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Hksar v Lau Suk Han And Another

Judgment Cited in Precedent Map Related
Vincent
Judgment Date08 May 1998
Citation(1997-1998) 1 HKCFAR 150; [1998] 1 HKLRD 673
Judgement NumberFAMC5/1998
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FAMC000005/1998 HKSAR v. LAU SUK HAN AND ANOTHER

FAMC No. 5 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 787 OF 1997)

_____________________

Between:
LAU SUK HAN
1st Applicant
TSUI FUNG YI
2nd Applicant
AND
HONG KONG SPECIAL ADMINISTRATIVE REGION
Respondent

_____________________
Appeal Committee:
Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ

Date of Hearing: 8 May 1998

Date of Determination: 8 May 1998

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

DETERMINATION

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

Chief Justice Li:

1. This is the determination of the Appeal Committee upon an application for leave to appeal under section 32 of the Hong Kong Court of Final Appeal Ordinance ("the Ordinance"). This application raises the question whether leave should be granted by the Court where the Court of Appeal has already certified under section 32(2) of the Ordinance that a point of law of great and general importance is involved in its decision..

2. Each of the two applicants was committed for trial in the High Court on two counts. One count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, ("the trafficking count") and alternatively, one count in respect of the same lot of dangerous drugs, of being a person by whom a dangerous drug was imported in transit contrary to section 14(1)(a) of that Ordinance ("the import in transit count"). On 17 December 1997, the trial judge (V Bokhary J) directed that the applicants be discharged on the trafficking counts under section 16 of the Criminal Procedure Ordinance.

3. The Secretary for Justice brought an appeal under section 81E of that Ordinance. Having heard arguments which were much fuller than those put before the trial judge, the Court of Appeal (Hon Chan CJHC, Leong and Stuart-Moore JJA) unanimously, with each member giving a reasoned judgment, allowed the appeal and reversed the direction to discharge the applicants on the trafficking counts. Accordingly, they quashed their acquittals on the trafficking counts and ordered that they should be tried on those charges.

4. On 16 April 1998, on the applicants' application, the Court of Appeal certified that the following point of law of great and general importance is involved in its decision:

" In a situation where dangerous drugs are found on or belonging to a person who is in transit in Hong Kong and who has no intention of importing the drugs into Hong Kong for consumption, sale or any other purpose, has an offence been committed under Section 4(1)(a) of the Dangerous Drugs Ordinance, Cap. 134 ?"

5. On 20 April 1998, the applicants applied to the Court for leave to appeal. The application is opposed by the respondent.

6. The essential facts giving rise to the allegations were summarised thus in the judgment of Stuart-Moore JA in the Court of Appeal:

" On 14 January 1997, the applicants were en route from Cambodia to Canada. The plane which brought them to Hong Kong was a Dragonair flight. The applicants went to the Transit Lounge. As they went to board their Cathay flight to Toronto, the applicants were intercepted by Customs officials who were specifically looking for drugs. Their hand-luggage was searched and found not to contain any drugs. They were both then body-searched and again no drugs were found. When their personal belongings were searched, they were found to be carrying their airline tickets,...

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