The Queen v. Ng Po Lam

DCCC000101/1991

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT WANCHAI LAW COURT

CASE NO. 101 OF 1991

D.C. CASE NO. 101 of 1991

Coram: Deputy District Judge Ching Y. Wong

Date: this the 21 August 1991

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RULING

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THE FACTS

1. The facts of this case are that at approximately 0630 hours on 28th November 1990, the defendant was stopped and searched at Lok Fu Estate near Junction Road. On him were found one polythene bag and one cigarette packet which held six smaller packets. The defendant was arrested because the contents of the polythene bag and the six smaller packets were suspected to be dangerous drugs. Upon analysis by the Government Chemist, the contents were found to be 27.88 grammes of a mixture which contained 14.44 grammes of salts of esters of morphine. The defendant was accordingly charged with one charge of possession of a dangerous drug for the purpose of unlawful trafficking therein contrary to S.7(1) and (2) of the Dangerous Drugs Ordinance Cap.134. To this charge the defendant has pleaded "Not Guilty" but admitted possession for his own consumption. The facts were admitted under S.65C of the Criminal Procedure Ordinance Cap.221 together with a Government Chemist's Certificate certifying that the quantity and packing of the dangerous drug were as stated in the "Particulars of Offence". At the close of the Crown's case, submissions were made that the presumptions under the Dangerous Drugs Ordinance were in violation of the Bill of Rights Ordinance. Detailed and comprehensive submissions were made both by Mr. Dykes for the Crown and Mr. Fung for the defence with many cases drawn to my attention. I am most grateful for their assistance. I have considered all the points raised and the cases cited. I shall refer to some of them together. with cases which I have come across myself in giving this ruling.

THE ISSUE

2. The issue in this case concerns whether the provisions in S.46 (c) and (d) of the Dangerous Drugs Ordinance Cap.134 ("DDO") are in violation of S.8 A.11(1) of Hong Kong Bill of Rights Ordinance ("BORO").

APPLICABILITY

3. Before embarking upon the analysis of the issue, it is necessary to decide how, if at all, the BORO affects the offence presently before this Court.

4. The general rule is that a piece of legislation is not retrospective in effect unless it specifically so provides. There is no such provision in the BORO. Therefore, it does not affect substantive offences committed before its commencement date. However, the present issue is not concerned with the effects of the BORO upon the substantive offence under S.7 of the DDO. It concerns how that substantive offence is to be proved. S.46 of the DDO is a section which the Crown can pray in aid-.in proving its case. It relieves the Crown from the burden of adducing evidence to prove that the possession of the dangerous drug was for the purpose of trafficking. In the case of CHAN Yuk-san & Ors V R. [1969] HKLR 27 (Full Court), it was held, inter alia, that S.16 of the DDO Cap 134 (1964 edition) was evidentiary; that is, in given circumstances it supplied evidence of matters which would otherwise had to be strictly proved. That case concerned whether there was sufficient evidence to establish control by the appellant, of drugs on a lorry which he was leading in a hired car. The Crown relied on the presumption raised by S.16 which provided that:

"Any person who is proved to have had in his possession or custody or under his control anything whatsoever containing any dangerous drug .... shall, until the contrary is proved, be deemed to have been in possession of such drug ....

a section which had very similar wording and effect as S.47(1) (a) of the current edition of the DDO. Although the present case concerns only S.46, nonetheless, it is a presumption which is under consideration and what was held in CHAN Yuk-san's case applies. Therefore S.46 is only evidentiary in nature.

5. The commencement date of the BORO was the 8th of June 1991. From that day onwards, any and all pre-existing legislation must be interpreted in a manner that "admits of a construction consistent with" it and if. that is not possible, then that legislation is, "to the extent of the inconsistency", repealed. This is so provided by S.3 of the BORO.

6. The trial of this case began on the 3rd of July 1991 and therefore the provisions of the BORO which affect evidential and procedural matters are operative.

S.46 OF THE DANGEROUS DRUGS ORDINANCE CAP 134

7. S.7 of the DDO makes it an offence for a person to have a dangerous drug in his possession for the purpose of unlawful trafficking therein. The offence under S.7 therefore ' consists of two elements, namely, 'possession of dangerous drug', and 'for the purpose of unlawful trafficking therein'.

8. S.47 of the DDO, titled "Presumption of possession and knowledge of dangerous drug", provides the Crown with two presumptions which it may invoke to prove that an accused was in possession of the dangerous drug and that he knew what he possessed was a dangerous drug (S.47(l) to (3)).

9. S.46 of the DDO, titled "Presumption concerning possession of dangerous drug for the purpose of trafficking therein", sets out a variety of dangerous drugs with their respective quantities. The parts of S.46 relevant to this case provides that:

"any person who is proved or presumed to have had in his possession more than-

Hence when an accused has been proved or presumed to have had in his possession more than what is prescribed in S.46(c) or (d), the onus shifts to him to prove, on the balance of probabilities, that he did not possess the dangerous drug for the purpose of trafficking therein.

10. To raise a case against an accused under S.7, the Crown is only required to establish the primary facts which would prove or give rise to the presumptions under S.47, and to produce a Government Chemist's Certificate to establish that the quantity of dangerous drug or the number of packets concerned was more than that which is laid down by S.46 (to invoke the presumption thereunder). Once that is done, the onus shifts to the accused to rebut those presumptions.

11. Frequently, an accused charged under S.7 would plead 'Not Guilty' to the charge but at the same time admit possession of the dangerous drug for his own consumption. In these cases, if the Crown accepts the admission, the accused will be convicted of the offence of "Possession of dangerous drug otherwise than for trafficking" under S.8 because S.42 empowers the Court so to convict. If the Crown refuses to accept the admission, then the accused has to rebut the presumption raised by S.46; he has to prove, on the balance of probabilities, that although he was in possession of the dangerous drug he did not have it for the purpose of trafficking therein. The instant case is such a case.

12. In CHAN Siu-shing & Others v. R [1974] HKLR 493 (Full Court), Huggins J. (as he then was) said (at p.501):

"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 all reasonable doubt such of these 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 have to be proved at all because a statute prescribes that upon the fulfillment 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."

13. In LAM Wai-ming & Anr v. R (Crim. App. 981/77 C.A.) Huggins J.A. (as he then was) said (at p.2):

"....all that may be presumed is one or more of the facts necessary to be proved to establish guilt. Once presumed those facts are deemed to be proved beyond all reasonable doubt until disproved, but that is not the same thing as presuming guilt."

14. From these two cases, it can be seen that the view of the Court of Appeal in Hong Kong was that the facts which are presumed do not have to be proved beyond all reasonable doubt because they are deemed to be proved beyond all reasonable doubt until disproved. However, with respect, differentiating between presuming facts to prove guilt from presuming guilt is very artificial in relation to the presumption under S.46. In order to establish that an accused is guilty of a charge under S.7 of the DDO, the Crown must prove beyond reasonable doubt that the possession was "for the purpose of unlawful trafficking therein". Once that is established, the almost inevitable result would be a verdict of 'Guilty' unless the accused succeeds in disproving that on the balance of probabilities. Hence the presumption of evidence to prove guilt (under S.46) has in reality the effect of a presumption of guilt: it shifts the onus onto the accused to prove his innocence by requiring him to rebut it on the balance of probabilities. Raising a doubt as to the fact presumed is not sufficient. The accused must achieve the result of rebutting the presumption on the balance of probabilities in order to escape conviction. This was so held in the case of KWAN Ping-bong & Anr v. R [1979] HKLR 1 (P.C.), where Lord Diplock L.J. (as he then was) said (at p.5)"

"Where, as' is not uncommon in modern legislation dealing with drugs and other dangerous objects or materials, there is provision that on proof by the prosecution of the existence of certain facts some other facts shall be presumed to exist unless the contrary is proved, (in the instant case guilty knowledge on the part of the accused) the effect of the provision 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" (the emphasis is mine).

The last sentence of the quote makes it abundantly clear that the accused must succeed in rebutting the presumption on the balance of probabilities, and not just raise doubts as to the fact presumed, in order to avoid conviction. Indeed, that the presumption of facts was tantamount to a presumption of guilt was stated by the Court. of Appeal in the case of AU Wai v. R (Grim. App. No. 296 of 1979) where it said (at p.3):

" ...once the Crown has established these primary facts beyond reasonable doubt, the accused must then, in order to discharge the presumption, satisfy the court of his explanation on the balance of probabilities. It was suggested... that, at the end of this process, the judge should have reconsidered the whole of the evidence again and reminded himself of the burden which lies on the Crown to establish the guilt of the accused beyond reasonable doubt. We asked (Counsel) for the appellant whether he were able to suggest to us a set of circumstances in which, the primary facts having been established which gave rise to the presumption, and the defendant having failed to discharge the burden which lies upon him under that presumption, there could nevertheless --reasonably have been an acquittal. As we understand it he was not able to do so, nor have we not(sic) been able to think of such a set of circumstances ourselves. It is possible that they may exist, but for practical purposes it appears to us that, once the Crown has established the primary facts beyond reasonable doubt and the accused has failed on the balance of probabilities to overcome the presumption, a conviction must normally follow" (the emphasis is mine).

So in that case it was recognised by the Court of Appeal that a presumption of evidence was "for practical purposes" equal to a presumption of guilt because the onus is thrown onto the accused to prove his innocence. by rebutting the presumption on the balance of probabilities. If he fails so to do, "a conviction must normally follow".

PRESUMPTION OF INNOCENCE

15. The presumption of innocence is not in anywise a novel concept to our legal system. At common law it has been always the burden of the prosecution to prove the guilt of an accused beyond reasonable doubt. This is the celebrated "golden thread" which Viscount Sankey L.C. referred to in. the case of WOOLMINGTON v. THE DIRECTOR OF PUBLIC PROSECUTIONS [1935] A.C.462 H.L. where the learned judge said (at page 481):

"Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must "satisfy" the jury .... Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt...".

However, that is not the end because the sentence continues,

"...subject to ... the defence of insanity and subject also to any statutory exception".

And so it was, even in this famous and oft-quoted case, that it was recognised that there are statutory exceptions to the common law presumption of innocence.

16. Here in Hong Kong this common law presumption is now a "right to be presumed innocent" under S.8 A.11(1) of the BORO which provides that:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

A.11(1) of the BORO is very similar to A.14(2) of the International Covenant. on Civil and Political Rights (ICCPR), A.6(2) of the European Convention and S.11(d) of the Canadian Charter. It is upon these respective provisions that the 'Presumption of Innocence' was considered by the courts around the world.

European Convention

17. In the case of X v. UNITED KINGDOM, Application No. 5124/71, Digest of Strasbourg Case Law, Vol.2, P.755, the applicant appealed against a conviction of "knowingly living on the earnings of prostitution" on the ground that the presumption in that statutory provision was a presumption of guilt. The statutory provision stated that, when certain facts were proved by the prosecution, certain other facts shall be presumed. The European Commission of Human Rights examined the complaint under A.6(2) of the Convention which provided that:

"everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".

It was held that this created a rebuttable presumption of fact which the defence may disprove. Further, upon examining the substance and effect of the presumption, it was found to be restrictively worded. It was neither irrebuttable nor unreasonable because to oblige the prosecution to obtain evidence of "living on immoral earnings" would in most cases make its task. impossible. Therefore it did not violate the rights and freedoms set out in the convention and in particular in A.6(2).

18. In the case of SALABIAKU v. FRANCE, 1988, Series A, No. 141A, the European Court of Human Rights had to consider whether the presumption of "criminal liability" laid down in A.392(1) of the French Customs Code was in violation of, inter alia, A.6(2) of the Convention. The court of first instance held that:

"... any person in possession of goods which he ... has brought into France without declaring them to customs is presumed to be legally liable unless he ... can prove a specific event ... exculpating him ... ".

The French Court of Appeal affirmed that decision and the appellant appealed to the European Court of Human Rights on the ground, inter alia, that this placed upon him an "almost irrebuttable presumption of guilt". The European Court held that (at para 28):

"Presumptions of fact or 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 ... A.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 ... in this instance the French courts did not apply A.392(1) of the Customs Code in a way which conflicted with the presumption of innocence."

Commonwealth Decisions

19. In the case of ATTORNEY-GENERAL OF GAMBIA v. JOBE (1984] AC 689 (P.C.), the Privy Council had to consider, inter alia, whether S.8(5) of the Special Criminal Court Act 1979 of Gambia was in violation of S.20(2)(a) of the Gambian Constitution. The defendant was charged with stealing from his employer, a public bank and false accounting. The case concerned a section of the 1979 Act which permitted the freezing of accounts and the seizure of property subsequent to a complaint alleging offences in respect of public funds or property. S.8(5) imposed criminal liability on a person who either failed to come forward to prove that property seized from him was acquired lawfully or who failed to satisfy the court that he lawfully acquired the property seized from him. In giving judgment Lord Diplock said (at p.702):

"Section 8(5), however, stands on a different footing from the four earlier subsections. In the first place it does not deal with the pre-trial procedure in the prosecution of a person charged with an offence of dishonesty affecting public funds or public property. (In dealing with section 8(5) it is convenient to call such a person "the principal suspect.") In the second place, and more importantly, what it does is to create a separate and brand new criminal offence which can be committed not only by the principal suspect himself but also by any other person whose property has been seized by the police in purported exercise of the power conferred on them under subsection (3). The offence so created attracts the same mandatory sentence of imprisonment, for a maximum of seven and a minimum of five years, as that imposed. by section 11 of the Act upon the principal suspect if he is convicted of the offence of dishonesty affecting public funds or public property. The subsection creates two offences, one under paragraph (a), the other under paragraph (b). Their Lordships will deal first with the case of a person, other than the principal suspect, who has had property seized from him by the police. He commits an offence under paragraph (a) if he "fails to come forward to prove" that the property that has been seized was acquired lawfully. In the context of paragraph (b) this must mean if he fails to appear before the Special Criminal Court upon his own initiative; while if he does so, or if he is arrested and brought before the court on a charge of having committed an offence under paragraph (a), paragraph (b) places upon him the onus of proving his innocence.

In their Lordships' view this is a plain and flagrant infringement of section 20 (2) (a) of the Constitution: "Every person who is charged with a criminal offence - (a) shall be presumed to be innocent until he is proved or has pleaded guilty; ..."

While the wording of subsection (5) is inapt to cover the case of a principal suspect who has already been brought before the court, since he can hardly be described as failing to "come forward," it would apply to a principal suspect whose tangible movable property the police had managed to seize although they had not been able to find him inside the frontiers of The Gambia in order to arrest him. This would have the arbitrary and unjust consequence that by seizing the principal suspect's property but making no effort to arrest him the police could avoid. the onus of proof which would otherwise lie upon them of proving that the principal suspect had been guilty of dishonesty which affected public property.. Section 8(5) of the Act contravenes the Constitution; it is ultra vires and therefore void."

In the case of ONG AH CHUAN v. PUBLIC PROSECUTOR [1981] AC 648, the appellant appealed against the decision of the Singapore Court of Appeal which dismissed his appeal against conviction on a charge of trafficking in heroin contrary to S.3 of the Misuse of Drugs Act 1973 of Singapore. One of the grounds argued before the Privy Council was that SS.9(1) and 12(1) of the Constitution of the Republic of Singapore (1980 rep.) imported into the Constitution the fundamental right of presumption of innocence and that therefore the presumption in S.15 of the Misuse of Drugs Act was in conflict with those sections of the Constitution. S.15 of the Misuse of Drugs Act provides:

"Any person who is proved or presumed to have had in his possession more than... (c) 2 grammes of diamorphine (heroin) contained in any controlled drug... shall, until the contrary is proved, be presumed to have had such controlled drug in his possession for the purpose of trafficking therein."

Lord Diplock in giving judgment for the Judicial Committee said (at p.667):

"Proof of the purpose for which an act is done, where such purpose is a necessary ingredient of the offence with which an accused is charged, presents a problem with, which criminal 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 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 were no statutory presumption such as is contained in S.15 of the Drugs Act ... All that S.15 does is to lay down the minimum quantity of each of the five drugs with which it deals at which the inference arises from the quantity involved that they . were being transported for the purpose of transferring possession of them to another person and solely for the transporter's own consumption. There may be other facts which justify the inference even where the quantity of drugs involved is lower than the minimum which attracts the statutory presumption under S.15... Whether the quantities involved be large or small…the inference is always rebuttable. The accused himself best knows why he was conveying the drugs from one place to another and, if he can satisfy the court, upon the balance of probabilities only, that they were destined for his own consumption he is entitled to be acquitted of the offence of trafficking... The appellant's ...argument may be stated shortly. This statutory presumption, it is said, is in conflict with what...counsel termed the "presumption of innocence", that this is a -fundamental human right protected by the Constitution... and cannot be limited or diminished ... The "presumption of innocence"...although nowhere expressly referred to in the Constitution, is imported into it by article 9(1) which provides: "No person shall be deprived of his life or personal liberty save in accordance with law." and by article 12 (1) which provides: "All persons are equal before the law and entitled to the equal protection of the law." ...(p.671) One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of 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 is relevant, were present on the part of the accused ... What fundamental rules of natural justice do require is that there should be material before the court that is logically probative of facts sufficient to constitute the offence with which the accused is charged. In a crime of specific intent where the difference between it and some lesser offence is the particular purpose with which an act, in itself unlawful, was done, in their Lordship's view it borders on the fanciful to suggest that a law offends against some fundamental rule of natural justice because it provides that upon the prosecution's proving that certain acts consistent with that purpose and in themselves unlawful were done by the accused, the court shall infer that they were in fact done for that purpose unless there is evidence adduced which on the balance of probabilities suffices to displace the inference. The purpose with which he did an act is peculiarly within the knowledge of the accused. There is nothing unfair in requiring him to satisfy the court that he did the acts for some less heinous purpose if such be the fact. Presumptions of this kind are common feature of modern legislation concerning the possession and use of things that present danger to society like addictive drugs, explosives, arms and ammunition. In the case of the Drugs Act any act done by the accused, which raises the presumption that it was done for the purpose of trafficking, is per se unlawful, for it involves unauthorised possession of a controlled drug, which is an offence... No wholly innocent explanation of the purpose for which the drug was being transported is possible. 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 the controlled drugs in any measurable. quantity, without regard to specific minima, was for the purpose of trafficking in them... 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 purpose 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."

The Canadian Charter

20. By far the most recent cases where the presumption of innocence was considered come from the Canadian courts. In the case of R v. OAKES (1986) 24 CCC 321, the accused was charged with possession of a narcotic for the purpose of trafficking contrary to S.4(2) of the Canadian Narcotic Control Act, R.S.C. 1970. S.8 of the Act provides that where the accused is found in possession he must establish that he did not have the narcotic for the purpose of trafficking. The trial judge having found the appellant in possession of the drug ruled that the provision in S.8 violated the guarantee to the presumption of innocence in S.11(d) of the Canadian Charter of Rights and Freedoms and that it was therefore invalid. S.11(d) of the Charter provides that:

"Any person charged with an offence has the right... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing...".

The Crown's appeal to the Ontario Court of Appeal was dismissed. The Crown appealed further to the Supreme Court of Canada. The Supreme Court held that S.8 contained a reverse onus provision in which a mandatory presumption of law arises against the accused. Therefore, it was inconsistent with the guarantee to the presumption of innocence in S.11(d). Dickson C.J.C. in giving judgment of the court said (at p.343):

"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 ... 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. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his... innocence but did not convince the jury on the balance of probabilities that the presumed fact was untrue. This would violate the presumption of innocence... S.8 of the Narcotic Control Act, I am in no doubt whatsoever... violates S.11(d) of the Charter by requiring the accused to prove on the balance of probabilities that he was not in possession of the narcotic for trafficking. (The accused) is compelled by S.8 to prove he is not guilty of the offence of trafficking. He is thus denied his right to be presumed innocent and subject to the potential penalty of life imprisonment unless he can rebut the presumption. This is ... directly contrary to the presumption of innocence ..."

In R v. VAILLANCOURT [1987] 39 CCC 118, Lamer J. in his judgment said (at p.134):

"The presumption of innocence in S.11(d) of the Charter requires at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt ... Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes SS.7 and 11(d).

Clearly, this will occur where the provision requires the accused to disprove on the balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt ... what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of. the need to prove an essential element ... the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes SS. 7 and 11 (d) ."

21. The presumption of innocence was further considered in the case of R v. WHYTE [1988] 42 CCC 97. The accused was charged with having care and control of a motor vehicle while his ability to drive was impaired by alcohol contrary to S.234 of the Criminal Code. S.237(1) (a) of the Criminal Code provides that where it is proved that the accused occupied the seat ordinarily occupied by the driver he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter the vehicle for the purpose of setting it in motion. Relying on this presumption the accused was convicted. His appeal to the British Columbia Court of Appeal was dismissed and he further appealed to the Supreme Court of Canada. Dickson C.J.C. in giving the judgment of the Supreme Court said (at P.109):

"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence... It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown."

22. However, in the case of R v. HOLMES (1988) 44 CCC (3d) 497, there developed two schools of thought in relation to the presumption of innocence: they were considered in detail in the case of R v. WHOLESALE TRAVEL GROUP INC. (1989) 63 DLR (4th) 325 where all the important cases on the presumption of innocence were reviewed. Lacourciere J.A. in reviewing the three cases of R v. HOLMES (Supra), R v. WHYTE (supra) and R v. SCHWARTZ (1988) 45 CCC (3d) 97, said (at p.332):

"The constitutionality of assigning a burden of proof to an accused has been addressed by the Supreme Court of Canada in three recent cases...

(1)	R v. HOLMES...dealt with the offence of possession of house-breaking tools ...I agree with Tarnopolsky J.A. that two distinct views of the presumption of innocence emerged in the judgments in this case... Dickson C.J.C...did not dispute that there was a distinction between elements of an offence and defences. However, he contended that the presumption of innocence in S.11(d) applies to everything which affects the ultimate verdict, including defences.
	In contrast, McIntyre J. asserted that S.11(d) simply requires the Crown to prove beyond a reasonable doubt all essential elements of the offence, without the benefit of presumptions. Once the offence has been proven, the accused may still obtain an acquittal by presenting a valid justification or excuse. However, S.11(d) does not regulate the burden which an accused may be called upon to satisfy in order to claim the benefit of a defence...

(2)	R v. WHYTE...dealt with the deeming provision in S.237(1) of the Criminal Code... Dickson C.J.C. wrote for a " unanimous court which held that S.11(d) was violated... Structually, this provision (in S.237(1)) is quite different from the one-at issue in HOLMES...s.237(1)(a) did not provide a positive defence to an accused... it "legislates a presumption against an accused". The difference is important. It has been carefully noted by McIntyre J. in HOLMES:
	"This is not a case such as ... in R v. OAKES...which permitted upon a conviction for one offence (possession of a narcotic) conviction for a completely different offence (possession for the purpose of trafficking) unless the accused disproved the intent to traffic."

... In the foregoing three Supreme Court of Canada decisions it is obvious that it was only in WHYTE that the reverse onus was held to violate S.11(d) of the Charter. In that case, clearly, the onus was directed to an element of the offence. In HOLMES and SCHWARTZ the reverse onus provisions were held not to violate S.11(d) and in those two cases the reverse onus plainly applied to a defence. In my respectful view, to distinguish the cases in this manner and to accept the distinction drawn by McIntyre J. in SCHWARTZ between elements of the offence and defences is the only way in which the authority of all three cases can be maintained."

Tarnopolsky J.A. again in referring to the same cases said (at p.342):

"In OAYES, the court held that a reverse onus. provision in S.8 of the Narcotic Control Act ... violated the presumption of innocence ... In HOLMES ... the majority held that the phrase, "without lawful excuse, the proof of which lies upon him" did not create a reverse onus which would require the accused to prove his-innocence ... In dissent, Dickson C.J.C ... took the position that the phrase, "without lawful excuse, the proof of which lies upon him", did extend to include general common law excuses. (The) section ... required the accused to prove those excuses on the balance of probabilities. The Chief Justice held that this burden of proof violated the presumption of innocence ... because, at the end of the day, it was possible for an accused to be convicted despite a reasonable doubt as to his guilt. He observed that it is a basic principle of the common law that the accused is not required to prove a defence, and asserted that this principle applies equally to defences that deny the existence of an essential element of the offence and to those that admit the actus reus and mens rea, but seek to excuse or to justify ...

... Mr. Justice McIntyre acknowledged that an accused who relies on a common law excuse is generally only required to raise a reasonable doubt, rather than to prove it on the balance of probabilities. Nevertheless, he stated, the presumption of innocence in S.11(d) would not be violated if the accused were required to prove an excuse on the balance of probabilities.

The difference between the positions taken by Dickson C.J.C. and McIntyre J. appears to lie in their understanding of what it means for the trier of fact to be left with a reasonable doubt as to guilt. For McIntyre J., it is only the essential elements of the offence which must be proved beyond a reasonable doubt. Provided that the trier is convinced beyond a reasonable doubt of those elements, the presumption of innocence is protected. Since common law excuses arise only after the offence has been proved beyond a reasonable doubt, placing the burden on the accused to prove on the balance of probabilities does not offend the Charter ...

Throughout its decision, from OAKES to SCHWARTZ, the Supreme Court of Canada has held consistently that a statutory provision which makes it possible for an accused to be convicted despite the existence of a reasonable doubt in the mind of the trier as to the guilt of the accused violates the presumption on innocence in S.11(d) of the Charter ... "

23. Finally, in the most recent case of R v. KEEGSTRA (1991) 61 CCC (3d) 1, the accused was charged with the offence of wilfully promoting hatred against an identifiable group. One of the statutory defences provided that the accused shall not be convicted "if he establishes that the statement communicated were true". The accused was convicted at trial and on appeal argued, inter alia, that the reversal of the burden of proof for the. truth defence violated the presumption of innocence. The Alberta Court of Appeal allowed his appeal and the Crown appealed against that decision to the Supreme Court of Canada where there was a split of the learned judges into four allowing and three dismissing the appeal. However, every single judge found that the reversal of the burden of proof provision did violate the presumption of innocence. Dickson C.J.C. who gave the judgment for the majority said (at page 67 et seq) :

"In a prosecution ... the Crown must prove beyond' a reasonable doubt the various elements of the offence ... The defence of truth, to be established by the accused on the balance of probalities, is thus only considered if the Crown proves the components (of the offence) beyond a - reasonable doubt ... the Alberta Court of Appeal ... viewed as crucial the possibility that an accused can be convicted of wilfully promoting hatred though there exists a reasonable doubt that the statements communicated are true ... As the defence places an onus on the accused to prove truth on the balance of probalities ... (it was found) to infringe (the presumption of innocence) ... it is clear that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt as to guilt in the mind of the trier of fact ... it matters not that the defence of truth may be intended to play a minor role in providing relief from conviction. What is of essence is not the "essential nature" of the crime, but that the trier of fact will have to convict even where there is a reasonable doubt as to the truth of an accused's statement."

McLachlin J. in giving. the minority judgment said (at page 108 et seq):

"Where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred ... the accused will escape liability "if he establishes that the statements communicated were true" ... it is clear that. the burden of proof lies on the accused. The question is whether this violated the presumption of innocence ... By placing the burden of establishing that truth on the accused, it has contravened the basic principle that the accused need not prove a defence ... I conclude that (it) violates (the presumption of innocence)."

THE ANALYSIS

24. From the above cases, it can be seen that the European court, the Privy Council and the Canadian appellate courts took differing views of what the presumption of innocence meant and when it was or was not violated. Mr. Fung, very ably, has submitted that the cases of X v. UNITED KINGDOM, ONG AH CHUAN and SALABIAKU ought not to be followed and are distinguishable from the present case. He further submitted that the Canadian cases, especially that of OAKES should be followed. I shall not repeat his arguments here because they are very neatly set out in his written skeleton submission. Mr. Dykes on the other hand, attractively sought to uphold the presumption by relying heavily on the various passages to which he has directed my attention in the cases of SALABIAKU, WHYTE and ONG. Having given much thought to the arguments presented by both learned counsel, I find favour with the submissions of Mr. Fung. The case of X v. UNITED KINGDOM is a case which was decided nearly 20 years ago in 1972 and the report in the Digest is much too sparse to be of any great assistance and reliability. It was decided mainly on the basis that the presumption in question was restrictively worded, not unreasonable and was rebuttable; and that the presumption was necessary in the particular circumstances of that case. It did not take into account the important tests of 'rational connection' nor 'proportionality'. Indeed the Canadian Supreme Court had declined to follow it in OAKES. ONG AH CHUAN's case, though dealing specifically with drugs, and might appear therefore at first sight to be very relevant, (especially since the presumption provision therein was very similar in wording to S.46 of the DDO), nonetheless dealt with a situation which was quite different to that which is under consideration in this case. In that case the Privy Council dealt with the act of 'transporting' whilst in this case we are concerned with mere 'possession'; that 'transporting' was something further than 'possession' and was distinguishable therefrom was made clear by Lord Diplock in his judgment. More importantly, the appeal was based on the notion of the fundamental rule of 'natural justice' under the English common law rather than on a right to be presumed innocent which was not a right under the Singapore's Constitution. ONG's case was considered in STANGER (1983) 2 DLR (4th) 121, at 141-2, which rejected its applicability when considering the presumption of innocence in the Canadian Charter; and OAKES approved of that rejection. I find that although ONG's case was a decision of the Privy Council, and is therefore of great authority, it is not of any great assistance in deciding the issue presently before this court. The case of SALABIAKU was a case which seems to have been decided on policy ground more than on any particular principle. With respect, I agree with Mr. Fung that the court in SALABIAKU was dealing with a 'permissive' presumption whereas the presumption in the present case is a 'mandatory' presumption. Hence, very different considerations must be applied; and therefore SALABIAKU, in that respect is again not of great assistance to the analysis of the present issue. Further, all it held was that the presumption in question was not applied by the French courts in a way which conflicted with the presumption of innocence; that they remained within reasonable limits because they took into account the importance of what was at stake and maintained the rights of the defence. Hence, I place not much reliance on it. JOBE is a case which is of some assistance, because although it was a case which dealt with a very singular provision in the Gambian Special Criminal Court Act 1979, the general proposition of law which emerged from it was that when a presumption of law gave rise to arbitrary and unjust consequence, it violated the presumption of innocence. This, I think, was part of Mr. Fung's submission when he dealt with the 0.5 gramme of a salt of an ester of morphine and especially the 5 packets in S.46; a matter which I shall deal with in due course.

25. The Canadian appellate courts have dealt with the presumption of innocence, which is contained in S.11(d) of their Charter and is very similar in wording to S.11(1) of the BORO, in very detailed judgments time and again in a string of cases. These judgments considered the presumption of innocence both generally and specifically in relation to particular statutory provisions. I find the Canadian cases of the most help in coming to my decision on the present issue.

26. Leaving aside the delicate and engrossing arguments as to whether the Crown needs only to prove the essential elements of an offence or whether it needs to go further and prove the culpability of the accused; the one unanimous view of all the learned judges in the Canadian cases was that if a provision required an accused to disprove on the balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, that provision violates the presumption of innocence. I am conscious of the fact that the Canadian courts take by far the strictest view on the interpretation of the presumption of innocence. This is so because by S.1 of their Charter, an infringing provision may be saved if it was found to be justifiable. Although there is no such or similar general saving provision in the BORO, this nonetheless is a very important consideration that must be taken into account. However, I think a decision as to whether a particular provision violates the presumption of innocence should not be considered in the same breath as a consideration regarding whether that provision is justifiable. So to do would confuse the issue and would prevent a true consideration of whether there was a violation. Whether a violation is justifiable need only be considered if and when a provision is found to be an infringement of the presumption.

27. As I have said, the offence under S.7 of the DDO has two essential elements. S.46 is a section that not only. relieves the Crown from proving beyond reasonable doubt the essential element of "possession for the purpose of trafficking" but also requires the accused to rebut or disprove the presumption thereunder of this essential element. Further the cases I have referred to under the consideration of S.46 and especially the case of Au Wai say that unless the accused succeeds in his rebuttal, a conviction of possession for trafficking was virtually inevitable. Hence, I find that S.46 falls squarely within the bounds of what all the Canadian cases held to be objectionable and I rule that S.46 is in violation of A.11(1) of the BORO.

CONCLUSION

28. Having ruled that S.46 of the DDO is in breach of S.8 A.11(1) of the BORO, it is necessary to consider whether there is any circumstance which enables S.46 to be salvaged from the devastating effect of a construction in accordance with S.3 of the BORO. Is it possible to limit the right under A.11(1) in a way so that it does not apply to S.46?  Or, can S.46 be justified by reference to general provisions or principles which permit restrictions on the exercise of the right of the presumption of innocence? In this regard, I have considered Mr. Fung's submission on the justification of any limit which is to be put on the interpretation of the presumption of innocence. He submitted that in order to establish that a limitation on the right is justified, the Crown must bear the burden of proving that the objective to be attained by any limitation is to meet a substantial and pressing concern and that the means chosen are reasonable and demonstrably justified. In order to prove the latter, the limitation must fulfil the tests of rational connection, minimal impairment and proportionality. Mr. Fung submitted that the more deleterious the effects of any given measure, the more important the objective needs to be in order that such measure be held to be justified. Mr Dykes' argument briefly, was that there is a very real difference between the BORO and the Canadian Charter because in the latter, there is a saving section (S.1 of the Charter) which enables the Canadian Courts, after ruling that a particular provision violates the Charter, to save that provision from being declared to be of no effect. There is no such equivalent general saving section in the BORO. Hence, the case of SALABIAKU is of importance. He said that his reading of SALABIAKU is different to that of Mr. Fung's and his understanding of SALABIAKU was that it dealt with a mandatory presumption which therefore is similar to the presumption under S.46. He has drawn my attention in particular to paragraphs 15, 27, 28 and 29 of the judgment and further submitted that the quantity laid down in S.46 was targetted at the individuals who were probably users as well as traffickers at a low level. This, he continued, was directed to the important consideration, in the words of SALABIAKU, as to "what is at stake". Hence the 0.5 gramme in S.46 was justifiable because it is aimed at the user and is always rebuttable. He said the case of WHYTE was directly on point because "the provision was designed to serve an objective which is sufficiently important to permit overiding the ... protected right to the presumption of innocence (since it is in) response to a major social problem ..." Lastly, he submitted that ONG's case was not irrelevant because it was concerned with the presumption of innocence as against a presumption in relation to dangerous drugs which was triggered off by a specified amount. In conclusion, he said, the presumption under S.46 was not therefore incompatible with the BORO because it was rational as the figure of 0.5 gramme was realistic and corresponded to the patterns of consumption by the addicts in Hong Kong.

29. The offence of possession of dangerous drugs is very prevalent in Hong Kong. Presently, the deciding factor as to whether an accused is to be charged with possession simpliciter (under S.8 commonly referred to as "simple possession") or possession for the purpose of unlawful trafficking (under S.7) is the quantity and/or the number of packets of dangerous drugs involved. If the quantity or packets of the dangerous drug is more than that which is set out in S.46, an accused will be charged with possession for trafficking.

30. The Crown has adduced two statements by consent as evidence of the daily consumption of salts of esters of morphine (SEM) by drug addicts in Hong Kong. From these statements I have calcualted by extrapolation that the normal quantity of SEM which an addict used per day was about 0.41 gramme in November 1990. Hence the quantity in S.46 of 0.5 gramme of SEM is just above the quantity which a normal dangerous drugs addict would require for one day around that time. So theoretically an accused may be convicted of possession for trafficking if he was found to have just slightly more than a day's supply, and if he failed to rebut the presumption under S.46. Further, there is no evidence before me that traffickers normally had in their possession more than 5 packets of dangerous drugs. Indeed, I cannot even draw on my own experience nor take judicial notice of, not that it would in anywise be proper so to do, the fact that in the cases of possession for unlawful trafficking, accused are usually found to be in possession of more than 5 packets of dangerous drugs. In the cirucmstances, I am left to speculate on how this figure of 5 packets was chosen by the legislature and kept after the amendment in February of this year. Another point of importance to note is that theoretically, under S.46(c) the total quantity of SEM involved seems to be of no consequence so long as there was found to be a mixture containing some dangerous drugs in a measurable quantity or otherwise. If it was only found to contain traces, then a court will be left in great difficulty in deciding what sentence to pass on an accused convicted under S.7 because in LAU TAK MING [1990] 2 HKLR 370, the lowest in the tariff concerned a quantity of "up to 10 grammes of narcotic" without specifying what the minimum quantity was to be. Hence, even for possession of traces, if an accused was convicted under S.7 by virtue of the presumption under S.46(c), the minimum sentence will be that of 2 years imprisonment. In the days of CHAN CHI. MING when the Court of Appeal was totally unconcerned with quality, that is, the purity of the dangerous drug, but only with the quantity of mixture, an accused convicted under S.7 for being in possession of a "very small" quantity (up to 30 grammes). of mixture is liable to be sentenced to the minimum of 2 years. However, LAU TAK MING has taken over and in the words of Silke V.P. (at p385H):

"The conclusion which we had reached is that, after performing yeoman service, CHAN CHI MING should be retired and its guidelines replaced by those to be set out in this judgment."

Hence, the courts are now mainly concerned with the quantity of narcotic rather than the quantity of mixture. That being the case, S46(c) seems to be superfluous. or at least of very limited assistance especially if the amount of narcotic found in the six packets for which the accused is convicted of possessing for the purpose of trafficking therein, contained only traces of narcotic. In other words, is it right that there should remain this presumption under S.46(c) which deals solely with the number of packets involved? Bearing in mind that any limitation on the interpretation of A.11(1) as regards S.46(c) must pass the three tests submitted upon by Mr. Fung, I find that no limitation is necessary nor is there any justification for the saving of S.46(c).

31. The minimum of two years laid down in LAU TAK MING which an accused convicted of possession of SEM for trafficking is to receive, is very much more severe than what an accused can expect if convicted of simple possession of the same quantity. In practice, however, both the Crown and the courts deal with such charges of possession for trafficking with a lot of common sense. If the quantity involved and the circumstances of the possession are such that the Crown feels able to accept the admission for own consumption, it will inform the court and ask for a conviction for simple possession. However, the Crown's decision is normally left to the officer-in-charge of the case because he is the one who knows the most about the background. Convenient and time saving though this might be, it is unsatisfactory because the court's function is being usurped in that whether an accused, who theoretically could be convicted of possession for trafficking, is to be so convicted or convicted of the lesser offence of simple possession is not left to the decision of the court. Where the Crown refuses to accept the admission for own consumption (which is really a plea to simple possession), the courts hitherto had no choice but to rule that there was a case to answer on possession for trafficking: which then leaves it up to the accused to prove that he did not possess for trafficking. Many factors are relevant when the court considers whether an accused has succeeded in his rebuttal; none more important than the single factor of the quantity of drugs involved because the smaller the quantity, the easier for the accused to rebut and vice versa.

32. S.46 gives rise to other ancillary and consequential matters which cause concern. Often, during an accused's rebuttal, he makes known to the court that he has had one or more convictions for simple possession. This is for the purpose of shewing that he is a dangerous drugs addict and therefore his contention of being in possession for his own consumption is more likely to be true. Although there is nothing in law which prohibits an accused from disclosing his previous convictions to a court if he wishes, nonetheless it is not the most satisfactory method of bringing about an acquittal. However, he may be forced into adopting this course because he is required to prove his innocence to the charge of possession for trafficking. But for S.46, he would not need so to do.

33. Hence, it must be asked whether the minimum of 0.5 gramme of SEM in S.46 is necessary in its present form. In other words, need it be set by statute or can the average consumption not be a matter of viva voce evidence in each case? There is really no difficulty for the Crown to adduce evidence of average daily consumption of SEM by an addict as it has done in the present case. Indeed, by calling such evidence, the courts will have evidence of more up-to-date information about dangerous drugs consumption. That is a much more satisfactory way of putting before the court evidence in support of the Crown's contention that because of the quantity of dangerous drug involved, the accused had the dangerous drug in his possession for the purpose of unlawful trafficking.

34. The majority of the provisions of the BORO are the provisions of the ICCPR as applied to Hong Kong and thus have an international origin. By S.2(3), the interpretation of the BORO shall have regard "to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong the provisions of the ICCPR as applied to Hong Kong, and for ancillary and connected matters". Hence, the legislation has made clear its intention to give effect to the applicable provisions of the ICCPR. Consequently, where the words of the BORO are copied from the ICCPR, they should be given the same meaning that they have in the ICCPR. A.11(l) is one such provision (see ICCPR A.14(2)).

35. A group of international law experts wrote a compendious statement of the position relating to permissible limitations on the ICCPR titled "Siracusa Principles on the Limitation and Derogation provisions in the ICCPR" (1985) 7 Human Rights Quarterly 3-14. Therein are stated, inter alia, the "General Interpretative principles Relating to the Justification of Limitations" and the "Interpretative principles Relating to Specific Limitation Clauses". In addition to considering Mr. Fung's submissions, I have referred to these principles in detail as a guide to whether any limitation that is to be put on the interpretation of A.11(1) as regards S.46 may be justified. I find that none of the permissible limitations and derogations stated therein applies to A.11(1) as regards S.46. I have also taken into consideration what has been stated above as regards viva voce evidence and other unsatisfactory consequences that arise because of S.46. I find that any restriction on the interpretation of A.11(1) as regards S.46 is not necessary and would not pass the tests referred to by Mr. Fung. Possession "for the purpose of unlawful trafficking therein" can be proved by inference drawn from the surrounding circumstances of the possession; for example, the presence of a large quantity of dangerous drug, a large number of polythene bags or small segments of drinking-straw, weighing scales with traces of dangerous drug, sealing equipment and so forth. These circumstantial evidence are quite sufficient to provide the trier of fact with the necessary basis wherefrom the reasonable and irresistable inference of possession for trafficking may be inferred without any necessity of resorting to S.46. Granted that in some cases, it may be difficult for such an inference to be' the only reasonable and irresistable one to be drawn; but then, that is the raison d'etre for the existence of the presumption of innocence. If the surrounding circumstances are such that they do not admit of only one reasonable and irresistable inference of possession for the purpose of unlawful trafficking, then' the accused must be given the benefit of the doubt.

36. Accordingly, I find that A.11(1) is not restricted in its interpretation in anywise as regards S.46 (c) and (d); nor is any limitation justifiable nor necessary. By virtue of S.3 of the BORO, I rule that in this case, S.46 (c) and (d) are to be considered repealed because they cannot be constructed in a consistent manner with the BORO.