The Queen v. Yeung Chu Tim
Read the full judgment text of HCMA 484/1992 on BabelCite. This High Court CFI judgment.
1. These two appeals (MA 227 of 1992 and MA 484 of 1992) as well as the case stated (MA 718 of 1992) all arose out of separate criminal proceedings determined in the magistrates court. They were severely reserved for the consideration of this court pursuant to section 118(1) (d) of the Magistrates Ordinance, Cap. 227. With the consent of the parties we heard the three matters together for they all concern statutory provisions which are identical in terms or of precisely similar effect and the im
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HCMA000484/1992
Constitutional law - Hong Kong Bill of Rights - presumption of innocence, Article 11(1) - whether evidential burdens placed upon defendants by the presumptions in ss.18A(2) and s.35A(2) of the Import and Export Ordinance, Cap. 60 are compatible with Article 11(1). IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) MAGISTRACY APPEALS NOS. 227/92, 484/92 AND 718/92 --------------- MA 227 of 1992 BETWEEN
-------------- MA 484 of 1992 BETWEEN
------------------ MA 718 of 1992 BETWEEN
------------- Coram: Fuad, V.-P., Penlington, J.A. & Mortimer, J. Dates of Hearing: 19 and 20 November 1992 Judgment handed down: 4 December 1992 ---------------------- J U D G M E N T ---------------------- Fuad, V.-P.: 1. These two appeals (MA 227 of 1992 and MA 484 of 1992) as well as the case stated (MA 718 of 1992) all arose out of separate criminal proceedings determined in the magistrates court. They were severely reserved for the consideration of this court pursuant to section 118(1) (d) of the Magistrates Ordinance, Cap. 227. With the consent of the parties we heard the three matters together for they all concern statutory provisions which are identical in terms or of precisely similar effect and the impact upon them of the Hong Kong Bill of Rights Ordinance, 1991. 2. The relevant provision of the Bill of Rights is Article 11(1):
3. The statutory provisions we are called upon to examine in the light of that Article are to be found in the Import and Export Ordinance, Cap. 60 ("the Ordinance") as amended by Ordinance No. 22 of 1991 which came into force on 19th April 1991. It is convenient to set out the relevant provisions here. 4. Section 18A of the Ordinance is in these terms:
5. The material parts of section 35A are as follows:
6. In MA No. 227 of 1992 the two appellants were charged and convicted of offences contrary to section 35A(1)(c) of the Ordinance and each sentenced to 4 months' imprisonment. The magistrate (Mr. J.M. Livesey) rejected certain arguments addressed to him by counsel for the appellants and ground 1 of the Notice of Appeal is:
7. In MA No. 484 of 1992 the appellant was charged and convicted of an offence contrary to section 35A(1)(c) of the Ordinance and sentenced to 6 months' imprisonment. In his Statement of Findings, the magistrate (Mr. D.I. Thomas) indicated that he had been satisfied that the prosecution had proved the commission of the offence "without a consideration" of the presumption provided for in section 35A(2). He explained that he had raised the matter with counsel for the appellant but reliance on the Bill of Rights had been specifically disclaimed. The magistrate went on to say that had he been asked to rule on the matter, he would have ruled "that the presumption was reasonable, rational and proportionate to the evil against which it was directed." He would therefore have held that the prosumption had not been repealed. One of the appellant's grounds of appeal is that "the presumption ... is inconsistent with Article 11(1) of the Bill of Rights Ordinance and is therefore repealed by virtue of ... section 3(2) of the Bill of Rights Ordinance." 8. In MA No. 718 of 1992 the 1st respondent was charged with an offence contrary to section 35A(1)(a) of the Ordinance. The 2nd and 3rd respondents were each charged with offences contrary to section 18A(1)(c) of the Ordinance. In an admirably clearly stated case, the magistrate (Mr. Z.E. Li) explained why he had dismissed the informations, in this way: "11. I, however, being of the opinion that
9. The questions of law formulated by the magistrate for the opinion of the court are:
10. Turning to section 35A of the Ordinance, as we have seen, a person commits an offence contrary to section 35A(1)(a) of the Ordinance if he knowingly possesses an article the carriage of which is restricted by law with intent to evade the restriction. Were it not for subsection (2) the burden on the prosecution would, of course, be to prove every ingredient of the offence, including the specific intent, beyond reasonable doubt. However, the effect of that subsection is that if it is proved that a person possesses a restricted article "in circumstances that give rise to a reasonable suspicion that there is an intent ... to evade a restriction ..." it will be presumed that he had that intent "in the absence of evidence to the contrary". Thus the presumption imposes a rebuttable evidential (as opposed to a legal or persuasive) burden upon the accused. He does not have to prove that he did not have the necessary intent beyond reasonable doubt or even on the balance of probabilities. All that he is required to do is to introduce evidence (or point to evidence led by the prosecution) which, if believed, might create a reasonable doubt on the issue. When this happens the burden is again on the prosecution to satisfy the court or the jury on the evidence as a whole beyond reasonable doubt that the accused had the intent required by section 35A(1). 11. Mr. Bailey who appeared before us for the Crown conceded that the mandatory presumptions for which provision is made by sections 18A(2) and 35A(2) of the Ordinance would be inconsistent with the presumption of innocence guaranteed by Article 11(1) of the Bill of Rights if they could not be justified upon principles which permit a limitation upon the Bill's provisions. I have no doubt that he was right to do so. A number of cases referred to us discuss the effect and the extent of the burden placed upon the defence by the formula "in the absence of any evidence'to the contrary" which features in several provisions of the (Can adian) Criminal Code. For example, in R. v. Slavens (1991) 64 CCC (3d) 29 the British Columbia Court of Appeal had to consider the constitutionality of the mandatory presumption created by section 348 of the Criminal Code. The material parts of that section are as follows:
At pp. 33-34 Gibbs J.A. said this:
Section 11(d) of the Canadian Charter of Rights and Freedom provides that any person charged with an offence "has the right"..."to be presumed innocent until proven guilty according to law ..."
Section 1 of the Charter is in these terms:
The court held that the presumption constituted a reasonable limitation within section 1 of the Charter. 12. The same view of broadly similar provisions was taken, after full analysis of the principles involved, by:
13. We were also referred to a recent, as yet unreported, decision of the Supreme Court of Canada: R. v. Downey (judgment 21st May 1992). In that case, the accused persons were charged with living on the avails (what, I think, we would call "earnings") of prostitution contrary to section 195(1)(j) of the Criminal Code. Section 195(2) provided that "[e] vidence that a person lives with or is habitually in the company of prostitutes ... is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution." All seven judges concluded that the presumption contained in that section infringed section 11(d) of the Charter since it could result in a conviction despite the existence of a reasonable doubt as to the guilt of the accused. The fact that someone lived with prostitutes did not lead inexorably to the conclusion that he lived on the avails. Three of the judges held that section 195(2) was not justifiable under section 1 of the Charter, while according to the decision of four of the judges, the section was justifiable under that section of the Charter. 14. I may mention here that Mr. Bailey was not able to find any English case in which the statutory formula "in the absence of any evidence to the contrary" is discussed. However I would refer to a passage in Glanville Williams Criminal Law - The General Part, 2nd ed., 1961, which shows that the notion of presumptions of fact arising from suspicions circumstances that may (but not must) be drawn is not unknown to the common law. At pp.878-879 we find:
15. The Hong Kong Bill of Rights has no equivalent of section 1 of the Canadian Charter. There are express Exceptions and Savings in Part III and express limitations in Article 15(3) and Article 16(3) relating respectively to freedom of thought, conscience and religion and freedom of opinion and expression. There is no express limitation of that kind on the right given by Article 11(1) of the Bill of Rights. However it is clear from the decision of this court in R. v. Sin Yau Ming [1992] 1 HKCLR 127 that the rights and freedoms guaranteed by the Bill are not to be regarded as absolute. Kempster J.A., at pp. 158-159 cited passages from the decision of the European Court in Salabiaku v. France (1988) 13 EHRR 379. I will cite merely the following passage (from p. 388):
From Salabiaku Kempster J.A. concluded: "From this decision it would seem proper not only to accept that legal presumptions are not prohibited per se ... but also to construe the word 'law' appearing in Article 11(1) as meaning not the domestic law of Hong Kong but a universal concept of justice."
Silke V.P. expressly approved this proposition at p.45 and went on to observe:
In his judgment, Penlington J.A. speaks of the need for a presumption to be "reasonable" to pass the test of validity in the light of the Bill of Rights. At p.168 he expands upon what he means by "reasonable". I understand him to be saying in lines 14-16 that a presumption will pass the test of being "reasonable" and therefore consistent with the Bill of Rights if "there is a rational connection, it contains the minimum impairment of rights and is proportional to the harm aimed at ..." 16. We were shown some statistics to demonstrate how serious a problem smuggling has become. In my view we did not need to see them. Nobody who lives in Hong Kong can be unaware of the dimensions of this unlawful activity. The legislature has a legitimate concern that Hong Kong's integrity and reputation are maintained in international trade, the territory's very life-blood. It is not too much to say that Hong Kong's whole economic system very largely depends upon the proper conduct of her international trade. 17. It seems to me that there is a fully rational and realistic connection between the proved facts and the fact to be presumed. The former tends to prove the latter. In both the impugned sections the circumstances must give rise to a reasonable suspicion (objectively viewed) that there is the necessary intent and there must be an absence of evidence to the contrary before the presumption avails the prosecution. The sections do not speak of suspicions circumstances in the abstract. In my view an "inexorable connection" test is not required or appropriate. If the substituted fact was required to prove the presumed fact beyond reasonable doubt, the presumption would be otiose. 18. It must be observed that the legislature could have enacted offences of strict liability by omitting any requirement as to intent. The legislature however did require intent to evade etc to be established but recognised that often evidentiary problems arise in proving intent. The impairment is minimal. All the accused has to do is to point to evidence which is capable of raising a reasonable doubt as to his intent. He does not have to rebut the presumption "on the balance of probabilities". The legislature's response to the grave detriment to society created by smuggling seems to me to be entirely sensible and fair and confined within reasonable limits. 19. Mr. Ching Wong for the respondents in the case stated (MA 118 of 1992) sought to uphold Mr. Z.E. Li's reasoning and decision. Mr. Watson for the appellants in MA 227 of 1992 and Mr. McNamara for the appellant in MA 484 of 1992 also relied upon Mr. Li's reasoning in opposing the Crown's appeals. It will have been seen that for the reasons I have attempted to give I have been unable to agree with the magistrate's conclusions. I would answer "No" to the two questions in paragraph 12 of the case stated. 20. In my judgment sections 18A(2) and 35A(2) of the ordinance have been shown to be compatible with Article 11(1) of the Bill of Rights. Penlington, J.A.: 21. I agree with the judgment of Fuad V.P. For the reasons given in R. v. Sin Yau Ming I am satisfied that the words "according to law" in Article 11 of the Hong Kong Bill of Rights have the same meaning as ''such reasonable limits prescribed by law as can be demonstrably justified in a free and.democratic society'' contained in s. 1 of the Canadian Charter of Rights and Freedoms. A presumption provision does not offend against the Bill of Rights if it is reasonable and that is a question to be answered using the principles set out in Oakes, i.e. there must be a logical connection with the facts relied on to raise the presumption; it must be proportional to the problem at which the legislation is aimed; there should be minimum impairment of the basic right. There is strong support for that in Salabiaku v. France where the court was construing identical words in the European Convention on Human Rights. I must admit myself to some trepidation at being asked to consider "a universal concept of justice'' as referred to by Kempster J.A. in Sin Yau Ming but I have no doubt that the words ''according to law'' must be construed in that way. 22. The trial magistrate in MA 718 of 1992 has found that the specific intent to be presumed does not follow rationally and realistically from the requirement in s. 18A of evidence showing possession or dealing in certain classes of goods in circumstances giving rise to reasonable suspicion. However he seems to reach that conclusion because the specific intent does not necessarily follow. That is of course correct but if the reasonable suspicion was based on facts which, on their own prove all elements of the charge beyond reasonable doubt there is no need for the presumption. If however the evidence does show possession or dealing in the restricted goods beyond reasonable doubt and also raises a reasonable suspicion that this was so as to evade the provisions of the Ordinance, it seems to me that the conclusion that the defendant possessed the specific intent to evade the restriction or prohibition is reasonable; it is logical and realistic. It may not always in fact be correct but if it is not I see little difficulty in the presumption being rebutted by evidence sufficient to raise a reasonable doubt. There is also therefore minimum encroachment on the basic right to be presumed innocent until proved guilty. I also have no doubt that the provisions are proportional to the very substantial problem caused in Hong Kong by the smuggling activities of which I also have no doubt the courts can and should take judicial notice. Mortimer J.: 23. I agree with the judgment of Fuad V-P and the reasons for it. As these are important appeals I would add some comments of my own. 24. The questions of law for the opinion of this Court in these appeals are conveniently stated by the Magistrate in MA 718/92 as follows:
25. Sections 18A(2) and 35A(2) were amendments to the Ordinance enacted on 19th April 1991. They are subject to Section 3 of the Bill.
26. This provision is taken ipsissima verba from the International Covenant on civil and Political Rights (The I.C.C.P.R.) Article 14 to which applies to Hong Kong Exactly the same words appear in Article 6(2) of the European Convention on Human Rights. Also a similar provision appears in the Canadian Charter of Rights in Section 11 (d) :
27. The sections, under consideration (Section 18A(2) & 35A(2)) are directed against those who knowingly smuggle or assist in smuggling from Hong Kong to Mainland China. Each section prohibits knowingly doing certain acts with specific intents. Subsections 18A(2) and 35A(2) provide mandatory presumptions in relation to the intents. Each subsection is expressed in similar terms and for present purposes the same principles apply. It is necessary therefore only to set out part of subsection 35A(2) which provides:
28. The effect of the section is not in dispute. It provides that if in the circumstances proved the tribunal is sure beyond reasonable doubt that those circumstances give rise to a reasonable suspicion that the accused has the necessary intent he will be presumed to have such intent, "in the absence of evidence to the contrary". Such evidence need not emanate from the accused or be called as part of his case. It is sufficient if it arises in the course of the prosecution case. The result is that there is no legal burden upon the accused but there is an evidential burden upon him to raise the issue. Once the evidential burden is discharged and the issue is raised, the presumption does not arise and the burden of proving the intent beyond reasonable doubt rests on the prosecution. 29. Any consideration of the questions for this Court begins with an examination of the meaning of Section 8 Article 11(1). It is abundantly clear from the words of the section that the legislature intended to introduce into Hong Kong domestic legislation the provisions of the International Covenant on Civil and Political Rights (the I.C.C.P.R.) to which Hong Kong already adhered. The Hong Kong Legislation was introduced without relevant qualification, limitation or derogation from the I.C.C.P.R. and was clearly intended to bear the same meaning. A reading of the whole Ordinance and many provisions of the I.C.C.P.R.enacted therein supports this view. 30. All signatories undertake to abide by the covenant and decided cases in common law jurisdictions of signatories which have domestic legislation to give effect to the covenant are cited in our Courts. As Hong Kong developes its own jurisprudence, these will become gradually less persuasive. 31. Mandatory presumptions were considered by this Court in R. v. Sin Yau-ming [1992] 1 HCLCR 127. Having considered decisions upon the I.C.C.P.R. and the European Convention on Human Rights, together with Canadian decisions on the Charter and United States decisions on the "due process" provision in their constitution, the Court found a substantial identity of approach where the provisions under consideration were similar to Section 8 Article 11(2) of the Bill and where they contained the limiting words "according to law" which do not appear in the United States Constitution. Adopting this identity of approach with particular reference to a United Nation's decision on the I.C.C.P.R., Kempster, J.A. formulated the following proposition at p.163 line 17:
32. This gives effect to the words "according to law" in Section 8 Article 11(2) and is binding on this Court. The meaning ascribed to the words is consistent with the meaning ascribed to the same words in the I.C.C.P.R. "According to law" does not mean according to the domestic law of the subscribing state. Were it otherwise the words of the International Covenant could be deprived of all practical effect. 33. In Article 6(2) of the European Convention on Human Rights a similar meaning is ascribed to the same words. See Salabiaku v. France (1988) 13 EHRR 379. When considering this decision in R. v. Sin Yau-ming, Kempster, J.A. at p.159, line 36 said:
34. The Siracusa Principles on the Limitation and Derogation Provisions in the International covenant on Civil and Political Rights are to the same effect. These authoritive principles define the words ''prescribed by law'' as limiting any derogation from the provisions of the I.C.C.P.R. to that which is "not arbitrary or unreasonable". Similar limiting words appear in different parts of the I.C.C.P.R. and of the Hong Kong Bill. They are expressed as ''established by law'', ''prescribed by law" and ''according to law''. 35. By parity of reasoning the words ''according to law" permit limitations to the otherwise strict provision in Article 11(1) but only such limitation as is in all the circumstances not "arbitrary or unreasonable''. In practical application, these words achieve the same result in relation to mandatory presumptions as the proposition at p.163, line 17 of R. v. Sin Yau-ming. Relevant national and international decisions were the subject of careful scrutiny in that case. In the present context, it is unnecessary and inappropriate to consider them further. The Principles to be applied 36. Following R. v. Sin Yau-ming in deciding whether a mandatory presumption admits of a construction consistent with Section 8 Article 11(1) it seems to me that a court should consider the following:
If so, the provision falls to be considered as to whether or not it admits of a construction consistent with Section 8 Article 11(1) of the Bill.
The Court may put into the balance along with the other considerations the nature and likely effect of the presumption. For example, such a conviction would be.more likely where the presumption throws a legal burden upon the accused than when it involves an evidential burden.
As every presumption is intended to ease the proof of the fact to be presumed, it will be necessary for the Court to consider the degree to which the fact presumed rationally and realistically follows from those to be proved.
37. In reaching its conclusion, the Court will balance these considerations and give such weight as it thinks proper to the scheme of the legislation, the fact that the legislature after due consideration has enacted the provision as necessary and the relevant evidence, if any. Answers to the case stated 38. The application of these principles to the present case presents little difficulty. The presumption clearly involves a risk that an accused person could be convicted without the necessary intent being proved beyond reasonable doubt if he remains silent and the issue on intent is not raised incidentally in the prosecution case. If the circumstances proved give rise beyond reasonable doubt to a ''reasonable suspicion'' of the necessary intent, he would be convicted. However, as the burden on the accused is simply to raise the issue and the burden is evidential only the risk of a wrongful conviction is more theoretical than real. 39. The intent is to be presumed from circumstances which give rise to a ''reasonable suspicion'' of it. Obviously there is a rational and realistic connection between the fact presumed and those proved but not sufficient to establish the case beyond reasonable doubt. Therein lies the gap which the presumption is intended to fill. 40. In order to demonstrate the proportionality of the provision; that is to establish that the presumption is no more than reasonable having regard to the need of Hong Kong Society to deter and punish smuggling and those who assist in it, we have been invited to consider a number of statistics. For my part also, I do not consider it necessary to consider or analyse these statistics. The problem created by this smuggling is universally known. The great difficulties facing those who seek to prevent it are notorious. The provisions under consideration were enacted in April 1991 to assist in controlling this criminal activity and in bringing those responsible to justice. In applying the Bill of Rights to a particular presumption, the conclusion of the legislature in providing the presumption must be considered. As Kempster, J.A. said in Sin Yau-ming "due regard'' should be ''paid to the enacted conclusions of the legislature.'' I have no doubt that the presumptions are reasonable and proportional. 41. There is a long history of presumptions of law and the fact in our system and in the English system upon which it is based. There are such presumptions in every legal system. The Bill of Rights does not prohibit them in principle. They are frequently a reasonable and even necessary feature of the criminal law if it is to fulfil its function of balancing the needs of society with the protection of the individual accused. See Salabiaku v. France (supra) and note the requirement for the issue of provocation to be raised in a murder case. 42. In summary, the presumptions in the instant case provide minimal limitation of the rights provided in Article 11(2) with small risk to an accused person. The presumption is rationally related to the facts to be proved (with the limitation described) and having regard to the notorious problems created by smuggling in Hong Kong I have no doubt that the provision is no more than is reasonably required to satisfy the interest of society to combat smuggling when balanced with the rights of an accused. 43. In my judgment, Sections 18A(2) & 35A(2) of the Ordinance admit of a construction consistent with the Bill of Rights, Section 8 Article 11(2). Fuad, V.-P.: 44. The appeal in MA 718 of 1992 is allowed, but Mr. Bailey, for the Crown, was content for this court merely to answer the questions posed in the case stated and did not seek an order that proceedings should continue against the respondents. 45. In relation to appeals MA 227 and 484 of 1992, we remit them to the High Court under section 118(1)(d) of the Magistrates Ordinance together with our decision on the issues arising out of the Bill of Rights.
Representation: Mr. S.R. Bailey (Crown Prosecutor) for the Crown MA 227 of 1992 Mr. G. Watson (Wong Shum & Co.) for the appellants MA 484 of 1992 Mr. J. McNamara (Tang Wong & Cheung) for the appellant MA 718 of 1992 Mr. Ching Y. Wong, Ms Sabrina See, Mr. S. Chiu and Mr. Peter Sit for the respondents |
Cases cited in this judgment