HKSAR v. LAM KING YIN

HKSAR v. LAM KING YIN

The trial judge misdirected the jury by describing the section 47 presumption as requiring the accused to satisfy the jury on the balance of probabilities that he did not know the nature of the contents, thereby converting an evidential onus into a persuasive onus; that misdirection was material to the defence and...

Source-derived case information.

Citation
HKSAR v. LAM KING YIN
Parties
Applicant/accused: Unnamed Applicant; Respondent/prosecution: HKSAR
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
23 December 2013
Case Number
CACC246/2013
Procedural Posture
Criminal Appeal Against Conviction for Drug Trafficking / Application for Leave to Appeal Heard as Appeal (expedited Hearing)
Outcome
Leave to appeal granted; appeal allowed; conviction quashed; retrial ordered and applicant remanded in custody.
Legal Topics
Presumption of Knowledge Under Statute, Onus of Proof (evidential Vs Persuasive), Jury Directions, Retrial
Source Language
en
Criminal Law Drugs Law Evidence Law Presumption of Knowledge Under Statute Onus of Proof (evidential Vs Persuasive) Jury Directions Retrial

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Summary, issues, holding and outcome

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Parties

Unnamed Applicant

Applicant/accused

HKSAR

Respondent/prosecution

Procedural Posture

Criminal Appeal Against Conviction for Drug Trafficking / Application for Leave to Appeal Heard as Appeal (expedited Hearing)

Legal Issues

  1. 1 Whether the judge misdirected the jury by treating the statutory presumption under section 47 as imposing a persuasive onus on the accused rather than an evidential onus
  2. 2 Whether the conviction was unsafe and should be quashed
  3. 3 Whether a retrial should be ordered despite prosecutorial contribution to the error

Ratio Decidendi

The trial judge misdirected the jury by describing the section 47 presumption as requiring the accused to satisfy the jury on the balance of probabilities that he did not know the nature of the contents, thereby converting an evidential onus into a persuasive onus; that misdirection was material to the defence and rendered the conviction unsafe, so the conviction is quashed and, having weighed factors including independent judicial error, seriousness of the offence and cogency of the evidence, a retrial was ordered to be listed within three months.

Court Disposition

Leave to appeal granted; appeal allowed; conviction quashed; retrial ordered and applicant remanded in custody.

Orders

  • Grant leave to appeal and treat the leave application as the appeal
  • Allow the appeal and quash the conviction