Hksar v Lam Wai Choi

CourtCourt of Final Appeal (Hong Kong)
Judgment Date11 December 1998
Judgement NumberFAMC24/1998
Subject MatterMiscellaneous Proceedings (Criminal)
FAMC000024/1998 HKSAR v. LAM WAI CHOI

FAMC000024/1998

FAMC No. 24 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 28 OF 1998)

_____________________

Between:
LAM WAI CHOI Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Appeal Committee: Chief Justice Li, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 11 December 1998

Date of Determination: 11 December 1998

_________________________

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

_________________________

Mr Justice Bokhary, PJ:

1. On 23 December 1997 this applicant was convicted by a jury on one count of trafficking in dangerous drugs, and sentenced by Deputy Judge Hartmann (as he then was) to 19 years' imprisonment.

2. He went to the Court of Appeal asking that his conviction be quashed or at least that his sentence be reduced. By its judgment delivered on 8 September 1998, that court (Power VP and Rogers and Stuart-Moore JJA) refused to disturb either his conviction or his sentence.

3. On 30 October 1998 he was back before that court, asking it to certify the involvement of a point of law of great and general importance. The Court of Appeal refused so to certify.

4. Now the applicant is before this Committee, asking us to certify the involvement of such a point of law, and to grant him leave to appeal against conviction to the Court of Final Appeal on two bases: (i) that point of law; and (ii) a reasonably arguable case of substantial and grave injustice having been done.

5. Since this application for leave to appeal to the Court of Final Appeal was not made within 28 days from the date of the Court of Appeal's decision (as s.33(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, prescribes), the applicant also seeks (pursuant to subsection (2) of that section) an extension of time for seeking such leave.

6. In his written application to us, the applicant sets out this question as one which raises the point of law which he asks us to certify:

"Should a trial judge's response to a written jury question (expressed in "term of acquittal") include references to a new basis for guilty knowledge that had not been relied upon or been investigated in evidence during the trial?"

7. And in that written application the substantial and grave injustice of which he complains is expressed thus:

"That since the prosecution had specifically elected not to rely on the statutory presumptions available in drugs cases and not to cross examine the accused as to any 'suspicion' or 'blindness' and the 'new basis' was not introduced until after the jury had retired, the applicant was deprived of any opportunity to deal with the matter and lost a reasonable chance of acquittal which would have followed a proper direction even if the jury were unable to reach a majority verdict (this being the applicant's third jury trial on the same charges)."

8. To understand the point advanced and the complaint made, it is necessary to turn to the circumstances of the case.

9. The particulars of the count on which the applicant was convicted were that he, on 26 January 1994 outside a flat on the 8th floor of a building in Ngau Tau Kok, trafficked in dangerous drugs consisting of 8,008.49 gms of a mixture containing 7,045.12 gms of salts of esters of morphine.

10. A helpful outline of the facts relied upon by the prosecution is contained in this passage in the Court of Appeal's judgment delivered by Power VP:

" It was the prosecution case that at about 5:25 a.m. on [the day in question], the applicant, with another man, approached the door of [the flat]. He was seen by a surveillance team to...

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