The Queen v. Tran Viet Van
Read the full judgment text of HCCC 12/1992 on BabelCite. This High Court CFI judgment.
1. The accused is facing one count of trafficking in a dangerous drug, in proof of which the Crown proposes to rely on the presumption imported by S.47(2) of the recent amendment to the Dangerous Drugs Ordinance, Cap. 134. That section provides:-
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HCCC000012/1992 No. 12 of 1992 HEADNOTE Criminal law and procedure - presumption of knowledge of the nature of a substance possessed, pursuant to s.47(2) of the Dangerous Drugs Ordinance as amended - whether the amendment related to procedural or substantive law; whether it applied to regulate the trials of events occurring before its enactment. HELD: The amendment was clearly procedural and directed to the time of trial only; nonetheless it sought to impose a detriment on the accused as against his position at the time the events occurred which were subject to the charge. The Crown should not therefore be allowed to rely on the presumption at the trial of such events unless the legislation expressly so provided. As it did not, the presumption was not available to the Crown. Criminal Case No.12 of 1992 IN THE HIGH COURT OF HONG KONG The Queen AND TRAN VIET VAN ----------------- Coram: Deputy Judge Jones in court Date of hearing: 6 August1992 Date of delivery of ruling: 10 August 92 --------------- RULING --------------- 1. The accused is facing one count of trafficking in a dangerous drug, in proof of which the Crown proposes to rely on the presumption imported by S.47(2) of the recent amendment to the Dangerous Drugs Ordinance, Cap. 134. That section provides:-
2. The offence of which the accused is charged occurred subsequent to the repeal of the earlier presumptions by the Bill of Rights as decided in the case of SIN Yau-ming Accordingly, at the date charged in the indictment the accused faced no presumptions at all. The Crown intention to rely on the new S.47(2) was apparently conveyed to the defence as recently as 28th July after the recent ruling in R.v.LUM Wai-ming, No.75 of 1991 3. McLanachan for the defence has indicated his intention after arraignment of the accused to ask me to reserve a question of law for the Court of Appeal pursuant to S.81 of the Criminal Procedure Ordinance. Counsel had submitted that the law is in a state of flux in regard to the effect of the Bill of Rights on the new legislation as to presumptions. Because of this he argues that a decision of the Court of Appeal is needed on whether or not S.47(2) of the amending legislation is inconsistent with the Bill of Rights and hence invalid. Should I decline to reserve the question for the Court of Appeal, it is apparently Mr. McLanachan's intention to argue the matter as a preliminary point in this court. 4. The offence is said to have occurred at a time when the accused would have been unburdened by presumptive knowledge of the nature of whatever he possessed. To that extent his evidential position at trial has been changed to his detriment by the intervening legislation. Before considering the Bill of Rights issue, the court therefore requested counsel to submit argument on whether or not the amending legislation governed offences alleged to have occurred before it came into operation. Counsel duly presented their arguments at fairly short notice and in considerable detail. I am grateful to them for having done so. 5. It is fundamental to the Crown's position that this legislation is procedural and not substantive. The presumption against the retrospectivity of legislation is said to operate on substantive law only. Procedural amendments are said to be unaffected by this guiding principle of statutory interpretation. Mr. Bailey for the Crown emphasises that the amending legislation relates only to the time of trial and is not therefore truly retrospective. He says that the legislation is prospective to the time of trial and contemplates the nature of the evidence which each side must face at that time. The time when the offence was committed is not therefore relevant, he says. 6. Amongst the authorities on which Mr. Bailey relies, the most persuasive is R. v. LAM Chau-on, Magistracy Appeal 925 of 1991. This decision involved circumstances the converse of those now argued. The appellant had been convicted under the "old" presumptions after a trial subsequent to 8th June, 1991, the date of the repeal of those presumptions. The offence charged was said to have occurred prior to the repeal, and as the trial preceded SIN Yau-ming, the repeal of the presumptions was unknown to the trial magistrate. 7. Duffy J. found that the presumptive provisions of the Dangerous Drugs Ordinance were procedural as they embraced the determination of guilt, or the weight to be attached to evidence at trial. He said,
For this reason the learned judge said that the magistrate had been wrong to rely on the presumptions in a trial held after their repeal. The analogy between that case and the present one is clearly perceived if the enactment of the new presumptive provisions is equated with the repeal of the old ones in the context of the earlier case. 8. Duffy J. also quoted Willmer L.J. in Blyth v. Blyth in the hearing in the Court of Appeal in England, a decision later approved in the House of Lords and reported at [1966] A.C. 643. That case concerned a change in evidential rules under the Matrimonial Causes Act 1963, and Willmer L.J. said,
9. If I understand the Crown's argument in the present case, Willmer L.J.'s words exactly summarise its position. The amendments' are procedural; they are not retrospective as they regulate future trials; the date of events to be canvassed at those trials is not relevant to the manner in which their proof is to be regulated. Considered thus, there can be no doubt that the recent amendments effect a procedural change directed prospectively to the conduct of trials. There are, however, two further questions which should be resolved; firstly, is the change only a procedural one; secondly, even if it is purely procedural, should it apply to the trial of events which preceded the enactment. 10. The distinction between procedural and substantive law relates to the availability in statutory interpretation of the presumption against retrospectivity. The presumption is said to be available only in construing amendments to the substantive law and is sometimes regarded as analogous to the presumption against interference with vested rights. As Mr. McLanachan put it in arguing the defence position, the law should be capable of being trusted and a retrospective alteration of the law to the disadvantage of the subject is a breach of this trust. 11. It is this factor of detriment to the subject which is fundamental to the defence argument. The reason why procedural changes in the law apply with immediate effect and operate on pending as well as future litigation is that they are supposed to be neutral as between the parties. Their effect is assumed to be beneficial to litigants as a whole, both civil and criminal, or at least not detrimental to any, even if beneficial only to some. It is this concept which Duffy J. summarised in LAM Chau-on when he said,
It seems therefore that this principle of the impartiality of procedural changes is fundamental to the distinction between procedural and substantive law. 12. Mr. Bailey for the Crown argues that the impartiality of procedural changes in the law means that the individual is in no better and no worse position than the Crown. The change relates only to proof at trial and in LAM-Chau-on the accused benefited by the repeal of the presumptive provisions prior to his trial. Correspondingly, the enactment of new presumptive provisions may benefit the Crown in a pending trial. Mr. Bailey's approach is therefore an even-handed one; procedural changes are neutral and prospective and the benefit or detriment in a pending prosecution lies where it falls. 13. I have reservations about this approach. The equation of the Crown with the individual is not one readily reconcilable with the accepted principles of statutory interpretation. Throughout this subject we encounter the principle that statutes should be interpreted liberally and with minimum detriment to the rights of the individual. 14. I have no doubt that Mr. Bailey is right when he says that the new presumptive provisions represent a procedural change in the law. Equally, I have no doubt that they are prospective in the sense that they look forward to future trials. Where however the presumptions relate to trials pending on events occurring before their enactment, the simplistic divisions into procedural and substantive law and prospective and retrospective enactments may not be enough. 15. The need for certainty in the substantive law provides the source of the presumption against retrospectivity. A vested civil right should not be removed ex post facto, and a man should not commit an act with apparent impunity only to find it has later become an offence. The situation of this accused is however rather different. There is no vested right in his initial pre-trial situation. It would be patently absurd for him to say (assuming he were guilty) that he would not have committed the offence if he had known the S.47(2) presumption would be enacted. And yet the situation is not easily reconciled with the requirements of justice as the new reverse onus provision undoubtedly makes his conviction more likely. That, says the Crown in its argument, is no more than his misfortune, and he must take the procedural rules as he finds them at his trial. 16. This unease at the defendant's situation is partly because the authorities, both academic and judicial, speak of procedural amendments as relating to the mere machinery of enforcement.They are for the benefit of all litigants as Duffy J. said in LAM Chau-on. This principle is stressed in clear terms in Bennion's Statutory Interpretation, 2nd Edition, at page 218 in these words:
The word "doubtful" in the context comprehends an enactment of which the wording is unclear as to whether or not it is intended to cover past events. If it is unclear in that regard and has the effect of penalising the individual then it should not, says the author, be applied to those past events. 17. This passage represents clear inroads into the strict dichotomy. argued by the Crown between substantive law, which may only be retrospective if expressly so, and procedural law which governs even pre-existing facts. The learned author is saying that even a procedural change in the law should not apply to pending proceedings if it contravenes the principle that persons should not be penalised under a doubtful enactment. There would of course anyway be a presumption against the imposition of a retrospective penalty, but that would amount to a change in the substantive law. Here the learned author uses the more general term "penalised" expressly in the context of a mere procedural change. 18. One must of course resist the dangers of endowing the writings of academics with the force of statute and of construing their individual words and phrases in that light. Nonetheless this passage amounts to clear authority that even a procedural change should not have retrospective effect if it would result in penalising the individual. 19. The Crown's argument that the enactment is merely prospective to trial does in a sense beg the question. Although the new presumptions only come into force at the trial itself, they operate on facts which pre-existed their enactment. In that context it cannot be said that their effect is solely prospective. Whilst they remain procedural, they look back to the facts on which the accused is charged and seek to inflict upon him a considerable disadvantage which he did not face at the time the acts may have been committed. He is undoubtedly penalised by the new legislation and I find no distinction in principle between the imposition of a retrospective penalty and the introduction of evidential provisions imposing a new and onerous burden of disproof as to pre-existing facts. 20. At another passage in Bennion's Statutory Interpretation, the learned author notes what he describes as:
In so saying, the author referred to a comment by Staughton L.J. in Secretary of State for Social Security v. Tunnicliffe [1991] 2 All E.R. 712 in these words:
21. What it comes down to is this: the distinction between procedural and substantive legislation is no longer conclusive as to the materiality or otherwise of retrospectivity. If an enactment seeks to impose a detriment on the individual in its operation on pre-existing facts then, whether or not the enactment is procedural, the legislature should say so expressly. If the legislature does not say so, it is open to the court to limit the effect of the enactment so that it does not comprehend proceedings pending when it came into force. 22. I conclude therefore that the detriment to the individual in S.47(2) is such that, procedural or otherwise relate to. pre-existing events if the legislature says so expressly. In the absence of such express provision the presumption in the subsection must be taken to relate only to events charged as having occurred after its enactment. In the present case, the S.47(2) presumption is not therefore available to the Crown in prosecuting its case against this defendant. 23. In reaching this conclusion, I have not sought assistance from the Bill of Rights. The provisions of Article 10 as to a fair and public hearing are necessarily in general terms and I would be uneasy relying on them for the relatively narrow issue considered. Article 12 interdicts retrospective offences and penalties and does not comprehend matters of evidence. In the event I have found the well-tested dynamics of the common law more than adequate for the protection of the individual rights in issue.
Representation: Mr.S. Bailey, S.A.C.P., and Mr.Albert WONG,C.C. for the Crown Mr. J. McLanachan (Crawford Miller & Co.) assigned for the accused |