THE QUEEN v. LUM WAI MING

High Court Case No. 75 of 1991

Headnote

Repeal of s47(1) (c) of Dangerous Drugs Ordinance CAP 134 as amended by Dangerous Drugs (Amendment) Ordinance No. 2 (No. 52 of 1992

Held

(1) S47 (1) (c) does not admit of a construction consistent with Article 14.2 of the International Covenant on Civil and Political Rights as applied to Hong Kong

(2) S47 (1) (c) is ultra vires Article VII (3) of the Hong Kong Letters Patent 1991 (No. 2) and accordingly repealed

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

Case No. 75 of 1991

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Decision

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1. At the conclusion of the voir dire proceedings in this trial and before the empanelling of a jury the Defence has challenged the legality of s.8 of the Dangerous Drugs (Amendment) Ordinance No. 2 (No. 52 of 1992) which was enacted on 26th June this year and which repeals s.47 of the Dangerous Drugs Ordinance and substitutes the following new section:

"47. Presumption of possession and knowledge of` dangerous drug

    (1) Any person who is proved to have had in his physical possession -

(a) anything containing or supporting a dangerous drug;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug;

(c) the keys of any motor vehicle containing a dangerous drug

shall, until the contrary is proved, be presumed to have had such drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug."

2. This new section post dates the decision in R, v. SIN Yau-ming (1992) 1 HKCLR 127 which struck down s.47 (1) (c) and (d) and s.47(3) of CAP 134 (as well as parts of s.46.)

3. The new section differs from the old section in three significant respects:

(i) In (1) the expression "physical possession" replaces the old expression "possession or custody or under his E control."

                (ii) Subsections (a) and (b) have been redrafted.

(iii) Subsections (c) "the keys to any motor vehicle containing a dangerous drug" has been added.

There is also one significant similarity namely s.47(3), which was repealed, has been replicated verbatim as the new s.47(2).

4. In the particular case before me the defendant is alleged to have driven his motor vehicle to a halt whereupon the Police approached and arrested him. Inside the vehicle were found dangerous drugs; approximately 100 grammes of heroin were found in a plastic shopping bag on the floor of the back of the car and a smaller quantity of about 13 grammes were found in a laisee packet in the "map" compartment of the driver's door. The keys to the vehicle were in the ignition.

5. The original challenge by the Defence was confined to s.47 (1) (c) and s.47(2). As the argument has unfolded it has become necessary to consider also section 47 (1) (a) and the Defence have taken also the opportunity to challenge s.47 (1) (b).

6. As we are concerned in this matter with legislation which post-dates the Hong Kong Bill of Rights Ordinance the issues to be resolved by the court are:

(i) Do s.47 (1) (a) and (c) of the Dangerous Drugs Ordinance as amended on 26th June 1992 admit of a construction consistent with Article 14.2 of the International Covenant on Civil and Political Rights as applied to Hong Kong? If not, is it ultra vires Article VII (3) of the Hong Kong Letters Patent and accordingly struck down?

(ii) Similarly with the provision of s.47(2).

7. Article VII (3) of the Hong Kong Letters Patent 1991 (No. 2) states

"No law of Hong Kong shall be made after the coming into operation of the Hong Kong Letters Patent 1991 (No. 2) that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that Covenant (the ICCPR) as applied to Hong Kong."

8. Article 14.2 of the ICCPR states:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

9. This court is bound by the principles of construction and interpretation as set out in the decision in SIN Yau-minx to which I refer in part as follows:

At heading 2. "A constitutional instrument and in particular that part of it which protects and entrenches fundamental rights and freedoms, is treated as being sui generis and given a generous and purposive interpretation."

3. "... s.3 and 4 of the Hong Kong Bill of Rights Ordinance make it clear that all existing and all new legislation is required to be consistent with the Covenant. Therefore the Covenant become supreme; not the legislature."

6. "Where a legislative provision is found to be inconsistent with the guarantees set out in the Hong Kong Bill of Rights Ordinance, the onus then lies on the Crown to justify. Such onus is to be discharged on the preponderance of probability. The evidence of the Crown needs to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but in the light of the contents of the Covenant and its aims and objects, with a bias towards the interests of the individual."

7. "... a mandatory presumption of fact established by legislation may be compatible with Article 11(1) of the Bill (that is the presumption of innocence) if it be shown by the Crown, due regard being paid to the enacted conclusion of the legislation, that the fact to be presumed rationally and realistically follows from that proved and also if the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection."

10. It is unnecessary to repeat the arguments which have been extensively. canvassed in SIN Yau-ming and other decisions concerning the inherent and obvious dangers of a presumption in our legal system and the circumstances in which the needs of the society outweigh the inherent dangers so that it becomes justified.

11. As to the dangers I need do no more than cite two authorities. Firstly, Lord Diplock in R. v. KWAN Ping-bong [1979] HKLR 1:

"The effect of s.47 is to convert an inference which at Common Law the jury would not be entitled to draw unless they were satisfied beyond all reasonable doubt that it was right, into an inference which they are bound to draw unless they are satisfied that on the balance of probabilities it is wrong. So they must draw it even though they think that it is equally likely to be right as wrong."

12. Secondly, Dickson C.J.C. in R. v. Oakes (1986) 26 DLR (4th) 200

". . a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence. If an accused bears the burden of disproving on the balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt."

13. As to the needs of the society which the laws are intended to protect there could be no opponents to the words of SilkeV-P in SIN Yau-ming.

"These courts have over the years reiterated their abhorrence for the evils inherent in the narcotic trade ... Those who involves themselves in the trafficking of dangerous drugs can expect little mercy from these courts."

14. In addition Mr FUNG, Q.C. in this hearing has very properly conceded that the urgent need to combat drugs and the drugs trade could be a justification for putting a limitation on the presumption of innocence.

15. It as a result of the balance between these two competing principles that the threefold test of (a) rationality, (b) proportionality and (c) minimum impairment has emerged.

16. There must be a rational connection between the limitation sought to be imposed and the objective sought to be achieved. Any limitation on the presumption of innocence should impair only to the minimum extent necessary, and the effect of the limitation must be proportionate to the objective which is being sought.

17. Mr Justice Bokhary in Attorney General v. LEE Kwong-kut (1992) Magistracy Appeal No. 90 expressed the approach in a marginally different way by adding the word of "realism" to the application of the test:

"Here in Hong Kong we apply the threefold   justification test of proportionality, rationality and realism which this court held in R. v. SIN Yau-ming must, by necessary implication, form part of the scheme of things created by our Bill of Rights."

18. Mr Bailey for the Crown submits that the real question at the end of the day is whether the challenged provisions are . reasonable in the context of Hong Kong. He concedes that a mandatory presumption by its very nature is, on the face of it, in violation of the guarantee of the presumption of innocence and should be repealed unless the Crown can justify it, in the context of Hong Kong, as being reasonable by passing the threefold test.

19. He adds, and correctly emphasizes, that the burden on the Crown to satisfy the court that the provision is reasonable and does pass the threefold test is discharged on the balance of probabilities and not. beyond a reasonable doubt. Mr FUNG has put forward a number of hypothetical examples illustrating the risk of an innocent key holder being charged and convicted by virtue of these presumptions. Mr Bailey argues that if the standard of proof on the Crown to justify a presumption was beyond a reasonable doubt, each example would be or could be a good example to strike the provision down, but it is not. In Hong Kong the standard is on the preponderance of probabilities or more likely than not. Therefore in the examples quoted by Mr FUNG one must ask what are the real likelihoods in such a situation and if the Crown establishes that the real likelihood is that there would be no risk to an innocent person it is not a persuasive illustration. This is the approach I adopt. I will consider the hypothetical examples but in the way Mr Bailey, correctly, invites me to.

20. I now turn to the new s.47 and will deal with each of the differences from the old section' and examine the consequences of those differences and whether they admit of a construction consistent with Article 14.2 of the ICCPR as applied to Hong Kong. They come down to four questions which are relevant to the trial with which I am presently concerned.

(a) The effect if any of the introduction of the adjective physical' to the word "possession" in place of the expression "possession or custody or under his control."

(b) The validity of the 'new' subsection 1(c) "the keys of any motor vehicle containing a dangerous drug," (the defendant in the present case being found in a car with the keys in the ignition).

(c) The validity of the 'new' subsection 1(a) "anything containing or supporting a dangerous drug" (because subsection 1(c) only refers to the keys and not to the thing itself and it could be argued that a motor vehicle was a "thing" and came within s.1(a)).

        (d) The validity of s.47(2).

21. Mr FUNG has said that he also challenges as being ultra vires the Letters Patent, s.47 (1) (b). I shall in due course make references to that subsection from which my views on it will be discernible. As will be seen I cannot make a decision in respect of s.47(2) without commenting on s.47 (1) (b). However, only subsections (a) and (c) are relevant to a case presently before me.

"Physical possession"

22. Mr FUNG contends that the new description is merely a cosmetic change. Mr Bailey_. contends it is a very real change and imposes a qualification which did not exist before. Somewhat usually both counsel have prayed in aid the same authority, R. v. HON Sai-king (19501 HKLR 319. Legal arguments as to what amounts to possession, what amounts to constructive possession, what amounts to actual possession, what amounts to physical possession and so on, are regular occurrences. From time to time we are reminded in simple terms what the word means:

Lord Scarman in R. v. Boveson (1982) AC 768 said

"Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control ... you do not possess a thing unless you know you have it."

and Lord Diplock in DPP v. Brooks [1974] AC 862

"one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control."

23. The old s.47(1) used the expression "possession or custody or under his control." The "possession" part of that expression is as defined above. The remainder of the expression must envisage a wider concept. The new' section is confined to physical possession and it would be difficult to improve on Gould J's (as he then was) definition of what physical possession is in R. v. HON Sai-king.

"Physical possession is not hard to understand. You may have a thing in your hand, or in your pocket or under your control in a room; you may have put a bag in a railway seat alongside you. If you have immediate custody or control of it, with the intention to exercise that control, then that is physical possession."

24. In my judgment this is exactly w hat the new provision aims at and in so drafting the Legislature intended to and succeeded in narrowing those persons who would be caught by it by imposing a new qualification.

25. The narrower approach therefore applies to subsections 1(a), 1(b) and l(c).

26. Before I turn to the subsections I accept that, regardless of the effect of the addition of the word "physical", schematically the new and the old sections are the same. The proof of a fact triggers the operation of a presumption. Once physical possession a t key is proved the defendant is encumbered with a burden to rebut.

27. To decide whether that burden is justified or not I must examine each subsection and see if it passes the threefold test already referred to.

S.47 (1) (c) "the keys to any motor vehicle containing a dangerous drug"

28. I observe at the outset that subsection l(b) also refers to keys of specified things such as boxes, drawers and so on. It is tempting to ask the question - why have a separate subsection for the keys to a motor vehicle and why not simply add a motor vehicle to the list in subsection 1(b). I hazard the following answer. The key to a box etc. is for the purpose of keeping the contents of the box safe and/or hidden. The key to a car is to keep the car itself safe and to ignite its engine so as to propel it. A car per se is not a thing for storage but a thing for transportation. Therefore different considerations apply.

29. A man can be nowhere near his car but still have the keys in his pocket. Many people can have the keys to a single car but only one person at a time can drive it. The provision relating to the keys is therefore wider than one relating to the vehicle itself and creates a greater jeopardy to a person caught by it.

30. Some of Mr FUNG's hypothetical examples illustrate this. I do not propose to comment on the individual illustrations nor add any of my own.

31. Mr Bailey urges that the examples are far fetched and unreal. Because the reality of the situation in Hong Kong is that the person caught in one of Mr FUNG's examples would simply never be charged unless there was other evidence to ground suspicion. What he says has some force but I am not convinced he is absolutely right nor am I convinced it is the right test.

32. The section clearly does catch the man sitting in a restaurant in Kowloon with a bunch of keys in his pocket, when his vehicle, whether it be a car, a taxi or a light goods vehicle is parked on Hong Kong Island. In my judgment the Court of Appeal's findings in SIN Yau-ming in relation to the keys to flats and premises provide some assistance when considering vehicles. Mr Bailey rightly says a car is a very different thing from a flat'. Indeed so, but when it comes to considering the risks facing the key holders the dissimilarities are not so great.

Of the repealed section Silke V-P said,

"I can find no justification on the evidence of the Crown for these presumptions. They catch and force to rebuttal an ordinary inhabitant of an apartment house who has the keys to the front door."

33. Making a similar criticism of the new section 1(c) would only be a matter of degree. I can find no justification for this presumption. It catches and forces to rebuttal any ordinary person carrying car keys wherever the car may be. In Hong Kong many vehicles, and I have in mind in particular, taxis and light goods vehicles, have a variety of different key-holders and drivers and an endless variety of passengers. Under the old law a key-holder of premises was at risk from a visitor leaving drugs behind, so a key holder of a vehicle is at risk from a passenger in that vehicle.

34. In my judgment, this subsection fails the tests of rational connection, proportionality and minimum impairment. I find it inconsistent with Article 14.2 of the ICCPR and ultra vires Article VII (3) of the Letters Patent.

S.47 (1) (a)

35. The only reason s.47 (1) (a) falls for consideration in this case is because a motor vehicle could be construed as a "thing" and therefore within the section. The old s.47 (1) (a) was not canvassed in argument before their Lordships in SIN Yau-ming.

36. The normal situation which the new provision is intended for is not significantly different from the type of situation which was caught by its predecessor. "Anything containing a dangerous drug" has meant things like plastic packets, and shopping bags and so on, in other words the immediate container or receptacle. It is true that the word "thing" could have a very wide definition. Reductio ad absurdum, the Q.E.II is a "thing" but Mr FUNG naturally concedes that s.47 (1) (a) is neither designed nor' intended for such a situation. Where the meaning of 'anything' in s.47 (1) (a) goes beyond those things such as parcels or bags it goes beyond to the extent of those sort of things which are particularized in the new following subsection (1)(b) namely boxes, safes, drawers and so on which are containers, particularized because they are capable of having a key to them. What they have in common is that they are containers. I would add that in some circumstances the possession of a car itself would be caught by this subsection but only when the car itself was being used as the container. This would normally be the sort of case where the drugs were bulky and that it could be said that the car's purpose was to contain or to store or to hide them. Then it could be said that the car was the thing containing the drugs.

37. On this basis s.1(a) (and s.1(b) also) can be justified. The things or objects which are envisaged are usually small, and portable and where it is a thing with a key the purpose of the key is to secure and/or secrete the contents.

38. Applying the threefold test, which I shall not recite again, and applying it on the preponderance of probabilities and in the context of this territory and weighing in the balance this territory's urgent need to combat the evils of the drug trade and paying due regard to the enacted conclusion of the legislation, I find s.1(a) sustainable and not ultra vires. It follows that I have the same view of s.47 (1) (b) which Mr FUNG says he challenges in this hearing. In my judgment it is not open to him to challenge in this hearing. Both counsel agree it has no bearing in the trial I am concerned with and there must be a limit to what can be challenged in any one case. That limit is surely defined by the issues of the case in question. If it were otherwise, every section of the Dangerous Drugs ordinance would be open to challenge in every dangerous drugs case. I have nonetheless stated that had s.47 (1) (b) been under scrutiny in this judgment I would not have repealed it. It is necessary for me to state this before giving consideration to s.47(2) to which I now turn.

S.47(2)

39. S.47(2) presumes knowledge of the nature of a drug once possession has been proved or presumed.

40. Mr FUNG's starting point in argument is that it is a verbatim replication of the former s.47(3) which was repealed in SIN Yau-ming and I am bound by that decision.

41. I should start therefore by citing what their Lordships said about s.47(3) in that case. Silke V-P said,

"Given the views I have expressed as to the earlier s.47 presumptions (they were (1)(c) and (d)) it fails as against Article 11(1) it Q is inconsistent. Had my views on those prior presumptive provisions been different it could well be that I would have found, an aspect more fully dealt with by Penlington J.A., s.47(3) to be consistent."

Kempster J.A. said,

"S.47(3) raises presumption upon presumption and must be incompatible with Article 11(1) if I am right as regards the other presumptions considered ..."

I interject here to say that those other "presumptions considered" were s.47 (1) (c) and (d). He went on:

"However were it dependant upon sustainable presumptions as well as proof it would not stand repealed since, in my view, knowledge of the nature of a dangerous drug rationally and realistically follows from its possession."

42. In other words, 47(3) had to be repealed because it was a presumption which was directly connected to earlier presumptions which were inconsistent with the Bill of Rights.

43. Penlington J.A. expressed a dissenting view and did not repeal s.47(3). Having dealt with the arguments at some length he summarized his opinion as follows:

"If a person is proved to be in physical possession of dangerous drugs by direct evidence and/or by the application of a presumption which is consistent with s.11 (l) of the Bill of Rights, the presumption of knowledge contained in s.47(3) of the Dangerous Drugs Ordinance is itself consistent with that section of the Bill of Rights.

44. It may well have been his use of the expression "physical possession" which caused the Legislature to re-draft s.47(1) as it did.

45. The first question I address to myself is: although s.47(2) is a verbatim replication of s.47(3) is it still the same section? I unhesitatingly answer - No, it is not. All three of their Lordships in SIN Yau-ming acknowledged that s.47(3) was a presumption on a presumption. If the presumption upon which it relies changes, then the section changes with it.

46. Similarly, and by way of example, a statutory provision often starts by saying e.g. "Subject to the provisions of section 5 of Part III of this Ordinance ..." If the provisions of section 5 change then the provision which is subjected to it also must change.

47. Here we have a presumption s.47(2) which is dependent on new presumptions. They are new in several respects - the word physical has been introduced in s.1, subsection 1(a) is slightly differently worded, subsection 1(b) is very different. These presumptions are consistent with the ICCPR. Subsection 1(c) has already been repealed in this judgment. The presumptions upon which s.47(2) now relies are thus new and consistent. In these circumstances all three judges in SIN Yau-ming indicated the presumption of knowledge could and should survive. I agree.

48. In support of this approach I accept also Mr Bailey's submission. When a court repeals a piece of legislation because it is inconsistent with the Bill of Rights it only does so, by virtue of s.3(2), "to the extent of the inconsistency". In SIN Yau-ming s.47(3) was judged to be inconsistent because sections 1(c) and 1(d) were inconsistent and to that extent only.

49. At first blush therefore it may seem that I am ignoring the majority decision in SIN Yau-ming. For the above reasons it is clear that I am not. On the contrary, given the new presumptions, it follows all three of their Lordships' views.

50. I find the new s.47 to be consistent with Article 14.2 of the ICCPR with the one exception that s.47 (1) (c) is not and stands repealed.