anything. He is entitled to acquittal if his evidence raises a reasonable doubt. Mr Cheung contended that the defence evidence was so weak that, if the court had assessed that evidence in accordance with the correct onus and standard of proof, a conviction must inevitably have followed. But it is not possible to say that, had the learned trial judge assessed the defence evidence having regard to the correct onus and standard of proof, it may not have been sufficient to create a reasonable doubt as to the appellant's guilt. The onus having been reversed against the appellant by the trial judge, it is not appropriate to apply the proviso.

7. The foregoing demonstrates that the appellant has been done a substantial and grave injustice. The appeal was therefore allowed so as to quash the trafficking conviction and substitute for it a conviction for simple possession.