Chapter 3 Cases of Public Interest or Concern

Burden of Proof - Trafficking of Dangerous Drug

The basic rule in criminal trials that the prosecution bears the legal burden of proving the essential elements of the offence came under the scrutiny of the Court of Final Appeal in a legally aided case HKSAR v. Hung Chan Wa and Atsuhi Asano FACC 1/2006 where the accused were charged with the offence of trafficking dangerous drug.

The Court of Final Appeal's Judgment dated 31 August 2006 brought an end to the uncertainty concerning the burden of proof a defendant is required to meet by Section 47(1) and (2) of the Dangerous Drugs Ordinance.

Prior to June 2005, the generally accepted view was that by virtue of the provisions, when a person who was proved to have in his physical possession a container (or the keys to it) which transpired to contain a dangerous drug, he was presumed, unless and until he rebutted the presumption on a balance of probability, to possess the drug and knew what was in his possession was indeed dangerous drug.

This was thought to be too great a burden and was inconsistent with the Bill of Rights Ordinance as applied by the Basic Law.

In June 2005, the Court of Appeal ruled that the legal burden imposed on a defendant facing a charge of trafficking dangerous drug was incorrect. The provisions only create an evidential burden in that once the defendant raises sufficient evidence that suggests he did not know he possessed an item which transpired to be a dangerous drug or that the item was dangerous drug, the burden remained on the prosecution at all times to prove that he did so know.

The Court of Final Appeal upheld the judgment of the Court of Appeal. The result is that all trials and appeals taking place after the date of the judgment of the Court of Appeal on 23 June 2005 have to be conducted on the basis that the relevant provisions impose only evidential burdens.

However, the Court of Final Appeal made it clear that in dealing with any applications for extension of time to appeal against conviction, the ground that the previous understanding of the law is now incorrect would not in itself justify an extension of time. While the courts have discretion to allow an appeal out of time, the Court of Final Appeal was at pain to stress that such discretion must only be exercised in exceptional circumstances and that would be very rare. It also made clear cases in which the Defendant had pleaded guilty would not be considered.

23 May Assistant Director of Legal aid (Litigation), Ms Alice Chung(first from left), and Senior Legal Aid Counsel, Ms Ada Chau, explained the legal aid system in Hong Kong to a delegation from Shenyang Intermediate People's Court.

The Gay Discrimination Case

WRL, who was gay, considered that the provisions in Part XII of the Crimes Ordinance, Cap. 200 ('the Ordinance'), in permitting heterosexual and lesbian couples to have sexual relationship once they reached 16 years of age discriminated against gay couples in that they prohibit them to have sexual relationship until each of them reached 21 years of age. He considered that the provisions further discriminate against gay couples by prohibiting certain intimate activities no matter how old they are. This prohibition does not apply to heterosexual or lesbian couples. WRL applied for judicial review to seek declarations that four sections in Part XII of the Ordinance-ss118C, 118F(2)(a), 118H and 118J(2)(a)- are unconstitutional as they are inconsistent with the Basic Law, (specifically arts. 25 and 39) and/or the Hong Kong Bill of Rights Cap. 383 (specifically arts.1, 14 and 22). His case was that under the Basic Law he has the right to equality before the law, that is, the right not to be discriminated against because of his sexual orientation. Under the Hong Kong Bill of Rights, he has the right not to be subjected to arbitrary or unlawful interference in how he seeks self-autonomy in private. He considered that the provisions in Part XII of the Ordinance have unlawfully denied him and other gay couples over the age of 16 of those rights. WRL was granted legal aid to pursue his judicial review application.

WRL was not prosecuted for any criminal offence arising out of Part XII of the Ordinance. His application for judicial review is therefore not founded on some 'decision' of a public law body. His application raised some fundamental questions. Whether the court has jurisdiction to determine the application and, if it did, whether it should properly do so in the exercise of its discretion, and, if the first question is in the affirmative, whether on the merits the provisions of Part XII of the Ordinance identified by WRL should be declared to be unconstitutional.

WRL obtained leave ex parte to apply for judicial review. Attempt by the Secretary for Justice to set aside leave failed.

The substantive hearing of the judicial review application took place in the summer of 2005. Regarding the issue on jurisdiction, Hartmann J considered that the court's jurisdiction to grant declaratory relief is not founded solely upon a decision of a public authority and may, in appropriate cases, be employed for the purpose of obtaining an adjudication on the validity of legislation, in so far as the legislation affects an applicant. On the issue of whether the court should exercise discretion to grant declaratory relief, he accepted that WRL has raised a real question and that he has sufficient interest and locus standi to make the application. In exercising the discretion, one of the matters to be taken into account is the general importance of the matter raised. Hartmann J was satisfied that the matter raised by WRL goes to the fundamental human rights of a class of persons and as such, delay should not stand as a bar to him. Hartmann J was also satisfied that the provisions challenged by WRL discriminated on the basis of sexual orientation and were inconsistent with Basic Law and/or the Bill of Rights. Hartmann J held that the court has jurisdiction to grant WRL the remedies he sought and granted the declarations sought by WRL.

The Secretary for Justice appealed to the Court of Appeal to set aside the declarations in so far as section 118C of the Crimes Ordinance was concerned. On 20 September 2006, the Court of Appeal dismissed the appeal.

The Judicial Review Case on Covert Surveillance

Article 30 of the Basic Law provides that "The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences."

The nature of covert surveillance involves interception of communication which impacts upon the privacy of the communications which are intercepted, and hence upon the freedom entrenched by Article 30.

In two criminal cases heard in the District Court in 2005, admissibility of certain prosecution evidence obtained by law enforcement agencies by interception of private communications was challenged. The court ruled that the secret interception of communications was inconsistent with the requirements of Article 30 and therefore unlawful. The court went on to urge the Government to introduce legislation regulating secret interception and monitoring of private communications.

To address the concern, the Government acknowledged that covert surveillance should be regulated by legislation but before legislation could be enacted and as an interim measure, administrative directions were issued in August 2005 by the Chief Executive under the Law Enforcement (Covert Surveillance Procedure) Order ("the Executive Order") to govern covert surveillance. It emphasised that the nature of the Executive Order was temporary and did not purport to be legislation.

The Applicants, one of whom was legally aided, applied for judicial review to challenge, among other issues, the validity of the Executive Order. They contended that the Executive Order was not equivalent to "legal procedures" for the purposes of Article 30. It contained no mechanism for independent or judicial supervision of the decision-making process to guard against possible abuse. No civil or criminal remedy was available for a breach of it. The Applicants sought a declaration that the Executive Order violated Articles 30 of the Basic Law, the related provisions in the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance and was therefore unconstitutional and invalid. They applied for an order of certiorari to quash the Executive Order.

The Court of First Instance declared that the Executive Order was an administrative order having no legislative effect. It comprised administrative directions only and did not constitute a set of "legal procedure" for the purpose of Article 30. On the other hand, to avoid a legal vacuum and the danger of the law enforcement agencies being unable to conduct covert surveillance to investigate and combat crimes effectively, the judge nevertheless ordered that notwithstanding the declaration made, the Executive Order was valid and of legal effect for a period of six months from February 2006 pending corrective legislation to be introduced.

The Government appealed against the declaration while the Applicants appealed against the order that gave a six-month validity to the Executive Order.

The Court of Appeal upheld the judge's declaration and order, and both parties' appeals were therefore dismissed. In respect of the validity of the order which was more controversial, the Court of Appeal decided that the judge did have the jurisdiction to make such order. It was admitted that the order validating the unconstitutional Executive Order temporarily was an exceptional remedy.

The Applicants took the appeal to the highest court. The question which the Court of Final Appeal ("CFA") was invited to consider "can a court ever, and if so under what circumstances, make an order according temporary validity to a law or executive action which it has declared unconstitutional?"

The CFA agreed that there were circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation was justifiable. That objective could be achieved by postponing the operation of a declaration made against the offending law.

The CFA decided the Applicants' appeal be allowed to the extent that the temporary validity order was set aside and substituted by suspension of the declaration for six months.

5 June Vice President of the Supreme People's Court. Mr Shen Deyong, was presented a souvenir by the Director of Legal Aid, Mr Benjamin Cheung (left) after his visit to the Department