HCMA227/1992 THE QUEEN v. WONG HIU CHOR AND ANOTHER - LawHero
HCMA227/1992
高等法院（裁判法院上訴）Fuad, V.-P., Penlington, J.A. & Mortimer, J.19/11/1992
HCMA227/1992
HCMA000227/1992
Magistracy Appeal Nos.
227, 484 and 718 of 1992
Constitutional law - Hong Kong Bill of Rights - presumption of
innocence, Article 11(1) - whether evidential burdens placed upon
defendants by the presumptions in ss.18A(2) and s.35A(2) of the Import
and Export Ordinance, Cap. 60 are compatible with Article 11(1).
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
MAGISTRACY APPEALS NOS. 227/92, 484/92 AND 718/92
---------------
MA 227 of 1992
BETWEEN
THE QUEEN
AND
WONG HIU CHOR (and another)
--------------
MA 484 of 1992
BETWEEN
THE QUEEN
AND
YEUNG CHU TIM
------------------
MA 718 of 1992
BETWEEN
THE QUEEN
and
SUEN SHUN (and 2 others)
-------------
Coram: Fuad, V.-P., Penlington, J.A. & Mortimer, J.
Dates of Hearing: 19 and 20 November 1992
Judgment handed down: 4 December 1992
----------------------
JUDGMENT
----------------------
Fuad, V.-P.:
1. These two appeals (MA 227 of 1992 and MA 484 of 1992) as well as
the case stated (MA 718 of 1992) all arose out of separate criminal
proceedings determined in the magistrates court. They were severely
reserved for the consideration of this court pursuant to section 118(1) (d)
of the Magistrates Ordinance, Cap. 227. With the consent of the parties
we heard the three matters together for they all concern statutory
provisions which are identical in terms or of precisely similar effect and
the impact upon them of the Hong Kong Bill of Rights Ordinance, 1991.
2. The relevant provision of the Bill of Rights is Article 11(1):
"Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according
to law."
3. The statutory provisions we are called upon to examine in the light of
that Article are to be found in the Import and Export Ordinance, Cap. 60
("the Ordinance") as amended by Ordinance No. 22 of 1991 which came
into force on 19th April 1991. It is convenient to set out the relevant
provisions here.
4. Section 18A of the Ordinance is in these terms:
"18A. Assisting, etc., in export of unmanifested cargo
(1) Any person who knowingly -
(a) has possession of any cargo;
(b) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any cargo;
or
(c) otherwise deals with any cargo,
with intent to export the cargo without a manifest or with
intent to assist another person to export the cargo without a
manifest is guilty of an offence and liable on conviction to a
fine of $500,000 and to imprisonment for 2 years.
(2) Any person who -
(a) has possession of any cargo;
(b) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any cargo;
or
(c) otherwise deals with any cargo,
in circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to export the cargo
without a manifest or to assist another person to export the
cargo without a manifest, the first mentioned person will be
presumed to have such intent in the absence of evidence to
the contrary."
5. The material parts of section 35A are as follows:
"35A. Assisting, etc., in carriage of prohibited, etc., articles
(1) Any person who knowingly -
(a) has possession of any article, the
carriage of which is restricted under
regulations made under this
Ordinance;
(b) .....
(c) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any article,
the carriage of which is restricted
under regulations made under this
Ordinance;
(d) - (f) .....,
with intent to evade the restriction or prohibition or to assist
another person to evade the restriction or prohibition is guilty
of an offence and liable on conviction to a fine of $500,000
and to imprisonment for 2 years.
(2) Any person who -
(a) has possession of any article, the
carriage of which is restricted under
regulations made under this
Ordinance;
(b) .....
(c) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any article,
the carriage of which is restricted
under regulations made under this
ordinance;
(d) - (f) .....,
in circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to evade a restriction
or prohibition or to assist another person to evade a
restriction or prohibition, the first mentioned person will be
presumed to have such intent in the absence of evidence to
the contrary."
6. In MA No. 227 of 1992 the two appellants were charged and
convicted of offences contrary to section 35A(1)(c) of the Ordinance
and each sentenced to 4 months' imprisonment. The magistrate (Mr.
J.M. Livesey) rejected certain arguments addressed to him by counsel
for the appellants and ground 1 of the Notice of Appeal is:
"The ... magistrate erred in law in ruling that s.35A of [the
Ordinance] did not violate Article 11 of the Bill of Rights
and is repealed, in that such section replaces the necessity to
prove mens rea beyond reasonable doubt by on 'reasonable
suspicion' (sic)."
7. In MA No. 484 of 1992 the appellant was charged and convicted of
an offence contrary to section 35A(1)(c) of the Ordinance and sentenced
to 6 months' imprisonment. In his Statement of Findings, the magistrate
(Mr. D.I. Thomas) indicated that he had been satisfied that the
prosecution had proved the commission of the offence "without a
consideration" of the presumption provided for in section 35A(2). He
explained that he had raised the matter with counsel for the appellant but
reliance on the Bill of Rights had been specifically disclaimed. The
magistrate went on to say that had he been asked to rule on the matter,
he would have ruled "that the presumption was reasonable, rational and
proportionate to the evil against which it was directed." He would
therefore have held that the prosumption had not been repealed. One of
the appellant's grounds of appeal is that "the presumption ... is
inconsistent with Article 11(1) of the Bill of Rights Ordinance and is
therefore repealed by virtue of ... section 3(2) of the Bill of Rights
Ordinance."
8. In MA No. 718 of 1992 the 1st respondent was charged with an
offence contrary to section 35A(1)(a) of the Ordinance. The 2nd and 3rd
respondents were each charged with offences contrary to section
18A(1)(c) of the Ordinance. In an admirably clearly stated case, the
magistrate (Mr. Z.E. Li) explained why he had dismissed the
informations, in this way:
"11. I, however, being of the opinion that
(a) the correct approach to the question of
whether the presumptions are compatible with
Section 8, Article 11(1) of the BOR is contained
in the following proposition from Kempster J.A.
in the case of SIN Yau-ming (supra) at page 163
(line 18):
'A mandatory presumption of fact
may be compatible with S.8, Article
11(1) of the Hong Kong Bill of
Rights Ordinance if it be shown by
the Crown due regard being paid to
the enacted conclusions of the
legislature, that the fact to be
presumed rationally and realistically
follows from that proved and also if
the presumption is no more than
proportionate to what is warranted by
the nature of the evil against which
society requires protection.'
(b) That the presumptions contained in Section
18A(2) and 35A(2) are mandatory presumptions
of fact in that the existence or absence of a
specific purpose or specific intent is a matter of
fact. The presumptions are mandatory
presumptions as they 'will' (that is, must) arise as
and when the conditions are fulfilled.
(c) That the issue of whether the presumptions
are compatible with the BOR should not turn on
what a defendant has or does not have to do to
escape conviction. The enquiry should be
confined to the effect of the presumptions on the
manner in which the prosecution has to prove its
case.
(d) That Sections 18A(1) and 35A(1) of the
Import and Export Ordinance, the offences with
which the Respondents were charged, consist of
two essential ingredients :-
(1) That the defendant knowingly has
possession of/deals with some
particular goods; and,
(2) Intent to assist another person to
smuggle the goods.
The Crown has to prove both
ingredients beyond reasonable doubt.
(e) That Sections 18A(2) and 35A(2) of the
Import and Export Ordinance give rise to a
presumption as to the second ingredient of the
offence if the following conditions are fulfilled :-
(1) There is proof beyond reasonable
doubt of the first ingredient of the
offence; and,
(2) There are circumstances giving
rise to reasonable suspicion of the
intent to be proved; and,
(3) There is an absence of evidence
to the contrary.
(f) That in respect of the first condition for the
presumption to arise, as the Crown has to prove
knowing possession in any event the Crown
therefore does not have to prove any additional
fact to fulfill the first condition for the
presumption to arise.
(g) That bearing in mind that the intent to be
proved for the second ingredient of the offence is
not general intent but specific intent independent
of the first ingredient of the offence, one cannot
say that the specific intent to be presumed
follows rationally and realistically from the first
condition.
(h) That in respect of the second condition for the
presumption to arise, i.e. `circumstances giving
rise to reasonable suspicion,' that even if the
'circumstances' are proved beyond reasonable
doubt they need not amount to more than
'reasonable suspicion' and that since reasonable
suspicion admits possibilities of innocence or
other offences, proof of no, more than reasonable
suspicion must necessarily present reasonable
doubt (see Hussien v Chong Fook-kam [1970]
AC 942 at p.948 CHENG Chun-wo [1989] 1
HKLR 600 at p.601. Leachinsky v Christie
[1945] 2 All ER 395 at p.409.)
Furthermore, reasonable suspicion may not
amount to proof of a prima facie case because
one does not even need admissible evidence to
establish suspicion. Proof of a specific intent
cannot rationally and realistically spring from
proof of a reasonable suspicion.
(i) That in respect of the third condition for the
presumption to arise it cannot be rational for the
Crown to rely on reasonable suspicion based on
possibly inadmissible evidence to raise a
presumption when to prevent the presumption
from arising evidence (which must be
admissible) to the contrary is needed.
(j) As the presumptions did not rationally and
realistically flow from the basic facts proved it
was not necessary to further consider whether
they were proportionate to the harm aimed at, as
was submitted by the Appellant.
(k) Sections 18A(2) and 35A(2) have not been
shown by the Crown to be compatible with the
BOR.
(1) Sections 18A(2) and 35A(2) do not admit of a
construction consistent with the BOR; and
(m) Accordingly Sections 18A(2) and 35A(2)
have been repealed by Section 3(2) of the BOR."
9. The questions of law formulated by the magistrate for the opinion of
the court are:
"(a) Firstly whether I was correct in holding that
Sections 18A(2) and 35A(2) of the Import and
Export Ordinance Cap. 60 do not admit of a
construction which is consistent with Section 8
Article 11(1) of the Hong Kong Bill of Rights
Ordinance 1991 and;
(b) Secondly whether I was correct in holding
that the said sections 18A(2) and 35A(2) had
been repealed in their entirety by virtue of
Section 3(2) of the said Bill of Rights
Ordinance."
10. Turning to section 35A of the Ordinance, as we have seen, a person
commits an offence contrary to section 35A(1)(a) of the Ordinance if he
knowingly possesses an article the carriage of which is restricted by law
with intent to evade the restriction. Were it not for subsection (2) the
burden on the prosecution would, of course, be to prove every ingredient
of the offence, including the specific intent, beyond reasonable doubt.
However, the effect of that subsection is that if it is proved that a person
possesses a restricted article "in circumstances that give rise to a
reasonable suspicion that there is an intent ... to evade a restriction ..." it
will be presumed that he had that intent "in the absence of evidence to
the contrary". Thus the presumption imposes a rebuttable evidential (as
opposed to a legal or persuasive) burden upon the accused. He does not
have to prove that he did not have the necessary intent beyond
reasonable doubt or even on the balance of probabilities. All that he is
required to do is to introduce evidence (or point to evidence led by the
prosecution) which, if believed, might create a reasonable doubt on the
issue. When this happens the burden is again on the prosecution to
satisfy the court or the jury on the evidence as a whole beyond
reasonable doubt that the accused had the intent required by section
35A(1).
11. Mr. Bailey who appeared before us for the Crown conceded that the
mandatory presumptions for which provision is made by sections
18A(2) and 35A(2) of the Ordinance would be inconsistent with the
presumption of innocence guaranteed by Article 11(1) of the Bill of
Rights if they could not be justified upon principles which permit a
limitation upon the Bill's provisions. I have no doubt that he was right to
do so. A number of cases referred to us discuss the effect and the extent
of the burden placed upon the defence by the formula "in the absence of
any evidence'to the contrary" which features in several provisions of the
(Can adian) Criminal Code. For example, in R. v. Slavens (1991) 64
CCC (3d) 29 the British Columbia Court of Appeal had to consider the
constitutionality of the mandatory presumption created by section 348 of
the Criminal Code. The material parts of that section are as follows:
"348(1) Every one who
(a) breaks and enters a place with intent to
commit an indictable offence therein,
(b) breaks and enters a place and commits an
indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence
therein, or
(ii) entering the place with intent to
commit an indictable offence therein,
is guilty of an indictable offence and liable ...
(2) For the purposes of proceedings under this
section, evidence that an accused
(a) broke and entered a place or attempted to
break and enter a place is, in the absence of
evidence to the contrary, proof that he broke and
entered the place or attempted to do so, as the
case may be, withintent to commit an indictable
offence therein; or
(b) broke out of a place is, in the absence of any
evidence to the contrary, proof that he broke out
after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable
offence threin."
At pp. 33-34 Gibbs J.A. said this:
" Before applying the principles to be found in the four
judgments I have referred to, it is important to recognize that
the phrase 'in the absence of any evidence to the contrary' in
s.348(2)(b) relieves the Crown of the 'persuasive burden' (see
p.115 of Schwartz) of proving an otherwise essential
element, namely, commission of, or intent to commit, an
indictable offence. The Crown has that burden under
s.348(1)(c) where the elements are breaking out, and the
commission of an indictable offence prior to breaking out, or
prior entry with intent to commit an indictableoffence.
Failure to prove either element beyond a reasonable doubt
will result in acquittal. However, under s.348(2)(b) the
Crown will have discharged the burden upon proof of one
element only, namely, breaking out. Upon proof of that
element it is open to the Crown to rely upon the presumption
in place of the other element. In order to avoid conviction the
accused then has the burden cast upon him to rebut the
presumption by ensuring that there is before the court
'evidence to the contrary'. And the evidence to the contrary
must be sufficient to raise a reasonable doubt that the
accused committing an indictable offence before he broke
out, or a reasonable doubt that he entered in the first instance
with the intent of committing an indictable offence. It
appears to me that, even if there were no authorities to rely
upon, that kind of burden upon an accused is clearly in direct
conflict with his right under s.11(d) of the Charter 'to be
presumed innocent until proven guilty.'"
Section 11(d) of the Canadian Charter of Rights and Freedom provides
that any person charged with an offence "has the right"..."to be
presumed innocent until proven guilty according to law ..."
At p.37, Gibbs J.A. stated:
" Guided by all of this jurisprudence, I now apply what I
earlier deduced to be the proper test to s.348(2) and conclude
that the answer is yes, an accused could be convicted despite
the absence of proof beyond a reasonable doubt on an
essential element of the offence, namely, the commission of
an indictable offence, or the intent to commit an indictable
offence. I note that the conclusion is consistent not only with
Nagy, but also with both of Re Boyle and The Queen (1983),
5 C.C.C. (3d)193, 148 D.L.R. (3d) 449, 35 C.R. (3d) (Ont.
C.A.), and R. v. T., supra. Each dealt with the same 'absence
of evidence to the contrary' language in a Criminal Code
section.
It follows from all of the above that I am satisfied that s. 348
(2) (b) of the Code must be held to be of no force or effect
unless it can be justified under s. 1 of the Charter. I turn now
to that consideration."
Section 1 of the Charter is in these terms:
"1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society."
The court held that the presumption constituted a reasonable limitation
within section 1 of the Charter.
12. The same view of broadly similar provisions was taken, after full
analysis of the principles involved, by:
(a) the Ontario High Court in R. v. Hummel (1987) 36 CCC
(3d) 8;
(b) the same court in R. v. Phillips (1988) 42 CCC (3d) 150
(the Crown conceded that the provision in question prima
facie violated the presumption of innocence);
(c) the Newfoundland Supreme Court in R. v. Parsons (1988)
40 CCC (3d) 128 (again the Crown made a concession of
prima facie violation of the guarantee);
(d) the Ontario Court of Appeal in R. v. Gosselin (1988) 45
CCC (3d) 568;
(e) the same court in R. v. Nagy (1988) 45 CCC (3d) 350; and
(f) the Prince Edward Island Supreme Court, Appeal Division
in R. v. Sallem (1990) 58 CCC (3d) 46.
13. We were also referred to a recent, as yet unreported, decision of the
Supreme Court of Canada: R. v. Downey (judgment 21st May 1992). In
that case, the accused persons were charged with living on the avails
(what, I think, we would call "earnings") of prostitution contrary to
section 195(1)(j) of the Criminal Code. Section 195(2) provided that "[e]
vidence that a person lives with or is habitually in the company of
prostitutes ... is, in the absence of evidence to the contrary, proof that the
person lives on the avails of prostitution." All seven judges concluded
that the presumption contained in that section infringed section 11(d) of
the Charter since it could result in a conviction despite the existence of a
reasonable doubt as to the guilt of the accused. The fact that someone
lived with prostitutes did not lead inexorably to the conclusion that he
lived on the avails. Three of the judges held that section 195(2) was not
justifiable under section 1 of the Charter, while according to the decision
of four of the judges, the section was justifiable under that section of the
Charter.
14. I may mention here that Mr. Bailey was not able to find any English
case in which the statutory formula "in the absence of any evidence to
the contrary" is discussed. However I would refer to a passage in
Glanville Williams Criminal Law - The General Part, 2nd ed., 1961,
which shows that the notion of presumptions of fact arising from
suspicions circumstances that may (but not must) be drawn is not
unknown to the common law. At pp.878-879 we find:
"Many other situations occur in which a court acts upon what
really is a presumption of fact, though it may not be called
so. The principle underlying all of them is that if the accused
'is involved in a state of considerable suspicion, he is called
upon for his own sake and for his own safety to state the
circumstances which might reconcile such suspicions
appearances with perfect innocence' [per Tindal C.J. in Frost
(1889) 4 St.Tr. (N.S.) at 443] In other words, the evidence
given for the prosecution will be increased in weight if it is
'unopposed by contrary evidence which it would be in the
defendant's power to produce, if facts directly or
presumptively proved were not true' [per Holroyd J. in
Burdett (1820) 4 B. & Ald at 140]. It is in reality difficult or
impossible to draw a firm boundary between presumptions of
fact and ordinary circumstantial evidence."
15. The Hong Kong Bill of Rights has no equivalent of section 1 of the
Canadian Charter. There are express Exceptions and Savings in Part III
and express limitations in Article 15(3) and Article 16(3) relating
respectively to freedom of thought, conscience and religion and freedom
of opinion and expression. There is no express limitation of that kind on
the right given by Article 11(1) of the Bill of Rights. However it is clear
from the decision of this court in R. v. Sin Yau Ming [1992] 1 HKCLR
127 that the rights and freedoms guaranteed by the Bill are not to be
regarded as absolute. Kempster J.A., at pp. 158-159 cited passages from
the decision of the European Court in Salabiaku v. France (1988) 13
EHRR 379. I will cite merely the following passage (from p. 388):
" Presumptions of fact or of law operate in every legal
system. Clearly, the Convention does not prohibit such
presumptions in principle. It does, however, require the
Contracting States to remain within certain limits in this
respect as regards criminal law. If, as the Commission would
appear to consider, paragraph 2 of Article 6 merely laid
down a guarantee to be respected by the courts in the
conduct of legal proceedings, its requirements would in
practice overlap with the duty of impartiality imposed in
paragraph 1. Above all, the national legislature would be free
to strip the trial court of any genuine power of assessment
and deprive the presumption of innocence of its substance, if
the words 'according to law' were construed exclusively with
reference of domestic law. Such a situation could not be
reconciled with the object and purpose of Article 6, which,
by protecting the right to a fair trial and in particular the right
to be presumed innocent, is intended to enshrine the
fundamental principle of the rule of law.
Article 6(2) does not therefore regard presumptions of
fact or of law provided for in the criminal law with
indifference. It requires States to confine them within
reasonable limits which take into account the importance of
what is at stake and maintain the rights of the defence. The
Court proposes to consider whether such limits were
exceeded to the detriment of Mr. Salabiaku."
From Salabiaku Kempster J.A. concluded: "From this decision it would
seem proper not only to accept that legal presumptions are not
prohibited per se ... but also to construe the word 'law' appearing in
Article 11(1) as meaning not the domestic law of Hong Kong but a
universal concept of justice."
Later, at p.163, Kempster J.A. said this:
"In the light of the United States and European jurisprudence
and since there has been no suggestion that the existence of
s. 1 of the Canadian Charter involved any breach by Canada
of its obligations under the International Covenant on Civil
and Political Rights, a Hong Kong equivalent is not, in my
opinion, a necessary precondition for the application of the
principles advanced by Dickson, C.J.C. regardless of
whether Hong Kong can properly be described as a
'democratic society'. This is conceded on behalf of the
defendant. Indeed, by the conclusion of the argument before
us and partly by reference to paragraphs 15 and 16 of
Communication 44/1979 Re Pictraroia published in Selected
Decisions under the Optional Protocol and published by the
United Nations in 1985, a substantial identity of approach
was apparent. I would venture to summarise that approach in
the following proposition:
'A mandatory presumption of fact may be
compatible with s.8 Article 11(l) of the Hong
Kong Bill of Rights ordinance if it be shown by
the Crown, due regard being paid to the enacted
conclusions of the legislature, that the fact to be
presumed rationally and realistically follows
from the proved and also if the presumption is no
more than proportionate to what is warranted by
the nature of the evil against which society
requires protection.'"
Silke V.P. expressly approved this proposition at p.45 and went on to
observe:
"The onus is on the Crown to justify. It is to be discharged
on the preponderance of probability. The evidence of the
Crown heeds to be cogent and persuasive. The interests of
the individual must be balanced against the interests of
society generally but, in the light of the contents of the
Covenant and its aim and objects, with a bias towards the
interests of the individual. Further the aims of the legislature
to secure the residents of Hong Kong free from the
depredations of this trade must be respected."
In his judgment, Penlington J.A. speaks of the need for a presumption to
be "reasonable" to pass the test of validity in the light of the Bill of
Rights. At p.168 he expands upon what he means by "reasonable". I
understand him to be saying in lines 14-16 that a presumption will pass
the test of being "reasonable" and therefore consistent with the Bill of
Rights if "there is a rational connection, it contains the minimum
impairment of rights and is proportional to the harm aimed at ..."
16. We were shown some statistics to demonstrate how serious a
problem smuggling has become. In my view we did not need to see
them. Nobody who lives in Hong Kong can be unaware of the
dimensions of this unlawful activity. The legislature has a legitimate
concern that Hong Kong's integrity and reputation are maintained in
international trade, the territory's very life-blood. It is not too much to
say that Hong Kong's whole economic system very largely depends
upon the proper conduct of her international trade.
17. It seems to me that there is a fully rational and realistic connection
between the proved facts and the fact to be presumed. The former tends
to prove the latter. In both the impugned sections the circumstances
must give rise to a reasonable suspicion (objectively viewed) that there
is the necessary intent and there must be an absence of evidence to the
contrary before the presumption avails the prosecution. The sections do
not speak of suspicions circumstances in the abstract. In my view an
"inexorable connection" test is not required or appropriate. If the
substituted fact was required to prove the presumed fact beyond
reasonable doubt, the presumption would be otiose.
18. It must be observed that the legislature could have enacted offences
of strict liability by omitting any requirement as to intent. The
legislature however did require intent to evade etc to be established but
recognised that often evidentiary problems arise in proving intent. The
impairment is minimal. All the accused has to do is to point to evidence
which is capable of raising a reasonable doubt as to his intent. He does
not have to rebut the presumption "on the balance of probabilities". The
legislature's response to the grave detriment to society created by
smuggling seems to me to be entirely sensible and fair and confined
within reasonable limits.
19. Mr. Ching Wong for the respondents in the case stated (MA 118 of
1992) sought to uphold Mr. Z.E. Li's reasoning and decision. Mr.
Watson for the appellants in MA 227 of 1992 and Mr. McNamara for
the appellant in MA 484 of 1992 also relied upon Mr. Li's reasoning in
opposing the Crown's appeals. It will have been seen that for the reasons
I have attempted to give I have been unable to agree with the
magistrate's conclusions. I would answer "No" to the two questions in
paragraph 12 of the case stated.
20. In my judgment sections 18A(2) and 35A(2) of the ordinance have
been shown to be compatible with Article 11(1) of the Bill of Rights.
Penlington, J.A.:
21. I agree with the judgment of Fuad V.P. For the reasons given in R. v.
Sin Yau Ming I am satisfied that the words "according to law" in Article
11 of the Hong Kong Bill of Rights have the same meaning as ''such
reasonable limits prescribed by law as can be demonstrably justified in a
free and.democratic society'' contained in s. 1 of the Canadian Charter of
Rights and Freedoms. A presumption provision does not offend against
the Bill of Rights if it is reasonable and that is a question to be answered
using the principles set out in Oakes, i.e. there must be a logical
connection with the facts relied on to raise the presumption; it must be
proportional to the problem at which the legislation is aimed; there
should be minimum impairment of the basic right. There is strong
support for that in Salabiaku v. France where the court was construing
identical words in the European Convention on Human Rights. I must
admit myself to some trepidation at being asked to consider "a universal
concept of justice'' as referred to by Kempster J.A. in Sin Yau Ming but
I have no doubt that the words ''according to law'' must be construed in
that way.
22. The trial magistrate in MA 718 of 1992 has found that the specific
intent to be presumed does not follow rationally and realistically from
the requirement in s. 18A of evidence showing possession or dealing in
certain classes of goods in circumstances giving rise to reasonable
suspicion. However he seems to reach that conclusion because the
specific intent does not necessarily follow. That is of course correct but
if the reasonable suspicion was based on facts which, on their own prove
all elements of the charge beyond reasonable doubt there is no need for
the presumption. If however the evidence does show possession or
dealing in the restricted goods beyond reasonable doubt and also raises a
reasonable suspicion that this was so as to evade the provisions of the
Ordinance, it seems to me that the conclusion that the defendant
possessed the specific intent to evade the restriction or prohibition is
reasonable; it is logical and realistic. It may not always in fact be correct
but if it is not I see little difficulty in the presumption being rebutted by
evidence sufficient to raise a reasonable doubt. There is also therefore
minimum encroachment on the basic right to be presumed innocent until
proved guilty. I also have no doubt that the provisions are proportional
to the very substantial problem caused in Hong Kong by the smuggling
activities of which I also have no doubt the courts can and should take
judicial notice.
Mortimer J.:
23. I agree with the judgment of Fuad V-P and the reasons for it. As
these are important appeals I would add some comments of my own.
24. The questions of law for the opinion of this Court in these appeals
are conveniently stated by the Magistrate in MA 718/92 as follows:
"(a) Firstly whether I was correct in holding that Sections
18A(2) and 35A(2) of the import and Export Ordinance Cap.
60 do not admit of a construction which is consistent with
Section 8 Article 11(1) of the Hong Kong Bill of Rights
Ordinance 1991 and;
(b) Secondly whether I was correct in holding that the said
sections 18A(2) and 35A(2) had been repealed in their
entirety by virtue of Section 3(2) of the said Bill of Rights
Ordinance."
25. Sections 18A(2) and 35A(2) were amendments to the Ordinance
enacted on 19th April 1991. They are subject to Section 3 of the Bill.
Section 8 Article 11(1) of the Bill reads:
"Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according
to law."
26. This provision is taken ipsissima verba from the International
Covenant on civil and Political Rights (The I.C.C.P.R.) Article 14 to
which applies to Hong Kong Exactly the same words appear in Article
6(2) of the European Convention on Human Rights. Also a similar
provision appears in the Canadian Charter of Rights in Section 11 (d) :
"Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law ....."
27. The sections, under consideration (Section 18A(2) & 35A(2)) are
directed against those who knowingly smuggle or assist in smuggling
from Hong Kong to Mainland China. Each section prohibits knowingly
doing certain acts with specific intents. Subsections 18A(2) and 35A(2)
provide mandatory presumptions in relation to the intents. Each
subsection is expressed in similar terms and for present purposes the
same principles apply. It is necessary therefore only to set out part of
subsection 35A(2) which provides:
"Any person who --"
(Does certain specified acts)
"In circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to evade a restriction
or prohibition or assist another person to evade a restriction
or prohibition, the first mentioned person will be presumed
to have such intent in the absence of evidence to the
contrary."
28. The effect of the section is not in dispute. It provides that if in the
circumstances proved the tribunal is sure beyond reasonable doubt that
those circumstances give rise to a reasonable suspicion that the accused
has the necessary intent he will be presumed to have such intent, "in the
absence of evidence to the contrary". Such evidence need not emanate
from the accused or be called as part of his case. It is sufficient if it
arises in the course of the prosecution case. The result is that there is no
legal burden upon the accused but there is an evidential burden upon
him to raise the issue. Once the evidential burden is discharged and the
issue is raised, the presumption does not arise and the burden of proving
the intent beyond reasonable doubt rests on the prosecution.
29. Any consideration of the questions for this Court begins with an
examination of the meaning of Section 8 Article 11(1). It is abundantly
clear from the words of the section that the legislature intended to
introduce into Hong Kong domestic legislation the provisions of the
International Covenant on Civil and Political Rights (the I.C.C.P.R.) to
which Hong Kong already adhered. The Hong Kong Legislation was
introduced without relevant qualification, limitation or derogation from
the I.C.C.P.R. and was clearly intended to bear the same meaning. A
reading of the whole Ordinance and many provisions of the
I.C.C.P.R.enacted therein supports this view.
30. All signatories undertake to abide by the covenant and decided cases
in common law jurisdictions of signatories which have domestic
legislation to give effect to the covenant are cited in our Courts. As
Hong Kong developes its own jurisprudence, these will become
gradually less persuasive.
31. Mandatory presumptions were considered by this Court in R. v. Sin
Yau-ming [1992] 1 HCLCR 127. Having considered decisions upon the
I.C.C.P.R. and the European Convention on Human Rights, together
with Canadian decisions on the Charter and United States decisions on
the "due process" provision in their constitution, the Court found a
substantial identity of approach where the provisions under
consideration were similar to Section 8 Article 11(2) of the Bill and
where they contained the limiting words "according to law" which do
not appear in the United States Constitution. Adopting this identity of
approach with particular reference to a United Nation's decision on the
I.C.C.P.R., Kempster, J.A. formulated the following proposition at p.163
line 17:
"A mandatory presumption of fact may be compatible with
s.8 Article 11(1) of the Hong Kong Bill of Rights ordinance
if it be shown by the Crown, due regard being paid to the
enacted conclusions of the legislature, that the fact to be
presumed rationally and realistically follows from that
proved and also if the presumption is no more than
proportionate to what is warranted by the nature of the evil
against which society requires protection."
32. This gives effect to the words "according to law" in Section 8 Article
11(2) and is binding on this Court. The meaning ascribed to the words is
consistent with the meaning ascribed to the same words in the I.C.C.P.R.
"According to law" does not mean according to the domestic law of the
subscribing state. Were it otherwise the words of the International
Covenant could be deprived of all practical effect.
33. In Article 6(2) of the European Convention on Human Rights a
similar meaning is ascribed to the same words. See Salabiaku v. France
(1988) 13 EHRR 379. When considering this decision in R. v. Sin
Yau-ming, Kempster, J.A. at p.159, line 36 said:
"From this decision it would seem proper not only to accept
that legal presumptions are not prohibited per se, as the
United States decisions suggest, but also to construe the
word ''law'' appearing in Article 11(1) as meaning not the
domestic law of Hong Kong but a universal concept of
justice.''
34. The Siracusa Principles on the Limitation and Derogation Provisions
in the International covenant on Civil and Political Rights are to the
same effect. These authoritive principles define the words ''prescribed by
law'' as limiting any derogation from the provisions of the I.C.C.P.R. to
that which is "not arbitrary or unreasonable". Similar limiting words
appear in different parts of the I.C.C.P.R. and of the Hong Kong Bill.
They are expressed as ''established by law'', ''prescribed by law" and
''according to law''.
35. By parity of reasoning the words ''according to law" permit
limitations to the otherwise strict provision in Article 11(1) but only
such limitation as is in all the circumstances not "arbitrary or
unreasonable''. In practical application, these words achieve the same
result in relation to mandatory presumptions as the proposition at p.163,
line 17 of R. v. Sin Yau-ming. Relevant national and international
decisions were the subject of careful scrutiny in that case. In the present
context, it is unnecessary and inappropriate to consider them further.
The Principles to be applied
36. Following R. v. Sin Yau-ming in deciding whether a mandatory
presumption admits of a construction consistent with Section 8 Article
11(1) it seems to me that a court should consider the following:
(i) Does the provision under
consideration (mandatory
presumption in this case) allow
of the possibility that an
accused person may be
convicted of an offence without
each essential ingredient of that
offence being proved against
him beyond reasonable doubt?
If so, the provision falls to be considered as to whether or not it admits
of a construction consistent with Section 8 Article 11(1) of the Bill.
(ii) To what extent does the
provision under consideration
derogate from the right given in
Article 11(1)? In other words,
what is the likelihood of an
accused being convicted in the
absence of an ingredient of the
offence being proved against
him beyond reasonable doubt?
The Court may put into the balance along with the other considerations
the nature and likely effect of the presumption. For example, such a
conviction would be.more likely where the presumption throws a legal
burden upon the accused than when it involves an evidential burden.
(iii) Does the fact to be
presumed rationally and
realistically follow from those
required to be proved?
As every presumption is intended to ease the proof of the fact to be
presumed, it will be necessary for the Court to consider the degree to
which the fact presumed rationally and realistically follows from those
to be proved.
(iv) Having regard to the
foregoing, is the presumption
proportionate? Is it no more
than a reasonable provision
giving due weight to the need of
society to protect itself balanced
with the interests of the
individual accused.
37. In reaching its conclusion, the Court will balance these
considerations and give such weight as it thinks proper to the scheme of
the legislation, the fact that the legislature after due consideration has
enacted the provision as necessary and the relevant evidence, if any.
Answers to the case stated
38. The application of these principles to the present case presents little
difficulty. The presumption clearly involves a risk that an accused
person could be convicted without the necessary intent being proved
beyond reasonable doubt if he remains silent and the issue on intent is
not raised incidentally in the prosecution case. If the circumstances
proved give rise beyond reasonable doubt to a ''reasonable suspicion'' of
the necessary intent, he would be convicted. However, as the burden on
the accused is simply to raise the issue and the burden is evidential only
the risk of a wrongful conviction is more theoretical than real.
39. The intent is to be presumed from circumstances which give rise to a
''reasonable suspicion'' of it. Obviously there is a rational and realistic
connection between the fact presumed and those proved but not
sufficient to establish the case beyond reasonable doubt. Therein lies the
gap which the presumption is intended to fill.
40. In order to demonstrate the proportionality of the provision; that is to
establish that the presumption is no more than reasonable having regard
to the need of Hong Kong Society to deter and punish smuggling and
those who assist in it, we have been invited to consider a number of
statistics. For my part also, I do not consider it necessary to consider or
analyse these statistics. The problem created by this smuggling is
universally known. The great difficulties facing those who seek to
prevent it are notorious. The provisions under consideration were
enacted in April 1991 to assist in controlling this criminal activity and in
bringing those responsible to justice. In applying the Bill of Rights to a
particular presumption, the conclusion of the legislature in providing the
presumption must be considered. As Kempster, J.A. said in Sin
Yau-ming "due regard'' should be ''paid to the enacted conclusions of the
legislature.'' I have no doubt that the presumptions are reasonable and
proportional.
41. There is a long history of presumptions of law and the fact in our
system and in the English system upon which it is based. There are such
presumptions in every legal system. The Bill of Rights does not prohibit
them in principle. They are frequently a reasonable and even necessary
feature of the criminal law if it is to fulfil its function of balancing the
needs of society with the protection of the individual accused. See
Salabiaku v. France (supra) and note the requirement for the issue of
provocation to be raised in a murder case.
42. In summary, the presumptions in the instant case provide minimal
limitation of the rights provided in Article 11(2) with small risk to an
accused person. The presumption is rationally related to the facts to be
proved (with the limitation described) and having regard to the notorious
problems created by smuggling in Hong Kong I have no doubt that the
provision is no more than is reasonably required to satisfy the interest of
society to combat smuggling when balanced with the rights of an
accused.
43. In my judgment, Sections 18A(2) & 35A(2) of the Ordinance admit
of a construction consistent with the Bill of Rights, Section 8 Article
11(2).
Fuad, V.-P.:
44. The appeal in MA 718 of 1992 is allowed, but Mr. Bailey, for the
Crown, was content for this court merely to answer the questions posed
in the case stated and did not seek an order that proceedings should
continue against the respondents.
45. In relation to appeals MA 227 and 484 of 1992, we remit them to the
High Court under section 118(1)(d) of the Magistrates Ordinance
together with our decision on the issues arising out of the Bill of Rights.
(K.T. Fuad) (R.G. Penlington)
(Barry Mortimer)
Vice President Justice of Appeal
Judge of the High
Court
Representation:
Mr. S.R. Bailey (Crown Prosecutor) for the Crown
MA 227 of 1992
Mr. G. Watson (Wong Shum & Co.) for the appellants
MA 484 of 1992
Mr. J. McNamara (Tang Wong & Cheung) for the appellant
MA 718 of 1992
Mr. Ching Y. Wong, Ms Sabrina See, Mr. S. Chiu and Mr. Peter Sit for
the respondents
HCMA000227/1992
Magistracy Appeal Nos.
227, 484 and 718 of 1992
Constitutional law - Hong Kong Bill of Rights - presumption of
innocence, Article 11(1) - whether evidential burdens placed upon
defendants by the presumptions in ss.18A(2) and s.35A(2) of the Import
and Export Ordinance, Cap. 60 are compatible with Article 11(1).
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
MAGISTRACY APPEALS NOS. 227/92, 484/92 AND 718/92
---------------
MA 227 of 1992
BETWEEN
THE QUEEN
AND
WONG HIU CHOR (and another)
--------------
MA 484 of 1992
BETWEEN
THE QUEEN
AND
YEUNG CHU TIM
------------------
MA 718 of 1992
BETWEEN
THE QUEEN
and
SUEN SHUN (and 2 others)
-------------
Coram: Fuad, V.-P., Penlington, J.A. & Mortimer, J.
Dates of Hearing: 19 and 20 November 1992
Judgment handed down: 4 December 1992
----------------------
JUDGMENT
----------------------
Fuad, V.-P.:
1. These two appeals (MA 227 of 1992 and MA 484 of 1992) as well as
the case stated (MA 718 of 1992) all arose out of separate criminal
proceedings determined in the magistrates court. They were severely
reserved for the consideration of this court pursuant to section 118(1) (d)
of the Magistrates Ordinance, Cap. 227. With the consent of the parties
we heard the three matters together for they all concern statutory
provisions which are identical in terms or of precisely similar effect and
the impact upon them of the Hong Kong Bill of Rights Ordinance, 1991.
2. The relevant provision of the Bill of Rights is Article 11(1):
"Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according
to law."
3. The statutory provisions we are called upon to examine in the light of
that Article are to be found in the Import and Export Ordinance, Cap. 60
("the Ordinance") as amended by Ordinance No. 22 of 1991 which came
into force on 19th April 1991. It is convenient to set out the relevant
provisions here.
4. Section 18A of the Ordinance is in these terms:
"18A. Assisting, etc., in export of unmanifested cargo
(1) Any person who knowingly -
(a) has possession of any cargo;
(b) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any cargo;
or
(c) otherwise deals with any cargo,
with intent to export the cargo without a manifest or with
intent to assist another person to export the cargo without a
manifest is guilty of an offence and liable on conviction to a
fine of $500,000 and to imprisonment for 2 years.
(2) Any person who -
(a) has possession of any cargo;
(b) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any cargo;
or
(c) otherwise deals with any cargo,
in circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to export the cargo
without a manifest or to assist another person to export the
cargo without a manifest, the first mentioned person will be
presumed to have such intent in the absence of evidence to
the contrary."
5. The material parts of section 35A are as follows:
"35A. Assisting, etc., in carriage of prohibited, etc., articles
(1) Any person who knowingly -
(a) has possession of any article, the
carriage of which is restricted under
regulations made under this
Ordinance;
(b) .....
(c) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any article,
the carriage of which is restricted
under regulations made under this
Ordinance;
(d) - (f) .....,
with intent to evade the restriction or prohibition or to assist
another person to evade the restriction or prohibition is guilty
of an offence and liable on conviction to a fine of $500,000
and to imprisonment for 2 years.
(2) Any person who -
(a) has possession of any article, the
carriage of which is restricted under
regulations made under this
Ordinance;
(b) .....
(c) assists with the carrying,
removing, depositing, harbouring,
keeping or concealing of any article,
the carriage of which is restricted
under regulations made under this
ordinance;
(d) - (f) .....,
in circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to evade a restriction
or prohibition or to assist another person to evade a
restriction or prohibition, the first mentioned person will be
presumed to have such intent in the absence of evidence to
the contrary."
6. In MA No. 227 of 1992 the two appellants were charged and
convicted of offences contrary to section 35A(1)(c) of the Ordinance
and each sentenced to 4 months' imprisonment. The magistrate (Mr.
J.M. Livesey) rejected certain arguments addressed to him by counsel
for the appellants and ground 1 of the Notice of Appeal is:
"The ... magistrate erred in law in ruling that s.35A of [the
Ordinance] did not violate Article 11 of the Bill of Rights
and is repealed, in that such section replaces the necessity to
prove mens rea beyond reasonable doubt by on 'reasonable
suspicion' (sic)."
7. In MA No. 484 of 1992 the appellant was charged and convicted of
an offence contrary to section 35A(1)(c) of the Ordinance and sentenced
to 6 months' imprisonment. In his Statement of Findings, the magistrate
(Mr. D.I. Thomas) indicated that he had been satisfied that the
prosecution had proved the commission of the offence "without a
consideration" of the presumption provided for in section 35A(2). He
explained that he had raised the matter with counsel for the appellant but
reliance on the Bill of Rights had been specifically disclaimed. The
magistrate went on to say that had he been asked to rule on the matter,
he would have ruled "that the presumption was reasonable, rational and
proportionate to the evil against which it was directed." He would
therefore have held that the prosumption had not been repealed. One of
the appellant's grounds of appeal is that "the presumption ... is
inconsistent with Article 11(1) of the Bill of Rights Ordinance and is
therefore repealed by virtue of ... section 3(2) of the Bill of Rights
Ordinance."
8. In MA No. 718 of 1992 the 1st respondent was charged with an
offence contrary to section 35A(1)(a) of the Ordinance. The 2nd and 3rd
respondents were each charged with offences contrary to section
18A(1)(c) of the Ordinance. In an admirably clearly stated case, the
magistrate (Mr. Z.E. Li) explained why he had dismissed the
informations, in this way:
"11. I, however, being of the opinion that
(a) the correct approach to the question of
whether the presumptions are compatible with
Section 8, Article 11(1) of the BOR is contained
in the following proposition from Kempster J.A.
in the case of SIN Yau-ming (supra) at page 163
(line 18):
'A mandatory presumption of fact
may be compatible with S.8, Article
11(1) of the Hong Kong Bill of
Rights Ordinance if it be shown by
the Crown due regard being paid to
the enacted conclusions of the
legislature, that the fact to be
presumed rationally and realistically
follows from that proved and also if
the presumption is no more than
proportionate to what is warranted by
the nature of the evil against which
society requires protection.'
(b) That the presumptions contained in Section
18A(2) and 35A(2) are mandatory presumptions
of fact in that the existence or absence of a
specific purpose or specific intent is a matter of
fact. The presumptions are mandatory
presumptions as they 'will' (that is, must) arise as
and when the conditions are fulfilled.
(c) That the issue of whether the presumptions
are compatible with the BOR should not turn on
what a defendant has or does not have to do to
escape conviction. The enquiry should be
confined to the effect of the presumptions on the
manner in which the prosecution has to prove its
case.
(d) That Sections 18A(1) and 35A(1) of the
Import and Export Ordinance, the offences with
which the Respondents were charged, consist of
two essential ingredients :-
(1) That the defendant knowingly has
possession of/deals with some
particular goods; and,
(2) Intent to assist another person to
smuggle the goods.
The Crown has to prove both
ingredients beyond reasonable doubt.
(e) That Sections 18A(2) and 35A(2) of the
Import and Export Ordinance give rise to a
presumption as to the second ingredient of the
offence if the following conditions are fulfilled :-
(1) There is proof beyond reasonable
doubt of the first ingredient of the
offence; and,
(2) There are circumstances giving
rise to reasonable suspicion of the
intent to be proved; and,
(3) There is an absence of evidence
to the contrary.
(f) That in respect of the first condition for the
presumption to arise, as the Crown has to prove
knowing possession in any event the Crown
therefore does not have to prove any additional
fact to fulfill the first condition for the
presumption to arise.
(g) That bearing in mind that the intent to be
proved for the second ingredient of the offence is
not general intent but specific intent independent
of the first ingredient of the offence, one cannot
say that the specific intent to be presumed
follows rationally and realistically from the first
condition.
(h) That in respect of the second condition for the
presumption to arise, i.e. `circumstances giving
rise to reasonable suspicion,' that even if the
'circumstances' are proved beyond reasonable
doubt they need not amount to more than
'reasonable suspicion' and that since reasonable
suspicion admits possibilities of innocence or
other offences, proof of no, more than reasonable
suspicion must necessarily present reasonable
doubt (see Hussien v Chong Fook-kam [1970]
AC 942 at p.948 CHENG Chun-wo [1989] 1
HKLR 600 at p.601. Leachinsky v Christie
[1945] 2 All ER 395 at p.409.)
Furthermore, reasonable suspicion may not
amount to proof of a prima facie case because
one does not even need admissible evidence to
establish suspicion. Proof of a specific intent
cannot rationally and realistically spring from
proof of a reasonable suspicion.
(i) That in respect of the third condition for the
presumption to arise it cannot be rational for the
Crown to rely on reasonable suspicion based on
possibly inadmissible evidence to raise a
presumption when to prevent the presumption
from arising evidence (which must be
admissible) to the contrary is needed.
(j) As the presumptions did not rationally and
realistically flow from the basic facts proved it
was not necessary to further consider whether
they were proportionate to the harm aimed at, as
was submitted by the Appellant.
(k) Sections 18A(2) and 35A(2) have not been
shown by the Crown to be compatible with the
BOR.
(1) Sections 18A(2) and 35A(2) do not admit of a
construction consistent with the BOR; and
(m) Accordingly Sections 18A(2) and 35A(2)
have been repealed by Section 3(2) of the BOR."
9. The questions of law formulated by the magistrate for the opinion of
the court are:
"(a) Firstly whether I was correct in holding that
Sections 18A(2) and 35A(2) of the Import and
Export Ordinance Cap. 60 do not admit of a
construction which is consistent with Section 8
Article 11(1) of the Hong Kong Bill of Rights
Ordinance 1991 and;
(b) Secondly whether I was correct in holding
that the said sections 18A(2) and 35A(2) had
been repealed in their entirety by virtue of
Section 3(2) of the said Bill of Rights
Ordinance."
10. Turning to section 35A of the Ordinance, as we have seen, a person
commits an offence contrary to section 35A(1)(a) of the Ordinance if he
knowingly possesses an article the carriage of which is restricted by law
with intent to evade the restriction. Were it not for subsection (2) the
burden on the prosecution would, of course, be to prove every ingredient
of the offence, including the specific intent, beyond reasonable doubt.
However, the effect of that subsection is that if it is proved that a person
possesses a restricted article "in circumstances that give rise to a
reasonable suspicion that there is an intent ... to evade a restriction ..." it
will be presumed that he had that intent "in the absence of evidence to
the contrary". Thus the presumption imposes a rebuttable evidential (as
opposed to a legal or persuasive) burden upon the accused. He does not
have to prove that he did not have the necessary intent beyond
reasonable doubt or even on the balance of probabilities. All that he is
required to do is to introduce evidence (or point to evidence led by the
prosecution) which, if believed, might create a reasonable doubt on the
issue. When this happens the burden is again on the prosecution to
satisfy the court or the jury on the evidence as a whole beyond
reasonable doubt that the accused had the intent required by section
35A(1).
11. Mr. Bailey who appeared before us for the Crown conceded that the
mandatory presumptions for which provision is made by sections
18A(2) and 35A(2) of the Ordinance would be inconsistent with the
presumption of innocence guaranteed by Article 11(1) of the Bill of
Rights if they could not be justified upon principles which permit a
limitation upon the Bill's provisions. I have no doubt that he was right to
do so. A number of cases referred to us discuss the effect and the extent
of the burden placed upon the defence by the formula "in the absence of
any evidence'to the contrary" which features in several provisions of the
(Can adian) Criminal Code. For example, in R. v. Slavens (1991) 64
CCC (3d) 29 the British Columbia Court of Appeal had to consider the
constitutionality of the mandatory presumption created by section 348 of
the Criminal Code. The material parts of that section are as follows:
"348(1) Every one who
(a) breaks and enters a place with intent to
commit an indictable offence therein,
(b) breaks and enters a place and commits an
indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence
therein, or
(ii) entering the place with intent to
commit an indictable offence therein,
is guilty of an indictable offence and liable ...
(2) For the purposes of proceedings under this
section, evidence that an accused
(a) broke and entered a place or attempted to
break and enter a place is, in the absence of
evidence to the contrary, proof that he broke and
entered the place or attempted to do so, as the
case may be, withintent to commit an indictable
offence therein; or
(b) broke out of a place is, in the absence of any
evidence to the contrary, proof that he broke out
after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable
offence threin."
At pp. 33-34 Gibbs J.A. said this:
" Before applying the principles to be found in the four
judgments I have referred to, it is important to recognize that
the phrase 'in the absence of any evidence to the contrary' in
s.348(2)(b) relieves the Crown of the 'persuasive burden' (see
p.115 of Schwartz) of proving an otherwise essential
element, namely, commission of, or intent to commit, an
indictable offence. The Crown has that burden under
s.348(1)(c) where the elements are breaking out, and the
commission of an indictable offence prior to breaking out, or
prior entry with intent to commit an indictableoffence.
Failure to prove either element beyond a reasonable doubt
will result in acquittal. However, under s.348(2)(b) the
Crown will have discharged the burden upon proof of one
element only, namely, breaking out. Upon proof of that
element it is open to the Crown to rely upon the presumption
in place of the other element. In order to avoid conviction the
accused then has the burden cast upon him to rebut the
presumption by ensuring that there is before the court
'evidence to the contrary'. And the evidence to the contrary
must be sufficient to raise a reasonable doubt that the
accused committing an indictable offence before he broke
out, or a reasonable doubt that he entered in the first instance
with the intent of committing an indictable offence. It
appears to me that, even if there were no authorities to rely
upon, that kind of burden upon an accused is clearly in direct
conflict with his right under s.11(d) of the Charter 'to be
presumed innocent until proven guilty.'"
Section 11(d) of the Canadian Charter of Rights and Freedom provides
that any person charged with an offence "has the right"..."to be
presumed innocent until proven guilty according to law ..."
At p.37, Gibbs J.A. stated:
" Guided by all of this jurisprudence, I now apply what I
earlier deduced to be the proper test to s.348(2) and conclude
that the answer is yes, an accused could be convicted despite
the absence of proof beyond a reasonable doubt on an
essential element of the offence, namely, the commission of
an indictable offence, or the intent to commit an indictable
offence. I note that the conclusion is consistent not only with
Nagy, but also with both of Re Boyle and The Queen (1983),
5 C.C.C. (3d)193, 148 D.L.R. (3d) 449, 35 C.R. (3d) (Ont.
C.A.), and R. v. T., supra. Each dealt with the same 'absence
of evidence to the contrary' language in a Criminal Code
section.
It follows from all of the above that I am satisfied that s. 348
(2) (b) of the Code must be held to be of no force or effect
unless it can be justified under s. 1 of the Charter. I turn now
to that consideration."
Section 1 of the Charter is in these terms:
"1. The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society."
The court held that the presumption constituted a reasonable limitation
within section 1 of the Charter.
12. The same view of broadly similar provisions was taken, after full
analysis of the principles involved, by:
(a) the Ontario High Court in R. v. Hummel (1987) 36 CCC
(3d) 8;
(b) the same court in R. v. Phillips (1988) 42 CCC (3d) 150
(the Crown conceded that the provision in question prima
facie violated the presumption of innocence);
(c) the Newfoundland Supreme Court in R. v. Parsons (1988)
40 CCC (3d) 128 (again the Crown made a concession of
prima facie violation of the guarantee);
(d) the Ontario Court of Appeal in R. v. Gosselin (1988) 45
CCC (3d) 568;
(e) the same court in R. v. Nagy (1988) 45 CCC (3d) 350; and
(f) the Prince Edward Island Supreme Court, Appeal Division
in R. v. Sallem (1990) 58 CCC (3d) 46.
13. We were also referred to a recent, as yet unreported, decision of the
Supreme Court of Canada: R. v. Downey (judgment 21st May 1992). In
that case, the accused persons were charged with living on the avails
(what, I think, we would call "earnings") of prostitution contrary to
section 195(1)(j) of the Criminal Code. Section 195(2) provided that "[e]
vidence that a person lives with or is habitually in the company of
prostitutes ... is, in the absence of evidence to the contrary, proof that the
person lives on the avails of prostitution." All seven judges concluded
that the presumption contained in that section infringed section 11(d) of
the Charter since it could result in a conviction despite the existence of a
reasonable doubt as to the guilt of the accused. The fact that someone
lived with prostitutes did not lead inexorably to the conclusion that he
lived on the avails. Three of the judges held that section 195(2) was not
justifiable under section 1 of the Charter, while according to the decision
of four of the judges, the section was justifiable under that section of the
Charter.
14. I may mention here that Mr. Bailey was not able to find any English
case in which the statutory formula "in the absence of any evidence to
the contrary" is discussed. However I would refer to a passage in
Glanville Williams Criminal Law - The General Part, 2nd ed., 1961,
which shows that the notion of presumptions of fact arising from
suspicions circumstances that may (but not must) be drawn is not
unknown to the common law. At pp.878-879 we find:
"Many other situations occur in which a court acts upon what
really is a presumption of fact, though it may not be called
so. The principle underlying all of them is that if the accused
'is involved in a state of considerable suspicion, he is called
upon for his own sake and for his own safety to state the
circumstances which might reconcile such suspicions
appearances with perfect innocence' [per Tindal C.J. in Frost
(1889) 4 St.Tr. (N.S.) at 443] In other words, the evidence
given for the prosecution will be increased in weight if it is
'unopposed by contrary evidence which it would be in the
defendant's power to produce, if facts directly or
presumptively proved were not true' [per Holroyd J. in
Burdett (1820) 4 B. & Ald at 140]. It is in reality difficult or
impossible to draw a firm boundary between presumptions of
fact and ordinary circumstantial evidence."
15. The Hong Kong Bill of Rights has no equivalent of section 1 of the
Canadian Charter. There are express Exceptions and Savings in Part III
and express limitations in Article 15(3) and Article 16(3) relating
respectively to freedom of thought, conscience and religion and freedom
of opinion and expression. There is no express limitation of that kind on
the right given by Article 11(1) of the Bill of Rights. However it is clear
from the decision of this court in R. v. Sin Yau Ming [1992] 1 HKCLR
127 that the rights and freedoms guaranteed by the Bill are not to be
regarded as absolute. Kempster J.A., at pp. 158-159 cited passages from
the decision of the European Court in Salabiaku v. France (1988) 13
EHRR 379. I will cite merely the following passage (from p. 388):
" Presumptions of fact or of law operate in every legal
system. Clearly, the Convention does not prohibit such
presumptions in principle. It does, however, require the
Contracting States to remain within certain limits in this
respect as regards criminal law. If, as the Commission would
appear to consider, paragraph 2 of Article 6 merely laid
down a guarantee to be respected by the courts in the
conduct of legal proceedings, its requirements would in
practice overlap with the duty of impartiality imposed in
paragraph 1. Above all, the national legislature would be free
to strip the trial court of any genuine power of assessment
and deprive the presumption of innocence of its substance, if
the words 'according to law' were construed exclusively with
reference of domestic law. Such a situation could not be
reconciled with the object and purpose of Article 6, which,
by protecting the right to a fair trial and in particular the right
to be presumed innocent, is intended to enshrine the
fundamental principle of the rule of law.
Article 6(2) does not therefore regard presumptions of
fact or of law provided for in the criminal law with
indifference. It requires States to confine them within
reasonable limits which take into account the importance of
what is at stake and maintain the rights of the defence. The
Court proposes to consider whether such limits were
exceeded to the detriment of Mr. Salabiaku."
From Salabiaku Kempster J.A. concluded: "From this decision it would
seem proper not only to accept that legal presumptions are not
prohibited per se ... but also to construe the word 'law' appearing in
Article 11(1) as meaning not the domestic law of Hong Kong but a
universal concept of justice."
Later, at p.163, Kempster J.A. said this:
"In the light of the United States and European jurisprudence
and since there has been no suggestion that the existence of
s. 1 of the Canadian Charter involved any breach by Canada
of its obligations under the International Covenant on Civil
and Political Rights, a Hong Kong equivalent is not, in my
opinion, a necessary precondition for the application of the
principles advanced by Dickson, C.J.C. regardless of
whether Hong Kong can properly be described as a
'democratic society'. This is conceded on behalf of the
defendant. Indeed, by the conclusion of the argument before
us and partly by reference to paragraphs 15 and 16 of
Communication 44/1979 Re Pictraroia published in Selected
Decisions under the Optional Protocol and published by the
United Nations in 1985, a substantial identity of approach
was apparent. I would venture to summarise that approach in
the following proposition:
'A mandatory presumption of fact may be
compatible with s.8 Article 11(l) of the Hong
Kong Bill of Rights ordinance if it be shown by
the Crown, due regard being paid to the enacted
conclusions of the legislature, that the fact to be
presumed rationally and realistically follows
from the proved and also if the presumption is no
more than proportionate to what is warranted by
the nature of the evil against which society
requires protection.'"
Silke V.P. expressly approved this proposition at p.45 and went on to
observe:
"The onus is on the Crown to justify. It is to be discharged
on the preponderance of probability. The evidence of the
Crown heeds to be cogent and persuasive. The interests of
the individual must be balanced against the interests of
society generally but, in the light of the contents of the
Covenant and its aim and objects, with a bias towards the
interests of the individual. Further the aims of the legislature
to secure the residents of Hong Kong free from the
depredations of this trade must be respected."
In his judgment, Penlington J.A. speaks of the need for a presumption to
be "reasonable" to pass the test of validity in the light of the Bill of
Rights. At p.168 he expands upon what he means by "reasonable". I
understand him to be saying in lines 14-16 that a presumption will pass
the test of being "reasonable" and therefore consistent with the Bill of
Rights if "there is a rational connection, it contains the minimum
impairment of rights and is proportional to the harm aimed at ..."
16. We were shown some statistics to demonstrate how serious a
problem smuggling has become. In my view we did not need to see
them. Nobody who lives in Hong Kong can be unaware of the
dimensions of this unlawful activity. The legislature has a legitimate
concern that Hong Kong's integrity and reputation are maintained in
international trade, the territory's very life-blood. It is not too much to
say that Hong Kong's whole economic system very largely depends
upon the proper conduct of her international trade.
17. It seems to me that there is a fully rational and realistic connection
between the proved facts and the fact to be presumed. The former tends
to prove the latter. In both the impugned sections the circumstances
must give rise to a reasonable suspicion (objectively viewed) that there
is the necessary intent and there must be an absence of evidence to the
contrary before the presumption avails the prosecution. The sections do
not speak of suspicions circumstances in the abstract. In my view an
"inexorable connection" test is not required or appropriate. If the
substituted fact was required to prove the presumed fact beyond
reasonable doubt, the presumption would be otiose.
18. It must be observed that the legislature could have enacted offences
of strict liability by omitting any requirement as to intent. The
legislature however did require intent to evade etc to be established but
recognised that often evidentiary problems arise in proving intent. The
impairment is minimal. All the accused has to do is to point to evidence
which is capable of raising a reasonable doubt as to his intent. He does
not have to rebut the presumption "on the balance of probabilities". The
legislature's response to the grave detriment to society created by
smuggling seems to me to be entirely sensible and fair and confined
within reasonable limits.
19. Mr. Ching Wong for the respondents in the case stated (MA 118 of
1992) sought to uphold Mr. Z.E. Li's reasoning and decision. Mr.
Watson for the appellants in MA 227 of 1992 and Mr. McNamara for
the appellant in MA 484 of 1992 also relied upon Mr. Li's reasoning in
opposing the Crown's appeals. It will have been seen that for the reasons
I have attempted to give I have been unable to agree with the
magistrate's conclusions. I would answer "No" to the two questions in
paragraph 12 of the case stated.
20. In my judgment sections 18A(2) and 35A(2) of the ordinance have
been shown to be compatible with Article 11(1) of the Bill of Rights.
Penlington, J.A.:
21. I agree with the judgment of Fuad V.P. For the reasons given in R. v.
Sin Yau Ming I am satisfied that the words "according to law" in Article
11 of the Hong Kong Bill of Rights have the same meaning as ''such
reasonable limits prescribed by law as can be demonstrably justified in a
free and.democratic society'' contained in s. 1 of the Canadian Charter of
Rights and Freedoms. A presumption provision does not offend against
the Bill of Rights if it is reasonable and that is a question to be answered
using the principles set out in Oakes, i.e. there must be a logical
connection with the facts relied on to raise the presumption; it must be
proportional to the problem at which the legislation is aimed; there
should be minimum impairment of the basic right. There is strong
support for that in Salabiaku v. France where the court was construing
identical words in the European Convention on Human Rights. I must
admit myself to some trepidation at being asked to consider "a universal
concept of justice'' as referred to by Kempster J.A. in Sin Yau Ming but
I have no doubt that the words ''according to law'' must be construed in
that way.
22. The trial magistrate in MA 718 of 1992 has found that the specific
intent to be presumed does not follow rationally and realistically from
the requirement in s. 18A of evidence showing possession or dealing in
certain classes of goods in circumstances giving rise to reasonable
suspicion. However he seems to reach that conclusion because the
specific intent does not necessarily follow. That is of course correct but
if the reasonable suspicion was based on facts which, on their own prove
all elements of the charge beyond reasonable doubt there is no need for
the presumption. If however the evidence does show possession or
dealing in the restricted goods beyond reasonable doubt and also raises a
reasonable suspicion that this was so as to evade the provisions of the
Ordinance, it seems to me that the conclusion that the defendant
possessed the specific intent to evade the restriction or prohibition is
reasonable; it is logical and realistic. It may not always in fact be correct
but if it is not I see little difficulty in the presumption being rebutted by
evidence sufficient to raise a reasonable doubt. There is also therefore
minimum encroachment on the basic right to be presumed innocent until
proved guilty. I also have no doubt that the provisions are proportional
to the very substantial problem caused in Hong Kong by the smuggling
activities of which I also have no doubt the courts can and should take
judicial notice.
Mortimer J.:
23. I agree with the judgment of Fuad V-P and the reasons for it. As
these are important appeals I would add some comments of my own.
24. The questions of law for the opinion of this Court in these appeals
are conveniently stated by the Magistrate in MA 718/92 as follows:
"(a) Firstly whether I was correct in holding that Sections
18A(2) and 35A(2) of the import and Export Ordinance Cap.
60 do not admit of a construction which is consistent with
Section 8 Article 11(1) of the Hong Kong Bill of Rights
Ordinance 1991 and;
(b) Secondly whether I was correct in holding that the said
sections 18A(2) and 35A(2) had been repealed in their
entirety by virtue of Section 3(2) of the said Bill of Rights
Ordinance."
25. Sections 18A(2) and 35A(2) were amendments to the Ordinance
enacted on 19th April 1991. They are subject to Section 3 of the Bill.
Section 8 Article 11(1) of the Bill reads:
"Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according
to law."
26. This provision is taken ipsissima verba from the International
Covenant on civil and Political Rights (The I.C.C.P.R.) Article 14 to
which applies to Hong Kong Exactly the same words appear in Article
6(2) of the European Convention on Human Rights. Also a similar
provision appears in the Canadian Charter of Rights in Section 11 (d) :
"Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law ....."
27. The sections, under consideration (Section 18A(2) & 35A(2)) are
directed against those who knowingly smuggle or assist in smuggling
from Hong Kong to Mainland China. Each section prohibits knowingly
doing certain acts with specific intents. Subsections 18A(2) and 35A(2)
provide mandatory presumptions in relation to the intents. Each
subsection is expressed in similar terms and for present purposes the
same principles apply. It is necessary therefore only to set out part of
subsection 35A(2) which provides:
"Any person who --"
(Does certain specified acts)
"In circumstances that give rise to a reasonable suspicion that
there is intent on the part of that person to evade a restriction
or prohibition or assist another person to evade a restriction
or prohibition, the first mentioned person will be presumed
to have such intent in the absence of evidence to the
contrary."
28. The effect of the section is not in dispute. It provides that if in the
circumstances proved the tribunal is sure beyond reasonable doubt that
those circumstances give rise to a reasonable suspicion that the accused
has the necessary intent he will be presumed to have such intent, "in the
absence of evidence to the contrary". Such evidence need not emanate
from the accused or be called as part of his case. It is sufficient if it
arises in the course of the prosecution case. The result is that there is no
legal burden upon the accused but there is an evidential burden upon
him to raise the issue. Once the evidential burden is discharged and the
issue is raised, the presumption does not arise and the burden of proving
the intent beyond reasonable doubt rests on the prosecution.
29. Any consideration of the questions for this Court begins with an
examination of the meaning of Section 8 Article 11(1). It is abundantly
clear from the words of the section that the legislature intended to
introduce into Hong Kong domestic legislation the provisions of the
International Covenant on Civil and Political Rights (the I.C.C.P.R.) to
which Hong Kong already adhered. The Hong Kong Legislation was
introduced without relevant qualification, limitation or derogation from
the I.C.C.P.R. and was clearly intended to bear the same meaning. A
reading of the whole Ordinance and many provisions of the
I.C.C.P.R.enacted therein supports this view.
30. All signatories undertake to abide by the covenant and decided cases
in common law jurisdictions of signatories which have domestic
legislation to give effect to the covenant are cited in our Courts. As
Hong Kong developes its own jurisprudence, these will become
gradually less persuasive.
31. Mandatory presumptions were considered by this Court in R. v. Sin
Yau-ming [1992] 1 HCLCR 127. Having considered decisions upon the
I.C.C.P.R. and the European Convention on Human Rights, together
with Canadian decisions on the Charter and United States decisions on
the "due process" provision in their constitution, the Court found a
substantial identity of approach where the provisions under
consideration were similar to Section 8 Article 11(2) of the Bill and
where they contained the limiting words "according to law" which do
not appear in the United States Constitution. Adopting this identity of
approach with particular reference to a United Nation's decision on the
I.C.C.P.R., Kempster, J.A. formulated the following proposition at p.163
line 17:
"A mandatory presumption of fact may be compatible with
s.8 Article 11(1) of the Hong Kong Bill of Rights ordinance
if it be shown by the Crown, due regard being paid to the
enacted conclusions of the legislature, that the fact to be
presumed rationally and realistically follows from that
proved and also if the presumption is no more than
proportionate to what is warranted by the nature of the evil
against which society requires protection."
32. This gives effect to the words "according to law" in Section 8 Article
11(2) and is binding on this Court. The meaning ascribed to the words is
consistent with the meaning ascribed to the same words in the I.C.C.P.R.
"According to law" does not mean according to the domestic law of the
subscribing state. Were it otherwise the words of the International
Covenant could be deprived of all practical effect.
33. In Article 6(2) of the European Convention on Human Rights a
similar meaning is ascribed to the same words. See Salabiaku v. France
(1988) 13 EHRR 379. When considering this decision in R. v. Sin
Yau-ming, Kempster, J.A. at p.159, line 36 said:
"From this decision it would seem proper not only to accept
that legal presumptions are not prohibited per se, as the
United States decisions suggest, but also to construe the
word ''law'' appearing in Article 11(1) as meaning not the
domestic law of Hong Kong but a universal concept of
justice.''
34. The Siracusa Principles on the Limitation and Derogation Provisions
in the International covenant on Civil and Political Rights are to the
same effect. These authoritive principles define the words ''prescribed by
law'' as limiting any derogation from the provisions of the I.C.C.P.R. to
that which is "not arbitrary or unreasonable". Similar limiting words
appear in different parts of the I.C.C.P.R. and of the Hong Kong Bill.
They are expressed as ''established by law'', ''prescribed by law" and
''according to law''.
35. By parity of reasoning the words ''according to law" permit
limitations to the otherwise strict provision in Article 11(1) but only
such limitation as is in all the circumstances not "arbitrary or
unreasonable''. In practical application, these words achieve the same
result in relation to mandatory presumptions as the proposition at p.163,
line 17 of R. v. Sin Yau-ming. Relevant national and international
decisions were the subject of careful scrutiny in that case. In the present
context, it is unnecessary and inappropriate to consider them further.
The Principles to be applied
36. Following R. v. Sin Yau-ming in deciding whether a mandatory
presumption admits of a construction consistent with Section 8 Article
11(1) it seems to me that a court should consider the following:
(i) Does the provision under
consideration (mandatory
presumption in this case) allow
of the possibility that an
accused person may be
convicted of an offence without
each essential ingredient of that
offence being proved against
him beyond reasonable doubt?
If so, the provision falls to be considered as to whether or not it admits
of a construction consistent with Section 8 Article 11(1) of the Bill.
(ii) To what extent does the
provision under consideration
derogate from the right given in
Article 11(1)? In other words,
what is the likelihood of an
accused being convicted in the
absence of an ingredient of the
offence being proved against
him beyond reasonable doubt?
The Court may put into the balance along with the other considerations
the nature and likely effect of the presumption. For example, such a
conviction would be.more likely where the presumption throws a legal
burden upon the accused than when it involves an evidential burden.
(iii) Does the fact to be
presumed rationally and
realistically follow from those
required to be proved?
As every presumption is intended to ease the proof of the fact to be
presumed, it will be necessary for the Court to consider the degree to
which the fact presumed rationally and realistically follows from those
to be proved.
(iv) Having regard to the
foregoing, is the presumption
proportionate? Is it no more
than a reasonable provision
giving due weight to the need of
society to protect itself balanced
with the interests of the
individual accused.
37. In reaching its conclusion, the Court will balance these
considerations and give such weight as it thinks proper to the scheme of
the legislation, the fact that the legislature after due consideration has
enacted the provision as necessary and the relevant evidence, if any.
Answers to the case stated
38. The application of these principles to the present case presents little
difficulty. The presumption clearly involves a risk that an accused
person could be convicted without the necessary intent being proved
beyond reasonable doubt if he remains silent and the issue on intent is
not raised incidentally in the prosecution case. If the circumstances
proved give rise beyond reasonable doubt to a ''reasonable suspicion'' of
the necessary intent, he would be convicted. However, as the burden on
the accused is simply to raise the issue and the burden is evidential only
the risk of a wrongful conviction is more theoretical than real.
39. The intent is to be presumed from circumstances which give rise to a
''reasonable suspicion'' of it. Obviously there is a rational and realistic
connection between the fact presumed and those proved but not
sufficient to establish the case beyond reasonable doubt. Therein lies the
gap which the presumption is intended to fill.
40. In order to demonstrate the proportionality of the provision; that is to
establish that the presumption is no more than reasonable having regard
to the need of Hong Kong Society to deter and punish smuggling and
those who assist in it, we have been invited to consider a number of
statistics. For my part also, I do not consider it necessary to consider or
analyse these statistics. The problem created by this smuggling is
universally known. The great difficulties facing those who seek to
prevent it are notorious. The provisions under consideration were
enacted in April 1991 to assist in controlling this criminal activity and in
bringing those responsible to justice. In applying the Bill of Rights to a
particular presumption, the conclusion of the legislature in providing the
presumption must be considered. As Kempster, J.A. said in Sin
Yau-ming "due regard'' should be ''paid to the enacted conclusions of the
legislature.'' I have no doubt that the presumptions are reasonable and
proportional.
41. There is a long history of presumptions of law and the fact in our
system and in the English system upon which it is based. There are such
presumptions in every legal system. The Bill of Rights does not prohibit
them in principle. They are frequently a reasonable and even necessary
feature of the criminal law if it is to fulfil its function of balancing the
needs of society with the protection of the individual accused. See
Salabiaku v. France (supra) and note the requirement for the issue of
provocation to be raised in a murder case.
42. In summary, the presumptions in the instant case provide minimal
limitation of the rights provided in Article 11(2) with small risk to an
accused person. The presumption is rationally related to the facts to be
proved (with the limitation described) and having regard to the notorious
problems created by smuggling in Hong Kong I have no doubt that the
provision is no more than is reasonably required to satisfy the interest of
society to combat smuggling when balanced with the rights of an
accused.
43. In my judgment, Sections 18A(2) & 35A(2) of the Ordinance admit
of a construction consistent with the Bill of Rights, Section 8 Article
11(2).
Fuad, V.-P.:
44. The appeal in MA 718 of 1992 is allowed, but Mr. Bailey, for the
Crown, was content for this court merely to answer the questions posed
in the case stated and did not seek an order that proceedings should
continue against the respondents.
45. In relation to appeals MA 227 and 484 of 1992, we remit them to the
High Court under section 118(1)(d) of the Magistrates Ordinance
together with our decision on the issues arising out of the Bill of Rights.
(K.T. Fuad) (R.G. Penlington)
(Barry Mortimer)
Vice President Justice of Appeal
Judge of the High
Court
Representation:
Mr. S.R. Bailey (Crown Prosecutor) for the Crown
MA 227 of 1992
Mr. G. Watson (Wong Shum & Co.) for the appellants
MA 484 of 1992
Mr. J. McNamara (Tang Wong & Cheung) for the appellant
MA 718 of 1992
Mr. Ching Y. Wong, Ms Sabrina See, Mr. S. Chiu and Mr. Peter Sit for
the respondents