CHIU WING NAM, DICK v. HKSAR FACC 10/2006

S’s words:-
Section 47 of the the Dangerous Drugs Ordinance, Cap. 134 states, inter alia, any person who is proved to have had in his physical possession shall, until the contrary is proved, be presumed to have had such drug in his possession.

The onus of proof remains on the prosecution (not against Basic Law and the Bill of Rights) and that was why the Court in Hung’s case decided that there was no reverse onus but only an evidential onus which would do no more than require that there be evidence which raised the issue.

A “standard direction” was given that placed the burden of proof on a balance of probabilities on the appellant. That explains why the appeal was allowed.

Is there still any other criminal offence in Hong Kong having such similar presumption of knowledge section?

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Handing Down of Reasons: 3 July 2007

At the conclusion of the hearing, [the Honourable Court] allowed the appeal, quashed the conviction, ordered a retrial and remanded the appellant in custody pending his retrial.

The Defendant was convicted of trafficking in a dangerous drug.

He had been arrested on a staircase in a building in Yuen Long and was found to be carrying 705.90 grammes of a mixture containing 295.42 grammes of heroin hydrochloride some of which was in a shoulder bag and some concealed in his underpants. He maintained to the police, and at trial, that he thought that he was carrying counterfeit mobile telephone batteries which he had agreed to bring into Hong Kong from Shenzhen for a reward of $1,000 dollars.

On 19 August 2004 an application was made to the Court of Appeal for a certificate on a point of law of great and general importance namely that s.47 was inconsistent with the provisions of the Basic Law. The contention was that “On the basis that the standard of proof required before the presumptions provided for in [section 47]… are rebutted requires proof on the balance of probabilities, in relation to a person charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, is the required standard of proof inconsistent with the rights of such a person in the Basic Law and elsewhere to be presumed innocent, to equality and to a fair trial?”. This point had not been raised at the trial or before the Court of Appeal. On 22 September 2004 to Court of Appeal refused to certify.

On 14 October 2004 an application was made to the Court of Final Appeal seeking leave to appeal on the point of law set out above and seeking an extension of time as the application was by then 4 months and 10 days out of time. By the time of this application the point of law had already been raised in an appeal to the Court of Appeal in HKSAR v. Hung Chan Wa and Atsushi Asano (“Hung’s case”). This Court then successively adjourned this application to await the outcome of the appeal in Hung’s case. Judgment was given on the point of law issue in Hung’s case by the Court of Appeal on 23 June 2005 [2005] 3 HKLRD 291. The matter was then appealed to this Court which gave judgment on 31 August 2006 (2006) 9 HKCFAR 614.

The Court in Hung’s case was called upon to decide whether s.47(1) and (2) reversed the onus of proof so as to impose a persuasive (legal) burden on an accused or whether they imposed only an evidential onus. If the former was so it was argued that this would derogate from the presumption of innocence and the right to a fair trial which are guaranteed by the Basic Law and the Hong Kong Bill of Rights. If the latter was so no reverse onus would be placed upon the accused but only an evidential onus which would do no more than require that there be evidence which raised the issue. The onus of proof beyond reasonable doubt would remain squarely on the prosecution and there would then be no infringement of the Basic Law and the Bill of Rights.

Having canvassed the arguments for each side and referred to the majority decision in R. v. Lambert [2002] 2 A.C. 545 Sir Anthony Mason was satisfied “that the persuasive burdens imposed by s.47(1) and (2) are disproportionate and that in each subsection, an evidential onus would be a sufficient means of achieving the legitimate objective.” It was accordingly held that the Court of Appeal had been right to apply a remedial interpretation to s.47(1) and (2) by treating the burdens of proof as creating an evidential onus only.

In the present case the appellant did place evidence before the trial court, both from himself and from his witness, which, if believed, could be taken to support his defence and the judge did, more than once, clearly direct the jury that the onus of proving guilt beyond reasonable doubt rested on the prosecution. It is submitted, however, that the judge did also, on a number of occasions, tell the jury that, because of s.47, there was a persuasive onus resting upon the appellant and that, given the decision in Hung’s case, a substantial and grave injustice has been done to the appellant.

Particular reliance is placed upon the passage where the judge said “So you have to look at the evidence, both in the case for the prosecution and in all that has come from the defence, and decide whether it is more likely than not that he was unaware of the nature of the drugs.” Reliance on the appellant’s behalf might equally well have been placed upon the passage which immediately preceded that set out above which reads “If he is proved or presumed to have those drugs in his possession, until the contrary is proved, he is presumed to know what they are, to know they are drugs. Therefore given the evidence which is not in dispute, and given this presumption, unless it is proved to the contrary, the accused had possession and knew what he had.” (emphasis supplied) Further the judge, in later passages, more than once clearly placed a persuasive burden on the appellant. It must in fairness be said that the judge, when so doing, was following the view, which was then universally held by prosecutors, by defence counsel and by the courts, that s.47 imposed a persuasive burden on a defendant which he had to discharge on the balance of probabilities.

The respondent conceded that the summing-up was, prior to the decision in Hung’s case, a “standard direction” which placed the burden of proof on a balance of probabilities on the appellant. Given the uncertainty that must exist as to the extent to which the jury’s decision was affected by that direction he felt unable to submit that this was an appropriate case for the application of the proviso.

The appellant did, in the circumstances, suffer a substantial and grave injustice. The appeal must be allowed and the conviction quashed.