HKSAR v. HUNG CHAN WA

CACC 411/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 411 OF 2003

(ON APPEAL FROM HCCC NO. 17 OF 2003)

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and

CACC 61/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 61 OF 2004

(ON APPEAL FROM HCCC NO. 211 OF 2003)

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J U D G M E N T

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INDEX

Hon Stock JA (giving the judgment of the Court):

Introduction

1. Section 47 of the Dangerous Drugs Ordinance, Cap. 134, creates certain presumptions in respect of a person who is proved to have had in his physical possession a container, or the keys thereto, which transpires to house a dangerous drug.  It is first presumed, until the contrary is shown, that the person had the drug in his possession; and it is also presumed, until the contrary is shown, that the person shown to have been in possession of the dangerous drug knew that what was in his possession was indeed a dangerous drug.

2. In both cases before us, it was accepted that the accused had physical possession of a container and knew that the container housed the substance which turned out to be a dangerous drug.  The first presumption was therefore never an issue.  But the second presumption was, for each accused said that he thought that the substance housed was something other than a dangerous drug.  It is a defence frequently deployed in such cases.  By reason of the provisions of section 47, there is imposed upon a person who in such circumstances wishes to escape conviction an onus to show that he did not know that what was in the container was a dangerous drug.  It is that onus that is the subject of challenge in these appeals.

3. The onus is, on its face, a persuasive rather than an evidential burden, and the issue in these appeals is whether that onus, if a persuasive one, infringes the presumption of innocence (protected by article 14.2 of the International Convention Civil and Political Rights (ICCPR) as imported by the Basic Law; article 87 of the Basic Law; and article 11(1) of the Hong Kong Bill of Rights Ordinance) and, if it does, whether that infringement is justifiable and proportionate to the societal objective of the legislation.  It is an issue that engages a balancing exercise between, on the one hand, the recognized need to ensure the conviction of those guilty of a grave offence which strikes so grievously against the welfare of society and, on the other, the protection of the individual against the danger of unjust conviction and incarceration, often for a substantial term.

4. The issue has been brewing since the decision of the House of Lords in R v Lambert [2002] 2 AC 545; and the opportunity for determination of that issue in Hong Kong was presented starkly by the case of Hung which is one of the two applications which have been consolidated for determination by this Court and which are now before us.  When Hung came before the court, differently constituted save as to one of our number, in June 2004, he was unrepresented and advanced grounds unconnected with the presumption.  It appeared to the court that few cases lent themselves so clearly as did Hung’s for consideration of the Lambert issue.  He was therefore granted an appeal aid certificate and the reason for that course was communicated to the Director of Legal Aid.  A direction was subsequently made that the second case, Atsushi, should be argued at the same time.

Hung

5. In challenges of the present nature, the details of the particular case are, save as to the bare essentials, seldom of particular consequence.  Thus it is that in these two cases, it might be said to suffice to recite the fact that the applicant in each was admittedly in physical possession of a bag shown to contain a dangerous drug and that each applicant said that whilst he was aware that each contained a parcel or item, he thought that what was thereby contained was something other than a dangerous drug.  Hung’s case, however, deserves particular attention not so much for its facts, but for its revelation, after completion of the summing up and before verdict, of the jury’s thinking.

6. Hung was charged upon an indictment containing one count, which alleged that on 26 October 2002 in Tak Hing Street Kowloon, he unlawfully trafficked in a dangerous drug, namely 500g of a mixture containing 410g of heroin hydrochloride.  He was tried before Deputy High Court Judge Barnes and a jury in September 2003, and on 8 September 2003 he was convicted of that offence by a 5-2 majority.  He was sentenced to a term of 15 years’ imprisonment.  He was then aged 35 years and had been a person of previous good character.

7. The facts which the prosecution was required to prove, before triggering the section 47 presumptions, were all admitted.  The admitted facts conceded that the accused was stopped by police on 26 October 2002 and searched, and that a block of dangerous drugs was found in a plastic bag.  That bag was housed in a shoulder bag carried by the applicant.  The plastic bag contained inside it another plastic bag within which was some paper that wrapped the block of dangerous drugs.  Oral testimony was led to the effect that the accused was seen outside the Regal Riverside Hotel at about 8 pm on 26 October and that he was then approached by another man who was not carrying anything.  They both entered the hotel, where they sat down and talked.  It was suggested that the two looked around and that after about ten minutes conversation, the other man left and shortly thereafter returned carrying something which he passed to Hung.  The two then parted.  Hung took a taxi and when he was about to alight the taxi at the end of its journey, the police intercepted him and he was arrested.

8. When interviewed, Hung said that a person called Ah Shui had asked him to go to the hotel to pick up a videotape, and that that is what he thought the bag contained.  At trial, Hung gave evidence in which he said that he had known Ah Shui for many years since the age of 16; but that they had lost contact until the summer of 2002 when it was resumed and when it was proposed by Ah Shui that Hung might wish to engage in off-course betting.  To this end, Ah Shui gave Hung a pager.  Hung was offered 10% commission for each customer introduced but, in the event, none ever was.  Ah Shui also suggested that Hung might assist him to collect debts; but again no such errand was ever in fact required.  All that did happen was that Hung placed football bets with Ah Shui and they sometimes met to eat and drink.  On such occasions, it was Ah Shui who footed the bill.  On 26 October 2002, Ah Shui asked Hung to collect a videotape for him and told him that the tape was about English football matches.  Hung said that he was happy to do so, and that this was the long and the short of the exercise witnessed at the Riverside Hotel.  He did not look into the bag and did not know that it contained dangerous drugs.

9. The judge's summing up commenced on the morning of 8 September 2003.  The judge informed the jury of the two statutory presumptions and said in relation to the first that:

“Of course, there was never any dispute that he also had the lock in his possession.  So he is presumed to have the drug in his possession as well.”

It is clear therefore that she left as the live issue the second presumption, and she said:

“If, after considering all the evidence, you are satisfied on a balance of probabilities that it is more likely than not that the accused did not know that dangerous drugs was inside the bag handed to him, then you must find him not guilty.  If, however, you are satisfied that the accused failed to rebut the presumption that he was in possession of the dangerous drug and he knew that it was dangerous drug, then you have to decide whether the prosecution has satisfied you beyond a reasonable doubt that the accused possessed the drugs for the purpose of trafficking.” (Appeal bundle (Hung) page 26A-F).

10. The jury retired at 1 pm.  What then happened is most significant, for it constitutes a stark and unusual example of a case in which a jury is, so it would seem, forced by reason of the reverse onus to convict despite the fact that it is not sure of the vital constituent mental element.  The example is unusual for the obvious reason that jury deliberations are secret and it is rare for their thinking to be revealed.

11. Shortly before 6:20 pm, that is five and a half hours after they first retired to consider their verdict, the jury sent a note to the judge.  It posed three questions:

(1)	‘	Need clarification on definition of trafficking.
(2)	‘	Part of the jury, 3 out of 7, did not accept the testimony given by the accused is the believable truth.  But they cannot find solid evidence to draw the conclusion that the accused knew the item that was being carried inside his bag was really a dangerous drugs – they somehow got stuck there.  Please advise how to proceed.
(3)	‘	Can you please explain the procedure to draw inference, and the concept of "only reasonable inference" if that is an adverse inference against the accused.’

12. The receipt of these questions was followed by lengthy discussion between judge and counsel, and the judge then gave the jury directions in response to the questions.  For present purposes, only question (2) is relevant; and in this regard the judge reminded the jury of the presumption, its nature and effect and that the accused had to rebut that presumption on the balance of probabilities:

“That is, he had to show, on all the evidence before you, that it is more likely than not that he did not know.  So this is not a question of finding conclusive or concrete evidence that the accused knew of the nature of the dangerous drug.  The law already presumes that he knew.  So it is a question of whether you are satisfied he has rebutted the presumption on the balance of probabilities.” (Appeal bundle (Hung) page 47).

13. The jury retired again, this time at 6:46 pm.  There was then submitted a further note from the jury as a result of which the court resumed at 8:27 pm.  That note was in the following terms:

“Now, the job of the jury is to see if the evidence provided can let the accused to argue that he did not know that the item that was being carried in his bag is, in fact, dangerous drugs.”

“In the process of evaluating whether the accused knew he was actually carrying DD, are those doubts that arise during the jury discussion be considered beneficial to the accused? i.e. Does the "benefit of doubt" still apply to judge whether he knew he was carrying DD, on the balance of probability?”

14. The judge discussed this further note with counsel.  She said:

“It looks like the jury is still unsure of the presumption…. they seem to be bogged down on just one thing – obviously the knowledge of the defendant – so it may well be, after giving them the direction, they can come back in a short time. … I'll tell you what I have in mind first and see whether you think whether that's clear enough.  The question is, the job of the jury is to see if the evidence provided can let the accused argue that he did not know that the item that was being carried in his bag is in fact dangerous drug. I think the problem there is they had not emphasised if the defendant showed only more likely than not.  I think that's really what is wrong.  They kept on talking about let the defendant argue.” ( Appeal bundle (Hung) page 49).

15. The jury returned at 8:34 pm and the judge directed them afresh on what it was the accused had to show, and to what standard.  The jury retired at 8:36 pm. They returned again at 8:55 pm with their majority verdict.  He was sentenced to a term of 15 years’ imprisonment. 

Atsushi

16. The applicant Atsushi was born in Japan in January 1981.  At the date of the alleged offence in March 2003 he was therefore aged 22 years.  He had never previously left his home country.  Prior to the conviction in this case, he was a person of previous good character.

17. In January 2004, he was arraigned before Jackson J and a jury upon an indictment that alleged that on 25 March 2003 at the departure hall of Hong Kong International Airport, he unlawfully trafficked in a dangerous drug, namely 6.85 kg of a crystalline solid containing 6.83 kg of methamphetamine hydrochloride.  To this count he pleaded not guilty, but on 19 January 2004 he was convicted by the unanimous verdict of that jury and sentenced to a term of 20 years’ imprisonment.

18. Although oral testimony was adduced on behalf of the prosecution, the case for the prosecution, in so far as the law required them to prove facts, was established by admitted facts.  The facts admitted that Atsushi presented himself at the Dragonair check-in counter on the morning of 25 March and checked in a suitcase and a rucksack.  The police then intercepted him and took from him some keys.  They opened the suitcase in which nothing incriminating was found.  However, drugs were found in the rucksack.  That rucksack contained a grey plastic bag, and a plastic box.  In the plastic bag was a document holder.  Within the document holder was a blue paper box.  Within the blue paper box were three transparent zipper bags each of which contained white substance that transpired to be methamphetamine hydrochloride.  In the transparent plastic box was another box-like object and that was wrapped in blue paper and within the blue paper were four transparent zipper bags each containing drugs.  The retail price of the dangerous drugs seized was in the region of HK$2.55 million.

19. Atsushi was interviewed at length.  He denied knowledge that he was carrying dangerous drugs.  The effect of the account given to the police and at trial was that in the course of his employment after leaving school he came to know a man named Takashi, who in due course suggested to him the possibility of travelling abroad, saying that he could provide a free trip to Hong Kong, asking Atsushi to bring back to Japan a quantity of legal drugs.  The applicant’s testimony was that he felt a little uneasy but was reassured by Takashi of the legality of the exercise.  Takashi told him that his, Takashi’s, passport had expired which was why he was asking a favour of the applicant.  Atsushi was provided with an air ticket and decided to avail himself of this unusual opportunity for foreign travel.  He was met upon arrival in Hong Kong, but his return flight ticket was taken from him and he found himself stranded in Hong Kong and having to telephone his family in Japan, as well as Takashi.  Takashi reassured him and eventually, on 24 March, a man moved the applicant to the Stanford Hotel, gave him an air ticket, and on 25 March came to the hotel and gave the applicant the rucksack.  The applicant went to the airport and checked in both items of luggage.  He stuck to the story that he trusted his friend Takashi and thought that he was carrying drugs that were not illicit. The essence of the defence was to suggest that this young applicant was unusually naïve and unworldly; and the suggestion was made that anyone truly aware of the illicit nature of this expensive package would hardly have checked-in the relatively flimsy rucksack which contained it.  

20. In his summing up, the trial judge put as the real issue for the jury's consideration:

“… was the defendant aware that what was contained in the rucksack was indeed the drug ice?  If he was not aware of that, in other words, the precise nature of the drug, was he aware that it was nevertheless, a dangerous drug such as ice, cocaine, heroin, or I suppose, cannabis?  Or did he or might he have believed as he told the police and as he has told you, that the substance which he was carrying in the rucksack was not a dangerous drug such as the type that I have just mentioned at all, but as he put it, a legal drug?” ( page 4R-5C appeal bundle, Atsushi’s appeal).

21. The judge told the jury that before they could find the applicant guilty of the offence of trafficking they would have to be sure that:

“…he was in possession of the drug ice in the sense that he knew that ice or some other dangerous drug was in the rucksack. …. .  The prosecution invites you to draw the inference that he knew what he was carrying from all the circumstances established by the evidence in this case.  In addition to that, the prosecution seeks to rely on certain presumptions or statutory inferences which are provided in the laws of Hong Kong.”

“Now let me tell you about those.  Section 47 of the Dangerous Drugs Ordinance says this:

‘Any person who is proved to have had in his physical possession, anything containing a dangerous drug, or the keys of any baggage or luggage containing a dangerous drug, shall, until the contrary is proved, be presumed to have had such drug in his possession’.

And secondly, and this is the important one in this case:

‘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.’

And the prosecution seeks to rely upon that presumption in this case.

So what does that section mean, members of the jury?  What is the effect of it in this particular case?  What it means is this: because it is not in dispute; because it is admitted that the defendant was in physical possession of the boxes which contained the drug ice, and because he was in possession of keys to the rucksack inside which were those boxes, he is presumed in law to have been in possession of the drug.

Well, that is not in dispute anyway, in this case, members of the jury so there is no need for the presumption.  The defendant admits that he was in possession of the drug.  So far so good.  But as I have already said to you, a person cannot be guilty of trafficking in that drug even if he is proved or presumed to be in possession of it, and he is, in fact dealing in it, unless he knows that he is in possession of that particular drug, or he believes that he [is] in possession of a substance of a similar nature.   In other words, another dangerous drug.

Now, as to that, as to his knowledge, it is the second part of section 47 which I have read over to you which then comes into operation, and I will repeat it because it is important.

… [repetition of the terms of section 47(2)]…

As a result, members of the jury, the defendant is presumed in law to have known that what he was carrying in the rucksack was “Ice” or a similar dangerous drug, until the contrary is proved.  Now, I am most anxious that you understand this members of the jury.  That presumption does not mean that because the defendant was in physical possession of the rucksack and its contents; that he must have known that what he was carrying was the drug “Ice” or a similar dangerous drug, and that, therefore, he must be guilty as charged of trafficking.

It does not mean that at all.  It is no more than a presumption or an inference which might readily be applied if there was no evidence to the contrary.  In the present case, there is evidence to the contrary provided by the defendant himself.  The presumption which I have explained to you can be overcome or set aside by evidence that in fact, this defendant did not know that contained in the boxes in the rucksack was the drug ice or some other dangerous drug.

And indeed, members of the jury, that is precisely what the defendant told the police, and it is precisely what the defendant told you in the course of giving his evidence.  Members of the jury, the presumptions I have just told you about give rise to an unusual situation.  Normally it is for the prosecution to prove everything and to do so beyond a reasonable doubt.  But on this issue alone, the issue whether the defendant knew that there were dangerous drugs in the rucksack, once the presumption of knowledge has arisen, it is for the defendant to prove that he did not have that knowledge.

But, members of the jury – and it is a most important "but" – he does not have to make you sure that he did not know.  He needs only to show that it is more probable than not that he did not know.  And if he has done that, if he has shown that, then the prosecution has failed to prove its case and you will find the defendant not guilty.” ( pages 11-13, appeal bundle (Atsushi)).  (Emphasis added)

22. The passages from the summing up which we have emphasized in the preceding paragraph of this judgment illustrate that the judge, correctly, identified the sole live issue in the case to be whether the accused knew that the package in the rucksack contained dangerous drugs and, further, that the presumption that he considered to be triggered by the case was the presumption created by section 47(2) of the Ordinance.  The suggestion was made in the course of the hearing before us, encouraged it is fair say by a member of this Court (Stock JA), that in this latter regard he erred, and that the constitutionality of the reverse onus in section 47(2) was not engaged in this appeal, or indeed in any consideration of a defence of ignorance that the item knowingly possessed in a container was a dangerous drug.  We shall presently have to tackle that issue.

The Ordinance

23. Section 4 of the Dangerous Drugs Ordinance, Cap. 134 renders it an offence to traffic in dangerous drugs.  A person convicted of such an offence upon indictment is liable to imprisonment for life.

24. By virtue of section 2, trafficking includes ‘possessing a dangerous drug for the purpose of trafficking’ and that is the form of trafficking asserted in the present two cases, and most commonly alleged in prosecutions for trafficking in this jurisdiction.  It follows that for the purposes of this appeal the concept of possession is central.

25. Section 8 of the Ordinance provides that:

“Save under and in accordance with this Ordinance or a licence granted by the Director thereunder, no person shall -

have in his possession …

….

a dangerous drug.”

26. Section 47 of the Ordinance stipulates that:

“	(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, covered, for a, safe deposit box, safe or other similar container containing a dangerous drug,
	shall, until the contrary is proved, be presumed to have had such a 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 presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug.”

27. We note that section 2(2) of the Ordinance provides as follows:

“

(2)

For the purposes of this Ordinance, a person shall be deemed to be in possession of a dangerous drug or a ppe, equipment or apparatus, as the case may be, if it is in his actual custody or is held by some other person subject to his control or for him and on his behalf.”

It has not been suggested that this subsection qualifies or overrides the effect of the presumptions or of the reverse onus provisions in section 47 and it is upon the effect of section 47 that this judgment is directed.

Subsections (1) and (2) of section 47

28. There arises in this case a question, the difficulty of which was not at first apparent, and in respect of which it became necessary since it was only addressed somewhat briefly and broadly at the hearing, to afford the parties an opportunity to make submissions in writing after the oral hearing.  We have, in the event, received short written submissions from counsel for the applicants.  The question concerns which subsection of section 47 of the Ordinance is under challenge in these appeals and, more particularly, whether the constitutionality of subsection (2) is or is not in issue. 

29. Both of these appeals concern a similar set of facts in which the accused has accepted that he was in possession of the container in which dangerous drugs were found but has denied knowing that what was in the container were dangerous drugs.  It will be recalled (see paragraph [21] above) that Jackson J in Atsushi’s trial, told the jury that the issue joined in that case was that posed by subsection (2) of section 47 and not subsection (1), since, he said, ‘ … the defendant admits that he was in possession of the drug.’  It was thought by one of our number in the course of argument that that was an error, that possession had not been admitted by Atsushi, and that subsection (2) was designed only to tackle a situation in which a convicted person said that he knew his container housed a dangerous drug but thought the drug to be of a different type from that charged.  That approach was the one which Mr McCoy invited the court to take: if correct, it would mean that subsection (2) is not at issue at all in these cases.  Mr Grossman, on the other hand, supported the approach adopted by Jackson J, that subsection (2) of Section 47 deals with the presumption concerning an accused’s knowledge as to whether the item in his possession is, in fact, a dangerous drug at all, as opposed to which dangerous drug.

30. The question to which we refer arises because of conflicting views expressed hitherto by the Court of Appeal, and the suggested ambiguity of the language of subsections (1) and (2) of section 47.

31. In one sense, the identification of the particular subsection(s) engaged or not engaged by these appeals may be said to have little practical consequence since the nature of the onus which the appeals themselves engage is a matter of common ground, namely, the onus placed upon an accused who acknowledges possession of an item, in the sense of physical possession plus an intention to possess it, but asserts that he did not know the nature of the item thus possessed – in other words that he did not know that it was a dangerous drug.  However, the analysis which follows cannot, in our judgment, properly be avoided for it would be odd and unsatisfactory in a challenge to the constitutionality of a statutory provision not specifically to identify the provision.  Given the fact of conflicting opinions upon the issue, a proper analysis becomes a subject unto itself and must, we regret, add significantly to the length of this judgment.

32. There are four factual situations in the context of dangerous drugs cases with which our courts are commonly faced:

1)	An accused contends that he was not, or that it is not proved that he was, in physical possession of the container (or the keys thereto) which housed the dangerous drug.  This will arise most commonly as an allegation that the testimony of the police officers that he was in physical possession of the container or keys is fabricated.  This we shall call Scenario 1.
2)	An accused concedes, or it is proved, that he was in physical possession of the container (or the keys thereto) which housed an item which transpires to be a dangerous drug, but he asserts that he was not aware of the presence of that item in the container.  This will arise, for example, where an accused asserts that a package was placed in his suitcase without his knowledge, or that an item has been planted by the police in his jacket pocket.  This is Scenario 2.
3)	An accused concedes, or it is proved, that he was in physical possession of the container (or the keys thereto) which housed an item which transpires to be a dangerous drug, and that he was aware of the presence of the item in the container, but he asserts that he thought the item to be something other than a dangerous drug.  Both cases now before us provide examples of such defences.  This is Scenario 3.
4)	An accused concedes, or it is proved, that he was in physical possession of the container (or the keys thereto) which housed a dangerous drug, and that he was aware that it housed a dangerous drug, but he asserts that he thought it to be of a different quality; in other words a different type of dangerous drug,treated less seriously by the law than that particularized in the charge.  This is Scenario 4.

33. In both cases before us, the applicant accepted physical possession of the container (the bag in Hung’s case; the rucksack in Atsushi’s case) and intended to possess the item housed in the container.  But each denied that he knew that the substance or item therein was a dangerous drug. It follows that each case is a Scenario 3 case. 

34. Where, then, within the statutory scheme does Scenario 3 fall?  The respondent contends that such a scenario engages the constitutionality of subsection (1) of section 47.  The applicants contend that it engages subsection (2).

35. It is best to commence an analysis of this type with recognition of fundamental principles.

36. For the purposes of the criminal law, the concept of possession is well-established; and for present purposes it suffices to say that possession is constituted by physical possession of a thing or substance plus an intention to possess that thing or substance.  In order to prove possession of a thing or substance, it is not necessary to prove knowledge of the nature of the thing or substance.  The concept has most succinctly been encapsulated by Lord Scarman in R v Boyesen [1982] AC 768, 773-774:

“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 may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it."

See also Director of Public Prosecutions v Brooks [1974] AC 862, 866; and He Kaw The v The Queen (1985) 157 CLR 523, 537.

37. However, it will be rare that proof of possession, thus explained, of a prohibited article, will of itself suffice to constitute guilt of a criminal offence, for that would presuppose an absolute offence:

“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence all by the subject matter with which it deals, and both must be considered.”

Sherras v De Rutzen [1895] 1 QB 918, 921.

38. It is not suggested that either section 4 or section 8 of the Ordinance creates an absolute offence, and were such a suggestion made, it could not withstand scrutiny.  The evil intention, or knowledge of wrongfulness of the act, which those sections must necessarily import, is the additional knowledge on the part of the culpable party that the item in his possession is a dangerous drug.  

39. This approach, that, absent the instance of absolute offences, possession, in the sense defined, is but a first stage towards proof of criminal culpability; so that there is a second and separate stage by which proof of mens rea is the proof that the accused knew the nature of the item thus possessed – in the case of this statute, that it was a dangerous drug – finds support in the judgment of Lord Parker CJ in Lockyer v Gibb [1967] 2 QB 243, 248:

“In my judgment, before one comes to consider the necessity for mens rea or, as it is sometimes said, whether the regulation imposed an absolute liability, it is of course necessary to consider possession itself.  In my judgment it is quite clear that a person cannot be said to be in possession of some article whch he or she does not realise is, for example, in her handbag, in her room, or in some other place over which she has control.”

40. If the analysis thus far is correct, criminal liability under the Ordinance for possession of dangerous drugs found in a container is established by proof:

1) that the accused had the container, or the keys to the container,  in his physical possession;

2) that the accused intended to possess the item in the container, which item was in fact a dangerous drug; and

3) that the accused knew that the item was a dangerous drug.

41. Against the background of this analysis, we see how section 47 is framed and phrased:

(1)	The opening phrase of section 47(1) – ‘any person who is proved to have had in his physical possession’- is clearly directed at the first limb of proof.  Without proof of physical possession, none of the presumptions is triggered. It is to this part of the section that Scenario 1 applies.  Physical possession was proved in both cases before us.
(2)	The remainder of section 47(1) describes the presumption created by that subsection.  Upon proof of physical possession, what is said to be presumed “until the contrary is proved” is ‘possession’, which must in context mean possession in law.  Since possession in law is established by proof of an intention to possess the item, substance or thing, one can, in our judgment, reasonably suppose that the subsection is directed to the creation of a presumption that he who is shown to have a container in his physical possession is presumed, in the absence of contrary proof, to intend to possess its contents, regardless of the precise nature or character of those contents.  This is the second limb of proof referred to at paragraph [40] above; and it is to this part that Scenario 2 applies.  Possession in law was proved in both cases before us.

42. It would be natural therefore to suppose that subsection (2) deals with the third limb of proof, proof that the accused knew the item which in law he possessed was a dangerous drug.  We think that it does, but the argument against that thought is that the language used in subsection (2) suggests otherwise and that there are decisions of the Court of Appeal that say otherwise.

43. As for the language, the subsection, as we have seen, reads:

“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.”

The argument is that “such drug” necessarily refers back to “dangerous drug” so that the subsection does not address possession of an item the nature of which is unknown to the possessor, but expressly addresses possession of a dangerous drug, the nature of which, in the sense of the qualities or characteristics of which, are unknown to the possessor.

44. As for the previous decisions, there are conflicting authorities, the majority of which favour the respondent’s approach.

45. R v Tsang Kwok-wing [1989] 1 HKLR 270 concerned section 24 of the Firearms and Ammunition Ordinance as it was then framed.  It is relevant to note that section 24 did not then, as it does now, carry a provision akin to subsection (2) of section 47 of the Dangerous Drugs Ordinance.  In Tsang, the accused had a haversack inside which was a revolver and a pistol and ammunition.  The defence run was that he did not know what was inside the haversack. The submission in that case was that ‘although the onus of disproving possession rests on the accused, the Crown still bears the burden of proving that he knew the articles in question were arms and ammunition’; and in support of this proposition counsel utilized, by way of contrast, section 47(3) of the Dangerous Drugs Ordinance, which was then in the same terms as now appear in section 47(2).  In other words, counsel was suggesting that the Dangerous Drugs Ordinance subsection went to proof that the applicant knew that the substance proved to be possessed was in fact a dangerous drug.

46. The court said, at page 274, that it did not know why the legislature thought it desirable in enacting the Dangerous Drugs Ordinance as amended

“to add to the provision creating a presumption as to possession a further provision creating a presumption as to knowledge”

adding that:

“…the concept of possession must include the element of knowledge.  In the present case this means knowledge on the part of the applicant that the arms and ammunition were present in his baggage.  Thus once the presumption as to possession arose under section 24, the applicant was presumed, until the contrary was proved, to know that the two revolvers one pistol and 150 rounds of ammunition were in his baggage.”

47. Reference was then made to the definition of possession in R v Boyesen which we have cited at [36] above, including the passage:

“You may possess a thing without knowing or comprehending its nature; but you do not possess it unless you know you have it.”

as to which the Court of Appeal in Tsang said, at page 275:

“No doubt it was with this concept in mind that the draftsman of section 47 of the Dangerous Drugs Ordinance considered it advisable to add by way of sub-s(3) a presumption as to knowledge of the nature of the drug.”

“In our view the judge correctly stated the law when he directed [the jury] that once the presumption of possession arose it was for the applicant to rebut it by proving that he did not know the arms and ammunition were in his baggage.”

48. We note that the case did not turn directly upon a construction of section 47 of the Dangerous Drugs Ordinance – the section was merely prayed in aid; that the court did not distinguish the different types of knowledge relevant to Scenarios 2 and 3; and, further, that the court did not consider it necessary to determine why there was enacted in the Dangerous Drugs Ordinance “a further provision creating a presumption as to knowledge.”  In the cases now before us, and given the question now posed, it is necessary for this court to address that very issue.  We venture to suggest that the reason for the creation in the Dangerous Drugs Ordinance of a further presumption as to knowledge is that the knowledge embodied in the concept of possession is limited to knowledge of possession of the thing or substance in fact physically possessed.  To prove guilt of the offence there must be proved the further element necessary to establish mens rea, namely, the knowledge that the thing or substance possessed is a dangerous drug and if a presumption is required to assist in proof of that fact, there is necessarily involved provision of a further presumption as to knowledge.

49. The applicant in R v Tam Chun-fai [1994] 2 HKC 397 had been accused of trafficking in a dangerous drug.  In that case, possession was denied in the sense that it was said that he never had the substance on him at all.  The complaint in the appeal was that the judge failed, when he gave a direction to the jury under section 47(2) of the Ordinance to say that the burden upon the accused was one of proof on a balance of probabilities.  The Court of Appeal pointed out that a direction under section 47(2) was ‘completely uncalled for’ since “the defence advanced by the applicant was that he had not been found in possession of any dangerous drug of whatever nature…  .” (page 400E-F).  That is a conclusion with which we respectfully agree and must be so upon whichever of the two presently competing constructions of section 47(2) is correct.  However, the court’s comment in this regard in full reads as follows:

“This was completely uncalled for.  For the jury to reach the stage of deciding whether the applicant had rebutted the presumption under s47(2), they must have already concluded that he was knowingly in possession of a dangerous drug.  The defence advanced by the applicant was that he had not been found in possession of any dangerous drug of whatever nature, not that he had been found in possession of a dangerous drug which he thought was different in nature from the drugs stated in the particulars of offence.  That being said, to give a direction under s 47(2) was totally inappropriate.”

50. We note that there is no reference in the penultimate sentence of that passage to the scenario that falls between, on the one hand, knowing one has an item and, on the other, knowing the type of dangerous drug possessed.  That is to say, there is no reference to Scenario 3 which is knowing that the item is a dangerous drug; and the passage evidences an assumption by the court as to the effect of section 47(2) which becomes all the more evident from observations made, at pages 401-402, upon the dismissal of this particular ground of appeal:

“Before turning to the next ground of appeal, we feel obliged to observe that in our opinion, the subsection creates a wholly illogical and anomalous result and that early consideration should be given to its repeal.  Its effect is that, once it had been proved that the accused had a dangerous drug in his possession, it is presumed until the contrary is proved that he knew which particular dangerous drug it was that he had in his possession.  So that, if, for example, he succeeds in satisfying the jury on a balance of probabilities that he thought that the drug in his possession was of a nature different from that of the drug named in the particulars of offence, such as, cocaine rather than heroin, he is entitled to an acquittal.

This produces a manifest absurdity where, as in the present case, the basis on which the prosecution seeks to prove a charge of trafficking in a dangerous drug is that the accused had the drug in his possession for the purpose of trafficking.

To establish guilt, the prosecution must first prove, with or without the assistance of the presumption in s47(1) of the Ordinance, that the accused had a dangerous drug in his possession.  This means that, because knowledge is an essential ingredient of possession, they must prove that he knew that he had a dangerous drug in his possession or custody or under his control.

We have emphasized the indefinite article ‘a’ in the expression  ‘a dangerous drug’ because the offence on which the accused stands indicted is that of trafficking in ‘a’ dangerous drug.  The allegation in the particulars of offence that the drug is, for example, salts of esters of morphine, is nothing more than a particular.  It is not an ingredient of the offence.  The offence is not one of trafficking in salts of esters of morphine, but, as we have said, one of trafficking in a dangerous drug.

…

The fact that an accused thought he was trafficking in a dangerous drug different from that stated in the particulars of offence is irrelevant to the issue of guilt.  It can only be relevant to sentence.  In such a case, the accused must plead guilty and seek to persuade the judge in a Newton hearing that he thought he was trafficking in that other drug.  This, of course, could only avail the accused if the dangerous drug that he thought he was trafficking in was one that the courts recognize as attracting a lesser sentence than the one stated in the particulars of offence.”  (Emphasis added).

51. We wish at this stage to emphasize three matters in relation to that judgment:

(1)	it was a case in which the issue was proof of physical possession, that is to say Scenario 1;
(2)	the court concluded that the construction of section 47(2) to which it considered itself driven resulted in an illogical and anomalous result, and produced a manifest absurdity; and
(3)	the court noted that as a matter of general sentencing principle it would be incumbent upon an accused shown to have been in possession of a dangerous drug but suggesting that it was of lesser significance than the one particularized so to persuade a judge upon a Newton hearing.

52. In R v Ng Chiu–leung [1996] 1 HKC 181, the defence offered by the accused was that he had never been in possession of the bag containing the dangerous drug (Scenario 1).  The ground of appeal relevant to that case was that the judge erred in summing up the issues of possession, knowledge, and trafficking.  The trial judge informed the jury of the requirement that the prosecution prove that the accused was in physical possession of ‘anything containing or supporting a dangerous drug’, but then told the jury that possession in law consists not only of knowledge of the presence of the substance but also ‘knowledge of the nature of the substance’.  Additionally, for reasons that are unclear, the trial judge went on to read, in a piecemeal fashion, parts of the subsections relating to presumptions, firstly part of subsection 47(1) and then part of subsection 47(2).

53. Upon the appeal, Patrick Chan J, as he then was, having pointed out that “…possession consists of the physical possession together with the knowledge of the presence of the substance”, went on to say, at pages187-188

“Reliance can be placed upon s 47(1) where a person has ‘physical possession’ of a container to establish that he has possession in law, i.e. both physical possession and knowledge.  Section 47(2) has very limited application as it deals only with a presumption of knowledge of the ‘nature’ of the drug.  It is applicable only in cases where a person is shown to have a dangerous drug in his possession but contends that he thought it was a dangerous drug other than the one identified by the government chemist.  In such cases, unless he proves the contrary, the presumption that he knew the nature of the drugs stands.  In the great majority of cases, the presumption in s 47(2) does not come into play as defendants normally contend that they did not know they had a dangerous drug at all.  Much more common is the case where the defendant admits that he had possession of a container but states that he did not know that there was any dangerous drug therein (s 47(1)).  In the present case, the presumption under s 47(2) had no application as the nature of the drugs was never in issue and the presumption under s 47(1) to which the judge made no mention was of no real importance as the conclusion of knowledge was a matter of commonsense arising from the findings of fact at which the jury might have arrived and with which we shall deal later.

…

We would respectfully echo the remarks of Macdougall VP in R v Tam Chun Fai and that ‘early consideration should be given to the repeal’ of the presumptions in s 47 which are little more than inviting the jury to apply their commonsense to the facts of the case.”

54. This again was a case that did not engage Scenario 3 (or for that matter Scenario 2) so that the analysis of the effect of subsection (2) cannot, we suggest, be said to be part of the ratio of the case.  We note furthermore that in the necessarily brief analysis of defences run in such cases, no distinction is drawn between a situation in which ignorance of the presence of a substance is asserted, on the one hand, and, on the other, one in which the ignorance suggested is as to the nature of the substance knowingly possessed. 

55. The defence in HKSAR v Chan Ming Fai [2001] 4 HKC 511 was that the applicant had not even touched the bag (which transpired to contain a dangerous drug) when he was arrested and therefore that he was not in possession.  Upon appeal, complaint was made about the judge's directions on the question of the presumptions, the suggestion being that they were confusing.  Addressing the issue that would arise were the jury to be satisfied that the bag had, contrary to the applicant’s contention, in fact been in his physical possession, Keith JA said, at page 516, that:

“Since it was not disputed that the bag had in fact contained drugs, the burden of proof was on the applicant to show, on a balance of probabilities, that he did not to know that the bag contained drugs.  That was the effect of s47(1) (a) of the Dangerous Drugs Ordinance… .

…

Since knowledge is an ingredient of possession, a presumption that the applicant had drugs in his possession amounted to a presumption that he knew that the bag contained drugs.”

56. There is, understandably in the context of the issue faced by that court, no reference to, or overt acknowledgement of, the scenario that constitutes Scenario 2, namely, the scenario in which the accused, although in physical possession of the container, asserts that the offending package within was placed there without his knowledge; and both Scenarios 2 and 3 seem therefore to have been conflated within the one subsection, a conflation which we perceive to be at the root of the problem.  In so far as it is stated that “knowledge is an ingredient of possession” it is, we respectfully suggest, knowledge of the presence of the substance that is there the material ingredient; and it is only once that knowledge is established, that one moves to the further presumption; and what is omitted from these passages – because that court was not called upon to address the precise issue – is whether both presumptions are encompassed within section 47(1), or whether it is precisely these two different presumptions, and none other, that find themselves, deliberately, in subsections (1) and (2) respectively.

57. There is but one judgment of the Court of Appeal that departs from these various statements as to the effect of section 47(2) of the Dangerous Drugs Ordinance, although it would seem that that court was not referred to any of the other judgments.  The case is HKSAR v Chiu Chi Wai and another [1999] 3 HKC 225.  In that case, Scenario 3 was directly engaged: the defence of the first accused had been that although he had possession of a bag which transpired to contain the dangerous drug, nonetheless he thought that the bag contained gifts, not drugs; and the defence of the second accused was that he had been led to believe that he was delivering gifts and slimming pills.  The appeal was allowed on the basis that the impression conveyed by the trial judge to the jury may have been that a mistaken belief as to the contents of the bags could not be a defence.  The court stated (pages 229-230) that the true issue in the case of each applicant was not whether he had been in possession of the contents, but whether he knew the nature of the contents.  It is clear from the judgment that the Court of Appeal in that case proceeded on the basis that that defence fell within the purview of section 47(2) of the Ordinance.  Where such a defence was raised the jury ‘needed to be told in clear terms the practical effect of s 47(2) of the Dangerous Drugs Ordinance.’  There then follows this comment:

“Whether or not D1 and D2 knew the name of ecstasy or MDMA, or knew the drug by some other term, was beside the point so long as the jury was satisfied the defendants had knowledge that they possess something in the nature of dangerous drugs.”

58. Although that judgment does not analyse where within the scheme of section 47 each of the various scenarios which we have identified fits, it is clear nonetheless that the court there read subsection (2) as going to the issue of guilt, and not to sentence.  Whilst we do not suggest that the matter is easy of resolution, that reading, in our judgment, is correct.  In coming to that conclusion, we emphasize the following considerations and indicia:

1)	Any exercise in statutory interpretation should seek an interpretation, that does not result in an absurdity, provide it is reasonably possible so to do.  Tam Chun Fai reached an interpretation which the court itself described as resulting in a “wholly magical and anomalous result”.  It is the very fact of the illogical result that suggests the result there reached to be in error.  The principle is stated thus :
	“	(1)	The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament.  Here the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief.
		(2)	In rare cases there are overriding reasons for applying a construction that produces an absurd result, for example where it appears that parliament really intended it or the literal meaning is too strong.”
	Bennion “Statutory Interpretation” 4th ed; page 831.
	In support of that proposition, Bennion cites Williams v Evans (1876) 1 Ex D 277 in which Field J said:
	“	No doubt it is a maxim to be followed in the interpretation of statutes, that the ordinary grammatical construction is to be adopted; but when this leads to a manifest absurdity, a construction not strictly grammatical is allowed, if this will lead to a reasonable conclusion as to the intention of the legislature.”
2)	The suggestion that section 47(2) is directed only at the sentencing process sits ill with common sense, for it would be odd to find mixed in with presumptions directed at guilt a presumption directed at sentencing considerations; and in any event, as was recognized in Tam Chun Fai, such a provision directed at sentence would, to use a phrase from Bennion, be ‘futile or pointless’.  It would be pointless for the very reason provided in Tam Chun Fai, namely, that an assertion by an accused who is proved guilty of a section 8 or section 4 offence that he thought he possessed, or was trafficking in, a dangerous drug different from that alleged in the particulars of the charge is, as a matter of sentencing principle, an assertion which is for him to establish in any event.  This he must do on a balance of probabilities. See R v Olbrich [1999] 199 CLR 270, referred to in HKSAR v Yee Yiu Sam [2002] 3 HKC 21, 29.
3)	We repeat the point made at [40] above, that there are three factors necessary for proof of culpable possession: physical possession; possession in law (physical possession plus intention to possess the article or substance); and knowledge that the item was a dangerous drug.  The framework of section 47 suggests that the first phrase of section 47 addresses the first factor; section 47(1) the second; and section 47(2) the third.  That is the only construction that avoids futility.
4)	If the analysis thus far is sound, the question that remains is whether the language of the section points inevitably to a contrary conclusion.  In this regard, it is the use of the phrase ‘nature of such drug’, rather than, say, ‘nature of the item in the container’, that is said to demand that contrary conclusion.  Given the terminology of the rest of the section and, in particular, the context, we are satisfied that such a contrary conclusion is not required by that language.  It seems likely that cases such as Warner led to the choice of the terminology employed by the draftsman of section 47(2) – originally section 47(3); and even if that is not so, the sense of that terminology is illustrated by at least one passage from the judgments in that case:
	“	It would, I think, be an improvement of a difficult position if Parliament were to enact that when a person has ownership or physical possession of drugs he shall be guilty unless he proves on a balance of probabilities that he was unaware of their nature or had reasonable excuse for their possession.”
	per Lord Pearce in Warner [1969] 2 AC 256, 307.
	That same sense is evident from a passage in the judgment of Brennan J, as he then was, in He Kaw The v The Queen (1985) 157 CLR 523, 589 :
	“	On a count of possession under par.(c) [of the relevant statutory provision] the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature… of the narcotic goods in question….”
	by which was self evidently not meant the particular type of dangerous drug.

59. Thus it is that we are satisfied that subsection (1) of section 47 of the Dangerous Drugs Ordinance presupposes that it has been established that the accused was in physical possession of an item that transpired to be a dangerous drug and raises a presumption that he intended to possess that item and that subsection (2) of section 47 raises the subsequent presumption that the accused was aware that the item was a dangerous drug.

60. It follows that the reverse onus that was engaged by the live issue of fact in each of the two cases with which we are concerned was the reverse onus imposed by section 47(2) of the Ordinance. 

Keys

61. Given the facts of the two cases before us, argument has tended to concentrate on the situation of a person who has had a container in his physical possession (section 47(1)(a)), rather than upon a person found in physical possession of keys to a container (section 47(1)(b)), but it would, we think, be artificial and unhelpful to proceed other than on the basis that the latter factual foundation is also included for our consideration.

The principles

62. In the recent judgment of this Court in HKSAR v Lam Kwong Wai and another, Criminal Appeal 213 of 2003, 6 January 2005, unreported, we examined in some detail the principles to be applied to challenges to the validity of reverse onus provisions.  Given that examination and the fact that the issue in these appeals comes down, as we shall see, to that of proportionality, we do not propose, save in respect of that issue, other than a summary of the principles:

(1)	It is a cardinal tenet of our criminal law that everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.  That principle is specifically protected by article 14.2 of the ICCPR which Covenant is applied by article 39 of the Basic Law.  The provision is repeated by article 11(1) of the Hong Kong Bill of Rights Ordinance.  Article 87(2) of the Basic Law reiterates the same protection.  See also article 87(2) of the Basic Law; article 14.1 of the ICCPR; and article 10 of the Bill of Rights Ordinance for their protection of the right to a fair trial.
(2)	The necessary corollary of the presumption of innocence is that in a criminal trial the duty lies upon the prosecutor to prove all the elements of the offence.
(3)	What constitutes the elements of an offence is a question of substance and not of form.
(4)	Provisions that place an onus on an accused fall within three groups: the special defence; the evidential burden; and the persuasive burden:
	(a)	The special defence is ‘limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authority.’  See R v Edwards 1975 QB 27,40.  It is correctly not suggested that either section 47(1) or section 47(2) of the Dangerous Drugs Ordinance creates a special defence.
	(b)	The evidential burden requires that there is adduced sufficient evidence to raise an issue for the determination of the tribunal of fact.  What is required to discharge the evidential burden has been the subject of different formulae.  The imposition of an evidential burden is not inconsistent with the presumption of innocence.  See R v DPP ex parte Kebilene [2000] 2 AC 326, 379.  That is because such a burden does not create the risk of a conviction in the face of a reasonable doubt as to an essential element of the crime.
	(c)	The persuasive burden (sometimes called the probative burden or the legal burden) requires an accused to prove that it is more likely than not that his version of a fact in issue, a fact necessary for the determination of guilt or innocence, is true. See ‘Criminal Evidence’ Roberts and Zuckerman (2004) page 331 et seq., and ‘Human Rights and Criminal Justice’, Emmerson and Ashworth (2001) para 9-04. Failure to discharge that burden when it is imposed in relation to a fact necessary to the determination of guilt gives rise to the real risk that a person may be convicted though there is a reasonable doubt as to his guilt. The precise effect of a persuasive burden of the type that we now address was summarised by the Privy Council in Kwan Ping Bong v The Queen [1979] AC 609, 615-616:
		“	Where ... there is provision that on proof by the prosecution of the existence of certain facts some other fact shall be presumed to exist unless the contrary is proved (in the instant case guilty knowledge on the part of the accused), the effect of the provision 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 is to be wrong.”
(5)	A provision that derogates from the presumption of innocence is not necessarily impermissible. Whether it is or not depends, first, on whether there is shown a clear policy justification for the derogation. If that be shown, the question becomes one of proportionality; that is, whether the measure employed to achieve a legitimate objective is proportionate to the objective.  If the reverse onus is directed at an essential element of the offence, it will be more difficult to sustain; as will also be the case if it cannot be said “with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend” (Leary v United States (1969) 23 L.Ed. 2d 57, 82.)  It must be shown that ‘the reversal of the burden of proof was rationally connected to a clear policy justification, and that it was proportionate, in the sense that the objective in question could not be met by the imposition of a purely evidential burden’ (see Emmerson para. 9-47) or, we would add, by some other measure less intrusive upon the fundamental right.
(6)	Where an incursion is made upon the presumption of innocence, the State must provide convincing or compelling reason for depriving an accused of the fundamental protection normally afforded.
(7)	In the application of the test of proportionality, the court should accord to the legislature due recognition 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.  Accordingly, the court shall not, in maintaining the balance between the individual and society as a whole, impose rigid and inflexible standards upon the legislature's attempts ‘to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime’ (Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951, 975).  Nevertheless, issues of legality nonetheless remain the province of the courts.

The sole issue

63. The live issue in each of these applications is that of proportionality.  That is so because it is obvious in our opinion, and is common ground, that:

(1)	on its face, the section imposes a persuasive, rather than an evidential, burden on an accused to show lack of knowledge that the contents of the container were a dangerous drug;
(2)	knowledge that the contents of the container are a dangerous drug is an essential ingredient of the offence of possession of, and therefore of trafficking in, dangerous drugs; and
(3)	there is clearly some objective policy justification for an inroad into the presumption of innocence.  That objective justification is the same in Hong Kong as was expressed by Lord Steyn in Lambert at page 531, para 36:
	“	The basis for this justification is that sophisticated drug smugglers, and dealers and couriers typically secrete drugs in some container, thereby enabling the person in possession of the container to say that he was unaware of the contents.  Such defences are commonplace and they pose real difficulties for the police and prosecuting authorities.”

64. Yet, as Lord Steyn then remarked, at page 572, para 37:

“That is, however, not the end of the matter.  The burden is on the state to show that the legislative means adopted were not greater than necessary.  Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice.  The first is to impose a legal burden of proof on the accused. ...The second is to impose an evidential burden only on the accused. ... The transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden on the accused.”

Lambert

65. Lambert was arrested when he was in possession of a duffle bag which contained 2 kg of cocaine.  He was charged with the offence of possessing a controlled drug with intent to supply.  That was contrary to section 5(3) of the Misuse of Drugs Act 1971. By reason of that section it was, “subject to section 28 of this Act”, an offence for a person to have a controlled drug in his possession with intent to supply it to another.  Section 28, however, provided that: “… it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.”

66. Lambert contended at trial that he neither knew nor suspected nor had reason to suspect the nature of the contents of the bag.  But he was convicted, and he appealed on the basis that he ought not to have been required to establish his defence on the balance of probabilities since such a requirement was contrary to the presumption of innocence guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, incorporated by the Human Rights Act 1998.  The House of Lords held, by a majority, that the relevant provisions of the Human Rights Act were not intended to apply before the date when they came into effect; but their Lordships nonetheless considered, for the future, the question of the compatibility of the statutory provisions with the presumption of innocence in article 6(2) of the Convention.  Their Lordships, with the exception of Lord Hutton, were of the opinion that the onus placed upon an accused by section 28, if a persuasive onus, was not compatible with the article.

67. Lord Slynn described the question as a very difficult one and inclined to the view that in balancing the interests of the individual in achieving justice against the needs of society to protect against abuse of drugs, the legal burden of proof imposed on an accused by section 28 would not be justified.

68. Lord Steyn was satisfied that there was objective justification for some interference with the burden of proof, but that the real issue was that of proportionality.  He said of that issue, at page 572, that:

“The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on the accused.”

He noted, at page 572, paragraph [38], that where a jury was in doubt on the issue of knowledge, they were nonetheless bound to convict the accused:

“This may occur when an accused produces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on the balance of probabilities that his account is true.  Indeed it obliges the court to convict if the version of the accused is as likely to be true as not.  This is a far reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped.  It would be unprincipled to brush aside such possibilities as unlikely to happen in practice.  Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases.  In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one.” (Original emphasis).

69. Lord Steyn addressed the problems of proof which it was said were faced by prosecutors on the issue of knowledge, and he itemised those facts which, in his opinion, ameliorated those difficulties.  Mr McCoy SC, for the respondent, invites our concentration to this passage for the differences between the armoury at the disposal of prosecutors in the United Kingdom and prosecutors in Hong Kong.  Lord Steyn said, at pages 572-572, para [39]:

“A new realism in regard to the problems faced by the prosecution in drugs cases have significantly reduced their scope.  First, the relevant facts are usually peculiarly within the knowledge of the possessor of a container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in effect knew what was in the container.  This is simply a species of circumstantial evidence.  It will usually be a complete answer to a no case submission.  It is also a factor which a judge may squarely place before the jury.  After all it is simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation.  Secondly, the statutory provisions enabling a judge to comment on an accused’s failure to mention facts when questioned or charged has strengthened the position of the prosecution: section 34 of the Criminal Justice Act 1994.  Thirdly, I turn to the fears centred on the ability of an accused in a drugs case to manipulate the system by providing a mixed statement containing a self-serving explanation that he did not know what was in the package.  The perceived difficulty is that the whole statement may be introduced as evidence and he may not testify.”

Lord Steyn noted that that last perceived difficulty could be (and, we would add, regularly is) dealt with by the formula suggested in R v Duncan (1981) 73 Cr App R 359,365 whereby judges invite juries to accord less weight to the exculpatory parts of such statements and may comment, where appropriate, on the fact that the exculpatory remarks have not been supported by any testimony at trial.

70. He concluded that the transfer of the persuasive burden by section 28 did not satisfy the proportionality test.  It was, he said, a disproportionate reaction to the perceived difficulties facing prosecutors in such cases; and that an evidential burden would suffice.  In arriving at this conclusion, he examined comparative experience in constitutional democracies which, he said “underlines the vice inherent in transfer of legal burden provisions and the utility, in appropriate contexts, of evidential presumptions”.

71. Lord Clyde proceeded on the basis, as did the others, that section 28(2) by its use of the words ‘it shall be a defence for the accused to prove’ imposed a persuasive burden; and he considered the competing factors which the question of proportionality demanded be placed in the balance.  He recognized, as indeed must we all, the grave social menace constituted by the drugs trade; noted that the maximum term of imprisonment for the offence was one of life imprisonment; and was moved against the imposition of the persuasive burden by the risk of conviction of a person whom the jury believed might well be innocent (page 609, para [156]).

72. Lord Hutton did not agree with the conclusion reached by the other Law Lords.  This Court is invited by the respondent to prefer his judgment on the issue.  He said, at page 621-622, (paras [190] , [192] and [193]):

“	190.	…  In considering this matter it is necessary…  to assess whether a fair balance has been struck between the general interest of the community and the personal rights of the individual.  In my opinion the threat posed by drugs to the welfare of society is so grave and the difficulty in some cases of rebutting a defence that the defendant believed that he was carrying something other than drugs is so great that it was reasonable for Parliament to impose a persuasive burden as to lack of knowledge on a defendant.  The question whether a fair balance has been struck depends in large measure on whether the creation of an evidential burden as opposed to a persuasive burden on a defendant would be adequate to remedy the problem with which section 28(2) and (3) were intended to deal. …
	191.	….
	192.	I am, with respect, unable to agree with the view that the problem of obtaining a conviction against the guilty person can be surmounted by imposing an evidential burden on the defendant.  All that a defendant would have to do to discharge such a burden would be to adduce some evidence to raise the issue that he did not know that the article in the bag or the tablets on the table were a controlled drug, and the prosecution would then have to destroy that defence in such a manner as to leave in the jury's mind no reasonable doubt that the defendant knew that it was a controlled drug in the bag or on the table. …
	193.	… in my opinion the threat of drugs to the well-being of the community and the peculiar difficulty of proving knowledge in such cases justifies an exception to the general principle.”

73. As for the danger of a conviction notwithstanding a reasonable doubt as to guilty knowledge, he suggested, at page 623, para [194], that “in theory there is force in this argument” (emphasis added), but he thought there was greater force in “the common sense view of Lord Pearce in Sweet v Parsley [1970] AC 132,” that:

“Admittedly, if the prosecution have to prove the defendant’s knowledge beyond reasonable doubt, it may be easy for the guilty to escape.  But it would be very much harder for the guilty to escape if the burden of disproving mens rea or knowledge is thrown on the defendant.  And if that were done, innocent people could satisfy a jury of their innocence on a balance of probabilities.”

The Hong Kong approach: Suggested differences 

(a) The argument

74. There was a theme to the submissions for the respondent that Hong Kong takes a different approach from that of other jurisdictions to the issue of proportionality in the context of statutory presumptions.  It was contended that the courts of Hong Kong take a robust and more flexible approach; that the thrust of the majority view in Lambert is not reflective of that approach; and that this different, robust and more flexible approach was formulated at the outset of Hong’s Kong’s immersion in human rights jurisprudence by the decision of the Court of Appeal in R v Sin Yau-ming [1992] 1 HKCLR 127, and by that of the Privy Council in Attorney General of Hong Kong v Lee Kwong-kut [1993] AC 951 – decisions that bind this Court, such that any departure from them ‘should be thoroughly justified’ (para 71 respondent’s written submissions), the very contention itself implying that those two decisions paved a different route.  It is also asserted in the respondent’s written submissions (paras 68 and 69) that:

“	68.	Hong Kong's constitutional situation is very different from England.  The Bill of Rights Ordinance came into force, save for some transitional applications in June 1991. …. Sin Yau ming and then Lee Kwong kut considered the impact of the presumptions that impose a persuasive burden in the context of the Bill of Rights.  It was established that such burdens could be justified and what tests to be applied.....
	69.	.... it is necessary to pay full regard to Hong Kong’s different judicial and legislative history in regards to the present presumptions.”

75. Sin Yau-ming was decided in September 1991, three months after enactment of the Hong Kong Bill of Rights Ordinance.  It was the first decision of the Court of Appeal under the new legislation, and the first opportunity for the Court to consider construction of instruments of that kind.  At issue in that case was a presumption under the Dangerous Drugs Ordinance by virtue of which a person who had in his possession more than a quantity there specified of a dangerous drug was ‘until the contrary is proved’ presumed to have had that drug in his possession for the purposes of trafficking therein.  The other presumption considered was one by virtue of which a person proved to have had ‘in his possession or custody or under his control’ a place or premises, or the keys to a place or premises, in which a dangerous drug was found, was deemed, until the contrary was proved, to have had such a drug in his possession.  Those presumptions were held to be contrary to article 11(1) of the Bill of Rights Ordinance and repealed thereby.

76. We shall later return to the relevant provisions of the Dangerous Drugs Ordinance as they stood at the time of Sin Yau-ming, but for the moment it suffices to record that in so far as section 47 was challenged, the Court of Appeal was there concerned with two specific parts of section 47(1), since repealed, broader in effect than the provisions we now consider.  They were broader provisions in that, first, the section was directed at ‘possession or custody or … control’ thereby embracing circumstances much wider than mere physical possession; and secondly, they addressed possession, custody or control of places or premises, a somewhat wider ambit than mere containers (the latter specified in sub-sections not considered in Sin Yau-ming).  The challenge to those provisions succeeded for the failure of the presumption to meet the rationality test, in other words that there was scant logical connection between the possession or control of a place and knowledge of the existence of drugs therein.  It is convenient here to interpose the fact that Section 47(3) of the Ordinance as then drawn was in the same terms as section 47(2) of the Ordinance now in force.  The majority decided that because it raised a presumption upon presumptions that were held incompatible with the right protected by article 11(1) of the Bill of Rights Ordinance, section 47(3) also stood repealed.  Those prior presumptions are no longer in force, so that the decision in Sin Yau-ming as to the invalidity of subsection (3) does not bind us for present purposes.

77. Lee Kwong-kut, determined in May 1993, was the first Hong Kong Bill of Rights case to come before the Privy Council.  At issue were two statutory provisions, the first by which a person brought before a magistrate charged with having in his possession a thing that may reasonably be suspected of having been stolen, committed an offence if he failed to give a satisfactory account of how he came by the item, a provision that was said to be inconsistent with the presumption of innocence; the second, a provision by which a person who controlled another person’s proceeds of drug trafficking was obliged, if he wished to escape conviction, to show that he did not know or suspect that the relevant arrangement related to such proceeds.  It was held that the onus placed by reason of the first presumption was directed at proof of the most important element of the offence, and that that was not demonstrated to be justifiable and must therefore be treated as repealed; but that the defence in the second instance did not go to an essential element of the offence and that the burden placed upon a defendant was manifestly reasonable.

78. It was correctly said in argument before us that at the heart of Sin Yau-ming was the issue whether there was or was not a rational connection between the presumptions there analysed and the facts which were required first to be established by the prosecutor; but the suggestion, as we understood it, was that, as a matter of general application satisfaction that the presumed fact was more likely than not to flow from the proved fact on which it was made to depend was effectively conclusive of the matter, a contention drawn from the following passage in Lee Kwong- kut, at page 970A:

“If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v United States (1969) L.ED. 2d 57, 82 ‘it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’”

It was contended further that Hong Kong’s decisions made clear that there was no obligation to dig for the least rights-intrusive means that might have been achieved by the legislature in attaining its societal objective; and for this proposition we were taken to R v Choi Kai-on [1995] 1 HKCLR 79 for its citation of R v Chaulk (1990) 62 CCC (3d) 193, 221 where it was said that:

“… Parliament is not required to search out and to adopt the absolutely least intrusive means of attaining its objective.”

We note too that the word “necessary” as a test of proportionality is not expressed as such in either Sin Yau-ming or Lee Kwong-kut – compare, for example, Lambert’s express requirement that a legislative interference with the presumption of innocence must not be greater than necessary.  Instead, in Sin Yau-ming and Lee Kwong-kut, we see phrases such as ‘a reasonable balance between the aim of a state in the enaction of its legislation and the means used in that legislation to effect the aim’ (per Silke VP, page 110; see also the Kempster JA at page 130); the comparison on its face suggesting, it might be contended, that by Sin Yau-ming there is accorded to the legislature a latitude greater than that permitted by decisions elsewhere.

79. Then emphasis was placed in argument, as often it is in response to constitutional challenges of the present kind, and supposedly in support of the robust approach which it is said is, or should be, our hallmark, upon the concluding comments of Lord Woolf in Lee Kwong-kut, page 975:

“While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand.  The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion.  If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public.  In order to maintain the balance between the individual and society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime.  It must be remembered that questions of policy remain primarily the responsibility of the legislature….  it would not assist the individuals who are charged with offences if, because of the approach adopted to ‘statutory defences’ by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.”

(b) Analysis

80. We do not agree that these early cases forged an approach for Hong Kong that differs either in principle or application from the approach set at the time or developed since, whether by the European Court of Human Rights, or in other common law jurisdictions, such as the United Kingdom since the enactment of the Human Rights Act 1998, and the South African Constitutional Court after its establishment in the early 1990s.  There has perhaps been some shying away here from the Canadian approach but even there only in one or two specific aspects highlighted in Lee Kwong-kut.  Indeed, it is noteworthy that at the time of Sin Yau-ming it was said (at page 108) that for guidance to the correct approach to interpretation of instruments akin to the Hong Kong Bill of Rights, ‘greater assistance [than the European Commission and the European Court] can be derived from those two common law jurisdictions, the United States of America and Canada’.  With the passage of time, the courts of this jurisdiction have consistently looked to a wider base than that.

81. We do not discern an analytical or philosophical approach inherent in Sin Yau-ming or Lee Kwong-kut not equally intrinsic to jurisprudence that has been developed by the European Court, the courts of the United Kingdom and elsewhere in respect of the difficult balancing exercise that is presented by cases of the present kind.  The exhortation in Lee Kwong-kut to common sense, to realism, to acknowledgment of difficult policy problems was just that and was, we suggest, not intended to set for Hong Kong a principled course different from the approach elsewhere that places due weight, as against policy considerations, upon the importance of fundamental rights, of which the presumption of innocence is one. 

82. In relation to the discrete arguments we have summarised, we make the following comments:

(1) The rational connection or Leary test

83. In the case of both section 47(1) and section 47(2) of the Dangerous Drugs Ordinance, the Leary test is satisfied.  In other words, the presumption of an intention to possess the item or substance in the container rationally flows from proof of physical possession; and the presumption of knowledge of the nature of the item or substance rationally flows from proof of physical possession and an intention to possess.  But it is emphatically not the case that that fact resolves the issue, either in this instance or generally, in favour of admissibility of the restriction.  In other words, rationality does not of itself justify the restriction.  Were it so, there would be little meaning to the proportionality requirement.  The point is clear from Sin Yau-ming itself where the correct approach suggested by Kempster JA at page 134, endorsed by Silke VP at page 113, was this:

“A mandatory presumption of fact may be compatible with s 8 article 11(1) of the Hong Kong Bill of Rights Ordinance if it be shown by the [State], 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.” (Emphasis added).

Rationality is but the beginning of the proportionality test: see also R v Oakes (1986) 26 DLR (4^th ) 200, 229.

(2) The necessity test

84. Whilst the ‘necessity’ test is not framed by use of that word in either Sin Yau-ming or Lee Kwong-kut, the effect of the proportionality test stated in those cases is the same.  If it is incumbent upon the State to show that a measure taken is “no more than proportionate to what is warranted by the nature of the evil”, it follows that it is incumbent upon the State to show that the interference with the fundamental right is not greater than necessary.  In Sin Yau-ming, their Lordships cited at some length (page 129), and without demur, the decision of the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379, especially at 388:

“Presumptions of fact or law operate in every legal system.  Clearly, the Convention does not prohibit such presumptions in principle.  It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law.  If, as the Commission would appear to consider ... paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1.  Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words ‘according to law’ were construed exclusively with reference of domestic law.  Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent is intended to enshrine the fundamental principle of the rule of law.…

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference.  It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the right of the defence. .... .”

That passage from Salabiaku was cited in Lee Kwong-kut at pages 968-969, and of that passage, Lord Woolf said:

“This statement provides a valuable illustration of the collective effect of the decisions in other jurisdictions, apart from Canada, to which their Lordships have been referred on equivalent provisions to article 11(1) in other constitutional documents.  Even though they are not subject to any express limitation they are considered to have an implicit degree of flexibility.  The situation is the same in relation to article 11(1).”

It was in reference to that very same passage from Salabiaku that Lord Hope in Lambert said, at page 588, para [88]:

“Mr Owen said that the court was not concerned in Salabiaku v France with a provision applicable to the person charged with serious criminal offence which placed the burden of proof on him with respect to an essential element of it.  That is true,but I do not think this deprives it of value as a statement of principle.  What it means is that, as the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of the right pursues a legitimate aim and whether it satisfies the principle of proportionality: Ashindane v United Kingdom (1985) 7 EHRR 528; see also Brown v Stott [2001] 2 WLR 817.  It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual.  This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute.” (Emphasis added).

It is, we think, not possible rationally to quarrel with the logic of the emphasized proposition, and we respectfully endorse it.  We would add only this on the question of the “necessity” test, that there are articles of the ICCPR as applied by the Basic Law which expressly permit derogation from a right where such derogation is demonstrably “necessary” to protect various other interests such as ‘ordre public’ or the rights and freedoms of others: see articles 12, 18, 19, 21, and 22.  Some rights are absolute and permit of no derogation.  The presumption of innocence is not such an absolute right (Salabiaku; Sin Yau-ming page 109), but it would be surprising indeed if it were intended that the burden of justification and of showing proportionality were less onerous in the case of the presumption of innocence than in the case of incursions upon those freedoms protected by articles 12, 18, 19, 21 and 22.

(3) A less intrusive route

85. In so far as it is said that the courts should not look for the least intrusive route, that is correct.  But that is not to say that the court, when examining proportionality, is precluded from ascertaining whether a less intrusive route would achieve the same objective. Lee Kwong-kut itself, whilst rejecting a test of ‘the least possible intrusive means’, rejected it on the assumption that it was nevertheless shown that the legislature ‘has chosen from a range of means which impairs section 11(1) as little as reasonably possible’ (page 972D-E).  Chaulk, to which both Lee Kwong-kut and Choi Kai-on referred, said of this issue that whilst the legislature was not required to seek out and adopt the ‘absolutely least intrusive means of attaining its objective’, nonetheless:

“… when assessing the alternative means which were available to Parliament, it is important to consider whether a less intrusive means would achieve the same objective or would achieve the same objective as effectively.” ( per Lamer CJC, at page 221).

It is, in other words, and as the Chief Justice of Canada in Chaulk intimated (at page 222), not for the courts to second-guess the wisdom of policy choices made by the legislature, if the choice made is one of several, all within an acceptable range.  Yet since the issue of legality is the province of the courts, and since legality cannot in cases such as this be decided without proper consideration of proportionality, the court cannot shut itself off from the question whether the stated and justifiable objective could have been achieved by means less harmful to the protected fundamental right.  That being so, the courts must necessarily, in pursuing the proportionality question, inquire whether less harmful means were in fact available, whilst not tinkering or so closely tuning its assessment as to make fine distinctions.

(4) Flexible and robust

86. The argument is that Hong Kong permits itself a more flexible approach than elsewhere.  The answer is that the “implicit degree of flexibility” of which Lee Kwong-kut speaks(page 969D) is a reflection of the wide range of contexts in which reverse onus provisions are to be found, and the variety of societal difficulties which the legislature seeks to address.  The reference to flexibility recognizes that the presumption of innocence is not absolute, and that there are circumstances in which it is permissible to infringe that presumption.  In determining whether there is a justifiable policy objective underlying the provision and, if so, whether the measure used meets the proportionality test, the courts do not impose rigid and unrealistic constraints, for the courts, whilst maintaining their role of determining legality, understand and acknowledge the policy-setting role of the legislature.  Flexibility is the product of applying the proportionality test to a variety of societal problems, where what is at stake, in terms of impact on the individual as well as impact on society at large, differs according to the situation under review; and that, we venture to suggest, is the nature of the balancing exercise, whether in Hong Kong or in those other common law jurisdictions to whose decisions the court of Hong Kong most frequently have recourse in this area.  What is not flexible is commitment to underlying fundamental principles, and broadbrush suggestions that this jurisdiction is more flexible than elsewhere run the danger of misunderstanding what it is that the concept of flexibility in present context is directed.

87. The phrase ‘what is at stake’ is drawn from Salabiaku (cited with approval in both Lee Kwong-kut and Sin Yau-ming) and, as we shall see, was the very question asked and answered in Lambert. Lord Woolf in Lee Kwong-kut said, at page 969:

“Even though they [provisions equivalent to article 11(1) of the Hong Kong Bill of Rights Ordinance] are not subject to any express limitation they are considered to have an implicit degree of flexibility. The situation is the same in relation to article 11(1).

This implicit flexibility allows a balance to be drawn between the interest of the person charged and the state.  There are situations where it is clearly sensible and reasonable that deviations should be allowed from the strict applications of the principle that the prosecution must prove the defendant’s guilt beyond reasonable doubt.  Take an obvious example in the case of an offence involving the performance of some act without a licence.  Common sense dictates that the prosecution should not be required to shoulder the virtually impossible task of establishing that a defendant has not a licence when it is a matter of comparative simplicity for a defendant to establish that he has a licence.  The position is the same with regard to insanity.’’

Whilst the underlying principles are established, what is in the circumstances of a particular provision or case reasonable and necessary, is a question of assessment, which cannot be made by the application of some predetermined absolute:

“The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality.  This is implicit in the provisions of s 33(1).  The fact that different rights have different implications for democracy and, in the case of our Constitution, for ‘an open and democratic society based on freedom and equality’, means that there is no absolute standard which can be laid down for determining reasonableness and necessity.  Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis.  This is inherent in the requirement of proportionality, which calls for the balancing of different interests.”

S v Makwanyane and another 1995 (3) SA 391 (CC) para [104].

88. We therefore do not agree that the tests heralded in Sin Yau-ming and Lee Kwong-kut, in the early days of the life of the Hong Kong Bill of Rights Ordinance and before the plethora of human rights issues were considered by the courts of the United Kingdom pursuant to the enactment of the Human Rights Act 1998, and by the Constitutional Court of South Africa, and by courts elsewhere, are in their effect different in their approach to the issue of proportionality from that of those other courts.  What is different are the societal issues in local context; but there is not as between these various jurisdictions a different value placed upon the liberty of the subject, a different appreciation of the role of the legislature and of the courts, a different view of the need for a thoroughly determined and concentrated war against drug trafficking, or a material difference in the approach to the issue of proportionality.  

89. It is said that the courts in Hong Kong take a ‘robust’ approach to the balancing exercise.  We are not sure what in the present context that means.  If it means that the courts in this jurisdiction have heeded the warning in Lee Kwong-kut not to impose rigid and unrealistic standards on legitimate attempts to resolve difficult crime-fighting problems, then the description of the approach may be said to be accurate.  But the use of the word ‘robust’ is not an attractive word to describe an approach to issues of proportionality when they touch upon the invasion of fundamental rights, lest it imports a broad brush connotation critical by implication of too much regard for those rights.  The obligation to promote and protect fundamental rights is profound, and inroads upon them must be closely examined. 

(5) Constitutional considerations

90. It is said by the respondent, in the written submissions, that ‘Hong Kong's constitutional situation is very different from England’; that ‘it is necessary to pay full regard to Hong Kong’s different judicial and legislative history in regards to the present presumptions’; and that ‘Hong Kong's constitutional situation is very different from England’.  As statements in a vacuum, the statements are correct, but in the present context they are of little help or relevance.  The importance of the presumption of innocence, the centrality of it to fundamental concepts of justice, is the same in Hong Kong as in those jurisdictions whose case law for present purposes we have examined.  The prospect of unjust imprisonment is attended here by the same sense of repugnance as elsewhere.  We apply here the same requirement, that clear justification must be shown for any departure from that presumption; and, as elsewhere, the burden of establishing a proportionate response is on the State.

91. The effect of this analysis is this:

(1)	that attempts to cajole the courts of this jurisdiction to adopt a ‘robust’ approach to the balancing exercise that must be conducted when there is sought to justify an intrusion upon a fundamental right should be resisted, if that approach runs the risk of undermining the importance of the fundamental right; and
(2)	that we see nothing in the principles applied by Lambert that differs from the principles to be applied to the current applications.

Legislative history

92. The point was made for the respondent that the reasoning in Sin Yau-ming constituted the rationale for legislative amendments made in 1992 to section 47 of the Dangerous Drugs Ordinance resulting in its present formulation, and it is suggested that that is significant for present purposes.  Whilst it is conceded by the respondent that the presumptions primarily considered in Sin Yau-ming were not those now under examination, it should nonetheless be assumed, so we understand the argument, that the legislature has addressed the need for the presumption as it now stands, read as a persuasive onus, in the light of human rights imperatives.  So that we are better placed to examine that contention, and for the purpose of our exercise generally, it is appropriate here to rehearse the history of the 1992 changes to the law in question.

93. Section 47(1) of the Dangerous Drugs Ordinance, as it stood for at least twenty years before Sin Yau-ming,read as follows:

“47(1) Any person who is proved to have had in his possession or custody or under his control –

(a) anything whatsoever containing a dangerous drugs;

(b) the keys of anything whatsoever containing a dangerous drug;

(c) any place or premises or the part of any place or premises in which a dangerous drug is found;

(d) the keys of any place or premises were part of any place or premises in which a dangerous drug is found,

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

94. One of the questions of law reserved for that court was whether sections 47(1)(c) and (d) permitted of a construction consistent with the presumption of innocence.  The court was not asked to consider the presumption in relation to subsections (a) or (b), that is to say in relation to possession of containers.  It will readily be apparent from a reading of the judgments in Sin Yau-ming that the factual situation upon which attention was concentrated was not that of physical possession but rather that of owners or tenants of premises in which drugs were found.  It is also apparent that the presumption, thus concentrated and addressed, failed the compatibility test at almost the first hurdle: that is to say, that there was not a necessary connection between control of premises, or possession of keys to premises, on the one hand, and, on the other, knowledge of a quantity of drugs therein.  That point was made by each of the three judgments there delivered:

“	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 of their premises in one of the cubicles in which drugs are found.  They catch ... the innocent tenant or landlord of a premises ... .  In my judgment these presumptions fail the rationality and proportionality tests.”
per Silke VP at page 117.
“	... the factual level at which the presumption of possession for the purpose of trafficking... arises under s 46(d)(v)... is not rationally or realistically connected with the fact presumed.
	Similar observations arise in relation to ss 47(1)(c) and (d).  While thereis a logical connection between the possession of “... the part of any place or premises in which a dangerous drug is found or of the keys thereto” such connection is frail indeed when it comes to “any place or premises” or “the keys thereto”.  It is only necessary to think of a large house or apartment and an extended family or of numerous key holders and of apartments embracing separate cubicles having their own locks.  When the concept of “control” of any place or premises comes into play I hesitate to find even a logical connection ... .  The Crown has failed to satisfy me in relation to any of the presumptions under consideration that the fact to be presumed follows from or is realistically connected with the fact to be proved or is warranted by and no more than proportionate to the evil of the drug trade.”
per Kempster JA pages 135-136.
‘	Turning to the provisions of ss 47(1)(c) and (d), I am also satisfied that these provisions do not pass the test of being reasonable in that they do not have the necessary connection with the offence alleged.’
per Penlington JA page 140.

95. It will be noted therefore that the court in Sin Yau-ming:

(1)	was not asked to, and did not, determine the validity of subsections (a) or (b), the analogous predecessors to the current subsections (a) and (b); and
(2)	struck down subsections (c) and (d) as they then stood, because of the failure of the presumption to meet the rationality test, a point which is not for present purposes at issue since it is correctly accepted that in the current challenge that test is met;

96. We noted at paragraph [76] above the fact that subsection (3) of section 47(the present subsection (2)) was considered by the Court of Appeal in Sin Yau-ming, and that it was struck down by a majority of that court on the basis that the prior presumptions upon which it depended were impermissible.  We acknowledge that in his dissenting judgment on this point, Penlington JA expressed the view, at page 141, that it was not unreasonable, upon proof of possession, ‘that the person in possession shall be presumed to know what the drugs were’, a sentiment that seemed to have the tentative support of Silke VP (at page 117).  It may well be that these sentiments were taken into account in the framing of the amending legislation; but there is no evidence to that effect, and it may equally well be that the subsection was left alone because the faults with the prior presumptions, by reason of which subsection (3) had failed judicial scrutiny, were removed.

97. Judgment in Sin Yau-ming was delivered in September 1991.  In early 1992 amending legislation was introduced into the Legislative Council.  When moving the Second Reading of the Bill to amend the Dangerous Drugs Ordinance, the Secretary for Security stated (Hansard page 1880, 26 February 1992) that in response to the judgment of the Court of Appeal, the Ordinance had been reviewed and that:

“The Bill proposes to delete or amend provisions which were ruled to be inconsistent with the Bill of Rights Ordinance, and to delete or amend other provisions which may be vulnerable to similar challenges.”

98. In so far as the debate that followed condescended to detail, we see that section 47 was not the only section amended, and that there was specific discussion about the presumption triggered by certain quantities of drugs, and about the proposed repeal of the offence of possession of dangerous drugs for the purpose of unlawful trafficking.  There is not revealed any specific debate about the presumption in relation to possession of containers or, in that context, consideration of possible measures other than a persuasive onus.  We have not been shown any record of discussions in Committee, but it is not suggested that the question of other measures in that context was ever discussed.  Nonetheless, it can, we think, safely be assumed from the amendments made in 1992 that the rationality of the presumption in relation to sections 47(1)(a) and (b) must have been addressed.

99. There was a further amendment made at the same time in 1992 with which we need not be concerned, save for the sake of completeness.  That was to apply, by a new subsection (c), the reverse onus provision to any person proved to have had in his physical possession “the keys of any motor vehicle containing a dangerous drug”.  That subsection was repealed in 1994, apparently in response to the decision in R v Lum Wai-ming (1992) 2 HKPLR 182, a decision of the High Court, at first instance, on 27 July 1992.  In that case, the accused was driving a motor vehicle in which dangerous drugs were found.  The keys were in the ignition, and a challenge was mounted to the validity of the presumption as it applied to subsection (c).  It seems that the argument developed to embrace as well consideration of the validity of section 47(1)(a).  The learned judge decided that the presumption as it applied to the keys of a motor vehicle did not follow rationally from the primary facts, since a motor vehicle was not per se a thing for storage, and since many people might have the keys to a single vehicle, and that the presumption was therefore invalid.  However, he took the contrary view in relation to the presumption as it applied to the circumstances prescribed by section 47(1)(a), remarking that the new provision narrowed the range of persons at whom the subsection was directed and that the Crown had, “on the preponderance of probabilities”, shown the provision to be “sustainable”.  He appears to have adopted the submission that the State had, on a balance of probabilities, shown that the provision was “reasonable”.  Putting aside the question whether it is appropriate in such cases to talk of a burden on the State to justify such a provision “on a balance of probabilities”, there is no overt consideration in that judgment of the question whether less intrusive measures were available and, for reasons which we shall presently provide, it is a decision with which we respectfully disagree.

100. We have been referred also to R v Chan Wai-ming (No. 2) (1992) 2 HKPLR 231, a determination of Ryan J on 6 August 1992.  In that case, the accused was found in physical possession of keys which opened a locked drawer, facts which triggered the presumption under section 47(1)(b).  The submission made in that case was that as there existed the possibility of a number of persons holding duplicate keys, the presumption was not rational.  Again, rationality rather than necessity seems to have been the issue.  The challenge to the presumption was dismissed and that too is a decision with which we respectfully disagree.

Proportionality and the present presumption

(1) The competing considerations

101. Questions of proportionality are always questions of balance.  As Lambert illustrates, the question of balance is most difficult when the contending forces appear equally powerful; in that case, as in this, the requirement, on the one hand, to fight sophisticated criminal organisations and individuals whose sole and deliberate objective is to garner vast profits at the expense of the health of society's youth, though not only the youth – organisations and individuals who feed on the addiction of others, thereby encouraging crime, and corrupting the fabric of society – and, on the other, the need to give effect to another of society’s deeply embedded notions of justice, that we do not convict and send to prison men and women for crimes that they have not or may not have committed.

102. The real concern in all reverse onus cases, by which for present purposes we mean cases in which a persuasive burden is placed upon an accused in relation to a central ingredient of the offence charged, is that an accused may be convicted despite the existence of a reasonable doubt as to his guilt.  The events that unfolded in the course of the trial of the applicant Hung reveal quite dramatically how real is such a possibility.

103. As is well established, that is not to say that reverse onus provisions are never acceptable, but this consequence of a reverse onus provision, that persons might be convicted in spite of a reasonable doubt as to guilt:

“… should colour one's approach when evaluating the reasons why it is said that, in the absence of a persuasive burden on the accused, the public interest will be prejudiced to an extent which justifies placing a persuasive burden on the accused. The more serious the punishment which may flow from conviction, the more compelling must be the reasons.”

R v Johnstone [2003] 1WLR 1736, 1750.

104. In Lambert (page 609), in Lee Kwong-kut (page 969), in Manamela (pages 18–19) and in State v Coetzee [1997] 2 LRC 593, especially in the citation at page 675-676 from Morissette v United States (1952) 342 US 246, we see reference to the most common circumstance in which such provisions tend to be justified, namely regulatory offences, whose objective:

“… is to put pressure on the persons responsible to take pre-emptive action to prevent harm to the public.  Although censure might be acute, there is generally not the same stigma or the severe penalties as for common-law offences.  Similarly, there are cases involving the existence or authenticity of public documents or licences, where practicalities and common sense dictate that, bearing in mind the reduced risk of error involved, it would be disproportionate and onerous for the State to be obliged to discharge its normal burden in order to secure a conviction.  Traffic regulation provides a further example, such as when a statue states that the owner of a car is presumed to be the person who parked it illegally; in the great majority of cases, there is simply no way in which the State could prove who parked the car.” (Manamela, pages 18-19).

That analysis does not purport to represent the scope for an acceptable reverse onus provision.  Yet, what we have in the present instance is altogether at the other end of the scale.  The consequence of a reverse onus provision such as that provided by section 47(1) of the Dangerous Drugs Ordinance, if read as a persuasive burden, is that an accused may be convicted by a jury that concludes that his account as to a central element of the offence – in these two cases whether or not he knew that the container housed a dangerous drug – is as likely as not to be true.  That is a sobering thought, not least when one recognizes that the prescribed punishments are in the most severe category.  The maximum punishment permitted by law for such offences is life imprisonment.  The punishments imposed in these two particular cases were 15 years and 20 years’ imprisonment.  In the context of dangerous drug trafficking offences in this jurisdiction such terms – indeed significantly longer terms – are common.  

105. It was suggested by Lord Hutton in Lambert, that the risk of a conviction in the face of reasonable doubt was more theoretical than real.  With that suggestion we must respectfully disagree; and if an actual demonstration were required of that reality, the events in Hung’s trial provide it.  All the more reason therefore that:

“The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book.  Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system.”

per Sachs J in State v Coetzee [1997] 2 LRC 593, 677.

106. It should therefore be self-evident that in these circumstances there is a heavy onus on the State to demonstrate that the imposition of a persuasive burden upon a defendant to negate guilty knowledge is a proportionate response to the legitimate societal objective, which is to prosecute effectively and bring to justice those who are guilty of possessing and of trafficking in dangerous drugs.

107. The balance to be struck by the courts is difficult, a difficulty that has been described (Coetzee, page 677) as a paradox, for on the one hand the more serious the crime – and dangerous drug trafficking is one of society's most insidious evils – the more important is it that society be sufficiently armed to secure conviction of the guilty; yet the more serious the crime and the greater the penalty at stake, the more important becomes the protection of the accused.  That balance in dangerous drugs cases was described in Lambert itself (page 563E) as a very difficult one, for it required ‘balancing the interests of the individual in achieving justice against the needs of society to protect against abuse of drugs’ though Lord Slynn, whose words these were, inclined to the view that the persuasive burden in that particular case was not justified.

108. The cardinal question, as we have seen, is the question: What is at stake?  That question, and the competing considerations in the balance, were addressed in detail by Lord Clyde in Lambert (pages 608G – 609H), and we consider that they apply equally in the present case (noting, though, that knowledge is an essential element of the section 47 offence whereas it is imported to the English statute as a defence):

“	153.	Reasons can readily be adduced to support the imposition of the burden of proof on the accused in the present context.  Firstly, the question whether the accused was ignorant or had no reason to suspect that what he possessed was a controlled drug is a matter very much within his own knowledge.  There are sound practical reasons for imposing the burden on him to prove his ignorance.  Secondly, the proof may be relatively easy for him, as I have already noted.  Thirdly, there is a serious consideration of the public interest in the discouragement of what is well recognised as a grave social evil, the unlawful distribution of controlled drugs.  Fourthly, the knowledge of the defendant of the nature of what he possessed is brought in as a defence, not as an ingredient of the offence.  In some cases it may never arise.  It can be strongly argued that a transfer of a persuasive burden of proof onto the defendant under section 28 could be compatible with article 6(2).
	154.	But while it might seem reasonable for such considerations to let the accused bear the burden of proof I do not consider that such a result can be justified when one weighs the considerations of what is, or at least may be, at stake for the accused and the interests of the public.  As I have already noted… in order to be acceptable a presumption must fall within limits which "take into account the importance of what is at stake and maintain the rights of the defence": Salabiaku v Franceat 388, para 28.  If the matter is approached as one of generality one can make a useful distinction here between the various classes of drugs which may be involved.  In the most serious cases the accused may face a sentence of life imprisonment.  A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest.  The requirement to have a licence in order to carry on certain kinds of activity is an obvious example.  The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls.  These kinds of cases may properly be seen as not truly criminal.  Many may be relatively trivial and involve only a monetary penalty.  Many may carry with them no real social disgrace or infamy.
	155.	In Sweet v Parsley [1970] AC 132, 148, Lord Reid observed that ‘there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did’.  The advent of the 1998 Act has certainly sharpened a consciousness of the human right which is embodied in the presumption of innocence and invites a closer scrutiny of what Ashworth and Blake, “The Presumption of Innocence in English Criminal Law” [1996] Crim LR 306, 314 have described as a large scale derogation from basic principle. ….
	156.	While it may be that offences under section 5 of the Misuse Of Drugs Act 1971 may be described as regulatory they can lead to the most serious of consequences for the accused.  Of course trafficking in controlled drugs is a notorious social evil, but if any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted.  By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but not have been persuaded that he probably did not know the nature of what he possessed.  The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict.  Looking to the potentially serious consequences of a conviction at least in respect of class A drugs it does not seem to me that such a burden is acceptable.”

The gravity argument

109. Mr McCoy seeks to take us away from the conclusion reached in Lambert by emphasising the gravity for Hong Kong of the dangerous drugs trade, and by alerting us to weaponry in the United Kingdom that there advances the cause of effective prosecution but which is not available in Hong Kong.

110. Mr McCoy stressed the fact, and we accept, that the object of the legislation is to prevent grave harm to the public.  The trade in drugs is, he points out, a worldwide problem on a massive scale and, further, that there are international conventions designed to combat drug trafficking and the enormous profits it engenders that have been applied to Hong Kong.  He reminds us of the guile and sophistication with which drug traffickers conduct their business and seek to resist the war waged by law enforcement authorities.  He refers to the fact that Hong Kong is an entrepot, rendering it more susceptible as a place through which drugs are carried and in which drugs may be manufactured.  Alongside corruption, drug trafficking has been classified as Hong Kong's greatest evil.  He adds the suggestion that the presence of a persuasive burden is itself a deterrent, since those who would engage in this crime are, as the law presently stands, aware that, if caught, the likelihood is that they will have to testify if they hope to avoid conviction.  Moreover, he says, the relevant burden upon an accused imposed by section 47 (which is to say, in our judgment, section 47(2)) is not, in the case of an innocent person, a difficult one to discharge; nor should one baulk at imposing it given that those who take custody of containers necessarily assume some responsibility for what they do, and that to expect an explanation for the circumstances of its custody and knowledge of its content is to expect no more than is natural in the circumstances.  He adds the fact that after the decision in Sin Yau-ming, the legislature amended section 47 of the Ordinance to repeal the offending provisions, so that one should assume a conscious attempt then to render the section as a whole rights-compatible, an attempt that should be accorded its proper latitude.

111. When the issue of proportionality is addressed, the question is: proportionate to what?  The remedy proposed for an evil must be proportionate not merely to the threat posed by that evil.  If that were the  long and the short of it, the test would signal open season for Draconian measures at the expense of fundamental rights.  Proportionality addresses not merely the threat posed, but the consequences for individual rights which flow from the suggested remedy.  A proper application of the proportionality test means that there is always a line beyond which a remedy catering for the interests of society cannot go in its impact upon the rights of the individual.  Emphasis upon the nature of the social evil which the legislation is designed to defeat is of itself a legitimate, indeed in the appropriate case a required, emphasis; but viewed in the context of the entire balancing exercise that is the proportionality test, emphasis on the gravity of the evil necessarily encounters the paradox to which Sachs J referred in Coetzee.  Sachs J added, at page 677h that:

“Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise.  The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise.  If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug smuggling, corruption… the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.”

We find an approach to the same effect in R v Oakes 26 DLR 200, 228:

“Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of the measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.  The more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”

It is a sentiment that is not new:

“Many great judges have said that in proportion as the crime is enormous, so ought the proof to be clear.”

per Denning LJ (as he then was) in Bater v Bater [1950] 2 All ER 458, 459

That is why:

“As a general rule, the more serious the impact of the measure on the right, the more persuasive or compelling the justification must be."

S v Manamela 2000(3) SA 1, 20.

Section 34, Criminal Justice Act 1994

112. It will be recalled that in the course of his judgment in Lambert, Lord Steyn at paragraph [39], referred to factors that had significantly reduced the scope of problems faced by the prosecution in drugs cases.  The factors he there itemised apply equally to prosecutions in this jurisdiction, save for one, namely, the second: section 34 of the Criminal Justice Act 1994.  Mr McCoy asserts that the non-availability in this jurisdiction of a provision in the nature of section 34 is critical; in other words, that it is a central basis upon which the result in Lambert may properly be distinguished from the result which this court should reach. 

113. Section 34 of the Criminal Justice and Public Order Act 1994 provides, in so far as is relevant, as follows:

“	(1)	Where, in any proceedings against a person for an offence, evidence is given that the accused –
		(a)	at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
		(b)	on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
		being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so question, charged or informed, as the case may be, subsection (2) below applies.
	(2)	Where this subsection applies –
		(a)	…
		(b)	…
		(c)	the court, in determining whether there is a case to answer; and
		(d)	the court or jury, in determining whether the accused is guilty of the offence charged,
		may draw such inferences from the failure as appear proper.
		….
	(5)	This section does not –
		(a)	prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct in respect of which he is charged, in so far as evidence thereof would be admissible apart from the section; or
		(b)	preclude the drawing of any inference from any such silence or other reaction of the accused which could properly be drawn apart from this section.”

114. The answer to Mr McCoy's point seems, at first glance, obvious, namely, that if a power to draw inferences such as that conferred by section 34 indeed makes all the difference, or a material difference, to the prosecutor’s armoury, the importation into local legislation of a power of that kind is a step clearly less intrusive, if intrusive at all, of the presumption of innocence.  The persuasive burden in section 47(2) gives rise to the possibility of a conviction where a jury is not sure of an essential element of the offence.  A section 34 power does not.  We pause to comment in passing that if indeed a less intrusive measure such as section 34, as applied to a specific problem, were unconstitutional, it might be argued with some force that surely so must a more intrusive measure, such as a persuasive burden at trial, be unacceptable.

115. Mr McCoy’s rejoinder is that such a power, a section 34 power, would itself be unconstitutional, and that such a conclusion has been reached by our courts.  For this contention, he relies on the judgment of Court of Final Appeal in Lee Fuk-hing v HKSAR [2005] 1 HKLRD 349.  With respect, that case decided no such thing.  That case was concerned with the position at common law; absent, in other words, a provision such as section 34.  It was a case in which the accused first disclosed his defence at trial, placing blame for the presence of drugs in a vehicle upon a person who was said to have been in the vehicle at the time of its interception by police.  The judge himself, in the presence of the jury, asked the accused a series of questions drawing out the fact that that other person had not been mentioned to the police, and asking why that was so.  The Court of Final Appeal, at para [39] of its judgment, noted that the form of questions amounted not only to an attack on the accused’s credibility by reason of his silence upon arrest, but also to an invitation to infer guilt from that silence.  Mr McCoy emphasises the sentence in the judgment, at paragraph [58], that the questions and answers constituted “a serious breach of the accused’s right of silence and to a fair trial according to law.’’  Yet key to that decision was the fact, articulated at page 369, paragraphs [55] and [56], that:

“	55.	...There is a right to silence.  And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak.  In the whole of the circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.
	56.	A person's right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.”

116. Enactment of a section along the lines of section 34 carries with it several consequences which are to be contrasted with the situation at common law that was under examination by the Court of Final Appeal:

(1)	the certainty, we suggest, as is in fact the case with section 34 itself, of an accompanying provision imposing a duty upon arresting officers to advise an arrested person of the inferences that may be drawn against him should he fail to mention a fact which he might in the circumstances reasonably be expected to mention.  The point was specifically alluded to, as a distinction, in Lee Fuk-hing, at page 366, para [49]:
	“	In England the point has since been clarified by statute.  An accused person's right of silence, in circumstances where he may have been expected to make an explanation or raise his defence, was restricted by s.34 of the Criminal Justice and Public Order Act 1994.  This provides that in certain circumstances and a limited way the prosecution may rely at trial upon an accused person’s failure to mention to the police a fact which he could reasonably have been expected to mention.  But, such a failure may only be relied upon if it occurs after the accused has been cautioned and told specifically that a failure to mention such a fact may harm his defence at trial.”;
	and
(2)	the knowledge that the legislature has considered the question whether circumstances exist, either generally or in relation to specific offences, that warrant a limited infringement of the right of silence.  It cannot realistically be contended in the case of the provision before us that there has been any consideration by the legislature of the suggested problems of proof in relation to guilty knowledge and measures that might be taken to alleviate those problems.  It is self-evident that less intrusive measures of the section 34 type, either alone or in conjunction with other measures, have not been considered in relation to either section 47(1) or section 47(2) of the Dangerous Drugs Ordinance; indeed it would appear that no alternative measures of any kind have been considered.  Some suggestion in the course of argument was made that the Secretary for Justice has set her mind against provisions of the section 34.  That is as may be, but it remains the fact so far as we are aware, that there has been no consideration by the legislature of less intrusive measures, whether of the section 34 type or any other, directed to the specific suggested difficulty of proof in such cases.

117. It is not necessary in these proceedings to decide whether a provision along the lines of section 34, would or would not withstand challenge as unreasonably infringing the presumption of innocence.  But in so far as it is contended that a section akin to section 34 is inevitably doomed, we cannot agree.  We have been taken to no authority of the European Court, or of the courts of England and Wales, or of courts elsewhere that has struck down such a provision.  Indeed, we note that the question of adverse inferences from silence and its compatibility with article 6 of the European Convention has been considered both by the European Court and by the domestic courts of the United Kingdom; and the thrust of their decisions is to permit such inferences in certain circumstances and with various safeguards to which the cases aver.  It cannot reasonably be contended that the drawing of such inferences is as a general rule unacceptable:

“On the one hand, it is self-evident that it is incompatible with the immunities under consideration to base a conviction wholly or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself.  On the other hand, the Court deems it equally obvious that these immunities cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into acount in assessing the persuasiveness of the evidence adduced by the prosecution.

Wherever the line between these two extremes is to be drawn, it follows from this understanding of “the right to silence” that the question whether the right is absolute must be answered in the negative.

….

Whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.

[In the case of the provisions under examination] appropriate warnings must be given to the accused as to the legal effects of maintaining silence.  … The prosecutor must first establish a prima facie case against the accused, i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt that each of the essential elements of the offence is proved.

The question in each particular case is whether the evidence adduced by the prosecution is sufficiently strong to require an answer.  The national court cannot conclude that the accused is guilty merely because he chooses to remain silent.  It is only if the evidence against the accused “calls” for an explanation which the accused ought to be in a position to give that a failure to give an explanation “may as a matter of commonsense allow the drawing of an inference that there is no explanation and that the accused is guilty”.

Murray v United Kingdom (1996) 22 EHRR 29, 61-62.

See also the cases discussed at paragraphs 15-93 to 15-106, Emmerson and Ashworth (2001); and paragraphs 15-432 Archbold 2005.

118. This is, we emphasise, not, one way or the other, to say that the section 34 route, with or without an evidential burden, is a necessary measure or the route to take.  It is merely to answer the contention that it is settled law that such a route has to be excluded as a possibility.  The fact of the matter is that this route has not, as an issue-specific solution, or partial solution, been considered by the policy makers.  The most that can be said, as we understand the position, is that the policy initiator nurses, as a generality, a mind-set against inferences from silence.  That, with respect, is not an answer to the demands of issue-specific proportionality.  It is to present an all-or-nothing choice when, in truth, that is not the only choice.

Conclusion

119. The respondent has not demonstrated that a persuasive onus upon an accused, to show that he was unaware that that which he possessed was a dangerous drug, goes no further than is necessary to accomplish the objective of the statute; or, put another way, that the objective cannot satisfactorily be met by the imposition of an evidential burden or some other or additional measure less intrusive, or not intrusive, upon the presumption of innocence. 

120. Nor is it shown that the legislature has even addressed the question whether less intrusive means might achieve the same objective.  Whilst it is true that amendments were made to the Ordinance after the decision in Sin Yau-ming, whereby the category of persons caught by the presumptions was narrowed considerably, that measure primarily resolved doubts about the rationality of the presumption from the primary facts.  What it did not resolve and what, it would appear, was not addressed was whether it was necessary to impose a persuasive onus, with the dangers to which that gives rise, rather than some less intrusive measure, such as an evidential onus, or a section 34 solution, or a combination of the two.  We are not persuaded that such lesser measures would be ineffective.

121. The assertion has been made that the probative burden is in practice an indispensable tool to the effective prosecution of these cases.  Of that, we are similarly not persuaded.  As in State v Zuma [1995] 1 LRC 145, 164 it has not been demonstrated ‘that it is in practice impossible or unduly burdensome for the State to discharge its onus’ that is, the onus which would lie upon it but for that presumption.  Indeed, the experience of judges in this jurisdiction is that non-utilisation of the presumption visits upon the prosecution little difficulty in securing convictions in those cases that merit them.  That is because it suffices in most cases for the prosecution to rely upon the natural inference that arises from the primary facts establishing physical possession of the drugs.  That being so, what we find in the relevant statutory provision as framed is:

‘A nexus of easily inferred fact, which in practice would aid of finding of guilt according to the normal onus of proof criteria ... converted into a nexus of law, opening up the very real possibility of a finding of guilt followed by severe punishment, even though the trial court had real doubts on the matter’: see Coetzee at page 677b. 

122. We accept that there may be cases, outwith this generality, where the absence of a burden of some kind upon an accused to provide the basis upon which he asserts lack of knowledge of the nature of the item or substance possessed will render difficult the task of effective prosecution and where the imposition of a burden of a kind would not be unreasonable.  What has not been demonstrated is that in such cases an evidential onus is either of itself, or together with a provision akin to section 34 of the Criminal Justice Act 1994, insufficient.  The responsibility for so demonstrating is upon the respondent.  It is a responsibility that has not been discharged.

123. As for the suggestion that the likelihood of a conviction despite reasonable doubt as to guilty knowledge is a theoretical rather than real likelihood in section 47(2) cases, the events of the trial of Hung deserve revisiting.  After several hours of deliberation, the jury made clear that three of their number rejected the applicant’s account.  It follows that four of their number, at that stage, were not sure that he knew that the package he received at the hotel contained dangerous drugs; and it is possible, from the particular question as framed, that at that stage none was sure that the applicant knew that the package contained dangerous drugs.  The jury continued to entertain difficulties with the application of the presumption, and it is hardly theoretical to assume in Hung’s favour that at the end of the day he was convicted by a jury that thought it as likely as not that he did not know that the packet he carried contained dangerous drugs.  Those are the circumstances in which he was convicted and sentenced to a term of 15 years’ imprisonment.  We fail to see how such an outcome can sit comfortably with the judicial or public conscience.  We fail to see that ‘the threat of drugs to the well-being of the community and the peculiar difficulty of proving knowledge in such cases’ (Lord Hutton, Lambert, page 622) or, for that matter, the need to deter, justifies such a result; particularly when it is not shown that other measures not carrying such daunting consequences have been considered and for good reason rejected. 

124. Since the respondent has not discharged its onus to show that the transfer by section 47(2) of the Dangerous Drugs Ordinance of a persuasive burden upon an accused satisfies the criterion of proportionality, it follows that the section, if read as imposing a persuasive burden, is incompatible with article 39 of the Basic Law (by its application of article 14.2 of the ICCPR); article 87 of the Basic Law; and article 11(1) of the Hong Kong Bill of Rights Ordinance. 

Section 47(1)

125. An early and substantial section of this judgment was devoted to a consideration of the place occupied by section 47(2) of the Ordinance within the various factual scenarios that defences in dangerous drugs cases present.  We concluded that the defences run in the two cases which are the subject of these appeals were directed at the facts contemplated by section 47(2) and that it was the constitutionality of that subsection that fell for our determination.  We have now determined that issue; but it would, we are satisfied, be unsatisfactory, merely because in these particular cases it was not necessary to invoke that presumption since possession in law was admitted, not to determine whether the reverse onus imposed by section 47(1) is compatible or incompatible with articles 39 and 87 of the Basic Law and article 11(1) of the Hong Kong Bill of Rights Ordinance.  The presumption in section 47(2) is, as was said in Sin Yau-ming, a presumption upon a presumption, the first being that in section 47(1).  It is clear that the burden imposed by the reverse onus in section 47(1) is also, on its face, a persuasive burden; and the tests for compatibility, and the matters at stake, are the same for the two subsections.  It is but a matter of chance that the Lambert issue has come before us on a factual basis to which section 47(2) rather than section 47(1) applies.

126. Applying the same reasoning and considerations as those we have applied to our consideration of the reverse onus required by section 47(2), we are similarly satisfied that it is not demonstrated that a persuasive onus upon an accused to show that he did not know of the presence of, or did not intend to possess, the item or substance in the container in his physical possession, which item or substance transpired to be a dangerous drug, goes no further than is necessary to accomplish the objective of the statute.  There is no question but that the presumption is directed at a central ingredient of the offence; and that it derogates from the presumption of innocence.  Whilst we are satisfied that there is a rational connection between the primary fact and the presumption – that is to say, between physical possession of an object and an intention to possess it – the fact is that a person who fails to discharge the reverse onus is subject to the possibility of a very substantial term of imprisonment in circumstances where a jury concludes that it is as likely as not that the accused was unaware of, and did not intend to possess, the object or substance in question.  The point we made at paragraph [121] above about the experience of judges in this jurisdiction as to the utility of the presumption under section 47(2) applies equally to the case of section 47(1).  Whereas it may be said in the case of a person who knows that he is in possession of a package, that there arises some responsibility upon him to examine the contents, the same expectation does not necessarily arise in the case of a person who asserts that an article has been placed in his physical possession without his knowledge.  Furthermore, we are not persuaded that measures less intrusive than a persuasive onus would be ineffective to deal with such problems of proof as may be suggested to arise in proving possession in law.

127. Accordingly, it follows that the reverse onus imposed by section 47(1) of the Dangerous Drugs Ordinance, if read as constituting a persuasive burden, is incompatible with articles 39 and 87 of the Basic Law, and article 11(1) of the Hong Kong Bill of Rights Ordinance.

‘Reading down’

128. Once their Lordships in Lambert had concluded that section 28 of the Misuse of Drugs Act, if read as imposing a persuasive burden on an accused, was incompatible with European Convention rights, they moved to the question whether it was possible to read section 28 in a manner that was compatible with those rights.  That they were bound to do, by reason of section 3(1) of the Human Rights Act 1998, which stipulates that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

129. Since their Lordships had concluded that it would be sufficient, and compatible with Convention rights, to impose an evidential burden, the specific question was:

“… whether the words ‘to prove’ in section 28(2) and ‘if he proves’ in subsection (3) may be read as placing only an evidential burden on the accused as Professor Glanville Williams suggested in “The Logic of ‘Exceptions’” [1988] CLJ 261,264-265.

per Lord Steyn at page 574, para [42].

130. In Lam Kwong-wai, at paras [69] and [70], the consequential issue arose whether the section under consideration was “amenable to surgery by which an offending aspect may be excised so as to leave the non-offending aspect in tact”, and to that end counsel were recalled for argument.  The court was taken to an array of suggested reconstructive weaponry unavailable in this jurisdiction but it will be seen at para [71] of that judgment that the court was invited to ‘"read down" the section so as to require only an evidential burden’, the judgment adding that ‘the words of the section did not so permit, even had we the power to do so’.  That was because the words in question exonerated an accused from criminal culpability only “if he satisfies the magistrate” that he was not in possession for a proscribed purpose.  

131. It is now said that by reason of two specific instruments, to which we shall shortly turn, the courts have the power to ‘read down’ a provision in that there is imposed an obligation upon the courts so to construe laws in force prior to the resumption of the exercise of sovereignty in July 1997 as to render them compatible with the Basic Law.  We say ‘now’ because neither provision was drawn to the court’s attention or relied upon in the course of either oral hearing in Lam Kwong-wai, although we note that the second of the two provisions now relied upon was mentioned in one sentence of a post-hearings note sent by the respondent to the Court on quite another topic, namely, the meaning of ‘public place’, and both provisions mentioned in another note sent by the applicant’s counsel.  It suffices to say that given the phrase under scrutiny in that case, the provisions now prayed in aid would there, we suggest, have made no difference.

132. By a decision of the Standing Committee of the National People's Congress adopted on 23 February 1997, it was determined that, inter alia:

“Such of the laws previously in force in Hong Kong which have been adopted as the laws of the Hong Kong Special Administrative Region shall, as from 1 July 1997, be applied subject to such modifications, adaptations, limitations or exceptions as are necessary so as to bring them into conformity with the status of Hong Kong after resumption by the People's Republic of China of the exercise of sovereignty over Hong Kong as well as to be in conformity with the relevant provisions of the Basic Law.” 

133. This decision is reflected by section 2A (1) of the Interpretation and General Clauses Ordinance, Cap 1:

“All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People's Republic of China.”

134. This provision, so far as we are aware, and so we are informed by counsel, has not previously been invoked in constitutional challenges in this jurisdiction.  It is suggested by the respondent that the terms of section 2A confer upon the court the power, indeed constitute a requirement, to construe the onus as to knowledge of the nature of the substance shown to be possessed (the onus, in our judgment, in section 47(2)) as an evidential onus in much the same way as section 3 of the Human Rights Act conferred that power and imposed that obligation upon the Court in Lambert.  We proceed on to the basis that the same invitation is made in relation to the onus in section 47(1).

135. It is, in our judgment, inappropriate to engage section 2A of the Interpretation and General Clauses Ordinance for the purpose suggested; nor necessary for this court to consider the circumstances for which the application of section 2A were intended.  That is because, whatever those circumstances, that section envisages ‘modifications, adaptations, limitations and exceptions’, none of which is an apt description of an exercise in choosing between two or more available interpretations of the same word or phrase, which as we shall see is all that is required in the present instance.  It seems trite that where there exist two reasonably possible interpretations of a statutory provision, one consistent with an international obligation or a constitutional requirement, the other inconsistent, then it should be presumed that the legislature intended the meaning that was consistent; and in choosing the meaning which complies with the international obligation or constitutional requirement (in this case the requirements of the ICCPR as applied to Hong Kong), one is not modifying, adapting, limiting, or excepting: one is simply applying a canon of interpretation to a word or phrase as it appears in context.  Nor does one need an express provision along the lines of section 3 of the Human Rights Act to give life to such an approach to interpretation, for what section 3 does is to give statutory expression to the principle of legality:

“In the absence of express language or necessary implication contrary, the courts … presume that even the most general words were intended to be subject to the basic rights of the individual.  In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expresly limited by a constitutional document.

The Human Rights Act 1998 will make three changes to this scheme of things.

First, the principles of fundamental human rights which existed common law will be supplemented by a specific text, namely the European Convention … .

Secondly, the principle of legality will be expressly enacted as a rule of construction in section 3 … .”

per Lord Hoffman in R v Secretary of State for the Home Department, Ex p. Simms [2000] 2 AC 115, 131-132.

136. We have seen that sections 47(1) and (2) were enacted in their present form in 1992; that is to say, after promulgation of the Basic Law in 1990, but before the Basic Law took effect on 1 July 1997.  Nonetheless, at the date of their enactment the provisions of the International Covenant on Civil and Political Rights applied to Hong Kong, subject to certain reservations, not only as a matter of international obligation upon those then exercising sovereignty over the territory; but also as part of domestic legislative law by reason of the enactment in June 1991 of the Hong Kong Bill of Rights Ordinance; and, further, article VII(3) of the Letters Patent then in force provided that:

“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 ICCPR] as applied to Hong Kong.”

See, too, in this context, that section 3 of the Bill of Rights Ordinance, since repealed, then provided that:

“	(1)	All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.
	(2)	All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.”

137. It follows that the presumption to which we have referred, that in the face of competing available constructions, the legislature should be taken to have intended a provision compatible with the requirements of the Covenant, is a presumption which can safely be applied to the enactment in 1992 of sections 47(1) and (2) as presently framed.

138. The correct question, therefore is whether it is reasonably possible to construe the words “until the contrary is proved” in section 47(1) of the Dangerous Drugs Ordinance as imposing only an evidential burden upon an accused, so that the phrase in its effect is to be taken as reading “unless sufficient evidence is given to the contrary.”

139. The route by which such a construction was reached in Lambert is most succinctly to be seen in that part of Lord Steyn’s judgment at pages 574-575, paragraph [42].  See also Lord Hope at pages 588-590.  The starting point is part of an article by Professor Glanville Williams ‘The Logic of ‘Exceptions’’ [1988] CLJ 261, in which he suggested that the words “unless the contrary is proved” could be taken to mean “unless sufficient evidence is given to the contrary”; and it is that approach, that that was a possible meaning, that enabled the House of Lords so to construe the section under review in Lambert.

140. We were initially minded to the view that such a construction offended the plain words and intent of the subsections, and that it was not intellectually feasible to read them as imposing only an evidential burden.  In that scepticism, we found support in R v Phillips [1991] 3 NZLR 175, where Cooke P (as he then was) referred to Professor Glanville Williams’ article and said in relation to it, at page 177:

“With the utmost respect to him, we are not persuaded that the ordinary and natural meaning of the word ‘proof’ or ‘proved’ is capable of extending so far.  To suggest that section 6(6) of the Misuse of Drugs Act can be read in the sense contended for is, in our view, a strained and unnatural interpretation which, even with the aid of the New Zealand Bill of Rights Act, this court would not be justified in adopting…. [Section] 6(6) of the Misuse of Drugs Act is, in our opinion, simply not open to the interpretation sought to be placed upon it for the accused.”

141. As we see from Lambert, paragraph [44], the question had previously been addressed in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326, where the argument, reflecting Professor Glanville Williams’ suggestion, was described by Lord Steyn as a respectable argument and where Lord Cooke, recalling the opinions he expressed in Phillips, nonetheless took the view (page 373) that upon an application of the terms of section 3 of the Human Rights Act, which differed from the terms of section 6 of the New Zealand Bill of Rights Act, the suggested construction was a possible meaning, even though not its natural and ordinary meaning.

142. The basis for holding it to be a possible meaning seems elusive if one restricts the sense of “prove” to its modern usage.  But the basis for Professor Glanville’s approach becomes more readily acceptable upon a broader approach to the word.  Albeit without reference to the Professor’s article, that broader sense has been explained thus:

“To speak of the ‘evidential burden of proof’ is a solecism, on one view, because the evidential burden does not require the proponent actually to prove anything in the sense of convincing the fact finder of the truth of any fact in issue. However, ‘proof’ might also be understood in a secondary, somewhat archaic sense, as a verb rather than noun, referring to the evidentiary labours of the parties in proving (adducing, establishing) particular facts. The evidential burden does impose a burden of ‘proving’ facts in this second sense, to a threshold standard much less than convincing proof.”

‘Criminal Evidence’ Roberts and Zuckerman (2004), page 333.

See also Viscount Sankey’s judgment in Woolmington v DPP [1935] AC 462, at pages 474 and 480, for examples of the more archaic usage.

143. We are, in the event, satisfied that on the principles of interpretation which we are enjoined to apply, it is reasonably possible, and therefore incumbent upon us, to construe the presumptions enacted by sections 47(1) and (2) of the Dangerous Drugs Ordinance as presumptions that each create an evidential onus only, and that the provisions are not to be regarded as imposing persuasive burdens of proof.

144. The practical approach to this evidential burden is the same as when that burden arises in other contexts; for example, where the issue of provocation or self-defence is raised: see para 4-194 Archbold Hong Kong 2005 and 4-382 Archbold 2005.  We suggest that in cases where either presumption under subsection 47(1) or (2) has been engaged, the following principles should be applied:

(1)	It is for the judge to determine whether sufficient evidence has been adduced to constitute an issue fit to be left to the jury.
(2)	The burden may be discharged regardless of the quarter from which the evidence derives.  In other words, the evidence upon which the accused may rely in this regard may emanate from the prosecution or in the testimony adduced by the accused.
(3)	An evidential burden is not discharged by the mere mouthing of words by an accused, whether to the police upon apprehension, or to the court in testimony, that he was unaware that the container housed a dangerous drug.  It is, as Lord Steyn commented in Lambert, at page 572:
	‘	… important to bear in mind that it is not for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter …’;
	and, whilst the exculpatory evidence may come from any quarter, we respectfully endorse the conclusion by Lord Hope in the same case, at page 588, that:
	‘	… an evidential burden is not to be thought of as a burden which is illusory.  What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence.’
(4)	In jury trials, judges should avoid giving directions as to what does and what does not constitute an evidential burden and whether or not such a burden has been discharged.  By the time of a summing up, the issues will have crystallized and a judge will have determined, if necessary after hearing counsel, whether sufficient evidence as to lack of knowledge (whether as to the presence of the item, or as to the nature of the item, or both) has been adduced to raise an issue fit to be left to the jury.  If the judge decides that the evidential burden has been discharged, he will then tell the jury – with such adaptation as the circumstances may require – that the accused says that he did not know that the item was in his possession, or that the item was a dangerous drug, as the case may be, and that it is for the prosecution to prove that he did so know, and not for the accused to prove that he did not; and that if what the accused asserts is or may be true, he is entitled to be acquitted.

Consequences

145. In the normal course, the consequences of a finding that the imposition of a persuasive burden is unconstitutional and that, instead, the statutory provision should be read as imposing an evidential burden only would, for the purposes of the court's judgment in the case, be restricted to a consideration of the consequences for the particular applicants.  In this case, however, we have been asked by the respondent to consider an altogether unusual course.  What we are invited to do – with a qualification we shall presently state – is to declare that the effect of our decision shall be prospective, so that it will apply only to such cases that are determined hereafter.  This is to ask the court to apply the device of prospective overruling, a concept not unknown to law; although, so far as we are aware, this is the first time that the invitation has been raised in this jurisdiction, certainly so far as concerns its suggested application to the criminal law.  The point was raised late in the day – only a matter of days before the hearing – and although counsel have collated some authorities with which to canvass the issue, it is evident that the subject matter, if it is to be pressed, is complex and requires painstaking research and detailed and considered argument.  Although Mr Grossman has helpfully put forward brief written submissions on the point in answer to those of Mr McCoy, he has had scant notice of the issue and, more particularly, it is not, for reasons we shall presently explain, an issue that affects his clients.  In these circumstances, we informed counsel that in the event that we were to hold against the respondent on the issue of the persuasive burden, we would hear full argument on another occasion in respect of the respondent’s application to limit the effect of our decision, with the benefit, if we see fit, of submissions by an amicus curiae.  Given our determination that the persuasive burdens are incompatible with the protection afforded defendants by the Basic Law, a date will be fixed to hear submissions in respect of the respondent’s invitation to declare the effect of that determination to be prospective only.

146. By definition, prospective overruling, in its pure form, affects future cases and ‘does not apply to the case at bar, to the public at large or to pending cases’: see ‘Overruling Precedent’, Barak Vol 21 Israel L. Rev. 269, 292.  Mr McCoy does not invite the court to take that approach.  Instead, he asks the court to declare its decision to benefit the present applicants; but otherwise to apply only to cases determined hereafter, to appeals or reviews pending at the date of this decision, and to cases where the time for filing an application for leave to appeal or for review has not at the date of this decision expired.  The technique by which a prospective ruling, where made – and we emphasize that the issue of prospective over-ruling is yet to be argued and considered – benefits the applicants in the particular case has been labeled ‘prospective – retroactive overruling’: see Barak, supra, page 292; so that, on any view, Mr McCoy’s concession is not inconsistent with the proposed application.  So we propose to proceed on the footing that whatever our decision in respect of that application, the determination made by this judgment as to the effect of section 47(2) will apply to the cases of the present applicants.

147. The consequential course in the case of the applicant Hung poses no difficulty in the sense that it is not suggested by the respondent that it is a case appropriate for the application of the proviso to section 83 of the Criminal Procedure Ordinance.  Given the events in his case that we have described, that is an obviously sensible concession to make.  Accordingly, we grant the applicant Hung leave to appeal against conviction and, treating the hearing of the application as the appeal, his appeal is allowed and the conviction set aside.  There is no opposition to the application for a retrial, and it is appropriate, given the seriousness of the case and the nature of the evidence, that a retrial should take place.  Accordingly, we order that he be retried for the offence alleged by the indictment.  He is remanded in custody pending determination of that retrial.

148. In the case of Atsushi, Mr McCoy invites the court to apply the proviso.  The assertion is that the case against him was overwhelming.  We do not think it appropriate to apply the proviso.  This is an applicant of young age with no previous convictions, in respect of whom it was suggested at trial that he came across as unusually naïve.  The circumstances in which he presented the rucksack for checking at the airport counter might well be said to be unusual.  Most particularly, we cannot know to what extent the reverse onus, in respect of which the jury was directed, affected their decision.  In his case, too, we grant leave to appeal against conviction, treat the hearing of the application as the appeal, allow the appeal, set aside the conviction, and order that he be retried in respect of the offence alleged by the indictment upon which he was arraigned.  He is remanded in custody pending determination of that retrial.