THE QUEEN v. CHAN WAI MING

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J U D G M E N T

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1. The defendant faces two charges of being in possession of a dangerous drug for the purpose of unlawful trafficking.

2. I am asked to rule on the validity of s.47 (1) (b) and s.47(2) of the Dangerous Drugs Ordinance, which are provisions which came into force on 26th June, 1992, pursuant to s.8 of the Dangerous Drugs (Amendment) Ordinance, No.2 of 1992.

3. Section 8 repealed s.47 of the Ordinance and substituted the following as a new section :-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, brief-case, 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.

(3)    The presumption provided for in the section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug."

4. It is the prosecution case that the defendant was found in physical possession of keys which opened a locked drawer in his home, which was also his place of business, in which dangerous drugs were found, thereby triggering the presumptions set out in s.47 (1) (b) and s.47 (2).

5. Mr Lam for the defendant, submits that these sections do not admit of a construction consistent with Article 14.2 of the International Covenant on Civil and Political Rights ("ICCPR"), are therefore ultra vires by virtue of Article VII (3) of the Hong Kong Letters Patent, and should be struck down.

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."

Article 11(1) of the Hong Kong Bill of Rights ordinance reiterates this principle.

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 the Covenant (the ICCPR) as applied to Hong Kong."

6. The thorny question of the mandatory presumptions in the Dangerous Drugs Ordinance was considered in R. v. Sin Yau-ming, [1992] 1 Hong Kong Criminal Law Reports 127 Kempster J.A. at page 163 summarised the proper approach as follows :-

"A mandatory presumption of fact may be compatible with Article 71(7) of the Hong Kong Bill of Rights Ordinance if it be shown by the Crown, due regard being paid to the enacted conclusions of the legislature 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."

Silke J.A. in relation to the burden on the Crown at page 115 stated :-

"The onus is on the Crown to justify. It 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 aim and objects, with a bias towards the interests of the individual.

Further, the aims of the legislature to secure the residents of Hong Kong free from the depredations of this trade must be respected."

The enacted conclusions of the legislature following after the decision in Sin Yau-ming, are that provisions were needed to help in the fight against the evil of drug trafficking, but that such amended legislature needed to take into account the right of the individual.

7. In my view, the new s.47 attempts to strike a proper balance between the needs of society and the presumption of innocence.

8. The words, "possession, or custody or under his control" in the old s.47 have been replaced by the words "physical possession".

9. Deputy Judge Burrell recently considered the effect of these new words in R. v. Lum Wai-ming, Case 75 of 1991, and came to the conclusion that the legislature intended to and succeeded in narrowing those persons who would be caught by imposing this new qualification.

10. With respect I agree with this. When these words are considered with the words in s.47 (1) (b) the field of those likely to be caught by the presumption is very much reduced from what pertained previously. It is necessary for me to consider whether the legislature has achieved its aim to strike a proper balance; whether s.47 (1) (b) and s.47 (2) can pass the three-fold test of rationality, minimal impairment and proportionality.

11. It is Mr Lam's submission that as there exists the possibility of persons holding duplicate keys, it does not rationally follow that a person found to be in possession of a key to a container, of the type set out in s.47(1) (b), in which drugs are stored, was in possession of those drugs. He gave three examples of situations in which he says unfairness could result.

12. Mr Bailey for the Crown concedes that mandatory presumptions prima facie are in breach of the Covenant, but argues that the Crown only has to show on the balance of probabilities that the provisions meet the three-fold test, and it is not for the Crown to have to disprove every conceivable situation.

13. It is his submission that when this standard is applied it is more likely than not that a person in physical control of a key to a container in which dangerous drugs are found, would not have given a duplicate key to another person or would not have put drugs into the'container with the knowledge that other persons were holding keys to that container. The containers specified in s.47(1) (b) are usually small. Goods are stored in them, and the door locked, with the view to keeping the contents secret and safe.

14. When I apply the three-fold test to s.47 (l) (b) bearing in mind the enacted conclusions of the legislature and the need to deal with the evil of drug trafficking, I am satisfied that Mr. Bailey is right. When I balance the right of the individual to the presumption of innocence against the needs of society to be protected from drug trafficking, I am satisfied that 47(1) (b) is not unreasonable and is not ultra vires.

15. I turn now to consider s.47 (2), which is in similar terms to the old s.47(3), which was struck down by the decision in Sin Yau-ming.

16. Mr Lam's submission is that this being so I am bound by Sin Yau-ming, and must strike down s.47 (2).

17. I have, again, had the benefit of Deputy Judge Burrell's ruling on this particular point in Lum Wai-ming. I agree with him that the presumption in s.47(2) is dependant on the new presumptions in s.47 (1). Kempster J A in Sin Yau-ming, after striking out s.47(3) went on to say :-

"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."

18. Silke, J A after finding s.47 (1) (c) and (d) inconsistent, went on to find s.47(3) therefore inconsistent, but he went on to say :

"Had my views on these prior presumptions been different, it could well be that I would have found, an aspect more fully dealt with by Penlington, J.A., section 47(3) to be consistent."

Penlington, J.A. was satisfied that where a person was found to be in possession of a dangerous drug by direct evidence and/or by application of presumption which is consistent with Article 11(1) of the Bill of Rights, the presumption of knowledge contained in section 47(3) of the Dangerous Drugs Ordinance was itself consistent with that section of the Bill of Rights.

19. I am satisfied that what comes from the judgments of Kempster J.A. and Penlington J.A. is that where the presumption in s.47(2) depends on the sustainable presumption in s.47(1) (b), then s.47(2) does not stand repealed.

20. I find, therefore, that the new s.47 (1) (b) and s.47(2) are consistent with Article 14.2 of the ICCPR.