1991年9月,即《人權法案》頒佈後的三個月,香港上訴法院在R v Sin Yau-ming 案中就人權法的解釋和應用作出了權威性的論述。在本案裡涉及携带危险药物作非法买卖,法院審查了《危險藥品條例》
中若干有利於控方的證據法上的推定條款﹙例如如果被告人藏有0.5克以上的危險藥品,則推定其藏有該藥品的目的乃是作販毒用途,除非被告人能予以反證﹚是違反《人權法案》中的無罪推定條款的,因而是無效的。上訴院被請求考慮《危險藥物條例》第46條(c)及(d)和第47章(1)(c)及第47章(3)是否符合《人權法案條例》第11條第1款,即未經依法確定有罪之前,應假定其無罪之權利的規定。上訴法院給予明確的答案,宣判所有《危險藥物條例》中有關的條例均應在1991年6月8日後因與《人權法案條例》該條規定相抵觸而被撤銷, 正如樞密院在Fisher案中提到釋憲方法與解釋其他法律的方法有所分別,香港上訴法院在Sin Yau-ming案中也主張,香港法院在解釋和應用《人權法案》時,可採取一個“全新的法理立場”
,毋須受到一般法律的解釋原則或普通法的論述的限制。上訴法院強調,在演繹《人權法案》時,香港法院可參考範圍廣泛的國際法和比較法方面的材料,包括美加等享有人權法案的普通法國家的司法判例、歐洲人權法院的判例和根據《公民權利和政治權利國際公約》成立的人權委員會的意見書和報告書。
在判斷本案中受質疑的證據法上的推定條款是否合憲時,上訴法院採用了加拿大最高法院在R
v Oakes 案中的思維模式和“比例”或“相稱”﹙proportionality﹚原則:如果有關法例的確限制了某項憲法性權利,則要進一步考慮此限制是否能在自由民主社會中被合理地和明顯地證成。在這方面,法院須考慮此限制背後的目的是否正當,有關法例用以達致此目的之手段是否與此目的有合理的聯繫、是否已儘量減輕對有關權利的必須的限制和是否與上述目的相稱。
Sin Yau-ming案被譽為香港法院在《人權法案》通過後的新的司法積極主義﹙judicial activism﹚的象徵/樞密院肯定了香港上訴法院在Sin Yau-ming案中採用的釋憲方法,尤其是以Fisher案和Jobe案為基礎的寬鬆的、目的論purposive approach的解釋方法。樞密院也同意,美加法院和歐洲人權法院的判例是有參考價值的,但它指出,“這些其他法域的情況不一定與香港相同”
CACC000289/1990
Headnote
Hong Kong Bill of Rights:
Construction and application:
Presumptions s.46, 47 Dangerous Drugs
Ordinance:
Use of s.81 Criminal Procedure Ordinance
In Re: an Application under S.81 Criminal
Procedure Ordinance
H.C. 289/90
R
AND
Sin. Yau Ming
---------------------
Coram: Silke, V.-P., Kempster and
Penlington, J.J.A.
Dates of Hearing: 10 - 13 and 17 September
1991
Date of Handing down of Judgment: 30
September 1991
-----------------
JUDGMENT
-----------------
Silke, V.-P.
1. On 27th August 1991 Sin Yau Ming
appeared before Ryan J. for arraignment upon an indictment containing two
counts: the first was that of possession of dangerous drugs for the purpose of
unlawful trafficking, the quantity concerned was 337.44 grammes of a mixture
containing 75.05 grammes of salts of esters of morphine; the second was also
that of possession of dangerous drugs for the purpose of unlawful trafficking
and the amount concerned was 24.55 grammes of a mixture containing 20.89
grammes of salts of esters of morphine. Upon arraignment he pleaded not guilty
to both counts and the Crown immediately made application to the trial judge,
praying in aid section 81 of the Criminal Procedure Ordinance, Cap. 221 -
"the Ordinance" - for the judge to reserve for the consideration of
this court a question of law.
2. The application succeeded and the trial
was adjourned.
That question has been formulated as follows: Do sections 46(c) and (d)
and sections 47 (1) (c) and (d) and section 47(3) of the Dangerous Drugs
Ordinance, Cap. 134 admit of a construction which is consistent with section 8
Article 11( 1) of the Bill if Rights Ordinance, No.59 of 1991? If any or all of
these provisions do not admit of such a construction and that therefore inconsistent
with the said section 8, Article 11(1), to what extent have the said provisions
(or any one of them) been repealed by virtue of the provisions of section 3(2)
of the Bill of Rights Ordinance.
3. On 21st and 22nd August in the course of
District Court trials Mr. C.Y. Wong, sitting as an deputy judge of that court,
had ruled that the sections in the formulated question were inconsistent with
the provisions of Article 11(1) of the Hong Kong Bill of Rights. As both those
trials continued on the general issue and as neither had concluded before the
trial here had commenced "the Attorney General, with the agreement of the
defence, thought a reservation of the issues to this court to be the most
expeditious method of providing for their consideration.
4. At the request of this court the first
issue argued was that of the jurisdiction of the trial judge to grant the
application and, consequentially, the jurisdiction of this court to deal with
it.
5. Section 81of the Ordinance, with its
heading, reads:
"Power to reserve question of law for
consideration of Court of Appeal
81.
(1) The judge of the court of
trial may reserve for the consideration of the Court of Appeal any question of
law which may arise on the trial of any indictment.
(2) In exercising his power
under subsection (1), the judge may act either of his own motion or on the
application of the Attorney General or the defence.
(3) A judge may, if he
reserves a question of law under subsection (1) and the accused person has been
convicted -
(a)
postpone judgment until the question has been considered and decided; and
(b) commit
the person convicted to prison or admit him to bail, with or without one or
more sufficient sureties, and in such sum as he may think fit, conditioned to
appear at such time or times as the judge may direct and receive judgment,
(4) Upon consideration of a
question reserved under subsection (1), the Court of Appeal may -
(a)
affirm or quash the conviction or order a new trial; and
(b) make
such other orders as may be necessary to give effect to its decision:
Provided that the Court of Appeal
may, notwithstanding that it is of opinion that the question so reserved might
be decided in favour of the convicted person, affirm the conviction if it
considers that no miscarriage of justice has actually occurred."
6. The provisions of this section have
fallen for consideration in four, and as far as we are aware only four,
reported cases. The first is R. v. Leung Wing Cheung [1958] HKLR 49. There the
accused was on trial for the offence of breach of a deportation order. The
District Court Judge reserved, as a question of law for the consideration by
the Full Court, whether certain facts amounted to the defence of lawful excuse.
The Full Court consisted of Gould, Acting C.J. and Reece J. In delivering the
judgment of the court Gould, Acting C.J., having recalled the fact that the
District Judge did not proceed to conviction or acquittal before reserving the
question for the Full Court, went on at page 57:
"Section 81(1) of the Criminal
Procedure Ordinance does not appear to make such conviction a condition
precedent to reservation of a question of law for this court though it is so in
the Crown Cases Act 1848, to which section 81(1) otherwise bears some
resemblance. Section 81(2) on the other hand, which confers the requisite power
on this court, does appear to regard conviction as a prior requisite but in the
circumstances we think the words 'and to make such other orders as may be
necessary to give effect to its decision' should receive a construction
sufficiently wide to enable us to make the order we contemplate."
7. The court referred the matter back to
the District Court having expressed its opinion on the reserved issue of law.
8. I would digress at this point to
indicate that Ordinance No.9 of 1899 contained a section numbered 78 the
opening words of which read:
"The judge may reserve for the
consideration of the Full Court any question of law which may arise on the
trial of any indictment, and, in case the accused person is convicted, may
postpone judgment until such question has been considered and decided,
..."
9. Subsection (2) of section 78 stated that
upon consideration of the question so reserved it shall be lawful for the Full
Court to affirm or to quash the conviction or to direct a new trial, and to
make such other orders as may be necessary to give effect to its decision:
there was then a proviso.
10. The 1954 Revised Edition of the Laws
relating to the Ordinance contained the heading:
"
PART IV
PROCEEDINGS SUBSEQUENT TO TRIAL.
Reservation of question of law."
11. In it section 78 became section 81 and
is similar in terms and form to that contained in the earlier edition of the
Laws. In the 1971 Revised Edition of the Laws, the same heading appears but the
section had become numbered as section 80. Again is in the same terms as was
the old section 78., The section, reverting to the number 81, with which we are
concerned is, with its heading and in its redrafted form as set out above,
contained in the current Edition of the Laws: Revised 1988.
12. To continue: the next case in point of
time was in 1962 and is entitled "In the matter of section 81 of the
Criminal Procedure Ordinance: In the matter of R. v. Chan Wing Look"
[1962] HKLR 651. There the District Judge reserved for the opinion of the Full
Court two questions: The headnote refers to a "case stated" under
section 81 (1) of the Criminal Procedure Ordinance. This is clearly incorrect:
s.81 sounds by itself. There was no argument raised there as to the propriety
of the use of section 81. The court answered the two questions put before it
and remitted the matter to the District Court to continue the trial.
13. In R. v. Ho Siu Fai and Others [1976]
HKLR 190 the successor to the Full Court, the Court of Appeal, dealt with a
question reserved under the provisions of section 81 (1). It remitted the
matter to the High Court, from whence the question had emerged, with expression
of their opinion Again no argument was addressed to the court as to its
jurisdiction under section 81.
14. The last case was in 1978, entitled In
an application by Tsang Tiny Bun for an order of Certiorari and for an order
for Mandamus, High Court Miscellaneous Proceedings No.56 of 1978, [1978] HKLR
141. There the High Court, sitting as what other jurisdictions might term a
Divisional Court, and consisting of Trainor and Cons, JJ., specifically
considered the question of jurisdiction.
15. A District Court Judge was, in the
course of a trial, asked by the defence to reserve questions of law for the
consideration of the Court of Appeal. In the exercise of his discretion under
section 81 of the Criminal Procedure Ordinance he refused to do so. The Crown
at trial had opposed any such reference because of lack of jurisdiction. Upon
the refusal the defence applied for the issue of prerogative writs and the
trial was adjourned to permit this to be done. They sought an order to quash
the ruling of the trial judge and for an order directing him to exercise his
discretion under section 81. The issue was therefore full square before the
Divisional Court.
16. The main judgment was gives by Trainor
J. with Cons J. (as he then was), in his usually succinct manner, agreeing in a
short judgment with the reasoning of Trainor J. and stating at page 151:
"In my view the trial judge is bound
to decide the question of law at first instance and may submit it to the Court
of Appeal only after, and if there is, a conviction."
17. We are now asked by Mr. Cross who, with
Mr. Dykes and Mr. Bailey, appears for the Crown - a request in which he is
joined by Mr. Daniel Fung who, with Mr. Mok and Mr. Mullick, appears for the
defendant - to hold that Miscellaneous Proceedings NO.56 of 1978 was wrongly
decided and for this court to entertain the present reference.
18. At first blush I was strongly attracted
to the finding in MP 56/1978. This court has always set its face against
interlocutory appeals in criminal cases. Section 81 proceedings are analogous.
Criminal trials are intended to start, continue and finish with celerity and
avoiding interruptions. If every ruling by a trial judge were to be there and
then called into question and reference made, by whatever method, to the Court
of Appeal criminal trials would become unjustifiably protracted. The High Court
lists are already crowded - not to speak of the lists of this court - and they
would become clogged. It must be born in mind that applicants whose
applications are listed in this court are entitled to have those applications
dealt with expeditiously. They also have their civil rights. Protracted delays
resulting from extended lists and indeed, as here, the necessity for relisting
of applications already set down in order to permit urgent matters to. be dealt
with, are to be avoided.
19. It is of passing interest that between
1982 and October 1990 there were in Canada some 10,000 cases in which the
charter had been invoked with several thousand judicial decisions [Human Rights
Committee: 1010th meeting: State Party Reporting: Canada]. The enormous
potential cost of this legislation is obvious.
20. That having been said I am very
conscious of the importance of the issues concerned in this reference and the
public need for their early resolution. The urgency of this matter is indicated
by the number of trials, as we were informed in the course of the hearing,
pending the decision of this court - 30 in the Magistracy, 9 in the District
Court and 31 in the High Court. These figures themselves underline the
difficulties faced by these courts and getting matters on for hearing. The
criminal listings in the High Court as at the end of August 1991 were running
to the end of August 1992. The anxiety of the Attorney General - and indeed of
the defence - is understandable. Existing legislation does hot provide, in
relation to Human Rights matters, for a Referral or Constitutional Court.
Issues arising under the Hong Kong Bill of Right Ordinance 59/1991 take their
place within the court system as it now stands - and any of the hierarchy of
courts which comprises that system is a court of competent jurisdiction wherein
those issues can be raised.
21. In MP 56/1978 Trainor J. made reference
to both Leung Wing Cheung and HO Siu Fai. He noted, as we have, that in the
latter no jurisdiction submission had been made to - nor was the issue
considered by - the Court of Appeal. Of Leung Wing Cheung he said this at
p.144:
"... apart from the great weight that
one would normally attach to any opinion expressed by Gould, Acting Chief
Justice as he then was, the case is of little help to this court. It is quite
clear that the observations of Gould, C.J. (sic) were obiter and would appear
to be reflections that occurred to him only as he prepared the judgment. It is
clear from the judgment that no argument had been heard on section 81 and no
deliberate consideration given to its application. Indeed, the very words used
by the learned judge would suggest that he considered there were possible
conflicting interpretations of the section, and that he was doing no more than
expressing an opinion en passant."
22. True that in Leung Wing Cheung Gould,
Ag. C.J.'s reference to section 81 came at the conclusion of the single
judgment of the court. What was there said was this: (p.57)
"The District Judge in the case now
under consideration did not proceed to conviction or acquittal before reserving
the question for this court. Section 81(1) of the Criminal Procedure Ordinance
does not appear to make such conviction a condition precedent to reservation of
a question of law for this court though it is so in the Crown Cases Act 1848,
to which section 81 (1) otherwise bears some resemblance. Section 81 (2) on the
other hand, which confers the requisite power on this court, does appear to
regard conviction as a prior requisite but in the circumstances we think the
words 'and to make such other orders as may be necessary to give effect to its
decision' should receive a construction sufficient wide to enable us to make
the order we contemplate."
23. The matter was, as I have earlier
indicated, referred back to the District Court with the opinion of the Full
Court.
24. I accept the comment of Trainor J. that
the report does not make reference to argument having been addressed to it. I
do not however accept the finding that the passage quoted above was obiter.
Cursory though it may have been, it had direct relevance to the powers of the
court to make orders to give effect to its decision on the reserved question of
law.
25. Trainor J. went on in his
interpretation of section 81 to find it helpful to consider, as he put it at
p.145:
"... the history of the legislation
that is now before us having regard to legislation in England and subsequently
in Hong Kong."
26. The English legislation was the Crown
Cases Act 1848 (11 & 12 Vict. C78) [Halsbury's Statutes of England: Vol.5:
2nd Edition p.701].
27. While, as Gould, Ag.C.J. said at page
58 in Leung Wing Cheung, section 81 otherwise bears "some
resemblance" to the Crown Cases Act the schema of the latter is radically
different. Its provenance was the old Court of Crown Cases Reserved and its
procedure. The jurisdiction of that court was transferred, in 1873, to the
judges. of the High Court. It was vested in the Court of Appeal by the Criminal
Appeal Act of 1907. It is of interest that the "Notes" in Halsbury
state that:
"... as such questions can be raised
on an appeal under that [1907] Act, the machinery provided by this Act is now
seldom utilised."
28. The second edition of Halsbury's
Statutes was issued in 1948. The Act has now been repealed.
29. The radical difference, to which I have
referred, is occasioned by the opening words of section 1 of the 1848 Act which
read:
"On conviction at assizes or quarter
sessions questions of law may be reserved ..."
30. I am unclear from whence came the
citation of the Act used by Trainor J., but nothing turns on this. Hong Kong
has never had, to my knowledge, a court of Crown Cases Reserved, or the
procedure relevant to that court whereby a trial judge reserved for the
consideration of a full bench of his Brothers, including the Barons of the
Exchequer, an issue of law arising in the course of a trial. It may well be
that, to recognise this, the opening words in Ordinance 9 of 1899 read:
"A judge may reserve for the
consideration for the Full Court any question of law which may arise on the
trial of any indictment, and, in case the accused person is convicted, may
postpone judgment until such question has been considered and decided ..."
(Emphasis supplied)
31. It seems clear from this wording that
provision was being made in case where there had been a conviction so that the
judge reserving the question of law was empowered to make consequential orders
pending the opinion of the Full Court being made known. It is not there simply
to draw a distinction between a conviction and an acquittal. When the
legislature in 1979 enacted the new section 81D it did not see fit to make any
alteration to the then existing section 81 of the Ordinance. This fortifies the
opinion which I have formed.
32. With respect to Trainor J., while
containing a provision similar to section 8l, the 1848 Act is not the fons et
origo of our legislation. This despite the heading, now abandoned, preceding
the section and contained in the older versions of the legislation.
33. Subsection (4) of section 81, in my
judgment, requires the Court of Appeal to come to its decision on the question
of law reserved and then, should it be necessary, and if a person has been
convicted the court ''may''affirm or quash the conviction or order a new trial
or - and I read, as did Gould, Ag.C.J., the word "and" in the context
here as disjunctive
"(b) make
such orders as may be necessary to give effect to its decision." (Emphasis
supplied)
34. That latter provision, and I am
constrained by the general wording of section 81 to come, with some reluctance,
to this conclusion, must mean that it is the decision of the Court of Appeal
which matters and it is that to which effect must be given whatever the
condition of the person at trial. It must not be overlooked that the trial
judge can act under the section on his own motion or on an application by
either the Attorney General or the defence.
35. While the decision of any court
comprising Trainor J. and Cons J. (as he then was) is properly one deserving of
great weight, I respectfully disagree with the conclusions in MP 56/1978 that a
conviction is a pre-requisite for any reference under its provisions to the
Court of Appeal.
36. I would emphasise that the powers in a
trial judge to reserve are discretionary: both as to the original reservation
and as to the time at which the matter is to be placed before the Court of
Appeal. If indeed such question does arise it would be open for the judge to
hold back from making any reservation until a trial has concluded.
37. It is by far the better practice, while
this unfortunate section still remains on our statute books, that, where such a
question of law does arise, it is reserved at the conclusion of the trial when
all the evidence is in, and is therefore available to this court, and the judge
has come to a decision upon the matter. It can then, and it should be, become
part of the appellate procedure. This in no way inhibits the Attorney General,
should an accused be fortunate enough to be acquitted, for he has had, since
1979, the benefit of the provisions of section 81D of the Ordinance.
38. While it is not for this court to
fetter a discretion conferred upon a judge nevertheless recourse to and
reservation under section 81 should be the subject of the most careful scrutiny
and orders made only in the rarest of cases.
39. It is not helpful to reserve a question
of law, as was done here - though I fully understand why in this particular instance
it was done and no criticism of the trial judge is intended - and to require
this court to consider its decision on the question raised before any
evidential background is available.
40. Because of the course taken it was
necessary in the course of the hearing for Mr. Cross to have recourse to the
provisions of section 83V of the Ordinance - and for a mirror application to be
made by Mr. Fung. Had the evidence in statement form sought to be admitted here
- and it had been the intention to lead this evidence at the trial - been
controversial the statement makers or the deponents, as the case may be, would
have had to attend and give oral evidence. Fortunately we did not consider that
matters of controversy arose.
41. This court is not a fact finding body
and should not in the ordinary course be turned into one.
The main issue
42. Having entertained the application I
now turn to the main issue.
43. First, as a matter of convenience, I
will set out the abbreviations which will be used in the course of this
judgment and a short explanation of them. I set them out in historical order
for the relevant dates have some significance.
44. "Canadian Bill": means the
Canadian Bill of Rights of 1960 entitled "An Act for the Recognition and
Protection of Human Rights and Fundamental Freedoms";
45. "The Covenant": means the
International Covenant on Civil and Political Rights, containing articles agreed
in accordance with the charter of the United Nations, created in 1966 and
ratified by the United Kingdom - and for and on behalf of Hong Kong - and by
Canada in 1976: the United Kingdom ratification was with Reservations which are
not our direct concern here;
46. "The Canadian Charter": means
the Constitution Act, 1982 entitled "Canadian Charter of Rights and
Freedoms";
47. "The Hong Kong Bill": means
the Hong Kong Bill of Rights Ordinance 1991, Ordinance 59 of 1991, which came
into operation on 8th June 1991;
48. "The Letters Patent": means
the Hong Kong Letters Patent 1991 (No.2).
49. In the course of this judgment I shall
generally follow the format of the submissions attractively made and pleasingly
presented by Mr. Fung. It was agreed between Mr. Fung and Mr. Cross that the
former should go first, Mr. Cross should reply and individually make his own
submissions and that Mr. Fung should have a right of final reply.
The first issue: the Bill of Rights Regime
in Hong Kong
50. I look first to Article VII (3) of the
Letters Patent. The Letters Patent amended the existing Article VII in the
principal Letters Patent by adding a new paragraph which reads as follows:
(3) The provisions of the
International Covenant on Civil and Political Rights, adopted by the General
Assembly of the United Nations on 16th December 1986, as applied to Hong Kong,
shall be implemented through the laws of Hong Kong. No law of Hong Kong shall
be made after the coming into operation of the Hong Kong Letters Patent 1991
(No.2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner
which is inconsistent with that covenant as applied to Hong Kong."
51. The effect of the Hong Kong Bill was to
apply, with the exceptions and savings set out in part 3 of that Bill, the
covenant to Hong Kong. In this hearing we are not concerned with those
exceptions, savings, or temporary savings.
52. While not directly germane to the
arguments it is nevertheless of interest to note section 7 of the Ordinance
which reads:
"Binding effect of Ordinance
(1)
This Ordinance binds only -
(a)
the Government and all public authorities; and
(b)
any person acting on behalf of the Government or a public authority.
(2) In
this section 'person' includes any body of persons, corporate or unincorporate."
53. Sections 3 and 4 of the Ordinance are
highly relevant. They read:
"3. Effect on pre-existing legislation
(1)
All pre-existing legislation that admits of a construction consistent with this
Ordinance shall be given such a construction.
(2) All
pre-existing legislation that does not admit of a construction consistent with
this Ordinance is, to the extent of the inconsistency, repealed.
4.
Interpretation of subsequent legislation
All legislation enacted on or after the commencement date shall, to the
extent that it admits of such a construction, be construed so as to be
consistent with the International Covenant on Civil and Political Rights as
applied to Hong Kong."
54. It needs to be emphasised that the only
duty of this, or any other court, considering legislation is to decide whether
that legislation is or is not inconsistent with the Hong Kong Bill. This, or
any other court, does not repeal legislation. That is done by the Hong Kong
Bill itself. This, or any other court, does not redraft legislation or for that
matter make suggestions for the form of future legislation. The content of the
legislation is viewed, with what will be seen to be an entirely new jurisprudential
view, and the court gives its opinion whether, bearing in mind Hong Kong
circumstances, that legislation is inconsistent with the Hong Kong Bill.
55. Section 8, which is contained in Part
II of the Hong Kong Bill, sets out Article 11(1) against which the specific
presumptive sections of the Dangerous Drugs Ordinance Cap. 134 - that is
section 46 (c) and (d) and section 47(1) (c) and (d) with section 47(3) - are
to be tested. It reads as follows, under the heading "Rights of persons
charged with or convicted of criminal offence":
"(1) Everyone charged with a criminal
offence shall have the right to be presumed innocent until proved guilty
according to law."
56. That provision, by virtue of tire
legislative changes in Hong Kong domesticating the covenant, is part of the law
of Hong Kong. Article 14 (3) (ii) of the covenant is in identical terms with
that of Article (11)(1) of the Hong Kong Bill.
General principles for the interpretation
of the Hong Kong Bill
57. The Hong Kong Bill itself, under the
heading "Interpretation" in s.2 (3), provides assistance as to the
manner by which the courts should proceed with their task. It reads as follows:
"(3) In interpreting and applying this
Ordinance, regard shall be had to the fact that the purpose of this Ordinance
is to provide for the incorporation into the law of Hong Kong of provisions of
the International Covenant on Civil and Political Rights as applied to Hong
Kong, and for ancillary and connected matters."
58. It further provides, and this is drawn
from Article 5.2 of the covenant, in its subsection (5):
"There shall be no restriction upon or
derogation from any of the fundamental human rights recognized or existing in
Hong Kong pursuant to law, conventions, regulations or custom on the pretext
that the Bill of Rights does not recognize such rights or that it recognizes
them to a lesser extent."
59. It is accepted by both sides before us
that there exists a well established principle of common law relating to the
construction of statutes which are intended by the legislature to domesticate
an international treaty to which the state - here the United Kingdom in the
name of Hong Kong - is a party. The words of the statute should be interpreted
by the court as being intended to carry out the state's international treaty
obligations and not in any manner inconsistent therewith provided the words of
the statute are reasonably capable of bearing such meaning. [Garland v. British
Rail [1983] 2 AC 751 (H.L.) and the words of Lord Diplock at page 771 A-C]
60. We are here concerned with a
constitutional document even though brought into force by an Ordinance. It is
nevertheless established as a self-contained document by virtue of the
provisions of the Letters Patent and section 8 of the Hong Kong Bill.
61. In the Ministry of Home Affairs v.
Fisher [1980] AC 319 (P.C.) which concerned the Constitution of Bermuda, and
which has been adopted in Hong Kong, Lord Wilberforce, in delivering the
judgment of the Judicial Committee stated, at page 329B, on the issue of
whether such statutes as the Hong Kong Bill are to be construed in the manner
and according to the rules which applied to Acts of Parliament, that there were
two possible answers:
"The first would be to say that,
recognising the status of the Constitution as, in effect, an Act of Parliament,
there is room for interpreting it with less rigidity, and greater generosity,
than other Acts, such as those which are concerned with property, or
succession, or citizenship. On the particular question [the issue was whether
there was a presumption that 'child' meant 'legitimate child'] this would
require the court to accept as a starting point the general presumption that
'child' means 'legitimate child' but to recognise that this presumption may be
more easily displaced. The second would be more radical: it would be to treat a
constitutional instrument such as this as sui generis, calling for principles
of interpretation of its own, suitable to its character as already described,
without necessary acceptance of all the presumptions that are relevant to
legislation of private law."
62. The Board there preferred the second
answer, Lord Wilbefroce stating at D on the same page:
"A Constitution is a legal instrument
giving rise, amongst other things, to individual rights capable of enforcement
in a court of law. Respect must be paid to the language which has been used and
to the traditions and usages which have given meaning to that language. It is
quite consistent with this, and with the recognition that rules of
interpretation may apply, to take as a point of departure for the process of
interpretation a recognition of the character and origin of the instrument: and
to be guided by the principle of giving full recognition and effect to those
fundamental rights and freedoms with a statement of which the Constitution
commences." (Emphasis supplied)
63. I accept, and it is not a matter of
controversy, that we should view the Hong Kong Bill as being sui generis.
Sections 3 and 4 which I have set out above make it clear that all existing and
all new legislation is required to be consistent with the Covenant. Therefore
the covenant becomes supreme. Not the legislature.
64. I now look for general guidance to the
preamble which commences the Covenant. This reads:
"The State Parties to the present
covenant,
………
'Considering that, in accordance with the
principles for claim in the charter of the United Nations, recognition of the
inherent dignity and of the equal and inalienable right of all members of the
human family is the foundation of freedom, justice and peace in the world.
Recognising that these rights derive from
the inherent dignity of the human person,
Recognising that, in accordance with the
universal declaration of human right, the ideal of free human beings enjoying
civil and political freedom and freedom from fear and want can only be achieved
if conditions are created whereby everyone may enjoy his civil and political
rights, as well as his economic, social and cultural right,
Considering the obligation of states under
the charter of the United Nations to promote universal respect for, and
observance of, human rights and freedoms,
Realising that the ihdividual, having
duties to other individuals and to the community to which he belongs, is under
a responsibility to strive with the promotion and observance of the rights
recognised in the present Covenant,
Agree upon the following articles.' "
65. In my judgment, the glass through which
we view the interpretation of the Hong Kong Bill is a glass provided by the
Covenant. We are no longer guided by the ordinary cannons of constructions of
statutes nor with the dicta of the common law inherent in our training. We must
look, in our interpretation of the Hong Kong Bill, at the aims of the Covenant
and give "full recognition and effect" to the statement which
commences that Covenant. From this stems the entirely new jurisprudential approach
to which I have already referred.
Guidance in interpretation of the Hong Kong
Bill
66. While this court is, in effect,
required to make new Hong Kong law relating to the manner of interpretation of
the Hong Kong Bill and consequentially the tests to be applied to those laws
now existing and, when asked, those laws yet to be enacted, we are not without
guidance in our task. This can be derived from decisions taken in common law
jurisdictions which contain a constitutionally entrenched Bill of Rights. We
can also be guided by decisions of the European Court of Human Rights -
"the European Court" - and the European Human Rights Commission -
"the Commission". Further, we can bear in mind the comments and
decisions of the United Nations Human Rights Committee - "the
Committee". I would hold none of these to be binding upon us though in so
far as they reflect the interpretation of articles in the Covenant, and are
directly related to Hong Kong legislation, I would consider them as of the greatest
assistance and give to them considerable weight.
67. In seeking guidance from the decisions
and comments of the Committee and those of the Commission, and I accept this
from Mr. Fung, the Court should bear in mind that these are general comments
and, in particular in respect of the Committee, that the perspective adopted is
to consider the international treaty obligations of State Parties. Matters of
principle are there stated in the widest and most general of terms so that all
the individual State Parties, and there is a multiplicity of them with
differing legal traditions and social aspirations, may interpret them more
meaningfully. Further, the Committee, under the Optional Protocol, is normally
concerned with individual petitions from citizens of the State Parties who are
aggrieved by particular decisions of their domestic courts and who have
exhausted all domestic judicial avenues of redress.
68. The same applies in part to the
Commission and the European Court in Strasbourg. They operate as supra-national
tribunals empowered to scrutinize the conduct of different branches of the
governments of the State Parties to the European Convention on Human Rights.
They look to see whether the handling of a particular case in a complaint
against the State Party in its domestic jurisdiction has infringed the rights
of the complainant under that Convention.
69. The approach of those bodies differs
from that of a domestic court whose task is to determine the constitutionality
or otherwise of domestic legislation measured, as is the case in Hong Kong,
against an entrenched instrument. So they are helpful but not always apposite.
70. Greater assistance can be derived from
those two common law jurisdictions, the United States of America and Canada,
which have constitutionally entrenched Bills of Rights. The American Bill of
Rights is, of course, of lineage far more ancient than either the Covenant or
the European Covenant, predating the Covenant by some 175 years and is embodied
in the constitution of the United States and its amendments.
71. In Canada there are two streams of
authorities: one relating to the Canadian Bill and the second relating to the
Canadian Charter which superseded the Canadian Bill. Mr. Fung has urged upon us
that this court, instead of adopting what he terms the bifocal interpretation
used in the Canadian Charter cases should adopt a telescope view. It is Mr.
Fung's further submissions that the jurisprudence which grew up from the
Canadian Bill was profoundly affected by two matters: (1) the fact that it was
not entrenched and (2) the absence in the Canadian Bill of any express power to
invalidate inconsistent legislation. He has urged us therefore to have recourse
to the jurisprudence developed after the enactment of the Canadian Charter
because that is a constitutional arrangement entrenching human rights just as
is the Hong Kong Bill. Overall, it must be borne in mind that the Hong Kong
Bill is not a mere collection of pious platitudes or hopeful aspirations: it is
the law.
72. The "bifocal" approach to
which Mr. Fung has alluded is illustrated by R. v. Oaks [1986] 26 DLR (4th)
200. There, in the main judgment of the Supreme Court of Canada, Dickson,
C.J.C. looked at the provisions of s.8 of the Narcotic Control Act, found it to
contain a reverse onus provision from which a mandatory presumption of law
arose and found that to be inconsistent with the guarantee to the presumption
of innocence contained in s.11 (d) of the Canadian Charter. The offending
provision required an accused, having first been found to be in possession of
narcotics, to, in a form of second trial, disprove on the balance of probabilities
that he was in the possession so found for the purpose of trafficking. Dickson
C.J.C. the went on in the light of the provisions of s.l of the Canadian
Charter - which stated that the Canadian Charter guaranteed 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"
to see if the offending provisions could be so justified.
73. While the Hong Kong Bill contains no
"justification" provision, I would accept Mr. Fung's description of
the phrase "free and democratic society" as "aspirational"
and, in the Hong Kong context, in no way to diminish the implied justification
tests which he suggests this Court should apply in the circumstances such as lie
for consideration here.
74. In the American jurisdiction we have
been referred to Tot v. United States (1943) 319 US 463; Leary v. United States
(1969) 395 US 6; Ulster County Court v. Allen (1979) 442 US 140 - these, in
turn, considered a presumption in the Federal Firearms Act where possession of
a firearm by a person previously convicted of a crime of violence, or who is a
fugitive from justice, is taken to have received it as the result of inter
state, as differentiated from intra state, commerce: this a violation of the
act; the statutory presumption of knowledge of illegal importation arising from
the fact of possession; and the presumption that a person present in an
automobile in which there is a handgun possess that weapon.
75. The American courts appear to
differentiate as between permissive and mandatory presumptions. They adopt the
bifocal approach, and by doing so may well nave influenced the Canadian jurists
who have looked to the United States for much of the jurisprudential basis for
the construction of the Canadian Charter. The American courts also take a
restrictive view as to the validity of presumptions generally.
76. In Tot Roberts J. stated that a
statutory presumption cannot be sustained if there were no rational connection
between the fact proved and the ultimate fact presumed.
77. Harlan J. in Leary described a criminal
statutory presumption as "irrational" or arbitrary unless it can be
said "with substantial assistance that the presumed fact is more likely
than not to flow from the proved fact on which it is mane to depend".
78. Allen held that the criminal statutory
presumption there was entirely rational, it being merely permissive not
mandatory.
79. All these are Supreme Court cases and
in Allen there was a strong dissenting opinion delivered by Powell J.
80. Mr. Cross has suggested that reliance
should be placed on a number of European decisions to which he has referred us.
These are: Barbera, Messague and Jabardo (1988) ECHR series A No. 145,
Salabiaku v. France (1988) 13 EHRR 379 - both decisions of the European Court -
and X v. United Kingdom : application No. 5124/71 : Collection of Decisions
ECHR 135, a Commission decision.
81. Barbera is not of great assistance. It
was cited to us for whatever benefit the Crown might take from a passage at
p.33 para. 77 of the judgment. This simply sets out some basic principles
inherent in the Common Law.
82. Salabiaku did consider presumptions but
did not, as Mr. Fung puts it, "grasp the nettle" for it found that
France had not made use of presumptions in any event. It would appear from the
judgment that the French courts were considered to have treated as permissive
that which in our law would be considered an instance of strict liability - a
possessor of prohibited goods is deemed liable for the offence of smuggling
prohibited goods. The European court did however appear to take the view that
presumptions are not, ex facia, prohibited. There must however be a reasonable
balance between the aim of a state in the enaction of its legislation and the
means that is used in that legislation to effect the aim. [Belgian Linguistic
Case (No. 2) (1988) 1 EHRR 252.)
83. In considering the Canadian cases I
must confess that I am persuaded to a broader view of the validity of
presumptions than is apparent from the authorities in that jurisdiction - or
from those in the United States of America. We have been referred to the
Pre-Canadian Charter cases of Appleby (1971) 21 DLR (3rd) 325 which was itself
considered in Shelley (1981) 123 DLR (3rd) 748 - to Stanger (1983) 2 DLR (4th)
121 - were the "rationality test" propounded in Shelley was
considered. There the Court of Appeal of Alberta at p.139 posed itself the
question "Is the demand of the Statute fair?" which that Court
thought to be the reality of Shelley. Then follows Oakes (1986), Kenner (1986)
29 CCC (3rd) 138 and Whyte (1988) 51 DLR (4th) 481, the post Charter cases.
84. The Canadian courts, in particular,
Oakes (1986), considered the well known passage in the D.P.P. v. Woolmington
[1935] AC 462 (H.L.) where Lord Sankey at p.481 said:
"Throughout the web of the English
Criminal Law one golden thread is always to be seen, that is the duty of the
prosecution to prove the prisoner's guilt subject to what I have already said
as to the defence of insanity and subject also to any statutory exception."
85. They took the view that Lord Sankey was
there viewing the common law rights of an accused within the context of a
supreme Parliament and it was that which brought him to add the phrase ''and
subject also to any statutory exception". If Parliament said all rabbits
were green then all rabbits were green. As I have indicated earlier that is not
the context in which we now view the provisions of Article 11(1) nor is this
the context accepted by the Canadian courts in post Canadian Charter days. I
would not derogate from their view.
86. In Oakes (1988) the difference between
Canadian Bill jurisprudence and Canadian Charter jurisprudence was considered
and Dickson C.J.C. went on to hold that Shelley had correctly rejected the
applicability of Ong Ah Chuan v. Public Prosecutor [1981] AC 648 (P.C.)
87. On the "difference" view he
said at p.216:
"Although there are important lessons
to be learned from the Canadian Bill of Rights jurisprudence, it does not
constitute binding authority in relation to the constitutional interpretation
of the Charter. As this court held in R. v. Big M Drug Mark Ltd. (supra) the
Charter, as a constitutional document, is fundamentally different from the
statutory Canadian Bill of Rights which was interpreted as simply recognising
and declaring existing rights."
88. He went on to say at p.217, having
quoted a passage from R. v. Big M Drug Mart Ltd (1985) 18 DLR (4th) 321:
"With this in mind, one cannot but
question the appropriateness of reading into the phrase 'according to law' in
section 11(d) of the Charter the statutory exceptions acknowledged in
Woolmington and in Appleby. The Woolmington case was decided in the context of
a legal system with no constitutionally entrenched human rights document. In Canada,
we have tempered parliamentary supremacy by entrenching important rights and
freedoms in the Constitution. Viscount Sankey's statutory exception proviso is
clearly not applicable in this context and would subvert the very purpose of
the entrenchment of the presumption of innocence in the Charter. I do not,
therefore, feel constrained in this case by the interpretation of section 2(f)
of the Canadian Bill of Rights presented in the majority judgment in Appleby
Section 8 of the Narcotic Control Act is not rendered constitutionally valid
simply by virtue of the fact that it is a statutory provision."
89. In Appleby, the majority judgment had
held that a reverse onus provision which goes no further than to require an
accused to offer proof on a balance of probabilities does not necessarily
violate the presumption of innocence under section 2(f) of the Canadian Bill.
90. In Ong Eng Chuan [1981] AC 648 (P.C.)
the Judicial Committee had for consideration the provision of the Misuse of
Drugs Act 1973 of Singapore and the Constitution of that Republic. In the
judgment of the Judicial Committee, delivered by Lord Diplock, there was
reference made to the statutory presumption, rebuttable as it was by an
accused, that possession of a quantity of controlled drug was for the purpose
of trafficking. It was held that this did not conflict with any fundamental rule
of natural justice. The Canadian courts in both Shelley and Oakes (1986) were
of the view that, there being no specific reference to the presumption of
innocence contained in the Singapore Constitution, Lord Diplock in his
reference to the rules of natural justice was not considering that presumption.
91. With the greatest respect, the
presumption of innocence is the fount of the rules' of natural justice in
relation to criminal trials. I cannot conceive that Lord Diplock was ignoring
it - even though it was not spelled out in the constitutional documents that
lay for the consideration of the Judicial Committee. In my judgment Canadian
courts have taken too narrow a view of Ong Eng Chuan but, as this does not
alter the general views to which I have come on the manner in which we should
deal with the issues before us, I do not think it necessary to go further. I do
note however that in Singapore in 1981 the trigger quantity was two grammes and
was considered "many times greater than the daily dose taken by typical
heroin addicts … " [Ong Eng Chuan p.672]
92. In briefly reviewing those general
authorities in other jurisdictions which have been referred to us I have not
ignored authority within this jurisdiction; R. v. Chan Siu Shing and Others
[1974] HKLR 482: R. v. Law Wai Ming and Anor C.A. 981/1977 (unreported); R. v.
Au Wai C.A. 296/79 (unreported); R. v. Kwan Ping Bong [1979] HKLR 1 (P.C.) and
R. v. Kwok Ming C.A. 428/1984 (unreported).
93. I have in mind, in particular Char Siu
Shing where, at p.498, Huggins J.,(as he then was) having set out the
directions given by the trial judge on the burden of proof which commenced with
the sentence "In most criminal charges, of course, the burden of proof is
completely on the Crown" said:
"This passage, and in particular the
first sentence, is open to the objection that it suggests there are cases where
the burden of proof is not completely on the Crown and that one of those cases
is where a presumption is raised by statute. In truth the burden of proof is
always on the Crown to establish the guilt of a defendant beyond all reasonable
doubt. Guilt is something which has to be inferred from primary facts and the
burden of proving beyond reasonable doubt such of primary facts as have to be
proved is, equally, always upon the prosecution. Sometimes one or more of the
primary facts from which guilt could be inferred do not nave to be proved at
all because a statute prescribes that upon the fulfilment of prescribed
conditions those facts are to be presumed. In so far as those conditions
consist of the proof of facts the burden of proof is, once more, upon the
prosecution and the standard of proof required is proof beyond all reasonable
doubt. The effect of a presumption which is not rebutted is, therefore, to allow
an inference of guilt to be drawn from facts which would not otherwise justify
such an inference : the fact presumed does not have to be proved beyond all
reasonable doubt but the guilt of the accused does."
94. However being aware of the proposition
shortly to be adumbrated by Kempster J.A. in his judgment, which I have had the
opportunity to read in draft, and which is wholly in accord with the views that
I have formed as to the manner in which we should look at the issues here, I do
not think it necessary to make further comment on the mass of authorities
before us.
95. What is contended for at this hearing
has harrowed down in the course of it to a direct consideration of the specific
legislative provisions referred to in the question.
96. If I may be permitted to plagiarize,
the proposition is -
"A mandatory presumption of fact may
be compatible with s.8 Article 11(1) of the Hong Kong Bill if it be shown by
the Crown, due regard being paid to the enacted conclusion of the legislation,
that the fact to be presumed rationally and realistically follow 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."
97. The onus is on the Crown to justify. It
is to be discharged on the preponderance of probability. The evidence of the
Crown needs 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.
The Dangerous Drugs Ordinance Presumptive
Sections
98. These courts have, over the years,
reiterated their abhorrence for the evils inherent in the narcotic trade. The
proposition is self-evident and needs no citation of authority to underline it.
Those who involve themselves in the trafficking of dangerous drugs can expect
little mercy from these Courts.
99. R. v. Lau Tak Ming [1990] 2 HKLR 370
was concerned with the sentences appropriate for drug offences. It was said at
p.384H:
"The sooner there is but one offence,
even if it entails an amendment of the definition of 'trafficking', the
better."
We
were there referring to the two separate offences contained in the Dangerous
Drugs Ordinance of trafficking and of being of possession for the purposes of
unlawful trafficking. As Mr. Fung has acknowledged at this hearing if there
were but one offence - of trafficking - he would not be here.
100. Also in Lau Tak Ming at p.385B the
court said this:
"We have been told that the provisions
of s.46 are under active consideration at this moment. It could well be borne
in mind by trial courts that, where No.3 heroin is concerned, because of the
bulk the addict now requires resulting from the low narcotic purity and
considerable difference in price between it and No.4, the presumptions might be
the more easily rebutted."
I would emphasise that we here we are
concerned only with salts of esters of morphine and not with any of the other
substances referred to in (i), (ii), (iii) or (iv) of either s.46 (c) or (d).
Both those paragraphs mention "an ester of morphine". This is heroin
base and needs chemical treatment before being rendered usable by an addict. It
is a strange bed fellow for salts of esters of morphine a substance subject
only to dilution by additives and needing no chemical process. Yet 0.5 of a
gramme is still the trigger.
101. Perhaps unfortunately, the active
consideration of s.46 has, so far, led merely to the deletion of s.46 (e), a
somewhat convoluted and obscure provision, and that only. Had the rather broad
hint contained in Lau Tak Ming been followed up again these proceedings might
have become unnecessary.
102. I am fully aware that drug traffickers
are acutely conscious of the amounts which trigger presumptions. I have no
doubt that they attempt to keep their couriers, the clogs in the machine who so
often appear before these courts, carrying amounts which are close to that
trigger.
103. Mr Cross has emphasised to us the
contents of s.8 Article 2 of the Hong Kong Bill the Right to Life; Article 19
and its provisions for the Rights of a Family; Article 20 the Rights of Children,
in particular the right of a child to such measures of protection as are
required by his status as a minor on the part of his family, society and the
state. I accept that all of these rights are affected by the drug trade. But
what this Court has to consider is not the issue that there can be no
presumptions at all, but the issue do the specific presumptions under
consideration infringe Article 11 (1).
Section 46 (d)
104. The Crown's justification evidence is
contained in the evidence cited in Lau Tak Ming that an addict requires
one-half to one gramme of salts of esters of morphine per 24 hours to sustain
his addiction, with one gramme being the upper limit. We were talking there of
the narcotic not the mixture which may contain it. This came from Dr.
Hollinrake. In Lau Tak Ming we also had evidence from Chief Inspector Young.
105. We have before us today, as fresh
evidence, statements made by Chief Inspector Young on 9th July and supplemented
by another on 17th September 1991. We have also for consideration a very brief
statement by Dr. Mak Ying Wai who is the senior medical officer currently
attached to the Narcotic and Drug Administration, Hong Kong Region dated 20th
June 1991; an affidavit of Mrs Nina Lee Po Lin a senior Legal Aid counsel of
the Legal Aid Department and a further evidential statement from Dr.
Hollinrake. Dr. Hollinrake is, as is well-know, working in Shek Kwu Chau Drug
Addiction Treatment and Rehabilitiation Centre and is there its medical
superintendent.
106. It is notorious that drug habits, and
indeed drug consumption, fluctuate. They are both affected by the availability
of supplies and the price demanded. Addicts may well, to avoid being in
constant danger of apprehension, buy their supplies in bulk in Po Chai pill
phials or a quantity of straw packets. An addict who confines himself to No.3
heroin requires a much greater bulk than the addict, and these are now the
majority, who makes use of No.4 heroin and for obvious reasons. Dr. Hollinrake
revised his average daily consumption, because of the significant rise in the
price of drugs since January 1990, to between 0.25 and 0.5 of a gramme of pure
heroin daily.
107. Dr. Mak's statement is ambiguous for
he was asked an exact question as to the daily consumption of No.4 heroin and
his answer was, taking an average, that a heroin abuser consumes about one
gramme of No.4 heroin each day. It is unclear whether he was talking of the
narcotic by itself or of the mixture in which the narcotic would be contained.
108. Mrs Lee's affidavit is, first, to the
effect that between February and July 1991 those charged in the District Court
with possession of dangerous drugs for the purpose of unlawful trafficking, and
having the assistance of the Legal Aid Department, successfully rebutted the
presumption in 14 out of 19 rebuttal cases. A more thorough check of the files
of the Legal Aid Department having been made this showed that, during the
period of January 1991 to July 1991, there were altogether 27 cases heard in
the District Court. Of those 27, 15 were rebuttal cases and out of them nine
were successful. In one the Crown accepted a plea of guilty to simple
possession.
109. Chief Inspector Young in his statement
of 9th July 1991 - and his evidence covers both the presumption in s.46 (d) and
that in s.46 (c) - the more than five packets presumption - appended a table of
the 1990 figures month. by month. As was made clear in Lau Tak Ming these figures
are based upon the seizures during a given period. The table ranged from a high
of 0.70 grammes in February to a low of 0.22 grammes in September 1990. Chief
Inspector Young found that the average over the 12 month period to be 0.39 of a
gramme of pure heroin per day consumed by the addict. Any presumption to be
properly balanced has to take into consideration the general fluctuations to
which I referred and the legislature cannot be expected to meet every month to
amend according to current trends.
110. But, having said that, the 0.5 of a
gramme in s.46 (d) fails the test of proportionality and the test of
rationality. The danger in which the innocent addict, that is innocent of
trafficking, is placed is obvious. The amount that triggers is clearly in no
way in excess of the average consumption the' average addict needs daily. It
is, on the evidence before us, below that figure. 0.5 of a gramme is neither
rationally nor realistically connected with the fact presumed.
Section 46(c)
111. The more than five packet trigger has
all the appearance of being an arbitrary one. As I have earlier indicated
addicts tend to buy in bulk. No specific narcotic content, or indeed mixture
content, is required to be contained in any one of those more than five
packets. A person could face prosecution having been found in his residence
holding more than five packets but with the merest trace of drugs in them. I
fully appreciate the necessity for the interception and prosecution of a
courier busily about his trade in the streets of Hong Kong carefully supplied
by his boss with the smallest possible quantity of deliverable containers of
drugs. I would nevertheless find that the Crown, on the evidence such as it is
on this aspect, has failed to justify this trigger point.
Section 47(1)(c) and (d)
112. Section 47(1) reads:
(1) Any
person who is proved to have had in his possession or custody or under his
control -
(a)
-
(b)
-
(c)
any place or premises or part of any place or premises in which a dangerous
drug is found
(d) the
keys of any place of any place or premises or part of any place or premises in
which a dangerous drug is found,
shall, until the contrary is proved, be
presumed to have had such drug in his possession."
113. I can find no justification on the
evidence of the Crown for these presumptions. They catch, and force to
rebuttal, an ordinary inhabitant of an apartment house who has the keys to the
front door of that premises in one of the cubicles in which drugs are found.
They catch in a manner not dissimilar to the circumstances of Warner v. The
Metropolitan Police Commissioner [1969] 2 AC 256, the innocent tenant or
landlord of a premises - and on this I note that the dissenting speech of Lord
Reid became the lead speech in the subsequent case of Sweet v. Parsley [1970]
AC 132 which greatly reduced the harshness of the Warner decision.
114. In my judgment these presumptions fail
the rationality and proportionality tests. The onus upon the Crown has not been
discharged.
115. On the final presumption contained in
s.47 (3) which reads:
"(3) Any
person who was proved or presumed to have had a dangerous drug in his
possession shall, until the contrary is proved, be presumed to have known the
nature of such drug."
This, given the views I have expressed as
to the earlier s.47 presumptions, fails as against Article 11(1). It is
inconsistent. Had my views on those prior presumptive provisions been different
it could well be that I would have found, an aspect more fully dealt with by
Penlington J.A., s.47(3) to be consistent.
116. I would therefore answer the question
posed by Ryan J by saying that the provisions of s.46 (c) and (d) and s.47 (1)
(c) and (d) and (3) are inconsistent with Article 11(1) of the Hong Kong Bill
which in consequence has repealed them, under the provisions of s.3, since 8th
June 1991.
117. These answers I would remit to Ryan J.
for his consideration.
Kempster, JA:
Introduction
118. On 21 and 22 August 1991 respectively
Deputy District Court Judge C.Y. Wong ruled that sections 46(c) and (d) and
47(1)(c) and (d) and (3) of the Dangerous Drugs Ordinance (Cap 134) did not
admit of a construction consistent with s 8 Article 11(1) of the Hong Kong Bill
of Rights Ordinance 1991 and had been repealed pursuant to s 3 (2). R v Ng
Po-lam DC Case No 101 of 1991; R v Leung Ping-lam DC Case No 235 of 1991 (Both
unreported). No application had been made pursuant to s 81 of the Criminal
Procedure Ordinance (Cap 221) and none has since been made pursuant to s 81D.
119. On 27 August Sin Yau-fining was being
tried on an indictment containing two counts both charging him with having been
in possession of dangerous drugs for the purpose of unlawful trafficking on 28
July 1990. On the application of counsel for the Attorney General, supported by
counsel for the accused, Ryan J reserved certain questions of law for the
consideration of this court pursuant to s 81 of the Criminal Procedure
Ordinance and adjourned the hearing. Following argument from counsel for the
Crown and for the accused, both of whom again supported the reservation, we
ruled that we had jurisdiction to determine the questions. I now set out my
reasons which closely accord with those given by My Lord the Vice-President.
The Question of Jurisdiction to entertain
the Reference
120. In R v Leung Wing-cheung [1958] HKLR
49, unassisted by submissions from the Crown or from the defendant in person,
the Full Court, comprising Gould Acting CJ and Reece J, held that a District
Judge was entitled to reserve a question of law for the consideration of the
Full Court albeit he had not first proceeded to conviction or acquittal,
pursuant to s 81; applicable to the District Court by s 79 of the District
Court Ordinance (Cap 336). That section of the Criminal Procedure Ordinance
then read: -
"
PART IV
PROCEEDINGS SUBSEQUENT TO TRIAL
Reservation of question of law
81
(1) The judge may reserve for
the consideration of the Full Court any question of law which may arise on the
trial of any indictment, and in case the accused person is convicted, may
postpone judgment until such question has been considered and decided, and in
the meanwhile may commit the person convicted to prison or take a recognizance
of bail, with or without one or more sufficient sureties, and in such sum as he
may think fit, conditioned to appear at such time or times as the court may
direct and receive judgment.
(2) Upon the consideration of
the question so reserved it shall be lawful for the Full Court to affirm or to
quash the conviction or to direct a new trial, and to make such other orders as
may be necessary to give effect to its decision: Provided that the Full Court
may, notwithstanding that it is of opinion that the question so reserved might
be decided in favour of the convicted person, affirm the conviction if it
considers that no substantial miscarriage of justice has actually occurred."
The Acting Chief Justice rightly pointed
out that, in contrast to s 1 of the Crown Cases Act 1848, conviction was not
expressed to be a condition precedent to the exercise of the discretion to
reserve a question of law under subsection (1) and no more was acquittal. As
regards subsection (2), which prima facie postulates a conviction, he found
that the words "and to make such other orders as may be necessary to give
effect to its decision" rendered it congruous with subsection (1). He felt
able to ignore the cross-heading "Proceedings Subsequent to Trial"
and, implicitly, construed the section in the manner required by s 19 of the
Interpretation and General Clauses Ordinance (Cap 1). Still without. argument
that decision was followed by the Full Court and by the Court of Appeal: R v
Chan Ming-luk [1962] HKLR 651; R v Ho Siu-fei & Ors [1976] HKLR 190. By the
time of the latter decision the section in question read as it reads today: -
"
PART IV
APPEALS, QUESTIONS OF LAW RESERVED AND
REFERRED AND REVIEW
... Reservation of question of law
Power to reserve question of law for
consideration of Court of Appeal
81
(1) The judge of the court of
trial may reserve for the consideration of the Court of Appeal any question of
law which may arise on the trial of any indictment.
(2) In exercising his power
under subsection (1), the judge may act either of his own motion or on the
application of the Attorney General or the defence.
(3) A judge may, if he
reserves a question of law under subsection (1) and the accused person has been
convicted -
(a)
postpone judgment until the question has been considered and decided; and
(b) commit
the person convicted to prison or admit him to bail, with or without one or
more sufficient sureties, and in such sum as he may think fit, conditioned to
appear at such time or times as the judge may direct and receive judgment,
(4) Upon consideration of a question reserved
under subsection (1), the Court of Appeal may :-
(a)
affirm or quash the conviction or order a new trial; and
(b) make
such other orders as may be necessary to give effect to its decision.
Provided that the Court of Appeal
may, notwithstanding that it is of opinion that the question so reserved might
be decided in favour of the convicted person, affirm the conviction if it
considers that no miscarriage of justice has actually occurred."
Any difficulty deriving from the
cross-heading had disappeared.
121. The perception of the legal community
in this regard was altered by the carefully reasoned decision of the High
Court, Trainor and Cons JJ, in Miscellaneous Proceedings No 56 of 1976 - In re
Tsang Ting-bun [1978] HKLR 141. In a subsequent long-running fraud trial which
gave rise to a number of contentious rulings no application was made on behalf
of the Crown to reserve under s 81. S 81D, added to the Criminal Procedure
Ordinance in 1979, was invoked after acquittals. Reference No 1 of 1987 [1988]
1 HKLR 375.
122. Trainor and Cons JJ held, this time
after argument, that a District Court Judge had been right to rule that a point
of law could not be reserved in the sense of being referred to this court until
and unless there had been a conviction. The High Court refused an application
for orders of Certiorari to quash the ruling and of Mandamus directing the
judge to exercise his discretion under s 81 accordingly. The Court held,
wrongly in my opinions, that the decision on the matter in R v Leung Wing-cheung
was obiter and that the Act of 1848 provided an aid to the construction of
subsequent Hong Kong legislation culminating in the material section of the
Criminal Procedure Ordinance. On this basis the High Court, having the
practical implications of their decision in mind, gave an expanded meaning to
the word "reserve" namely, in my own words, "to defer until
after conviction, being a condition precedent, the reference of any question of
law for the consideration of the Court of Appeal". The High Court held
that subsections (1) and (4) would otherwise be mutually repugnant.
123. I am satisfied that the approach of
Gould Acting CJ to subsection (2] of s 81, as then enacted, is equally apt for
the construction of the present subsection (4)(b) and, further, that the terms
of subsection (3) are only consistent with a discretion to reserve before or
after conviction. Having the practical implications of our decision in mind I
would add that in the exercise of their discretion judges may well reserve questions
and adjourn hearings pursuant to s 8l sparingly and bearing, among other
considerations, the effect on jurors in mind. In many cases it may be desirable
for a judge to defer ruling on any application or raising a point of law of his
own motion until after conviction if any.
The Questions to be determined
124. The questions of law reserved were: -
"Do sections 46 (c) and (d) and
47(1)(c) and (d) and 47(3) of the Dangerous Drugs Ordinance ... admit of a
construction which is consistent with s 8 Article 11(1) of the Bill of Rights
Ordinance No 59 of 1991? If any or all of these provisions do not admit of such
a construction and are therefore inconsistent with the said s 8 Article 11(1),
to what extent have the said provisions (or any one of them) been repealed by
virtue of the provisions of s 3 (2) of the Bill of Rights?"
The material sections of the Ordinances
referred to read as follows:-
"Dangerous Drugs Ordinance
46. Any person who is proved or
presumed to have had in his possession more than .....
(c)
5 packets or containers containing any of the following substances either alone
or contained in a preparation, mixture, extract or other material -
(i)
morphine or a salt of morphine (except when present to the extent of less than
one-fifth of one per cent);
(ii)
diacetylmorphine;
(iii)
a salt of diacetylmorphine;
(iv)
an ester of morphine;
(v)
a salt of an ester of morphine;
(d)
One half gramme of any one or more of the following substances, either alone or
contained in a preparation, mixture, extract or other material -
(i)
morphine;
(ii)
diacetylmorphine;
(iii)
a salt of morphine or diacetylmorphine;
(iv)
an ester of morphine;
(v) a
salt of an ester of morphine;
......
shall, until the contrary is proved, be
presumed to have had such dangerous drug in his possession for the purposes of
trafficking therein.
47
(1) Any person who is proved to
have had in his possession or custody or under his control
.....
(c)
any place or premises or the part of any place or premises in which a dangerous
drug is found;
(d) the
keys of any place or premises or part of any place or premises in which a
dangerous drug is found,
shall, until the contrary is proved, be
presumed to have had such drug in his possession.
……
(3) Any person who is proved
or presumed to have had a dangerous drug in his possession shall, until the
contrary is proved, be presumed to have known the nature of such drug.
Bill of Rights Ordinance
.....
3.
Effect on pre-existing legislation
(1)
All pre-existing legislation that admits of a construction consistent
with the Ordinance shall be given such a construction.
(2)
All pre-existing legislation that does not admit of a construction
consistent with this Ordinance is, to the extent of the inconsistency,
repealed.
......
8.
Hong Kong Bill of Rights
125. The Hong Kong Bill of Rights is as
follows.
......
Article 11(1) Everyone charged with a
criminal offence shall have the right to be presumed innocent until proved
guilty according to law."
Enacted in compliance with Article 7 of the
Letters Patent (as amended) the Ordinance took effect on 8 June 1991. The
courts have a corresponding duty to recognise and protect the various rights
declared without derogating from their obligations in respect of other,
undeclared, fundamental rights existing as part of Hong Kong Law on 8 June
1991. S 2 (5).
126. The determination of the question
posed has far ranging implications in relation, for example, to s 24 of the
Firearms and Ammunition Ordinance ( Cap 238), to sections 17 and 19 of the
Summary Offence Ordinance (Cap 228) and even to s 94A(2) of the Criminal
Procedure Ordinance. In due course the terms of various sections in the
ordinances listed in the Schedule to the Bill of Rights Ordinance may call for
consideration. Presently a number of prosecutions stand adjourned pending our
decision upon this Reference.
The Common Law Approach
127. The Common Law position was explained
by Lord Wright in Joseph Constantine Steamship Line Ltd v Imperial Smelting
Corp Ltd [1942] AC 154 at p 192: -
"... The ordinary rule is that a man
is not held guilty of fault unless fault is established and found by the court.
This rule, which is sometimes described as the presumption of innocence, is no
doubt peculiarly important in criminal cases or matters, but it is also true in
civil disputes.
In the context of an appeal to the Privy
Council from the courts of this Colony in a criminal matter Lord Tucker stated:
-
"... that in cases where the evidence
discloses a possible defence of self defence the onus remains throughout upon
the prosecution to establish that the accused is guilty of the crime of murder
and the onus is never upon the accused to establish this defence any more than
it is for him to establish provocation or any other defence apart from that of
insanity ... which is not strictly a defence." Chan Kau v R [1955] AC 206
at p 211.
Lord Tucker's broad statement reflects the
evidential burden falling upon an accused to raise such issues as self defence,
provocation, accident, duress, non-insane automatism, drunkenness and alibi
albeit they may well be discharged by the evidence called on behalf of the
prosecution on whom the legal burden remains. However, by ordinance an accused
is entitled to be convicted of manslaughter rather than murder if, the legal
burden being upon him, he establishes "diminished responsibility" or
that he had been acting pursuant to a suicide pact. Homicide Ordinance (Cap
339) sections 3 and 5. In offences under the Dangerous Drugs Ordinance the
legal burden has always remained on the prosecution throughout to establish
guilt according to law which expression includes any statutory presumption.
Woolmington v DPP [1935] AC 462 at pp 481 and 482 per Lord Sankey LC. It is
only when the prosecution has satisfied the appropriate tribunal beyond
reasonable doubt that the accused had in his possession certain packets or
containers or quantities of drugs or of facts giving rise to the presumption of
possession that it has been incumbent upon him, on the balance of probabilities,
to rebut the statutory presumptions of possession, purpose and knowledge. R v
Carr-Briant [1943] KB 607 at p 612; Public Prosecutor v Yuvaraj [1970] 2WLR 226
at p 232; R v McNamara [1988] 87 Cr App R246. If the accused failed so to do he
would have been proved guilty according to law as enacted in that Ordinance on
the footing that the legislature was supreme and, subject to the terms of the
Letters Patent, could not be fettered. I now turn to the rather different
jurisprudence applicable to the Bill of Rights Ordinance.
Interpretation of the Hong Kong Bill of
Rights Ordinance
128. By s 2 (3) "in interpreting and
applying" that ordinance which, effectively, is entrenched unless the
Letters Patent are materially amended before or Article 39 of the Basic Law is
amended after 30 June 1997: -
"regard shall be had to the fact that
the purpose of this Ordinance is to provide for the incorporation into the law
of Hong Kong of provisions of the International Covenant on Civil and Political
Rights as applied to Hong Kong, and for ancillary and connected matters."
In adhering to the Covenant in 1976 the
United Kingdom made certain reservations in relation to Hong Kong by reason of
its dependent status. Article 14-2 of the Covenant is in like terms to Article
11(1) here enacted and the preamble recites that the States Parties thereto
consider that -
"... recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world"
and recognise
"that these rights derive from the
inherent dignity of the human person."
It also recites that the States Parties
realise -
"that the individual, having duties to
other individuals and to the community in which he belongs, is under a
responsibility to strive for the promotion and observance of the rights
recognised in the present Covenant."
The latter recital acknowledges the
necessary relationship between rights and duties within and the requirements
of, a community such as the people of Hong Kong whatever the nature of their
government for the time being. In the premises -
"it is a legitimate aid to the
construction of any provisions of the Act that are ambiguous or vague to have
recourse to the terms of the treaty in order to see what was the obligation in
international law that Parliament intended that this country should be enabled
to assume. The ambiguity or obscurity is to be resolved in favour of the
meaning that is consistent with the provision of the treaty." per Lord
Diplock in Quazi v Quazi [1980] AC 744 at p 808.
To like effect Lord Wilberforce, in
Minister of Home Affairs v Fisher [1980] AC 319, who mentions the United
Nations Universal Declaration of Human Rights and the European Convention for
the Protection of Human Rights and Fundamental Freedom which, like the
International Covenant on Civil and Political Rights, have been adopted since
the Second World War. With reference to the Constitution of Bermuda he said, at
pp 328 and 329: -
"These antecedents ... call for a
generous interpretation avoiding what has been called 'the austerity of
tabulated legalism,' suitable to give to individuals the full measure of the
fundamental rights and freedoms referred to. ... Respect must be paid to the
language which has been used and to the traditions and usages which have given
meaning to that language. It is quite consistent with this, and with the
recognition that rules of interpretation may apply, to take as a point of
departure for the process of interpretation a recognition of the character and
origin of the instrument, and to be guided by the principle of giving full
recognition and effect to those fundamental rights and freedoms with a
statement of which the Constitution commences."
And Lord Diplock again in A-G of the Gambia
v Jobe [1984] AC 689 at p 700: -
"A constitution, and in particular
that part of it which protects and entrenches fundamental rights and freedoms
to which all persons in the state are to be entitled, is to be given a generous
and purposive construction."
129. In Ong An Chuan v Public Prosecutor
[1981] AC 648 the Privy Council considered the compatibility of the Singapore
Misuse of Drugs Act with the Constitution of the Republic. By s 15 of the Act
the possessor of 2 grammes of a dangerous drug, a quantity larger than is
likely to be needed for his own consumption, is presumed, until the contrary is
proved, to have possessed such drug for the purpose of trafficking therein
which, by s 2, includes 'transporting'. But without proof, for example, of
transporting the drug he cannot be found guilty of trafficking under s 3.
Unlike the legislation of Hong Kong and Canada there is no separate offence of
possession for the purposes of trafficking. "So", as once more Lord
Diplock explained at p 668: -
"the presumption works as follows,
when an accused is proved to have had controlled drugs in his possession and to
have been moving them from one place to another: (1) the mere act of moving
them does not of itself amount to trafficking within the meaning of the
definition in s 2; but if the purpose for which they were being moved was to transfer
possession from the mover to some other person at their intended destination
the mover is guilty of the offence of trafficking under s 3, whether that
purpose was achieved or not. This is the effect of the provisions of s 3(c).
and s.10. (2) If the quantity of controlled drugs being moved was in excess of
the minimum specified for that drug in s 15, that section creates a rebuttable
presumption that such was the purpose for which they were being moved, and the
onus lies upon the mover to satisfy the court, upon the balance of
probabilities, that he had not intended to part with the possession of the drug
to anyone else, but to retain them solely for his own consumption."
Article 91 of the Constitution
"founded on the Westminster model" provides: -
"No person shall be deprived of his
life or personal liberty save in accordance with law."
Applying the principles enunciated in
Minister of Home Affairs v Fisher Lord Diplock went on, at pp 671 to 672: -
"Their Lordships would see no conflict
with any fundamental rule of natural justice and so no constitutional objection
to a statutory presumption (provided that it was rebuttable by the accused)
that his possession of controlled drugs in any measurable quantity, without
regard to specified minima, was for the purpose of trafficking in them. The
Canadian Narcotic Control Act 1960-61, so provides by s 8. In contrast to this
the Drugs Act only raises the rebuttable presumption when the quantity of drugs
in the possession of the accused exceeds the appropriate minimum specified in s
15. It is not disputed that these minimum quantities are many times greater
than the daily dose taken by typical heroin addicts in Singapore; so, as a
matter of common sense, the likelihood is that if it is being transported in
such quantities this is for the purspose of trafficking. All that is suggested
to the contrary is that there may be exceptional addicts whose daily
consumption much exceeds the normal; but these abnormal addicts, if such there
be, are protected by the fact that the inference that possession was for the
purpose of trafficking is rebuttable.
In their Lordships' view there is no substance in the suggestion that s
15 of the Drugs Act is inconsistent with the Constitution, at any rate so far
as it relates to proved possession, with which alone the instant cases are
concerned."
It is to be observed that the Constitution
under consideration included no equivalent of Article 11 (1), which is not
based on "the Westminster Model" and, as was pointed out by Dickson
CJC in R v Oakes (1986) 26 DLR (4th) 200 at p 219: -
"... the Privy Council did not read
this principle into the general due process protections of the Constitution of
Singapore."
130. These broad declarations of high
principle would seem to owe much to such classic pronouncements as the
Declaration of Independence by the Second Continental Congress on July 4, 1776:
-
"We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain inalienable rights, that among these are life, liberty and
the pursuit of happiness ... "
I refrain from quoting the unhappy
philippic against H.M. George III which follows and proceed to Amendment V of
the 1787 Constitution of the United States which is part of the 1791 Bill of
Rights: -
"... nor shall any person ... be
deprived of life, liberty or property without due process of law ... "
This obligation was imposed upon the States
of the Union by Amendment XIV s 1 on July 18, 1968. It has fallen to the
Supreme Court of the United States to rule on the conformity of legislation
with the Constitution and to declare it invalid insofar as such legislation
falls short of that requirement. This responsibility is now, in effect,
conferred on the Courts of this Colony in relation to pre June 1991 legislation
by s 3 of the Bill of Rights Ordinance. Accordingly that ordinance is, in my
view, subject to the same canons of construction.
131. By reason of the genesis of the
principles under review it would seem appropriate at this juncture to look at
three United States authorities. In Tot v United States (1943) 319 US 463 at pp
467 and 468 Roberts J, delivered the opinion of the Supreme Court in relation
to a presumption in the Federal Firearms Act that the possession of a firearm
by any person who has been convicted of a crime of violence or is a fugitive
from justice shall be presumed to have (inter alia) received it as a result of
inter-state rather than intra-state commerce in violation of the Act. He said
that: -
"Under our decisions, a statutory
presumption cannot be sustained if there be no rational connection between the
fact proved and the ultimate fact presumed, if the inference of the one from
the proof of the other is arbitrary because of lack of connection between the
two in common experience. This is not to say that a valid presumption may not
be created upon a view of relation broader than that a jury might take in a
specific case. But where the inference is so strained as not to have a
reasonable relation to the circumstances of life as we know them it is not
competent for the legislature to create it as a rule governing the procedure of
courts."
In Leary v United States (1969) 395 US 6,
dealing with a statutory presumption of knowledge of illegal importation
arising from possession, Harlan J, delivering the opinion of the Supreme Court,
said: -
"... a criminal statutory presumption
must be regarded as 'irrational' or 'arbitrary' and hence unconstitutional
unless it can at least be said with substantial assurance that the presumed
fact is more likely than not to flow from the proved fact on which it is made
to depend. And in the judicial assessment the congressional determination
favouring the particular presumption must, of course, weigh heavily."
Finally, in Ulster County Court v Allen
(1979) 442 US 140 the Supreme Court held, by a majority, that the presumption
that an individual present in an automobile where there was a handgun possessed
the weapon was entirely rational. As opposed to a mandatory presumption which
requires a fact to be presumed that presumption was permissive only and could,
therefore, be ignored even in the absence of evidence in rebuttal.
132. Turning now to the decisions of the
European Court of Human Rights Mr Cross, for the Attorney General, relies upon
Barbera Messegue and Jabrado (1988) ECHR Series A No 146 in which an
application had been made for a declaration that Spain has violated Article 6
(2) of the European Covenant for the Protection of Human Rignts and Fundamental
Freedoms which states: -
"Everyone charged with a criminal
offence shall be presumed innocent until proved. guilty according to law."
Article 24(2) of the Spanish Constitution
provides that:-
"Everyone ... has ... the right to be
presumed innocent."
The court held at paragraph 77 that Article
6(2) -
"... requires, inter alia, that when
carrying out their duties the members of a court should not start with the
preconceived idea that the accused has committed the offence charged; the
burden of proof is on the prosecution and any doubt should benefit the
accused."
And at paragraph 91: -
"The presumption of innocence will be
violated if, without the accused's having been previously been proved guilty
according to law a judicial decision concerning him reflects an opinion that he
is guilty."
I do not find this decision of assistance
and turn to the next, relied upon also by Mr Fung for the accused, being
Salabiaku v France (1988) 13 EHRR 379 where again a violation of Article 6 (2)
was alleged.
133. Mr Salabiaku was a citizen of Zaire
resident in Paris who collected a padlocked trunk which had arrived from his
native country at Roissy Airport and took it through customs. Thereafter he was
arrested and the trunk found to contain 10 kg of cannabis. In due course Mr
Salabiaku was convicted of an infringement of Article 414 of the French Customs
Code by smuggling prohibited goods. Article 392(1) provided that the possessor
of prohibited goods should be deemed liable for this offence. The European
Court held at pp 388 to 391: -
"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 a 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. ... As the government
argued at the hearing on 20 June 1988 the French courts thus do enjoy a genuine
freedom of assessment in this area and 'the accused may ... be accorded the
benefit of the doubt, even when the offence is one of strict liability'. ... It
is clear from the judgment of 27 March 1981 and that of 9 February 1982, that
the courts in question were careful to avoid resorting automatically to the
presumption laid down in Article 392 (1) of the Customs Code. As the court of
Cassation observed in its judgment of 21 Febraury 1983, they exercised their
power of assessment 'on the basis of the evidence adduced by the parties before
them' they inferred from the 'fact of possession a presumption which was not
subsequently rebutted by any evidence of an event responsibility for which
could not be attributed to the perpetrator of the offence or which he would
have been unable to avoid'. Moreover, as the government said, the national
courts identified in the circumstances of the case a certain 'element of
intent', even though legally they were under no obligation to do so in order to
convict the applicant.
It follows that in this instance the French courts did not apply Article
392(1) of the Customs Code in a way which conflicted with the presumption of
innocence."
The complaint was dismissed because it was
shown that, in practice, the French courts regard as merely permissive what
were ostensibly mandatory presumptions if not instances of strict liability.
134. 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(l) as meaning not the domestic law of
Hong Kong but a universal concept of justice.
135. In Belgian Linguistic Case (No 2)
(1988) 1 EHRR 252 at p 284 in the context of Article 14 of the Convention,
which provides for rights to be afforded without discrimination, the court
emphasised the necessity for a reasonable balance between the means employed by
a State to deal with a particular problem and the aim sought to be realised.
136. Turning more specifically to Canadian
decisions the Alberta Court of Appeal concluded that, in the absence of
justification under s 1 of the 1982 Charter of Rights and Freedoms, s 8 of the
Narcotic Control Act was constitutionally invalid as violating the presumption
of innocence. R v Stanger (1983) 2 DLR (4th) 121 (Alb CA). It was so held
because the proved fact did not demonstrate a likelihood that the presumed fact
existed and, therefore, there was no rational connection between the two. In
1986 virtually the same issue came before the Supreme Court of Canada in R v
Oakes. The material sections of the Narcotic Control Act read: -
"3(1)
Except as authorised by this Act or the regulations, no person shall have a
narcotic in his possession ...
4(1)
No person shall traffic in a narcotic ...
(2)
No person shall have in his possession any narcotic for the purpose of
trafficking.
(3) Every
person who violates subsection (1) or (2) is guilty of an indictable offence
and liable to imprisonment for life ...
8
In any prosecution for a violation of subsection 4(2) ... the trial shall
proceed as if it were a prosecution for an offence under s 3 and ... if the
court finds that the accused was in possession of the narcotic contrary to s 3
he shall be given an opportunity of establishing that he was not in possession
of the narcotic for the purpose of trafficking. ... and if the accused fails to
establish that he was not in possession of the narcotic for the purpose of
trafficking, he shall be convicted of the offence as charged and sentenced
accordingly."
The material sections of the Charter read:
-
"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.
......
11.
Any person charged with an offence has the right …
(d)
to be presumed innocent until proven guilty according to law ..."
It was held by Dickson CJC that a -
"presumption with a basic fact entails
a conclusion to be drawn upon proof of the basic fact."
The Privy Council had found to like effect
in Kwan Ping-bong v R [1979] HKLR 1 at pp 5 and 6; adding that -
"the effect of the provision (s 47 of
the Dangerous Drugs Ordinance) is to convert an inference which at Common Law
the jury would not be entitled to draw unless they were satisfied beyond all
reasonable doubt that it was right, into an inference which they are bound to
draw unless they are satisfied that on the balance of probabilities it is
wrong. So they must draw it even though they think that it is equally likely to
be right as to be wrong."
Dickson CJC continued: -
"To return to s 8 of the Narcotic
Control Act, it is my view that, upon a finding beyond a reasonable doubt of
possession of a narcotic, the accused has the legal burden of proving on a
balance of probabilities that he or she was not in possession of the narcotic
for the purpose of trafficking ...
To interpret the meaning of s 11(d), (of the Charter) it is important to
adopt a purposive approach. As this Court stated in R v Big M Drug Mart Ltd
(1985) 18 DLR (4th) 321 at pp 359-60: -
'The meaning of a right or freedom
guaranteed by the Charter was to be ascertained by an analysis of the purpose
of such a guarantee; it was to be understood, in other words, in the light of
the interests it was meant to protect.
In my view, this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the character and
the larger objects of the Charter itself, to the language chosen to articulate
the specific right or freedom, to the historical origins of the concepts
enshrined, and where applicable, to the meaning and purpose of the other
specific rights and freedoms.'
To identify the underlying purpose of the
Charter right in question, therefore, it is important to begin by understanding
the cardinal values it embodies.
The presumption of innocence is a hallowed principle lying at the very
heart of criminal law. Although protected expressly in s 11(d) of the Charter,
the presumption of innocence is referable and integral to the general
protection of life, liberty and security of the person contained in s 7 of the
Charter ... The presumption of innocence protects the fundamental liberty and
human dignity of any and every person accused by the State of criminal conduct.
An individual charged with a criminal offence faces grave social and personal
consequences, including potential loss of physical liberty, subjection to
social stigma and ostracism from the community, as well as other social,
psychological and economic harms. In light of the gravity of these
consequences, the presumption of innocence is crucial. It ensures that until
the State proves an accused's guilt beyond all reasonable doubt, he or she is
innocent. This is essential in a society committed to fairness and social
justice. The presumption of innocence confirms our faith in humnakind; it
reflects our belief that individuals are decent and law-abiding members of the
community until proven otherwise. ...
Although there are important lessons to be learned from the (1960)
Canadian Bill of Rights jurisprudence, it does not constitute binding authority
in relation to the constitutional interpretation of the Charter ... the
Charter, as a constitutional document, is fundamentally different from the
statutory Canadian Bill of Rights, which was interpreted as simply recognizing
and declaring existing rights ... S 8 of the Narcotic Control Act is not
rendered constitutionally valid simply by virtue of the fact that it is a
statutory provision."
Then, most significantly for present
purposes, at p 222: -
"In general one must, I think,
conclude that a provision which requires an accused to disprove on a balance of
probabilities the existence of a presumed fact, which is an important element
of the offence in question, violates the presumption of innocence in s 11(d).
If an accused bears the burden of disproving on a balance of probabilities an
essential element of an offence, it would be possible for a conviction to occur
despite the existence of a reasonable doubt."
Dickson CJC then turned to s 1 of the
Charter which, he held, fell to be construed in a manner which Mr Fung, in his
well documented and cogent submissions, described, correctly I believe, as
"aspirational" by reason of the reference to a "free and
democratic society." Dickson CJC continued at p 225: -
" ... The court must be guided by the
values and principles essential to a free and democratic society which I
believe embody, to name but a few, respect for the inherent dignity of the
human person, commitment to social justice and equality, accommodation of a
wide variety of beliefs, respect for cultural and group identity, and faith in
social and political institutions which enhance the participation of
individuals and groups in society. The underlying values and principles of a
free and democratic society are the genesis of the rights and freedoms
guaranteed by the Charter and the ultimate standard against which a limit on a
right or freedom must be shown, despite its effect, to be reasonable and
demonstrably justified.
The rights and freedoms guaranteed by the Charter are not, however,
absolute. It may become necessary to limit rights and freedoms in circumstances
where their exercise would be inimical to the realisation of collective goals
of fundamental importance. ...
The onus of proving that a limit on a right or freedom guaranteed by the
Charter is reasonable and demonstrably justified in a free and democratic
society rests upon the party seeking to uphold the limitation. ... The
presumption is that the rights and freedoms are guaranteed unless the party
invoking s 1 can bring itself within the exceptional criteria which justify
their being limited."
At p 229 he said: -
"The objective of protecting our
society from the grave ills associated with drug trafficking, is, in my view,
one of sufficient importance to warrant overriding a constitutionally protected
right or freedom in certain cases. Moreover, the degree of seriousness of drug
trafficking makes its acknowledgment as a sufficiently important objective for
the purposes of s 1, to a large extent, self-evident. The first criterion of a
s 1 inquiry, therefore, has been satisfied by the Crown.
The next stage of inquiry is a consideration of the means chosen by
Parliament to achieve its objective. The means must be reasonable and
demonstrably justified in a free and democratic society. As outlined above,
this proportionality test should begin with a consideration of the rationality
of the provision: is the reverse onus clause in s 8 rationally related to the
objective of curbing drug trafficking? At a minimum, this requires that s 8 be
internally rational; there must be a rational connection between the basic fact
of possession and the presumed fact of possession for the purpose of trafficking.
Otherwise, the reverse onus clause could give rise to unjustified and erroneous
convictions for drug trafficking of persons guilty only of possession of
narcotics."
Conclusions in relation to the Aplicable
Law
137. 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 CJC 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 No 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 (1) of the Hong Kong Bill of Rights Ordinance if
it be shown by the Crown, due regard being paid to the enacted conclusions or
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.
Sections 46 and 47 of the Dangerous Drugs
Ordinance, I suggest, fall to be subjected to this test. The need of Hong Kong
society to combat and abate the evils of the drug trade with all the misery it
entails is certainly not a matter in controversy.
Answers to the Questions reserved
138. Although we are asked to express an
opinion in relation to s 46 (c) and (d) without further limitation the two
charges with which Ryan J is seized relate only to salts. of esters of morphine
and evidence available to us largely relates to the ultimate consumers of that
particular dangerous drug. In the circumstances I feel able to deal with the
specific question reserved for us in relation to s 46(d) only in the context of
(v).
139. On 29 May 1990 in R v Lau Tak-ming
& Ors [1990] HKLR 370 at p 382 this Court accepted evidence put before it
from Dr Hollinarke and others that: -
"The addict requires 0.5 to 1 gramme
of salts of esters of morphine ... per 24 hours to sustain his addiction with
one gramme being the upper average limit - this contained in whatever the
mixture may be."
at p 385 Silke V-P added: -
"We have been told that the provisions
of s 46 are under active consideration at this moment. It could well be borne
in mind by trial courts that, where No 3 heroin is concerned, because of the
bulk the addict now requires resulting from the low narcotic purity and
considerable difference in price between it and No 4, the presumptions might be
the more easily rebutted."
We have admitted further evidence in this
Reservation from Dr Hollinrake, Mrs Nina Lee, Dr Mak and from Detective Chief
Inspector Stewart Young. It appears that addicts often satisfy their needs by
the purchase of straws and Po Chai pills phials of differing sizes and heroin
content. More to the point Dr Hollinrake confirms the figures recited in R v
Lau Tak-ming and Mr Young gives us a lower average daily consumption 0.39
grammes per day during 1990. Mrs Lee gave statistics showing that of 15 cases
in the District Court between January and July 1990 where possession of
dangerous drugs for the purpose of unlawful trafficking was charged and the
presumptions involved the accused successfully rebutted them in nine cases and
the Crown accepted a plea to simple possession in another. Dr Mak's evidence
tended to support Dr Hollinrake's figures.
140. It is thus apparent that the factual
level at which the presumption of possession for the purpose of trafficking
therein arises under s 46 (d) (v), being well within the daily consumption of
the average addict, is not rationally or realistically connected with the fact
presumed. As for s 46(c) no minimum weight is required and no evidence or even
argument was advanced by the Crown to justify triggering the presumption on
proof of possession of six packets containing an admixture of any dangerous
drug. In neither case does the presumption allow for purchases by an addict
exceeding his daily requirement for reasons of economy or convenience or with a
greater than average daily consumption.
141. Similar observations arise in relation
to s 47(1)(c) and (d). While there is a logical connection between the
possession of ''... the part of any place or premises in which a dangerous drug
is found or of the keys thereto" such connection is frail indeed when it
comes to "any place or premises" or "the keys thereto". It
is only necessary to think of a large house or apartment and an extended family
or of numerous key-holders and of apartments embracing separate cubicles having
their own locks. When the concept of "control" of any place or
premises comes into play I hesitate to find even a logical connection. S 47(3)
raises presumption upon presumption and must be incompatible with Article 11
(1) if I am right as regards the other presumptions considered. However, were
it dependent upon sustainable presumptions, as well as proof, it would not
stand repealed since, in my view, knowledge of the nature of a dangerous drug
rationally and realistically follows from its possession. Subject to this
qualification the Crown has failed to satisfy me in relation to any of the presumptions
under consideration that the fact to be presumed follows from or is
realistically connected with the fact to be proved or is warranted by and no
more than proportionate to the evil of the drug trade.
The Remedy
142. In the event I reach the same
conclusions as did Deputy District Court Judge C.Y. Wong and would answer the
questions posed as follows: -
"Sections 46(c) and (d) (v) and 47
(1)(c) and (d) and (3) of the Dangerous Drugs Ordinance do not admit of a
construction which is consistent with s 8 Article 11(1) of the Bill of Rights
Ordinance and have been repealed as from 8 June 1991 pursuant to the provisions
of s 3(2)."
Such answer I would remit to Ryan J for his
consideration.
Penlington, J. A.:
Jurisdiction
143. I have had the benefit of reading the
judgments of Silke, V.P. and Kempster, J.A. on the question of this Court's
power to hear this application. I agree with them, and, for the reasons given,
am satisfied that we do have jurisdiction and that this is clearly a case where
it should be exercised. I do however also entirely agree that a reference to
this Court before conclusion of the trial should be rare indeed.
The Constitutional Issue
144. The background facts of this matter
and the relevant authorities have been set out fully in the judgments of Silke,
V.P. and Kempster, J.A. and there is no need to repeat them.
145. Prior to 1968 there was no offence of
trafficking in dangerous drugs or of being in possession for that purpose.
There was simply the offence of possession and the penalties imposed varied
greatly, principally in accordance with whether or not the Court took the view
that the possession was for the defendant's own use or was for the purpose of
re-sale. In deciding that issue the quantity of drugs found was often the major
factor, in the absence of direct evidence of such re-sale. The 1968
legislation, substantially based on that passed in Singapore, created the
specific offence of trafficking. It also enacted the offence of possession for
that purpose. Simple possession remained as a separate offence carrying a very
much lower penalty. The object was to deter those responsible for the traffic
not to punish the victims of it.
146. Together with the creation of these
separate offences was enacted the statutory rebuttable presumptions, also
following the example of Singapore, with the aim of assisting the conviction of
the major participants in this terrible trade who are the beneficiaries of its
enormous profits. This made an inroad into the traditional right of silence and
the requirement that the Crown prove every element of its case beyond
reasonable doubt but the Legislature clearly considered it proper to do so if
society was to be adequately protected against the evils of the narcotic
traffic.
147. The penalties for trafficking and
possession for that purpose were also fixed at high levels and, while initially
the Courts showed some reluctance, severe sentences are now passed for these
offences, even when the amount involved is not very great. As this Court has
recently said in Lau Tak Ming possession of up to 10 grammes (less than half an
ounce) of pure heroin (salts of esters of morphine) should result in a sentence
in the range of two to five years. This level of sentence, while lenient in
comparison with the penalties for drug trafficking in other jurisdictions in
Southeast Asia, is much higher than was the case in 1968 and it is not
inappropriate that the presumptions as enacted should now be looked at afresh
to see if they may result in an unjust decision. As was said in Lau Tak Ming,
the pattern of narcotic abuse in Hong Kong has changed greatly. In that context
the Crown, in my view very properly, conceded that in the light of the wording
of Section 3(2) of the Bill of Rights and the decisions of other courts in
other jurisdictions which have considered very similar (sometimes identical)
legislation, it could not argue that the presumptions in Sections 46 and 47 are
consistent with the Bill of Rights and therefore still in force unless they
were considered by this Court to be reasonable. Similarly Mr. Fung also
concedes that presumptions which are reasonable (and he has presented
considerable argument on what is reasonable in this context) are not on the
face of them ultra vires the power of the legislature in that they must
necessarily offend against Section 11 (1) of the Bill of Rights. That is so
even giving it the broad and liberal interpretation it should receive, the
section under consideration being identical to the International Covenant on
Civil and Political Rights which is entrenched in the law of Hong Kong by the
amended Letters Patent. The courts should assume that it is the intention of
the legislation that international treaty obligations are to be carried out and
no effort should be made to evade such an obligation even if it may seem to be
contrary to the effort being made to counter a major social problem. The words
in Section 11 (1) of the Bill of Rights "according to law" includes a
reference to international treaty obligations as well as domestic law
(Salabiaku v. France). There is strong authority for this view in the decisions
of Minister for Home Affairs v. Fisher per Lord Wilberforce and in Attorney
General of the Gambia v. Jobe per Lord Diplock and I have no doubt it is right.
148. Mr. Fung also argues strongly that
while he does not say that the decision of the Privy Council in Ong was
incorrect on the facts and law then before the Privy Council, an enactment
which in any way reverses the presumption of innocence, as set out by Lord
Sankey in Woolmington, must show a reasonable relationship between the means
employed and the aim sought to be realised. While it is clearly very proper to
seek to eradicate the illegitimate traffic in dangerous drugs, that must be
done by means which are reasonable in the light of the clear wording of the
Bill of Rights and the need to protect fundamental freedoms.
149. Strong reliance is placed on the
decisions of the Canadian courts which have had considerable experience since
the coming into force of the Canadian Charter of Human Rights in 1982. The
decisions such as Stanger and Oakes should be preferred to the earlier ones
which considered the Canadian Bill of Rights and I have no doubt that is
correct for the reasons advanced by Mr. Fung. There are three tests suggested
in order to determine if any particular piece of legislation is contrary to the
Charter. It must be rational i.e. a logical connection with the facts from
which the presumption arises; it must have the minimum impairment on freedoms
guaranteed by the Charter and it must be proportional to the harm aimed at.
"The Canadian Charter of Rights 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" per Dickson, CJC
in Oakes.
150. Dealing with the presumption of
trafficking contained in Section 46 Mr. Fung argued that the recent evidence,
as contained in statements now before this Court by consent, coming from
persons with expertise of the way in which addicts purchase narcotics and what
quantity an addict may well have in his possession not to re-sell but to
satisfy his craving, coupled with that set out in recent cases such as Lau Tak
Ming, all point to the "trigger" level of 0.5 of a gramme in Section
46 (d) of the Ordinance as being too low. There seems to be no dispute that
while, as Dr. Hollinrake says, individual addicts will vary greatly as to the
amount each requires per day and even that amount will vary depending on the
market price, an addict may well smoke over 0.5 of a gramme in a day. Moreover
an addict may well be able to buy his
heroin cheaper if he purchases a larger quantity and while few addicts have the
resources to buy substantial supplies, enough for two to three days would not
be unlikely.
151. Strong reliance is placed by the Crown
on the decision in Ong, this being first of all a judgment of the Privy Council
and secondly the Council was considering a very similar provision, i.e. a
presumption that possession and transporting of more than a certain quantity
(there 2 grammes) was done for the purpose of trafficking. In giving the
judgment of the Council Lord Diplock said that "Proof of the purpose for
which an act was done, where such purpose is a necessary ingredient of an
offence with which an accused is charged, presents a problem with which
crimianl courts are very familiar. Generally in the absence of an express
admission by the accused, the purpose with which he did an act is a matter of
inference from what he did. Thus in the case of an accused being caught in the
act of conveying from one place to another controlled drugs in a quantity much
larger than is likely to be needed for his own consumption the inference that
he was transporting them for the purpose of trafficking in them would, in the absence
of any plausible alternative explanation by him, be irresistible even if there
was no statutory presumption such as is contained in Section 15 of the Drugs
Act" (my emphasis).
152. That decision must however be looked
at in the light of the fact that the Constitution of Singapore does not contain
a provision similar to Section 11(l) of the Bill of Rights and also that it
refers to possession by an accused of a quantity ''much larger than is likely
to be needed for his own consumption". Here it seems not in dispute that
if the amount of narcotic required to raise the presumption in Section 46 (d)
fell within those words, the provision would not offend the Bill of Rights.
153. In the lignt of the evidence before
this Court in Lau Tak Ming and the further statements of Dr. Hollinrake, Chief
Inspector Young, Mrs. Nina Lee and Dr. Mak I have no doubt that the amount of
0.5 gramme in Section 46 (d) is not such an amount as was referred to by Lord
Diplock in Ong and that an addict may very well have more than that quantity in
his possession for his own use. I am therefore satisfied that that presumption
fails to pass the test of being reasonable.
154. Turning to the presumption in Section
46(c) which arises on it being proved that the accused was in possession of
more than five packets containing the narcotic it seems to me that, while there
is little evidence on this aspect, if the six or more packets contain less than
0.5 of a gramme and the presumption under Section 46 (d) is therefore not
raised, it is also an unreasonable presumption. I find it difficult to envisage
evidence which could raise a reasonable presumption under paragraph (c) but not
under (d). I am satisfied that the presumption under both paragraphs cannot be
considered as reasonable in the light of the evidence before us and as a
consequence they have been repealed by Section 3 (2) of the Bill of Rights.
155. As has been pointed out by Kempster,
J.A. the only evidence before us concerns salts of esters of morphine i.e. pure
heroin. However I cannot imagine that if the presumption in relation to that
drug in Section 46 (c) (v) and 46 (d) (v) is unlawful the same presumption in
relation to the other drugs can remain. There has been no argument on this
point but I would consider the whole of these paragraphs to have been repealed.
156. Turning to the provisions of Section
47(1)(c) and (d) I am also satisfied that these provisions do not pass the test
of being reasonable in that they do not have a necessary connection with the
offence alleged. There may well be premises of which several persons could be
said to have "possession, custody or control" or have keys. It is not
reasonable that all such persons shall be presumed to have possession of any
dangerous drugs found therein. There will be cases where the number of key
holders is small, perhaps only one, and the presumption may not then offend but
I consider that, bearing in mind the canons of construction set out in Fisher
and Jobe, a provision which may be contrary to constitutional provision such as
the Bill of Rights cannot be considered as being consistent with it and must
also be deemed to be repealed. As Martin, J.A. said in the Ontario Court of
Appeal in Oakes, it is not for the Court to re-write the provision on a
case-by-case basis.
157. Section 47(3) provides that if a
person is in possession or is presumed to be in possession of a dangerous drug,
he shall be presumed to know the nature of the drug. This has been attacked on
the grounds that it is a presumption on a presumption or indeed in some cases
on two other presumptions; a person may be presumed to be in possession of
drugs found in a suitcase he is carrying; he is then presumed to have such
drugs for trafficking; finally he is presumed to know the nature of the drugs.
While at first sight this may seem draconian and inequitable, if each
presumption passes the test of being reasonable i.e. there is a rational
connection, it contains the minimum impairment of rights and is proportional to
the harm aimed at and is therefore consistent with the Bill of Rights, it does
not matter whether a person is proved to be in possession for the purpose of
trafficking by direct evidence, or by the operation of a lawful presumption
based on other evidence. It seems to me that the words "or presumed to
have had" in Section 47(3) are superfluous. We have held that the
presumption as now contained in Sections 46(c) and (d) and 47 (1) (c) and (d)
are not sustainable but that does not in my view affect the validity of Section
47 (3).
158. A person's knowledge is very often the
key issue in a criminal trial, particularly when the offence is one under the
Dangerous Drugs Ordinance. There is only one person who can give direct
evidence of knowledge and that is the person who is alleged to have had it. All
other evidence can only result in the drawing of an inference of knowledge. If
the evidence proves beyond reasonable doubt (whether or not such proof was
assisted by a lawful presumption) I do not consider it unreasonable that the
person in possession shall be presumed to know what the drugs were, a
presumption which can of course be rebutted on a balance of probabilities. Such
evidence may be contained in the Crown's own case, such as the defendant's
initial reaction when the drugs were found, but I accept that often the effect
of Section 47(3) will be to require the defendant to give evidence if the
presumption is to be rebutted. Nevertheless, applying the tests suggested to us
by Mr. Fung, the presumption that if person is proved to be in physical possession
of dangerous drugs, he knows what they are certainly has a direct connection
with the proved facts. In my view it is also proportional to the evil being
aimed at and it does not go further than is necessary in infringing the right
of silence. It is a presumption often rebutted as is clear from the statement
of Mrs. Lee of the Legal Aid Department but knowledge or ignorance of the
nature of the drugs is a matter which is peculiarly within the mind of the
accused.
159. In Ong Lord Diplock said, in relation
to crimes of specific intent, that if it is proved beyond doubt that a person
was found transporting a substantial quantity of dangerous drugs and is charged
with trafficking there was nothing unfair in requiring him to satisfy the court
"that he was doing so for some less heinous purpose if such be the
case". While it is true that Ong was not concerned with an identical
provision to Section 11(1) of the Bill of Rights, in the previous paragraph
Lord Diplock clearly had that principle in mind when he referred to "one
of the fundamental rules of natural justice in the field of criminal law being
that a person shall not be punished for an offence unless it has been
established to an independent and unbiased tribunal that he committed it. This involves
the tribunal being satisfied that all the physical and mental elements of the
offence with which he is charged, conduct and state of mind as well where that
be relevant, are present on the part of the accused".
160. The presumption in Section 47 (3) does
not go anywhere hear as far as those considered unconstitutional in Tot, Leary
, or even in Allen though there the presumption was held to be lawful (albeit
by a very narrow majority). As was said in Salabiaku, Article 6 (2) of the
European Convention, while not prohibiting presumptions, does require 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". There can be no
doubt of the very great importance to Hong Kong of controlling, as far as
possible, the illegal traffic in dangerous drugs and the enormous harm if does
to this society. As Dickson, CJC said in Oakes "the objective of
protecting our society from the grave ills associated with drug trafficking is,
in my view, one of sufficient importance to warrant overriding a
constitutionally right or freedom in certain cases". I do not consider a
rebuttable presumption that a person knows the nature of dangerous drugs which
have been proved to be in his physical possession is unreasonable, even if that
proof was based on other lawful rebuttable presumptions.
161. In light of the vied taken by Silke,
V.P. and Kempster, J.A. as to the validity of Section 47(3) I summarise my
opinion as follows:
162. If a person is proved to be in
physical possession of dangerous drugs by direct evidence and/or by the
application of a presumption which is consistent with Section 11(1) of the Bill
of Rights, the presumption of knowledge contained in Section 47(3) of the Dangerous
Drugs Ordinance is itself consistent with that section of the Bill of Rights.
163. I would answer the questions put
forward by Ryan, J. as follows:
"Paragraphs (c) and (d) of Section 46
and paragraphs (c) and (d) of Section 47(1) of the Dangerous Drugs Ordinance
have been repealed by Section 11(1) of the Bill of Rights. Section 47 (3) has
not been so repealed."
Silke, V.-P.:
164. In the event the Answers of the Court,
to be remitted to Ryan J for his consideration, are:
The provisions of s.46 (c) and (d) (v) and
s.47(1) (c) and (d) and s.47 (3) are inconsistent with Article 11(1) of the
Hong Kong Bill of Rights Ordinance which, in consequence and under the
provisions of s.3 (2), has repealed them as from 8th June 1991.
(William Silke) (Michael Kempster) (R.G.
Penlington)
Vice-President Justice of Appeal Justice
of Appeal
Representation:
Daniel Fung, Q.C., Johany Mok & John
Mullick (DLA) for Defendant
I.G. Cross, Q.C., P.J. Dykes & S.R.
Bailey for Crown
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