The Queen v. Yeung Chu Tim

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 484 OF 1992

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BETWEEN

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Coram : The Hon. Mr. Justice Wong in Court.

Date of hearing: 2nd April 1993

Date of Delivery of Judgment: 2nd April 1993

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J U D G M E N T

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1. The appellant, who was D10 at the trial, faced a joint charge and was convicted before a magistrate of assisting with the depositing of restricted articles with intent to assist another person to evade restriction contrary to section 35A(1)(a) of the Import and Export Ordinance, Cap. 60. He was sentenced to 6 months imprisonment. His appeal which was against conviction only first came before me on 7 August 1992. On the application of Crown Counsel which was not opposed by counsel for the appellant, I reserved the appeal to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap. 227 having regard to the fact that another matter involving an identical point under the Hong Kong Bill of Rights was then pending before that court.

2. The Court of Appeal having on 4 December 1992 resolved the question that section 35A of the Import and Export Ordinance, Cap. 60 was compatible with and therefore did not violate Article 11 of the Hong Kong Bill of Rights, remitted the outstanding issues to this court for determination. At p.8 and p.9 of the judgment in Magistracy Appeals No. 227 of 1992, No. 484 of 1992 and No. 718 of 1992, Fuad, V.P. said this:-

“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 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, it 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).”

3. When the matter came back to me to-day, Mr. Philip Ross, Crown Counsel, informed me that he was unable to support the conviction, for two reasons. Firstly, in the light of the decision of the Court of Appeal, the learned magistrate applied the wrong standard of proof (on a balance of probabilities) required to rebut the presumption, see p.85 of the Statement of Findings. Secondly, although the magistrate had earlier at the bottom of p.84 held that there was ample evidence from which he could draw the inference on the question of intent without having to rely on the presumption and did draw such inference, it was submitted that this finding could have been coloured or influenced by the view taken by the learned magistrate in regard to the standard required to rebut the presumption by the defendant. In the circumstances, the conviction cannot be regarded as safe and satisfactory.

4. I agree. Accordingly, I would allow the appeal, quash the conviction and set aside the sentence of 6 months imprisonment.

Mr. Philip Ross, Counsel for the Crown.

Mr. John McNamara, (M/S. Tang, Wong & Cheung) for the appellant.