Hong Kong Case Law: Decisions & Judgments

Topic

Section 47 dangerous drugs ordinance

Legal area

Court

11 Dec 2006

CHIU WING NAM, DICK v. HKSAR

Citation

CHIU WING NAM, DICK v. HKSAR
Court

Court of Final Appeal
Case number

FAMC50/2004

Given the unique circumstances and the Court's decision to adjourn pending the Hung proceedings, the applicant was granted an extension of time despite delay (4 months 10 days); leave on the point of law limb was inappropriate because Hung settled the issue, but leave was granted under the substantial and grave injustice limb to permit reliance on Hung; the phrase 'involved in the decision' in s.32(2) should not be narrowly construed but certification remains a discretionary matter.
23 Jun 2005

HKSAR v. ASANO ATSUSHI

Citation

HKSAR v. ASANO ATSUSHI
Court

Court of Appeal
Case number

CACC61/2004

The Court held that read as imposing a persuasive (legal) burden upon an accused to disprove knowledge under section 47(1) or 47(2) of the Dangerous Drugs Ordinance, the provisions are incompatible with the presumption of innocence under the Basic Law, ICCPR and the Hong Kong Bill of Rights because the respondent failed to prove such an incursion was necessary and proportionate; however the section can reasonably be read down to impose only an evidential burden (an evidential onus to raise an issue fit for the jury), and accordingly the persuasive burden interpretation is rejected and convict…
23 Jun 2005

HKSAR v. HUNG CHAN WA

Citation

HKSAR v. HUNG CHAN WA
Court

Court of Appeal
Case number

CACC411/2003

The court held that s47(1) and s47(2) read as imposing a persuasive legal burden on the essential element of knowledge infringed the presumption of innocence under the Basic Law/ICCPR and the Bill of Rights and were not shown to be proportionate or necessary; the proper construction is to read the presumptions as creating an evidential burden only, not a persuasive burden; accordingly the applicants' convictions were set aside and retrials ordered.
13 Mar 1998

HKSAR v. KIRAN GURUNG

Citation

HKSAR v. KIRAN GURUNG
Court

Court of Appeal
Case number

CACC393/1997

The presumption in section 47(1)(b) does not extend to a storeroom because the ejusdem generis rule confines 'other similar container' to containers of the same kind as those listed; the evidence did not make a storeroom the kind of container contemplated by the subsection, so the presumption did not arise and the drug conviction was unsafe and must be quashed. Convictions in respect of counterfeit notes found on the applicant's person remain valid; the second charge is to be limited accordingly and the applicant is to be released subject to immigration requirements.
23 Mar 1984

THE QUEEN v. TONG KIM-PING

Citation

THE QUEEN v. TONG KIM-PING
Court

Court of First Instance
Case number

HCMA127/1984

The evidence did not establish beyond reasonable doubt that the appellant had such effective control of the vehicle as to attract the presumption under s.47(1)(a) of the Dangerous Drugs Ordinance; therefore the conviction for possession of heroin could not stand and must be deleted, and the sentence must be quashed and replaced to allow immediate release.

Hong Kong Case Law

CHIU WING NAM, DICK v. HKSAR

HKSAR v. ASANO ATSUSHI

HKSAR v. HUNG CHAN WA

HKSAR v. KIRAN GURUNG

THE QUEEN v. TONG KIM-PING