ATTORNEY GENERAL v. LEE KWONG KUT

Magistracy Appeal No 90 of 1992

Headnote

    Section 30 of the Summary Offences Ordinance Cap 228 is inconsistent with the Hong Kong Bill of Rights Ordinance and was repealed on 8 June 1991.

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J U D G M E N T

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Kempster, JA:

1. On 16 February 1991 Lee Kwong-kut was arrested and charged with having had in his possession while in transit at Apleichau, Aberdeen, $1.76m reasonably suspected of having been stolen or unlawfully obtained contrary to s 30 of the Summary Offences Ordinance (Cap 228) which provides:

"Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for 3 months."

"Suspicion", in its ordinary meaning, is "a state of conjecture or surmise where proof is lacking." per Lord Devlin in Hussien v Chong Fook-kam [1970] AC 942 at p 948.

2. Pursuant to these requirements and having been bailed meanwhile Lee was brought before Mr Acton-Bond on 2 September 1991 to give an account, to the satisfaction of that magistrate, of how he came by the monies. However, concluding that s 30 had been repealed by s 3(2) of the Hong Kong Bill of Rights Ordinance, the magistrate dismissed the charge. Section 3(2) reads:

"All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."

3. Being desirous of questioning such determination by way of appeal on the grounds of error of law the Attorney General applied to the magistrate to state and sign a case for the opinion of a judge. This, albeit the document is not accurate in all respects, he duly did and on 19 March 1992, pursuant to s 118(1)(4) of the Magistrates' Ordinance (Cap 227), Gall J reserved the appeal to this court.

4. Like similar provisions in the law of each of the states of Australia and of a number of former British colonies in Africa s 30 derives from s 24 of the Metropolitan Police Courts Act 1839 which was only repealed by the Criminal Law Act 1977. Such legislation was first enacted in Hong Kong by s 36 of the Summary Offences Ordinance 1845 under the cross-heading "Possession of Stolen Goods".

5. I understand the offence to be "Having in (his) possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained". The word "or", where it first occurs, is to be construed as "and". Hadley v Perks (1886) LR 1 QB 444; Tang Chi-kin v R Cr App No 851 of 1978 (Unreported); AG v Chiu Man-lun [1989] 1 HKLR 99. Also, despite the literal wording of the section, the prosecution must prove beyond reasonable doubt possession in the course of transit and circumstances giving rise, at the time of arrest, to reasonable suspicion that "the thing" has been stolen or unlawfully obtained (Hadley v Perks at p 459 per Blackburn J) after which the burden of proof rests upon the person charged to explain to the satisfaction of the magistrate before whom he is brought how he came by the same honestly. If, by his own evidence or that of another, he fails to discharge that burden upon the balance of probabilities (R v Hunt [1987] AC 352 at p 374) he is liable to a fine of $1,000 or to imprisonment for three months.

6. Far from being required to disprove the validity of the suspicion as to the provenance of "the thing" or any other expressed elements of the offence an accused is provided with the opportunity of establishing his own innocence and the absence of the mens rea normally required to warrant a criminal conviction. Sweet v Parsley [1970] AC 132; Gammon Ltd v AG of Hong Kong [1985] AC 1. The reason, in my view, is that implicit in the section are presumptions that "the thing" has unlawfully been come by to the knowledge of the person charged albeit, as literally enacted, the offence is based solely on "the suspicion attaching to persons having in their possession or conveying things in the public streets" per Shee J. in Headley v Perks at p 461. As Lord Goddard CJ pointed out in Flatman v Light [1946] 1 KB 414 at p 417 in relation to the Metropolitan Police Courts Act 1839 s 24 the section "is designed to cover cases where it is impossible to show at the time of the man's arrest that the property is stolen". He may well have had in mind his earlier comments on the like provision in s 507 of the Liverpool Corporation Act 1921:

"Its object is obvious, it is to confer additional power of arrest and punishment for being in unlawful possession of goods although it may not be possible to prove that the goods have actually been stolen or that the person in possession of them stole or feloniously received them so as to justify a charge of felony."

Dumbell v Roberts [1944] 1 All ER 326 at p 330. If, as I find, the section comprises presumptions it is inconsistent with the terms of s 8 and Article 11(1) of the Hong Kong Bill of Rights ordinance upon which the magistrate relied:

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

As Dickson CJC said in R v Oakes (1986) 26 DLR (4th) 200 at p 222, quoted with approval in R v Sin Yau-mina [1992] 1 HKCLR 127 at p 162:

"In general one must,I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt."

Section 11(d) of the Canadian Charter of Rights and Freedom gives any person charged with an offence the right "to be presumed innocent until proven guilty according to law". It has not been suggested that the presumptions, if properly found in the section, realistically follow from facts required to be proved and "are no more than proportionate to what is warranted by the nature of the evil against which society requires protection". R v Sin Yau-ming at p 163. Further, it would not accord with normal principles of construction to "read down" the burden imposed on an accused to that of raising a reasonable doubt; as submitted by Mr Bailey on behalf of the Attorney General, relying upon the East African Court of Appeal's decision in Ismail Abdulrehman v R (1952) 20 EACA 246, thereby "saving" the section as consistent with the Hong Kong Bill of Rights Ordinance: see s 3(l).

7. I am satisfied, for reasons which will follow, that s 30 of the Summary Offences Ordinance was repealed on 8 June 1991 and not before; though the point is academic.

8. It is unnecessary, in my opinion, to express any view on the submissions made to us in relation to Article 5(1) of the Bill of Rights or to the concept of strict liability.

9. Section 23 of the Interpretation and General Clauses Ordinance (Cap 1) reads:

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not -

(a)    revive anything not in force or existing at the time at which the repeal takes effect;

(b)    affect the previous operation of any Ordinance so repealed or anything duly done or suffered under any Ordinance so repealed;

(c)    affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed;

(d)    affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any Ordinance so repealed; or

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance had not been passed."

If these words are not sufficiently explicit support may be found in an English Court of Appeal decision on s 38 of the Interpretation Act 1889, which is in virtually identical terms, where it was held that the offence of being an accessary after the fact to a felony existed at the time the defendant committed it and that the statutory provisions providing for its indictment and punishment remained in force: the substantive changes made by s 4 of the Criminal Law Act 1967, abolishing the distinction between felony and misdemeanour, not being applicable retroactively. R v Fisher [1969] 1 WLR 8. This has been the law for a long time. "As a general rule an Act of Parliament which affects rights is not retrospective unless the intention of the legislature that it shall be retrospective is plainly expressed or implied" per Lord Esher MR in Ex parte Todd, In re Ashcroft (1887) 19 QBD 186 at p 195. " ... the court has always set its face against (legislation operating retrospectively) in the absence of the clearest statutory language." per Lord Bridge in Lewis v Lewis [1985] AC 828 at p 834.

10. In Charles Early Ltd v Smith [1978] QB 11 some women, invoking against their employers the Equal Pay Act 1970, were held by the Employment Appeal Tribunal not to be entitled to pursue their claims further back than the date of the commencement of that Act albeit its intent was to give effect to the obligations of the United Kingdom under Article 119 of the European Economic Community Treaty to which it had earlier adhered.

11. It is to be observed that Article 12 of the Hong Kong Bill of Rights, read together with s 4, specifically requires legislation imposing criminal liability or heavier penalties so to be construed as having no retrospective effect. On the other hand an offender may retrospectively have the benefit of a lighter penalty for which legislative provision is made subsequently to the commission of an offence.

12. The authorities just cited were not canvassed in argument since it was sought to make the Bill of Rights Ordinance applicable to the circumstances outlined in the Case only on the basis that, like ss 46(c) and (d)(v) and 47(1)(c) and (d) and (3) of the Dangerous Drugs ordinance (Cap 134), repealed as from 8 June 1991 for inconsistency with the Bill of Rights, (R v Sin Yau-ming at pp 149, 164, 165 and 169) section 30 was procedural in nature. This court has held that such legislation, providing for presumptions of guilt, could not be relied upon in the course of any subsequent trial. R v Li Kwok-wa Cr App No 350 of 1991 (Unreported). However, a decision that the relevant law is that which prevails at the date of trial in circumstances where there had been no change in the law since the commission of the offence under consideration [R v Lam Wan-kow Cr App No 201 of 1991 (Unreported)] cannot properly be read as vitiating the general principle that repeals take effect from the commencement of the repealing statute or ordinance.

13. If the section indeed comprises presumptions adverse to an accused they are apt to render him liable to imprisonment or fine when brought before a magistrate unless he successfully avails himself of the opportunity to rebut them. This is an important procedural element in the offence and the reasoning of this court in relation to s 10(1)(b) of the Prevention of Bribery Ordinance (Cap 201) [Ho Shing-tuen v R Cr App No 5 of 1979 (Unreported)] does not persuade me to the contrary. Accordingly I would go on to find that the magistrate was entitled to hold, as in effect he did, that the repeal of section 30 on 8 June 1991 precluded him, on 2 September following, from relying upon and therefore affording Lee Kwong-kut the opportunity to rebut the presumptions.

14. These findings may also be germane to the validity of s 11 of the Marine Stores Protection Ordinance (Cap 143) and of s 7 of the Public Stores Ordinance (Cap 144).

15. I would answer both questions posed by the magistrate in the Case - "Whether I was correct in holding that section 30 of the Summary Offences Ordinance (Cap 228) does not admit of a construction which is consistent with section 8, Article 11(1) of the Hong Kong Bill of Rights Ordinance 1991" and "Whether I was correct in holding that the said s 30 had been repealed in its entirety by virtue of s 3(2) of the said Bill of Rights Ordinance" in the affirmative and dismiss the appeal.

Sir Derek Cons, Atg CJ:

16. I am indebted to my Lord for setting out the background of this case and agree with him that both questions in the Case Stated should be answered in the affirmative.

17. The submissions by Mr Bailey for the Attorney General depend ultimately upon the premise that the offence created by Section 30 of the Summary Offences Ordinance consists, and consists only, of possession of the thing in question in the course of transit and in circumstances which establish objectively a suspicion that the thing has been stolen or unlawfully obtained. There is, he contends, no mental element involved, except in so far as it may be raised in the account which the accused chooses to give to the magistrate; it is however no part of the offence itself, which is one of strict liability, or in the Canadian terminology, one of absolute liability.

18. In my view that basic premise cannot be sustained. I am not persuaded that no mental element is involved in the offence itself. It seems to me that, taking the section as a whole, there is an implicit requirement that the accused violated in one way or another the true proprietorial rights in the thing in question. If not, there would be no necessity for the account given to the magistrate to be "to his satisfaction"; there is, in other words, a requirement to negate the otherwise reasonable suspicion that the thing has been stolen or unlawfully obtained.

19. Whether that mental element is shown by a presumption, as Mr McCoy who now appears for Mr Lee suggests and my Lord agrees; is a condition precedent to conviction, as per Griffith CJ, in Lee Fan v Dempsey (1907) 5 CLR 310; or its absence is a matter of defence to be established by the person charged, as per Palles CB, in Andrews v Lucas (1876) ILTR 146, seems to me to be immaterial. I respectfully adopt the words of Dickson CJC, delivering the judgment of the Supreme Court of Canada in R v Whyte (1988) 42 CCC (3d) 97:

"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.

The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."

20. It is conceded that the social concerns at which the section is directed are of insufficient moment to justify derogation from the Bill of Rights; and, although at one stage I was inclined to think otherwise, I am satisfied now that the requirement to give an account to the satisfaction of the magistrate is in effect procedural, so that the Crown would not, after 8 June last year, be able to rely upon an accused's failure to provide the same.

21. I would only add, in recognition of the industry of counsel, that although it has not been necessary to consider their submissions on the position taken in other jurisdictions, particularly Canada, with regard to provisions similar to other and further Articles in the Hong Kong Bill of Rights, for my part I found the submissions both interesting and instructive.

Bokhary, J.:

22. In my judgment, section 30 of the Summary Offences Ordinance, Cap 228 has been repealed by the Bill of Rights. For the section cannot, try as one may, be construed (as opposed to rewritten) so as to avoid inconsistency with article 11(1) of the Bill. That, in my judgment, is clear - whatever uncertainty may attend the other points explored before us, the resolution of which had best be left to another occasion on other occasions.

23. The reasons for the conclusion which I have reached may be stated quite shortly. Let us begin by refreshing our memory of the two provisions directly concerned.

Section 30 reads:-

"Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for 3 months."

And article 11(1) provides that:-

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

24. As can be seen, the section creates an offence, in relation to stolen or otherwise unlawfully obtained property. And it lays down punishment by way of a fine or imprisonment. One would not expect such a provision to be directed against honest men, punishing them not only in their pockets but also by putting them behind bars. And, indeed, whatever else may be obscure about the section's wording, it is clear from such wording that it aims to punish the dishonest while sparing the honest.

25. But it goes about that in a way which is utterly alien to the Common Law. For, on the crucial issue of whether the accused was honest or dishonest, it provides, in effect, that once a reasonable suspicion that he was dishonest has been established, it becomes for him to show that he was probably honest after all. Thus, on that crucial issue, reasonable suspicion alone converts a presumption of innocence into one of guilt. Such a state of affairs cannot possibly be consistent with the right to be presumed innocent guaranteed by the Bill of Rights.

26. Borrowing the expression "rationally and realistically follows" from my lord, Kempster JA's judgment in the dangerous drugs presumptions case, R v Sin Yau-ming [1992] 1 HKCLR 127 at p 163, I would say this. It would be one thing, given proportionality, to provide that an accused has to disprove (on a balance of probabilities of course) something which rationally and realistically follows from what the prosecution has proved (beyond a reasonable doubt of course). But it is quite another to say that he has to rebut something of which the prosecution has established no more than a reasonable suspicion. Nor, it might be added, are cases like the present one to be equated with cases in which someone is charged with doing without a licence something which is prohibited save when done under a licence. In that sort of case it is safe and sound sense, once he has been proved to have done it and his having a licence to do it has been challenged, to expect that he will take the simple step of producing his licence if he has one.

27. It will be noted that I have proceeded on the basis of what I see as the substance and reality of the matter. For what is involved here is an entrenched fundamental human right. And that being so, I am unattracted by any approach under which such a right may in any given case be lost or diminished through a rigid division of an offence into its ingredients and the particular defences to it. That was the approach urged on behalf of the prosecution. And I am no more attracted to such an approach than was the Supreme Court of Canada, when rejecting it in R v Whyte [1988] 42 CCC (3d) 97 at p 109, where the presumption of innocence entrenched by the Canadian Charter of Rights and Freedoms was under consideration.

28. Whenever an offence involves taking away the presumption of innocence, the Canadian courts, by reference to section 1 of their Charter, look to see if the provision taking it away "can be demonstrably justified in a free and democratic society". And, here in Hong Kong, we apply the threefold justification test of proportionality, rationality and realism, which this Court held in R v Sin Yau-ming (supra) must, by necessary implication, form part of the scheme of things created by our Bill of Rights. But, as Chief Justice Dickson said (at p 109) in delivering the judgment of the court in R v Whyte (supra), when it comes deciding whether or not the presumption of innocence has been taken away, the "real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists".

29. The prosecution suggests - rather tentatively it seems to me - that the United States Supreme Court sees things somewhat differently. The suggestion is made by reference to that Court's 1987 decision in Martin v Ohio 480 US 228, in which a challenge, made in reliance on the due process clause, to the constitutionality of certain state reverse onus legislation failed. The minority's view of the majority's decision seems to lend some support to the suggestion. But that does not seem to be how those in the majority view their own decision. And, in any event, such are the differences between the American understanding of the relevant Common Law rule and our more liberal one (based on the decision of the House of Lords in Woolmington v DPP [1934] AC 462) and also between the state legislation under consideration in that case and the section here in question, that little if anything is to be gained from that particular case for the determination of this particular one. Of. course, none of that is to say that American constitutional jurisprudence may not often be of considerable assistance to us in regard to the application of our own Bill of Rights.

30. The rights conferred and confirmed - and I add the word "confirmed" because the values concerned are not novel to us in this Common Law jurisdiction - by the Bill of Rights are not only fundamental but entrenched. For, as we all know, the Bill itself repeals all pre-existing legislative inroads into such rights, while the Hong Kong Letters Patent 1917 to 1991 (Nos 1 and 2) prohibit any future legislative inroad into them.

31. Protecting the individual from infringement of his rights is the duty of the courts. That being so, the courts should not countenance any denial of the substance and reality of his entrenched fundamental human rights whatever the form in which such denial is clothed.

32. Of course, it is not for a man to conjure up rights for himself out of his own imagination. For if he could do that, he would be doing it at the expense of the real rights of other people individually and collectively. That is one side of the coin.. This is the other. Where someone really does have an entrenched fundamental human right, then he must be fully protected in that right. And it is the duty of the courts to see that he is so protected and that he may rest assured that he will be so protected.

33. By the time when the trial commenced before the learned magistrate, the Bill of Rights was in force. And of course it would only be after the prosecution had established, at the trial, the existence of a reasonable suspicion of dishonesty on the part of the accused that any question of his having to dispel such suspicion arose. By then the Bill was in force, and that onus, along with the section under which it arose, had gone.

34. The questions posed in the stated case are: first, whether the learned magistrate was correct in holding that s 30 does not admit of a construction consistent with article 11(1); and, secondly, whether he was correct in holding that the section had been repealed accordingly. I too would answer both questions in the affirmative, and dismiss this appeal by the prosecution, doing so with an expression of my indebtedness to counsel on both sides for their assistance.