HKSAR v. LIU HSIU HSIANG

CACC000304A/2001

CACC 304/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304 OF 2001

(ON APPEAL FROM HCCC 322 OF 2000)

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BETWEEN
HKSAR Respondent
AND
LIU HSIU HSIANG Applicant

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Coram: Hon Stuart-Moore VP, Stock JA and Tong J

Date of Hearing: 4 November 2003

Date of Judgment: 19 November 2003

Date of Addendum: 9 February 2004

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A D D E N D U M

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Stuart-Moore VP, Stock JA and Tong J:

1. In our judgment delivered on 19 November 2003, we commented adversely on the trial judge’s directions to the jury in so far as thosedirections departed from the standard formula used when directing a jury on the operation of the presumption of possession undersection 47 of the Dangerous Drugs Ordinance. We also intimated that the formula which the judge used must have been one of her own making.

2. It has since come to our attention that in fact the judge had discussed with counsel in the course of the trial the judgment of theHouse of Lords in R v Lambert [2002] 2 AC 545; [2001] 3 WLR 206. It was this judgment which motivated her directions about the evidential burden on the Applicant. It follows that we were in errorin our suggestion that there was no source for the judge’s direction and that our criticism of the judge in that regard was misplaced.We regret this error.

3. These circumstances were not drawn to our attention in the course of the appeal. Accordingly we convened a hearing which took placeon 5 February 2004 to ascertain why that was so. We accept that counsel were unaware of the discussion in the court below or of thesubmissions made by counsel in response to the judge’s proposal, but we have recommended steps to ensure that counsel appearing forthe Respondent on appeal are better informed as to material events at trial.

4. It is to be noted that the question whether the decision in Lambert flows against decisions made in Hong Kong, as we now know counsel for the prosecution suggested in the court below, and its impactupon section 47 of the Dangerous Drugs Ordinance, Cap. 134, has not as yet been the subject of argument or determination by any appellate court.

(M. Stuart-Moore) (Frank Stock) (Louis Tong)
Vice-President Justice of Appeal Judge of the
Court of First Instance

Representation:

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC, and Mr James McGowan, instructed by Messrs Quan & Co., for the Applicant.