HUNG CHAN WA AND ANOTHER v. HKSAR

FAMC No. 83 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 83 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NOS 411 OF 2003 and 61 OF 2004)

_____________________

Between:

  HONG KONG SPECIAL ADMINISTRATIVE REGION Applicant
  and  
  HUNG CHAN WA 1st Respondent
  ATSUSHI ASANO 2nd Responden

_____________________

FAMC No. 103 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 103 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NOS 411 OF 2003 and 61 OF 2004)

_____________________

Between:

  HUNG CHAN WA 1st Applicant
  ATSUSHI ASANO 2nd Applicant
  and  
  HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

_____________________

Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 11 January 2006

Date of Determination: 11 January 2006

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

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Mr Justice Bokhary PJ

1. The Court of Appeal has certified the involvement of four points of law of great and general importance. Those points are set outin the Court of Appeal’s certificate dated 30 September 2005 and need not be recited in the determination which we are now giving. The first two were certified on the application of the prosecution while the last two were certified on the application of the defendants.

2. It is the prosecution alone which seeks the reversal of the result at which the Court of Appeal arrived, namely that the convictionsbe quashed and the defendants be retried. So leave to appeal is granted to the prosecution alone. But that does not preclude thedefendants from pursuing the points certified on their application. The Court of Final Appeal will consider whether s.47 of the Dangerous Drugs Ordinance, Cap. 134, constitutionally shifts the persuasive burden itself or constitutionally shifts the evidential burden only or is whollyunconstitutional.

3. This appeal and FACC No. 4 of 2005 (concerning s.20 of the Firearms and Ammunition Ordinance, Cap. 238) will be heard together. The hearing dates will be 13, 14 and 17 to 20 July 2006. It is prudent to make that amount oftime available for this reason. The question of whether the effect of the decision can be made prospective only has been arguedbefore the Court of Appeal. Presumably they will soon give their decision on that question. It is a question which is likely toreach the Court of Final Appeal. And it should be dealt with by the Court of Final Appeal at the same time as the other questionsin this appeal.

(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(R A V Ribeiro)
Permanent Judge

Mr Gerard McCoy SC (instructed by the Department of Justice) and Mr Gavin Shiu (of the Department of Justice) for the applicant

Mr Clive Grossman SC and Mr Hanif Mughal (instructed by Messrs M.L. Tam & Co. and assigned by the Legal Aid Department) for therespondents