HKSAR v. Lam Kwong Wai and Another
Read the full judgment text of CACC 213/2003 on BabelCite. This Court of Appeal judgment was delivered on 6 January 2005.
1. By reason of section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, a person who is in possession of an imitation firearm commits an offence punishable with imprisonment; but section 20(3) provides that he does not commit an offence if he satisfies the court of one or more of a number of matters, one of which (section 20(3)(c)) is that he was not in possession for certain purposes there listed. The issue in this appeal is whether that provision, by placing an onus on the accused,
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CACC 213/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 213 OF 2003 (ON APPEAL FROM DCCC NO. 1237 of 2002) ______________________ BETWEEN
______________________ Before : Hon Stuart-Moore V-P, Stock JA and Burrell J in Court Dates of Hearing : 16 January 2004 and 10 June 2004 Date of Judgment : 6 January 2005 _________________ J U D G M E N T _________________
Hon Stock JA (giving the judgment of the Court): 1.By reason of section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, a person who is in possession of an imitation firearm commits an offence punishable with imprisonment; but section 20(3) provides that he does not commit an offence if he satisfies the court of one or more of a number of matters, one of which (section 20(3)(c)) is that he was not in possession for certain purposes there listed. The issue in this appeal is whether that provision, by placing an onus on the accused, is compatible with the presumption of innocence protected by article 11(1) of the Bill of Rights Ordinance, Cap. 383, and article 14.2 of the International Covenant on Civil and Political Rights (“ICCPR”) as applied by article 39 of Basic Law; and with the entitlement to a fair hearing articulated by article 10 of the Bill of Rights (article 14.1 of the ICCPR) and article 87 of the Basic Law. The facts 2.The application is for leave to appeal against conviction of the two applicants by Judge Day in the District Court on 13 May 2003. 3.For the purpose of this appeal, the facts are not in dispute. On 5 November 2002 the second applicant was driving a vehicle through a village near Yuen Long. The first applicant was a passenger in that vehicle. The police stopped the car and in the boot they found an imitation pistol. When the boot was opened there was revealed a speaker box. The speaker unit was removed and the pistol was in the bottom of the box, in a plastic bag under the soundproofing. It is common ground that the pistol was purchased the same day from a shop in Mongkok. It was in working order, in that it was capable of discharging projectiles in excess of two joules. We have seen the weapon, as did the judge, and we agree with his description of it as a heavy and substantial weapon. It would no doubt seem to any victim of its illicit use to be a genuine firearm. 4.When the weapon was found and the applicants were confronted with its finding, the first applicant said that it was fake, that he bought it for someone, and that he had nothing to do with it. The second applicant said that the pistol was not genuine and that he and his friend had purchased it that morning in Mongkok. There was a challenge to the admissibility of the statements later made by the applicants, a challenge which did not succeed. The first applicant had said in his statement that he had purchased the pistol for an uncle and that he had assumed that the uncle had intended to commit a robbery, and had assumed also that the request had been for a real gun. In his statement, the second applicant had said that the idea had been to present a fake pistol, even though a real one was wanted by the ultimate purchasers, the clear implication being that a profit would be made by a false representation. The reason it was hidden in the boot, so went the story, was to enable them to persuade the buyer, since he would not be allowed to take the pistol out but merely to feel it as packaged, that it was a real gun. He said that the buyer had examined the package shortly before the police had intercepted the applicants. The charges 5.These events led to the laying of the first of the two charges, namely, a charge that on 5 November 2002 the two applicants had attempted by deceit as to the genuineness of the firearm, and with intent to defraud, to induce another to commit an act which would result in benefit to the applicants, an offence contrary to section 16A of the Theft Ordinance, Cap. 210. 6.The second charge was that on 5 November 2002 these two applicants, at the place of their interception by the police, namely, by a parking site in Yuen Long, had in their possession an imitation firearm, namely, one imitation Beretta self loading pistol, contrary to section 20(1) of the Firearms and Ammunition Ordinance. The defence at trial 7.The applicants’ testimony at trial was that they had purchased the gun that morning in order to play war games. They denied that they had told the story to the police which the police had attributed to them. Neither applicant had any previous convictions but the judge disbelieved their evidence, and the detailed reasons for that disbelief are not germane to this appeal, save to say that the judge noted that ‘an innocent purchaser of an imitation gun who had a ready explanation for his possession of the weapon would not feel the need to hide the gun’. He noted, moreover, that they had stopped at the village car park specifically in order to dispose of the box in which the pistol was housed upon purchase, conduct which was difficult for them to explain. The judge’s findings 8.The judge said that:
9.Accordingly, he convicted them on the second charge. He acquitted them of the first charge because he could not be satisfied that the account contained in their statements was the truth. So we are now concerned only with the second charge. He sentenced each applicant to a term of 14 months’ imprisonment. There is also an application for leave to appeal against sentence. Section 20 10.Section 20 of the Firearms and Ammunition Ordinance, Cap. 238 reads as follows:
The subsection with which we are concerned is subsection (3)(c) for that is the subsection upon which the applicants sought to rely in the court below, and which played an essential part in the judge’s reasoning. This application 11.The issue raised in this application is one which was not canvassed in the court below, but the applicants are not for that reason precluded from raising it now. The application hinges upon the burden placed upon defendants by section 20(3)(c) of the Ordinance and the judge’s reliance upon it. 12.The suggestion made by the respondent that the case against the applicants was in any event proved beyond reasonable doubt – in other words that guilt was evidently proved even without the reverse onus – is not a relevant proposition as somehow rendering academic the reverse onus issue raised in this appeal, since it is clear beyond any doubt that the judge interpreted the provisions of the section as requiring the applicants to show on a balance of probabilities that they were not in possession for one of the illicit purposes specified by subsection (3)(c), and that their failure to discharge that burden was expressed by him to lead to the convictions. The point about the strength of the evidence may arise only in relation to the application of the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221 should the prime issue of compatibility of the subsection with the presumption of innocence go against the respondent. 13.In this application, it is said that the judge should not have relied upon or utilized the reverse onus provision, for to do so contravened the presumption of innocence guaranteed by article 11(1) of the Hong Kong Bill of Rights Ordinance, and by article 14.2 of the ICCPR as incorporated by article 39 of the Basic Law. It is argued that section 20 in so far as it thrusts a persuasive onus on the applicants, if it does, contravenes those articles and is therefore unconstitutional. That is the ambit of the ground of appeal but the issue is, in our judgment, more accurately put in the terms we have suggested in para. [1] above. The presumption of innocence 14.Article 14.2 of the ICCPR provides that:
Article 11(1) of the Hong Kong Bill of Rights Ordinance is in the same terms. Not prayed in aid in the grounds of appeal, but of prime importance to the issue in this appeal, is article 87(2) of the Basic Law, which states that:
and article 10 of the Bill of Rights Ordinance (article 14.1 of the ICCPR) which provides in so far as is here relevant, that:
15.These provisions reflect the fundamental aim of protecting the innocent against the prejudice that is apt to arise from mere assertion and from the outward trappings that attend arrest and arraignment, against the danger of wrongful conviction, and from the manifold severe disadvantages to which such persons may in consequence be subjected:
Wigmore on Evidence, 1940, Vol. 9 page 407. The vigilance to be employed in guarding against wrongful deprivation of liberty does not vary according to the severity of the penalty at stake, for any wrongful deprivation of liberty is unacceptable, as is the wrongful visitation of shame and grave damage to reputation that is occasioned by a criminal conviction, and the humiliating and practical impact of a conviction upon a person’s personal and working life. Any examination of an inroad to the presumption of innocence must start with these fundamentals to the fore. Not only is it self-evidently vital that the individual be protected from the injustice that flows from a wrongful conviction, but failure so to ensure will inevitably undermine the confidence of the public in the administration of criminal justice. It has powerfully been put that:
16.The necessary corollary of the presumption is that in a criminal trial the duty lies upon the prosecutor to prove all the elements of the offence and that if, after the presentation of all the evidence, there remains a reasonable doubt about the accused’s guilt, he must be acquitted:
Exceptions to the burden 17.The reference by Sachs J in Coetzee to a balancing inquiry is a recognition of the fact that to the rule that the elements of an offence must all be proved by the prosecutor, there may, as Viscount Sankey intimated, be exceptions created by statute; and it is accepted by those who have framed constitutional rights in common law jurisdictions, and international human rights instruments, and by common law and other jurisdictions which have embraced such instruments or constitutions, that it is in certain circumstances permissible to transfer the onus of proving certain facts to an accused :
Salabiaku v France (1991) 13 EHRR 379, with reference to the European Convention on Human Rights. So also in R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 385, Lord Hope pointed out that:
And in South Africa, the Constitutional Court
18.Section 1 of the Canadian Charter of Rights and Freedoms provides that the rights protected by the Charter are subject to: ‘… such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The South African Constitution has a similar provision, section 33(1), though more explicit as to the permissible derogation. Whilst there is no such express general saving device in the Hong Kong Bill of Rights Ordinance or, for that matter, in the ICCPR as applied by the Basic Law, it has been the law in Hong Kong since R v Sin Yau-ming [1992] 1 HKCLR 127, that a justification provision is to be implied. 19.It must be understood that these exceptions are not exceptions to the right to a fair trial. From that right, no derogation is permissible. It is merely that the particular subject matter of legislation, and public policy considerations that attend it, may be such that an inroad upon the presumption of innocence may be justified by, and proportionate to, a legitimate societal objective so that, in the circumstances, the shifting of the persuasive burden to an accused does not tarnish the fairness of the trial. Thus:
Categories 20.Provisions that place an onus on an accused fall within three groups, although the first necessarily imports the third:
(1) The special defence 21.The special defence is the recognized exception described by Lawton LJ in R v Edwards [1975] QB 27, 40. It is:
In such cases the statute places upon the accused the legal burden, or persuasive burden as it is now more commonly called, to show, on a balance of probabilities, that he fits within the specified class or qualification or has a licence or permission, as the case may be. 22.The law is that such a provision may or may not be incompatible with the presumption of innocence. In Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 851, 972, the Lord Woolf said that the court should ask itself:
(2) The evidential burden 23.The evidential burden has been described as one which ‘requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined by the tribunal of fact’: see ‘Human Rights and Criminal Justice’, Emmerson and Ashworth (2001) para 9-04. What is sufficient to discharge the evidential burden (oddly called a burden of proof) is a question which it is not necessary for us to engage in this appeal, but it is a question that has been answered with a variety of formulae. See R v Lambert [2002] 2 AC 545, 563, 572 and 588; R v Director of Public Prosecutions, Ex p. Kebilene [2002] 2 AC 326, 373; Vasquez v The Queen [1994] 1WLR 1304, 1314; Yearwood v The Queen [2001] UKPC 31; R v Lang and Deadman [2002] ECWA Crim 298; Sheldrake v DPP [2003] 2 Cr App R 206, 221 (Court of Appeal); Attorney General’s Reference (No. 1 of 2004) [2004] 2 Cr App R 424, 439; and R v Daniel [2003] 1 Cr App R 99, para [26]. (3) The persuasive burden 24.An evidential burden is not in truth a burden of proof and it is this that primarily distinguishes it from a persuasive burden: the persuasive burden requires proof. The persuasive burden of proof is one that
The test for compatibility 25.The significance of the difference between the persuasive and evidential burden was highlighted in Lambert by Lord Steyn at page 572:
26.The law is that a finding by a court that a provision imposes no more than an evidential burden will resolve in favour of compatibility such issue as to inconsistency of that provision with the presumption of innocence as is raised :
per Lord Hope in R v DPP Ex p Kebilene [2000] 2 AC 326, 379. 27.A reverse onus provision that imposes a persuasive burden on an accused is, on the other hand, one that requires further examination. Whether a provision does or does not make a true inroad upon the presumption of innocence, and if so whether that inroad is justified, is not a matter that can be measured with precision. It is a question the answer to which is offence and provision specific, and depends upon the combined effect of a number of factors. From Lee Kwong-kut, a case particularly apposite for our consideration, both because it is a Privy Council decision on appeal from Hong Kong, and because one of the statutory provisions under consideration was an echo of section 20(3) of the Firearms and Ammunitions Ordinance in its imposition of a burden to demonstrate a fact ‘to the satisfaction of a magistrate’, one derives the following, at page 969:
In identifying the essential ingredients of the offence, what the court needs to distil is the gravamen of the offence, to look in other words behind the mere form of drafting to the true nature of the offence: see Attorney General’s Reference (No. 4 of 2002) [2003] 2 Cr App R 346 (CA), 358 – 359; Sheldrake v DPP [2003] 2 Cr App R 206 (CA), 240-241; R v Carrass [2002] 1 WLR 1714, 1729 (impliedly overruled in Attorney General’s Reference (No. 1 of 2004) [2004] Cr App R 424, 454, but not on this point); R v Wong Yan-fuk (1993) 3 HKPLR 341, 343; State v Coetzee [1997] 2 LRC 593, 679a. 28.The matter has been put another way in Lambert, namely, with less emphasis on the question whether the fact in respect of which the onus is cast on the accused is or is not an essential element, and more on whether the defence to be discharged is one that bears directly upon the moral blameworthiness of the accused: per Lord Steyn at pages 570 and 571. This is because – and the passages here cited are of particular relevance to the technique adopted in the drafting of section 20 of the Firearms and Ammunition Ordinance - :
Objective justification and proportionality 29.It does not follow that a provision that makes an inroad upon the presumption of innocence is necessarily unconstitutional. There remains the question whether there is some objective justification for that inroad; and if there is some justification for the inroad, whether the proportionality test has been satisfied. That test, essentially, is whether it has been shown that the limitation imposed is not more drastic than is necessary or justified in order to achieve the objective. 30.In Lambert, Lord Steyn said, at para [34] p 570, that whether the State had confined its restriction upon a right within reasonable limits depended upon the circumstances of the individual case and that:
and later, at para [38] p 572, that:
And according to Lord Hope at para [88] p 588, the balance which is, in the application of the proportionality test, to be struck will not be achieved ‘if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute.’ The burden on the state 31.The burden of demonstrating that pressing necessity is on the state:
In R v Sin Yau-ming [1992] 1 HKCLR 127, 145, Silke VP, as he then was, suggested that the burden on the state to justify a limitation or inroad upon the presumption of innocence was one to be discharged on the preponderance of probabilities. The strength of that duty does not appear to have been an issue in the case and we would most respectfully suggest that to peg the burden at that level, that is, one to be discharged upon a preponderance of probabilities, is not helpful, not least because to do so gives rise to the danger of watering down the importance of what is at stake. We respectfully prefer the phraseology of more recent authority. In R v Carrass [2002] 2 Cr App R 77 para [60] p 94, the onus on the state was described as a high one. The South African Constitutional Court, in State v Mbatha [1996] 2 L.R.C. 208, said that:
‘Convincing justification’ is also the test which has been applied in Canada: see Emmerson para 9-19; and in R v Johnstone, above, Lord Nicholls said, at pp 1749-1750, that:
The role of the courts 32.In the application of the test of proportionality, it is incumbent upon the courts to accord to the legislature that which has been described as a degree of deference, in the sense of recognizing that in the formation of policy the legislature is often better placed than the courts to assess the danger posed by a type of offence to the particular society for which it has responsibilities, and the difficulties encountered by law enforcement authorities in tackling those dangers. International instruments such as the ICCPR are drawn broadly, for it is acknowledged that the signatory states must be accorded a margin of appreciation of local circumstances and needs, although the implementation of that margin is intended to be subject to international supervision or review. In a sense, that same margin is accorded by the courts to the legislature in recognition of the legislature’s information advantage and its policy role. The matter was explained as follows by Lord Steyn in Brown v Stott [2001] 2 WLR 817, 842:
And in L v DPP [2003] QB 137, Pill LJ said, at p 148, that:
33.In R v Johnstone, Lord Nicholls said, at page 1750, that in the evaluation of the balancing exercise:
The legislation with which we are in this case concerned was enacted in 1981 and introduced by the Attorney General, and no doubt those then framing the legislation and enacting it were well aware of the dangers against which the legislation was intended to guard and the scope of those dangers. 34.This is not to say that the courts must shrink from their role of determining issues of legality, for legality is their province. The question of deference, a term that has been criticized, is but an acknowledgment of the separation of powers. In his speech in the recent judgment of the House of Lords, R (ProLife) v British Broadcasting Corporation [2004] 1 AC 185, Lord Hoffman, at page 240, explained the role of the courts in this context thus:
In the present context, what is paramount for the courts to determine, having examined the societal objective to which the legislation is aimed, is whether the legislature has accorded, in full context, proper weight to the presumption of innocence:
per Lord Nicholls in Johnstone, page 1750. A question of balance 35.Since Sin Yau-ming was decided in September 1991, a few months after the enactment of the Bill of Rights Ordinance, the experience of other common law jurisdictions in case by case consideration of the balance has developed considerably in the context of reverse onus provisions, most particularly in the United Kingdom after the Human Rights Act 1998 came into effect, and in South Africa since the enactment of that country’s 1993 Constitution. The study of developing case law inevitably adds to one’s understanding of the approach to be applied. That said, that application remains offence specific, with an eye always upon societal issues in their local setting, and the balancing exercise in a particular instance does not always lend itself to ready resolution:
In Attorney General’s Reference (No. 1 of 2004) the Lord Chief Justice said, at page 448, that:
We would, in this particular regard, repeat the note sounded at para [15] above, namely, that one should be wary of the danger of diluting the importance of the presumption of innocence on some sliding scale based upon maximum sentences; and we would emphasize the need to take particular care when applying the sentiments of authority elsewhere, in that it is necessary to accord due regard to the place of particular offences within a local context. Let us take, as an example of our meaning, the statutory provisions in this particular case. The maximum term of imprisonment is one of two years upon a first offence, and seven years if the offence is repeated by the offender within ten years of his being convicted of a scheduled offence. Even leaving to one side, for the moment, an offence aggravated by a previous scheduled offence, and assuming an offence attracting a possible two year term, it should be recognized that in this jurisdiction, for precisely the policy reasons which the respondent says drove the legislature to view possession of imitation firearms as posing a serious potential threat to law and order, a sentence of imprisonment is, upon conviction or a plea of guilty, almost inevitable. As it seems to us, any sentence of imprisonment is a grave matter, and the real likelihood of a term of imprisonment, quite apart from the obloquy that flows from such a criminal conviction, is a material factor regardless of the fact that the length of that term is substantially less than is inevitable in the case of a conviction for, say, trafficking in dangerous drugs. 36.We have seen at para. [27] above that in Lee Kwong-kut reference is made to the significance of a provision which removes from the prosecutor the obligation to prove an essential ingredient of the offence; and the importance, too, of ascertaining whether the presumption that stands against a defendant flows rationally from the facts the burden of proving which the statute expressly places upon the prosecutor. In R v Johnstone, Lord Nicholls, referring to the ‘lengthening list of decisions of the [English] Court of Appeal and other courts in respect of particular statutory provisions’ suggested, at page 1750, that:
A study of the cases, proliferating of late, and culminating in Attorney General’s Reference (No. 1 of 2004) (decided in April 2004) and Sheldrake (decided in October 2004), demonstrates that resolution of the issue is in each case a question of judgement, the product of all these factors, none in itself decisive. 37.These recent cases well illustrate that in the necessary analysis, one of the questions that has to be asked is whether the legislature intended to criminalize an accused’s conduct without proving a criminal intent, and if so whether that, in the particular context, is objectionable. If it appears that the legislature intended to criminalize conduct on the basis of criminal intent, guilty knowledge, or moral blameworthiness, but nonetheless imposed upon the accused the burden of showing the absence of such intent or knowledge, what follows is the disturbing risk that the accused will be convicted even though the fact-finding tribunal is not sure that he nursed that intent or possessed that guilty mind. In Lambert, "such an outcome was plainly regarded as seriously unfair, since a conviction might rest on conduct which was not in any way blameworthy": Sheldrake [2004] 3 WLR 976, 993. 38.In Sheldrake, the accused was convicted of the offence of being in charge of a motor vehicle having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit. The legislation provided a defence, the burden of proving which was on the accused, that there was no likelihood of his driving whilst over the limit. The House of Lords traced the history of the legislation and its forebears, which history illustrated that, for sound policy reasons, it was never the legislature's intention to require proof that a suspect was likely to drive. In their Lordships’ view this was not
per Lord Bingham Sheldrake, pages 1000-1001. That was, one might reasonably conclude, a case in which the prosecution was burdened with the onus of proving conduct blameworthy on its face, with the statutory provision providing but a narrow ground of exception. We shall presently contrast that with the statutory provision with which this appeal is concerned. 39.Attorney General's Reference (No. 1 of 2004) [2004] 2 Cr App R 424 was one of the five cases under review before a specially constituted Court of Appeal whose judgment was delivered on 29 April 2004; and it concerned reverse onus provisions in the insolvency act 1986. Section 353(1) of that Act provided that a bankrupt shall be guilty of an offence if:
Section 357(1) of that Act provides for a further offence by a bankrupt who
40.However, by virtue of section 352, those provisions shall not apply to the bankrupt who proves that at the time of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs. The Court of Appeal was called upon to determine whether section 352 breached article 6 of the European Convention. The Court noted, in addressing the issue, that insolvency offences had long been regarded as subject to special rules and that policy considerations had been considered such as to justify the imposition of more stringent criminal liability than was appropriate for solvent citizens:
41.In relation to the section 357 offence the Court took the view (page 454) that “notwithstanding the drafting of that provision, it is clear that fraud is an integral constituent of the offence.” 42.In Denton v Jackson, the second of the five cases considered by the Court, section 2(1) of the Protection from Eviction Act 1977 was considered for the defence that was provided to a person who unlawfully deprived a residential occupier of his occupation of those premises, if the accused proved that he believed and had reasonable cause to believe that the residential occupier had ceased to live in the premises. The Court decided (page 459) that the reverse burden struck “a proper balance between the general interest of the community and the protection of the fundamental rights of the individual. Any infringement of article 6(2) is both very limited and wholly justified.” (Emphasis added). That assessment was made against the background that a lawful eviction could only be secured by a possession order, so that one started from the basis that “Parliament has clearly taken the view that an attempt to circumvent these procedures was to be visited by criminal sanctions and that the potential for abuse and exploitation by landlords justifies this step... There is clearly a strong public interest in deterring landlords from ejecting tenants unlawfully and to the extent that that provision infringes article 6, there is in our view a manifest justification for it doing so.” (pages 458-459). The court noted that the essence of the offence was the unlawful deprivation of the occupier’s occupation of the premises and that the defence was available only within a narrow class of exception and, further, that the circumstances relied upon by an accused in seeking to bring himself within the narrow range of exception were peculiarly within his own knowledge and burdensome for the prosecution to have to prove negatively. In any event, we would add, this was a case in which landlords will know, almost as a matter of course, that in order to regain possession of their premises from a tenant, court orders are required, so that the fact of obtaining possession without such an order gives rise to a reasonable presumption of blameworthiness; or put another way, that a prima facie inference can be drawn in such circumstances that the landlord well knew that he was not entitled to do what he was doing. 43.Hendley, the fourth of the cases in the batch, was a challenge to section 4(2) of the Homicide Act 1957 by which the burden of showing that a killing was in pursuance of a suicide pact, thus reducing the crime to one of manslaughter, was on the person charged with murder by virtue of that killing. Here the Court decided that:
44.Crowley, the last of the group, concerned an offence of witness and jury intimidation. Put broadly, a person commits an offence under the relevant provision if he does an act which intimidates or is intended to intimidate another person whom he knows to be a witness or juror (or a potential witness or juror) in proceedings for an offence, and he does the act intending thereby to cause the investigation or justice to be obstructed; but the statute provides that if the act was done with the requisite knowledge, the intention is to be presumed unless the contrary be proved. It was that reverse onus that was challenged. The Court found as follows, page 465:
Several factors might be emphasized in relation to that case, not there spelled out in terms: that the conduct which the prosecutor was required to prove was no mere formality; that the conduct which gave rise to the presumption and which the prosecution was required to prove was of itself clearly blameworthy conduct; and that the resulting presumption flowed naturally from the facts which the prosecution was required to establish. 45.The Terrorism Act 2000 makes it an offence for a person to belong to or to profess membership of a proscribed organization (section 11(1)); but it is a defence for a person to show that the organisation was not proscribed when he became a member or began to profess to be one, and that he has not taken part in its activities at anytime whilst it has been proscribed (section 11(2)). In reading down the presumption to be evidential rather than persuasive, a device with which we are not armed, but permitted to the English courts by reason of section 3 of the Human Rights Act, Lord Bingham, for the majority in Attorney General's Reference (No 4 of 2002) [2004] 3WLR 976, remarked, at page 1003, that were section 11(1) to be read on its own, ‘some of those liable to be convicted and punished may be guilty of no conduct which could reasonably be regarded as blameworthy or such as should properly attract criminal sanctions’; this because, for example, it could cover a person who joined an organisation when he did not know that it was proscribed, and would cover a person who wished to disassociate himself from an organisation he had earlier joined, but had no means of doing so, at least without exposing himself to serious risk. Therefore:
46.It is difficult, and perhaps not prudent, to draw guidelines for determining whether a reverse onus provision is or is not a justified infringement of the presumption of innocence and whether it therefore infringes the right to a fair trial. That is because, as Lord Nicholls suggested in Johnstone, at page 1749, “one is seeking to balance incommensurables”. It is for this reason that we have chosen to summarise the approach in the growing list of cases, in the hope that by doing so it will assist in illustrating the factors at play and the weight to be attached to them. It becomes at the end of the day a question of judgement in the context of the particular case, and a key question is whether a consequence of the scheme under consideration is the risk that an accused may be convicted despite a doubt in the mind of the fact-finding tribunal about the accused’s guilt, and whether the societal imperatives underlying the legislative policy are clearly shown to be such as to permit the reverse onus. It is however worth repeating the approach suggested in two of the cases we have cited, for they seem to us best to encapsulate the major considerations that flow from the decisions before and since; the first by Lord Nicholls at page 1750 of Johnstone:
and the second by Lord Woolf in Lee Kwong-kut, page 969:
47.The difficulty of the burden on the prosecution, and the consideration that the facts underlying a defence are matters primarily within the knowledge of the accused, are issues to be approached with care and with the benefit of experience, lest they be utilized too readily to justify a reverse onus provision. One should in particular recognize that it may be said in relation to all offences that the person who knows best what he did and why he did it is the accused himself; yet that is not a reason in the standard case for exempting the prosecutor from the task of proving criminal intent. Despite the fact that an accused himself knows what he did and why he did it, prosecutors seek daily to prove what he did and why he did it by calling witnesses to give admissible testimony to that end; and proof lies in the conclusions to be drawn from the primary facts established. In his recent commentary on the Court of Appeal’s decision in Attorney General’s Reference No. 1 of 2004, Professor Ashworth, [2004] Cr Law R 832,836, points out that:
This case 48.It is against the background of the principles which we have endeavoured to highlight by reference to the cases, that we turn now to consider the factors at play in the instance of section 20(3)(c), and the result to which those factors lead. (1) The true ingredients 49.The respondent contends that section 20 is ‘to some extent regulatory in nature’ and that ‘the elements are “possession of an imitation firearm” and no more’. 50.We do not agree. In our judgment, the true nature of the offence created by section 20, or the conduct which the legislature intended to criminalize, is possession of an imitation firearm for a non-innocent or a culpable purpose. On a simple reading of the section as a whole, in the context of the Ordinance, it seems to us that the legislature intended that it would be wrong to penalize simple possession of imitation firearms without more, and that those who were intended to be subject to sanction of the criminal law were only those who possessed such instruments for one of the purposes proscribed by sub-section (3)(c), it being assumed that those under the age of fifteen years were most unlikely to possess them other than as a curio or plaything. Quite apart from the flavour of the section itself, we are supported in this analysis by the fact that when moving the second reading of the Arms and Ammunition Bill, the Attorney General informed the Legislative Council that the object of clause 20 was:
51.One notes that the Ordinance, by section 13, prohibits the possession of genuine firearms without a licence. That blunt prohibition (with certain limited exceptions specified in other sections) is entirely understandable, as is the notion that the burden of proof of possession of a licence is an Edwards type exception which should lie upon the person in possession. In the case of imitation firearms, however, the legislature did not view possession in the same light, for it is recognized by section 20 itself that there are many outlets in Hong Kong that sell imitation firearms legitimately; that those who sell them may do so without a licence; and there are no doubt many such sales each week, each to a person who does not require a licence to possess such an item. In other words, it would be idle to suggest that the legislature intended a starting point that assumed that possession was for an illicit purpose. 52.Our attention has been drawn to two relatively recent decisions of the Court of Appeal in England, namely, L v DPP [2003] QB 137 and R v Matthews (Mark) [2003] 2 Cr App R 302. At the heart of both cases was section 139 of the Criminal Justice Act 1988, which, as amended by section 3 of the Offensive Weapons Act 1996, provided as follows:
It will be seen that the structure of the section is similar to that adopted by the draftsman for section 20 of the Firearms and Ammunition Ordinance, in that there is a prohibition against possession, which in itself is said to be an offence, and then a series of circumstances which if demonstrated by the accused provide a defence. And the subject matter of section 139 is akin to that with which we are here concerned. 53.In L v DPP, counsel for the Crown argued (page 140B) that the defence stipulated by section 139(4) was one that did not relate to an essential element of the offence. It is clear enough that that argument did not find favour with the Court, although the section survived attack through the application of the proportionality test. 54.The same statutory provisions fell for consideration by the Court of Appeal in Matthews. There, the Court found, at page 307, that:
55.Concentrating on substance and not on technicalities and niceties (see the citation from Lambert at [28] above), we are satisfied that the legislature intended to criminalize more than mere possession, namely, possession plus criminal intent and that the burden which section 20(3)(c) imposes upon defendants is a burden which goes to that which is in truth intended to be an essential element of the offence or, put otherwise, an essential ingredient of the blameworthy conduct to be penalised; and that the subsection imposes a persuasive burden and not an evidential one in respect of that element or ingredient. It follows, and one can readily conjure realistic examples, that a person faced with a charge under the section could be convicted despite the existence of a reasonable doubt. It follows too that the subsection makes an inroad upon, or derogates from, the presumption of innocence protected by article 14.2 of the ICCPR, and article 39 of the Basic Law; article 87 of the Basic Law; and article 11(1) of the Bill of Rights Ordinance. (2) Justification 56.It is argued, and the point has obvious force, that there is a need in Hong Kong for strict laws to deal with firearms and the possession of firearms and of imitation firearms. When the Attorney General moved the second reading of the Bill (at a time, though, when reverse onus provisions proliferated and well before Bill of Rights driven litigation concentrated policy or judicial thinking upon compatibility with the presumption of innocence), he cited an increasing number of cases in the late 1970s and early 1980s of crimes involving the use of firearms in the majority of which it was not possible to establish whether the arms used were genuine or not, and he added:
57.We can readily discern against this background and in this context a societal objective that may justify an encroachment upon the presumption of innocence; in other words, certain circumstances which may in themselves suggest that possession is for an illicit purpose and in respect of which it would not be unreasonable to call upon the accused to show that that inference should not be drawn. The issue though is whether the enacted provision goes beyond the circumstances that will justify such an onus. (3) Proportionality 58.The question then is this: has the respondent demonstrated a compelling case that the measure adopted went no further than was necessary to secure the stated objective and, in particular, has it been demonstrated that there was a pressing necessity for the onus placed on an accused by section 20(3)(c), having regard on the one hand to the nature of the threat faced by society and, on the other, the fundamental importance of the right of the individual to be protected by the presumption of innocence against the danger of wrongful conviction? 59.In considering this question, we note the justification which has been provided as well as those factors to which we now turn. 60.It seems to us to be of the utmost importance in this case to recognize the width of the section, and to examine in that context whether that which is in effect a presumed fact ‘is more likely than not to flow from the proved fact on which it is made to depend’ (the Leary test). When we refer to the width of the section, we have most in mind the cardinal fact that distinguishes this statutory provision from section 139 of the Criminal Justice Act, a section which survived the proportionality test in L v DPP and in Matthews, which distinction is that by section 20 of the Firearms and Ammunition Ordinance possession is prohibited (save where the defence is established) not only in a public place but anywhere at all. Section 139 attacks the possession of bladed articles in public places. Possession of bladed articles in the street is not assumed to be acceptable commonplace conduct, and there is logic in suggesting that he who has on his person in a public place, such as a street, a knife (which is not a folded pocket knife) may prima facie reasonably be supposed to possess it for an illicit or potentially illicit purpose. So, too, it would be logical to presume prima facie that a person who in Hong Kong has a genuine firearm in his possession without a licence has it for an illicit purpose almost regardless of where he has it or, put another way, that the purposes for which he might legitimately possess it will be special and very limited. In such circumstances, the offence of possession of a genuine firearm with certain legitimate purpose exceptions does not, in requiring proof of the exception to rest on the person proved to be in possession, offend the rationality (or Leary) test, and the burden of showing a legitimate purpose, if one exists, for possessing such an unusual item in this jurisdiction could readily be discharged; so that the balancing exercise which is required by the proportionality test would not be a difficult one to resolve in favour of a persuasive burden, in so far as one is placed upon the accused by other sections. Similarly, were section 20 of the Firearms and Ammunition Ordinance directed only at possession of an imitation firearm in a public place, and assuming that public place were sensibly defined for the context, like logic would apply. One does not normally expect those aged over 15 years to carry with them in a public place (whether on their person or, as in this case, hidden in the boot of a motor vehicle) imitation firearms, especially heavy and realistic imitations and, save where the item has just been purchased and is being conveyed home or in other limited circumstances, there is a rational connection between possession of such a weapon in public and a prima facie assumption that the person who carries it in a public place has it for a non-innocent purpose. In such a case, a reverse onus provision casting upon an accused a persuasive burden to show an innocent purpose would seem to be proportionate to the legitimate societal objective. 61.But in our opinion the same rationale cannot be applied to the mere possession of an imitation firearm in private premises, such as one’s home. There is not in Hong Kong in the mere possession of an imitation firearm in a private place, without more, an intrinsic illicit characteristic or connotation or natural suspicion, given particularly the availability of such items in wholly legitimate circumstances, and it follows that the subsection imposes a persuasive burden upon an accused even where there may be no hint in a particular case of improper or suspect circumstances attached to that possession. It is not a sufficient answer, in our judgment, as has been urged in argument, to say that in such a circumstance the safeguard of the consent required of the Secretary for Justice to prosecute restores the balance. That is to place the effective protection of the presumption of innocence in the hands of the prosecution authority, which, as a matter of principle, is not where it should be. The point is made in Attorney General’s Reference No. 1 of 2004, at para 91 (endorsed by the House of Lords in Sheldrake, para 51(6)) that:
62.There is no doubt but that the subsection allows for the conviction of an individual where a court entertains a reasonable doubt as to the moral culpability of the accused, as well, upon our construction of the true effect of the subsection, as to his guilt in law. One might postulate a number of examples including that of an adult in possession of an imitation firearm, barely distinguishable from the real thing, who acquired it as a gift before the age of 15 years from a relative overseas who is now deceased. Let us assume too that no suspicious circumstances attend the fact of possession. All the prosecutor has to do under the present statutory regime is to prove possession, an easy enough task in itself. Who is to say that the ipse dixit of the accused, unaided by any corroborative evidence, will save him from conviction and imprisonment, when he carries the burden of proving a lawful purpose? And who will say that there is in that case no real risk of an unjust conviction? 63.The sentence to which such a person is then subject will be one of up to two years imprisonment or, if there is a previous conviction for a scheduled offence, up to seven years imprisonment. The scheduled offences include theft and common assault, and one should not presuppose that the option of a term higher than two years will present itself rarely. Given the gravamen or true nature of the offence and the assumption of illicit purpose which underlies it, one can readily suppose, regardless of the maximum that presents itself in a particular case, that in most instances a conviction will be met with a term of imprisonment. We view with alarm the prospects thus presented. 64.In so far as it may be said that it would be difficult for the prosecutor to prove that possession in private premises was for an illicit purpose, that may or may not be so. There may be the testimony of an accomplice who knows for what purpose a weapon is possessed. The evidence showing an illicit purpose may be circumstantial. If such testimony does not exist and there is no substantive offence committed or conspired in connection with the imitation firearm possessed in private premises, then so be it: such a scenario does not in our judgment spell justification for placing upon a person in possession a persuasive burden to show possession for a lawful purpose. 65.In seeking to justify the scheme of the subsection, the respondent placed before us evidence which includes the number of those arrested for possession of imitation firearms between 1993 and 2003. The figures are equivocal in their effect. On the one hand, they show a number much smaller than those given by the Attorney General in 1981 and figures in single digits in 1997, 1998, 2002 and 2003. On the other hand it might be argued, although this is not the way it was put, that the low figures demonstrate the efficacy of the legislation. Nor do the figures show how many of those arrested were prosecuted, and how many convicted. 66.Further, we have not been persuaded that the placing of an evidential burden upon an accused who possesses an imitation firearm in a private place would not suffice to achieve the objective announced by the Attorney General in 1981. We would have thought that those cases which were now assessed to warrant the consent of the Secretary for Justice would be those in which circumstances additional to possession on its own would feature, and would be such as would in a proper case enable a prosecutor to demonstrate possession for a culpable purpose without the prop of a presumption. We accept that where an imitation weapon is found in private premises, the purpose for which it is kept is best known to the accused, for which reason some burden upon him may be warranted, but the respondent has failed to discharge its onus of demonstrating why an evidential burden would not suffice. 67.One sees from a study of the English cases a practice by which the courts in an appropriate case ‘read down’ a statutory provision, where they feel able so to do, to one that imposes only an evidential burden. Section 3(1) of the Human Rights Act enjoins the courts of that jurisdiction to read and give effect to legislation, in so far as it is possible to do so, in a way that is compatible with the rights secured by the European Convention. It is not, for the purpose of this case, necessary to decide whether the courts of Hong Kong may legitimately engage upon a similar exercise, and we say that because in our judgment it would not in any event be possible to read the phrase ‘if he satisfies the [court]’ in section 20(3) as imposing a mere evidential burden. 68.Accordingly, we find that the persuasive burden imposed by section 20(3)(c) of the Firearms and Ammunition Ordinance interferes with the presumption of innocence and, in addition, in that the burden covers possession of imitation firearms wherever the firearm is possessed, that it goes further than is necessary to achieve the objective of the legislature, and is therefore not a proportionate response to the problem posed by the possession of imitation firearms. Were the persuasive burden expressly or by clear implication restricted to possession in a public place reasonably defined, we would not find that inconsistent with the right to a fair trial. The Consequence 69.There arises next the question whether the section is amenable to surgery by which an offending aspect may be excised so as to leave the non–offending aspect in tact. Such an exercise comes to mind because our courts may state, where it is the case, that a provision is unconstitutional to a particular extent only; and in such a case the provision may lend itself to remedy by excision of the offending part, leaving the rest in tact, without thereby offending the legislative scheme as a whole:
Ng Ka ling and others v Director of Immigration (1999) 2 HKCFAR 1, 37. In the light of our assessment as to the circumstances in which a reverse onus burden may be a proportionate measure in the context of possession of an imitation firearm, the point is relevant generally, and is relevant to this particular case because these applicants were said to be in possession of the imitation firearm in a public place. 70.It was in order to address this consequential issue that we recalled counsel for argument. We were then presented with a wide array of suggestions and a host of authorities, many of which, with respect, failed to recognize that the degree to which, if at all, a constitutionally unacceptable provision may properly be saved by judicial devices so as to render it constitutional depends upon the authority given to the judicial organ by the constitution. Most of the suggestions alluded to reconstructive weaponry simply unavailable to the courts of this jurisdiction; and we were more than a little surprised that they were advanced on behalf of the respondent, especially since the ramifications of the submissions, if correct, would be far reaching indeed, of a kind that can never have been intended by those who framed the Basic Law, conferring on the courts barely disguised and sweeping legislative powers. To some of these highly intrusive solutions we shall shortly turn. 71.With some qualification, it was submitted that were the court to find that the reverse onus was unacceptable to the extent we have in fact now specified, the section might be amenable to a blue pencil exercise. We think not. Section 20(3)(c) could not be deleted, for that would remove a cardinal intended defence. Another approach would be to assume that in subsection (1) there was to be implied the phrases ‘public place’ and ‘private place’ after the words ‘imitation firearm’ enabling the court to delete the second part of that implication. Yet to do that would render possession of an imitation firearm in private premises lawful, with no definition of private premises, and regardless of the circumstances of the possession. That is not blue penciling: that is legislating, which is not a function within our constitutional remit. The imagination might then further take us to deleting the phrase in subsection (3) ‘he satisfies the magistrate that’. To do that would affect not only subsection (c) with which we are concerned, but also subsections (a) and (b) with which we are not, thereby removing onuses affecting situations which we have not been called upon to consider and where, upon argument, those onuses might prove to be justified and proportionate. We have been invited to “read down” the section so as to require only an evidential burden. The words of the section do not so permit, even had we the power to do so. 72.We have further been invited by the respondent to read words into section 20, and we have to that end been presented with a series of suggested terms and phrases to insert, and some to delete. One was to insert at the outset of subsection (3)(c) the words “that he was in possession of the imitation firearm in a public place and ….” so that subsection (3)(c) would read: “he was in possession of the imitation firearm in a public place and he was not in possession …. for a purpose dangerous to the public peace … ”and so on. Quite apart from the fact that such an approach is an exercise in reconstruction for which we have no mandate in law, the result would be to deprive a person in possession of an imitation firearm in a non-public place of any defence whatsoever, save the limited defences available under sub-sections (a) and (b). There were other suggestions which would require reconstruction of an even more extensive nature; in one example requiring the insertion of an entirely new and additional subsection. From where we are supposed lawfully to derive these legislative powers, we know not. We were taken to instances in other jurisdictions where remedies are wider than those available to this court, for which very reason those instances are of no avail. 73.There was an argument that we were possessed of these reconstructive powers by virtue of section 6(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 which reads as follows:
This is altogether to misunderstand section 6. Section 6 does not confer new remedies. It speaks of such remedies as are already available in law to a court before whom proceedings, whether criminal or civil, are pursued; and the phrase ‘as it considers appropriate and just in the proceedings’ follows the conjunctive ‘and’; not a disjunctive ‘or’. 74.We were in the event not prepared to engage upon any of the remedial measures which were suggested. There is in reality no readily identifiable constitutional part that is distinct from the unconstitutional part save as broadly put by our reasoning which, if translated into legislation, requires the attention of the legislature, not least by reference to defined circumstances in which proscribed possession is to give rise to a persuasive burden on an accused to show possession for a proper purpose. It is not for us, for example, to define ‘public place’ for the purpose of this Ordinance: the legislation of Hong Kong is riddled with definitions of ‘public place’ each tailored to the subject matter. The fact is that if our conclusions be correct as to the unconstitutionality of the sub-section, then given the non-availability of a blue pencil exercise, it is for the policy makers to address the questions raised and, paying due regard to the presumption of innocence and the right to a fair trial, to decide how it wishes to proceed, for the draftsman then to draft accordingly, and for the legislature to enact a provision anew in accordance with such policy upon which it settles. 75.It was argued, for the first time upon the resumed hearing, that the point in this appeal has became academic or hypothetical, given our analysis which distinguishes between possession in public and in private, and that the applicants carried the imitation firearm in this case in a public place, albeit in the boot of a vehicle. That is, we think, a rather strange approach, for it assumes that the section is in fact thus divided or otherwise lends itself readily to the division which we have, for analytical purposes, made. The section itself draws no distinction between public and non-public place, and houses no such concepts. That is the very problem with the section and with the onus of proof which is imposed on an accused: it is unconstitutional, in our opinion, in that it is too broad in its imposition of the burden; it is unconstitutional in that it imposes this burden regardless of the circumstances or place in which the firearm is kept, and without drawing any distinction between public, private or other specified premises, and, necessarily then, without any definitions or categorisations. What we are invited to do, by the argument as to hypothetical issues, is to draw that distinction, and to define the two. Indeed, we note that in the respondent’s written submissions as to our suggested powers to ‘read in’ provisions, there appears the following:
For reasons we have provided that course is wholly inappropriate, but the present point is that the very suggestion illuminates the difficulty with the respondent’s contention that there is on the facts, and in the light of our analysis, no real issue. Conclusion 76.Accordingly, in our judgment, section 20(1) of the Firearms and Ammunition Ordinance, as and when read with section 20(3)(c) of that Ordinance is inconsistent with the presumption of innocence prescribed by article 11(1) of the Hong Kong Bill of Rights Ordinance, article 14.2 of the ICCPR, and article 39 of the Basic Law, and with the right to a fair trial protected by article 10 of the Hong Kong Bill of Rights Ordinance, article 14.1 of the ICCPR, article 39 of the Basic Law, and article 87 of the Basic Law. The scope of this judgment is restricted to section 20(1) as read with section 20(3)(c), and does not purport to determine the validity of section 20(1) as read with the sections 20(3)(a) or (b), although it may well be that without section 20(3)(c), what remains is not a viable offence creating provision, and certainly is not one that represents the full circumstances in which possession was intended by the legislature to be blameless. 77.We were invited to say that in the event of a finding of incompatibility, the proviso to section 83 of the Criminal Procedure Ordinance should be applied. It is clear that in coming to his determination on the second charge the judge engaged the reverse onus provisions of section 20. It has been suggested that nonetheless the proviso should be applied on the footing that the judge found that the account given by the applicants was not true, and that it is self evident from the clearly established facts that the applicants possessed the imitation firearm for one of the purposes prohibited by subsection (3)(c). We cannot adopt this suggestion. The court below proceeded upon the basis of an unconstitutional provision, and one which was not peripheral to the judge’s thought processes. Moreover, it is difficult to see how in relation to section 20(1) and the circumstances for which section 20(3)(c) caters, as read together, there can be said to survive a properly framed statutory offence to which in this case that proviso could be applied. 78.We therefore grant the applicants leave to appeal against conviction and, treating the hearing of the application as the appeal, we allow the appeal, quash the convictions and set aside the sentences.
Mr Hylas Chung assigned by the Legal Aid Department for the Applicants Mr Gavin Shiu, SADPP and Mr Raymond Cheng, GC of the Department of Justice for the Respondent Appeal by the Respondent to Court of Final Appeal. Leave to appeal granted. Please refer to the appeal judgment of FAMC11/2005. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACC 213/2003