Chiu Wing Nam, Dick v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date03 Jul 2007
Citation(2007) 10 HKCFAR 613
Judgement NumberFACC10/2006
FACC000010/2006 CHIU WING NAM, DICK v. HKSAR

FACC No. 10 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NO. 423 OF 2003)

_____________________

Between:

CHIU WING NAM, DICK

Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

_____________________

Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Noel Power NPJ and Sir Anthony Mason NPJ

Hearing and Decision: 22 June 2007

Handing Down of Reasons: 3 July 2007

_____________________

J U D G M E N T

_____________________

Mr Justice Bokhary PJ :

1. At the conclusion of the hearing, we allowed the appeal, quashed the conviction, ordered a retrial and remanded the appellant in custody pending his retrial. We now hand down our reasons, which are given by Sir Noel Power NPJ for the Court.

Sir Noel Power NPJ :

The facts at trial

2. On 23 September 2003 the appellant, Chiu Wing nam, Dick was convicted after trial before Gall J and a jury in the Court of First Instance, by a majority of 6 to 1, of trafficking in a dangerous drug and sentenced to imprisonment of 12 years and six months.

3. He had been arrested on a staircase in a building in Yuen Long and was found to be carrying 705.90 grammes of a mixture containing 295.42 grammes of heroin hydrochloride some of which was in a shoulder bag and some concealed in his underpants. He maintained to the police, and at trial, that he thought that he was carrying counterfeit mobile telephone batteries which he had agreed to bring into Hong Kong from Shenzhen for a reward of $1,000 dollars.

4. At trial he further maintained that he was schizophrenic and that, at the time when he had agreed to carry the batteries, he had not taken his medication and was suffering from hallucinations. Medical evidence called by the prosecution was that it was unlikely that this would have been so.

The issue at trial

5. The real issue at trial was whether it had been established that the appellant knew that he was carrying dangerous drugs and the prosecution relied, when so proving, upon s.47(2), the presumption of knowledge section, in the Dangerous Drugs Ordinance, Cap. 134.

Court of Appeal decision

6. An appeal to the Court of Appeal was dismissed on 7 May 2004. The principal submission made on behalf of the appellant, as set out in the judgment of Stuart-Moore V.P. who delivered the judgment of the court, was that the judge had misdirected the jury by “unduly emphasising the evidential burden” on the appellant under s.47 of the Dangerous Drugs Ordinance which may, it was submitted, have led to confusion about the burden and standard of proof required to rebut the statutory presumption.

7. The judgment, which proceeded upon the basis of the effect of s.47 as it was then understood, held that the trial judge had “set out the law and its consequences with clarity” and dismissed the appeal.

Refusal by Court of Appeal to certify

8. On 19 August 2004 an application was made to the Court of Appeal for a certificate on a point of law...

To continue reading

Request your trial