HKSAR v. MOHAMMED KHAN SHAMIM

CACC 269/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 269 OF 2012

(ON APPEAL FROM DCCC 1113 OF 2011)

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REASONS FOR JUDGMENT

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Hon Lunn JA (giving the Reasons for Judgment of the court) :

1.  With the leave of the single judge, Lunn JA, granted on 18 September 2012, the appellant appeals against his conviction after trial on 12 June 2012 by District Court Judge Geiser of an offence of possession of Arms without a licence on 19 May 2011, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238. Leave to appeal against conviction was granted having regard to the issue of the validity of the presumption of knowledge, provided for by section 24(2) of the Ordinance, upon which the judge stated he had relied. At the hearing of the application for leave to appeal against conviction the appellant was unrepresented and, entirely properly and consistent with counsel’s duty to the court, the issue was raised with the court by counsel for the respondent.

2.  At the hearing of the appeal we dismissed the appeal and said that we would give our reasons in due course.  This we do now.

3.  The offence was alleged to have been committed at the appellant’s home, namely Room 2, Flat 6, 17^th floor, Block D, Chungking Mansions in Nathan Road.  The appellant had pleaded guilty to a charge of unlawful possession of a dangerous drug, namely 1.02 grams of methamphetamine hydrochloride and 6.85 grams of cannabis resin at the same time and place, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134.

THE TRIAL

The prosecution case

4.  The prosecution case at trial was that in the course of executing a search warrant of the appellant’s premises on 19 May 2011 a stun gun had been discovered contained in a red plastic bag, which was itself contained in a plastic box, on a windowsill beneath an air conditioner inside the premises.  In addition, the prosecution relied on qualified admissions made by the appellant in a video recorded interview conducted of him on 20 May 2011.  In that interview, the appellant said that he had found the stun gun in a table which he had found and retrieved from a rubbish bin some two years earlier.  Having brought it to his home he had forgotten about it abandoning it in a corner of his premises.  For his part, the appellant asserted that he believed the implement was a battery charger, not a stun gun.

The defence case

5.  In the defence case, issue was taken as to the admissibility of the video recorded interview of the appellant.  The appellant testified that he had been subjected to violence and threats by police officers and then offered inducements to participate in the interview.  On the general issue, the appellant testified that the stun gun had not been found inside his premises as described by the police officers.  Rather, it had been found outside the premises, into which it had been brought by a police officer through a window in the premises that the officer had opened.  The effect of the appellant’s evidence was that he had been framed by the police in respect of the stun gun.

The reasons for verdict

6.  In his reasons for verdict, the judge stated that, after hearing evidence from both the prosecution and the defence, he had ruled admissible the video record of interview of the appellant.  Of that interview, the judge observed that, whilst the appellant had admitted possession of the implement, he had denied that he knew it to be a stun gun.  He thought it to be a battery charger, which he had picked up from a rubbish bin.  In his evidence on the general issue the appellant adopted the evidence that he had given on the special issue.

7.  The judge said of the material answers of the appellant in the video record of interview in respect of the stun gun[1] :

“ I do not accept his answers to questions put to him regarding the stun gun as being truthful; in particular, I do not accept as being truthful the defendant’s statement that he picked it up in a dustbin thinking it was a battery charger. This flies in the face of common sense.”

8.  Similarly, the judge rejected the appellant’s evidence “in its entirety”, dismissing it as being “nothing more than lies” [2]. In particular, he rejected the appellant’s evidence that he had been framed by the police.  He found that the stun gun had been found, as testified to by DSPC 51286, inside the premises contained, “inside a plastic box on the windowsill underneath the air-conditioner” [3].

9.  Having noted that the appellant’s premises were “extremely small”, the judge stated that he drew the irresistible inference that in consequence the appellant, “must have known of the presence” of the stun gun.  In consequence, he found that it was “under his control and thereby in his possession” [4].

10.  Then, the judge adverted to section 24(2) of the Ordinance, observing that it provided that [5]:

“ ...any person who is proved to have arms, a stun gun being defined as arms, in their possession shall until the contrary is proved be presumed to have known of the nature of such arms.”

11.  Finally, having repeated the fact that he rejected the appellant’s contention that he thought the implement to be a battery charger, the judge concluded [6],

“ I therefore say that I am satisfied that the prosecution has proved the charge against the defendant…”

GROUNDS OF APPEAL AGAINST CONVICTION

12.  On behalf of the appellant, Mr Bernard Yuen advanced a single ground of appeal, namely that the judge erred in law in relying on the presumption of knowledge provided for by section 24(2) of the Ordinance to convict the appellant.  He submitted that the provision is, “constitutionally invalid because it unduly derogates from the presumption of innocence and from the right to a fair trial which are protected by the Basic Law and the Hong Kong Bill of Rights”.

13.  Mr Yuen relied on the judgment of Sir Anthony Mason NPJ in the Court of Final Appeal, with whom the other judges agreed, in Lam Kwong Wai & Another v HKSAR [7] as identifying the appropriate approach to be adopted by a court faced with a constitutional challenge to a statutory provision which provided for a reverse burden.  Applying the relevant issues identified at pages 595 H – 596 B, paragraph 29 of the judgment to the consideration of section 24(2) of the Ordinance, he submitted that the appropriate sequential steps to be taken were :

(i)   to ascertain the meaning of section 24(2) according to accepted common law principles of interpretation;

(ii)   to consider whether that interpretation derogates from a presumption of innocence and the right to a fair trial as protected by the Basic Law and the Bill of Rights;

(iii)   if the question is answered “Yes”, whether the derogation can be justified having regard to the tests of rationality and proportionality;

(iv)   if not, whether it could result in contravention of the Basic Law or the Bill of Rights; and

(v)   if invalidity could result, whether the section or part of it can be saved by the application of any rule of construction, severance of the offending part, reading down, reading in or any other remedial techniques available to the court.

As to (i): reverse burden

14.  Having noted that section 24(2) provides, inter-alia, that any person who is proved to have arms in his possession “shall, until the contrary is proved, be presumed to have known the nature of such arms...”, Mr Yuen submitted that it was clear that it operated to impose a reverse persuasive onus on the balance of probabilities.  Assistance in reaching that conclusion, if any was needed, lay in the judgment of the Court of Final Appeal in HKSAR v Hung Chan Wa [8], in which the court construed section 47(2) of the Dangerous Drugs Ordinance, Cap. 134, which was an almost identically worded section in the context of dangerous drugs and came to that conclusion.

As to (ii): derogation from the presumption of innocence

15.  Similarly, relying on the judgments in Hung [9] and in Lam [10], Mr Yuen said that it was clear that since section 24(2) operated to place the legal persuasive burden of proof on a defendant that allowed a defendant to be convicted if he failed to discharge that burden, even if the prosecution failed to prove all the elements of the offence beyond reasonable doubt.  Accordingly, the provision was inconsistent with the presumption of innocence.

As to its (iii) and (iv) : can the derogation be justified?

16.  Mr Yuen submitted that the appropriate approach to the resolution of whether the derogation could be justified is to be found in the judgment in Lam [11], namely whether the derogation was rationally connected with the pursuit of a legitimate societal aim and, secondly whether the imposition of the reverse persuasive onus was no more than was necessary to achieve that legitimate aim.  He accepted that in Lam [12] the court found section 20(3)(c) of the Ordinance, a similarly worded presumption in respect of imitation firearms, to satisfy the rationality test and conceded that section 24(2) of the Ordinance satisfied that test.  However, Mr Yuen invited the court to note that in Lam [13] the former provision was found not to satisfy the proportionality test.  There, the court determined that an evidential burden would have been sufficient.  He invited the court to come to the same conclusion in respect of section 24(2) of the Ordinance.

As to (iv): remedial measures

17.  Mr Yuen submitted that, whilst the court did have power under the Basic Law to make a remedial interpretation of a statutory provision which goes beyond the ordinary common-law interpretation, it should exercise extreme caution in the exercise of such power, but that it had (Lam [14]), “the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent.”  He submitted that the court should adopt that approach in respect of section 24  (2), so that it should be read as imposing on the defendant an evidential burden only.

The effect of construing section 24(2) of the Ordinance as imposing an evidential burden only

18.  Mr Yuen submitted that, if this court determined that section 24  (2) of the Ordinance was to be read as imposing on the appellant at trial an evidential burden only, the judge’s finding that the appellant knew the nature of the arms, namely the stun gun, was in error.  The judge made clear the basis on which he convicted the appellant, namely :

(i)   from primary facts, namely his finding that the stun gun was found within the appellant’s extremely small premises, the judge drew the inference that the appellant knew of the presence of the stun gun;

(ii)   from that finding, he determined that the stun gun was under his control and thereby in his possession;

(iii)   section 24(2) operated so that having been proved to have had the stun gun in his possession, the appellant was presumed to have known its nature “until the contrary is proved”; and

(iv)   the judge rejected the appellant’s testimony as untrue that he thought it to be a battery charger.

19.  Mr Yuen submitted that the logic of the judge’s analysis was obvious.  Having found the appellant to be in possession of the stun gun, the judge relied on the operation of the presumption of knowledge.  His rejection of the appellant’s explanation out of court and of his testimony as to his knowledge of the nature of the implement had the effect of leaving the presumed knowledge unimpaired.  He had failed to rebut the presumption and, in consequence, the judge found him guilty.

20.  By contrast, the construction of 24(2) as imposing an evidential burden only on the appellant required of him only that he point to some evidence in the case that could cast reasonable doubt on his knowledge of the nature of the implement.  That evidence came from his out-of-court statements as to his understanding of the nature of the implement, namely a battery charger.  The appellant had discharged the evidential burden.  Then, it was for the prosecution to prove his knowledge as to the nature of the implement and to do so beyond reasonable doubt.  They failed to do so.

The Respondent’s Submissions

21.  On the behalf of the respondent, Mr Jonathan Man conceded the force of the arguments advanced on behalf of the appellant to the extent that he accepted that section 24(2) was to be construed as imposing a reverse persuasive burden on the appellant, which burden was a disproportionate derogation from the presumption of innocence since, the imposition of an evidential burden was a sufficient means of achieving the legislative objective.  In consequence, he invited the court to apply a remedial interpretation of the provision, construing it as providing for an evidential burden only.

22.  Thereafter, Mr Man took issue with the submissions advanced on behalf of the appellant.  On the assumption that the judge had considered wrongly that the provision imposed a persuasive burden on the appellant, he submitted that this court should apply the proviso, pursuant to section 83N(1) of the Criminal Procedure Ordinance, Cap. 221, and dismiss the appeal.  He contended that a jury properly directed at to the effect of section 24(2) of the Ordinance, namely that it placed an evidential burden only on the appellant, nevertheless would have convicted the appellant of the offence.  The imposition of an evidential burden on the appellant required of him that he adduce or otherwise be able to rely on evidence which was sufficiently substantial to raise a reasonable doubt that he did not know of the nature of the stun gun.  There was no such evidence.  The judge rejected the appellant’s account, namely that he believed the implement to be a battery charger.

23.  In the alternative, Mr Man submitted that in the absence of any presumption at all arising from section 24(2) of the Ordinance there was overwhelming circumstantial evidence that the appellant knew of the nature of the implement, namely that it was a stun gun.

A CONSIDERATION OF THE SUBMISSIONS

24.  Section 13 of the Ordinance creates the offence of which the appellant was convicted and provides :

“ (1) No person shall have in his possession any arms or ammunition unless-

(a) he holds a licence for possession of such arms or ammunition or a dealer’s licence therefor;

(2)   A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $100,000 and to imprisonment for 14 years.”

25.  Section 24 of the Ordinance provides :

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

(a) anything containing arms or ammunition, or both;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar containers containing arms or ammunition, or both,

shall, until the contrary is proved, be presumed to have had the arms or ammunition, or both, as the case may be, in his possession.

(2) Any person who is proved or presumed to have had arms or ammunition, or both, in his possession shall, until the contrary is proved, be presumed to have known the nature of such arms or ammunition, or both, as the case may be.

(3)   The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the arms or ammunition, or both, as the case may be.”

26.  It is to be noted that the context in which the judge came to invoke the presumption provided for by section 24(2) of the Ordinance is that in her closing speech counsel for the respondent drew the judge’s attention to the provision and stated in terms that the prosecution relied on the presumption.  For his part, Mr Yuen, who appeared for the appellant in the lower court, submitted that since the prosecution had failed to prove on the evidence that the appellant was in possession of the stun gun section 24(2) did not arise.  In the alternative, he suggested that if it did arise the evidence produced in the appellant’s video record of interview and other circumstances in which the stun gun had been found was “cogent and strong enough to rebut any presumption arising out of section 24(1) or (2)”.

27.  Regrettably, no submission was made by either counsel that first, the court ought to consider the validity of the presumption, notwithstanding the fact that its validity had been alluded to and discussed, but not decided, by the Court of Final Appeal in 2005 in Chou Shih Bin v HKSAR [15].  There the appellant’s appeal was allowed on the “substantial and grave injustice limb”.  Nevertheless, Bokhary PJ, in a judgment, with which all the other judges agreed, said [16] :

“ Section 24 is a reverse-onus provision. Such a provision evokes consideration of the right to a fair trial and the presumption of innocence constitutionally guaranteed by s. 8 art 10 and s. 8 art 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383) as entrenched by art 39 of the Basic Law of the Hong Kong Special Administrative Region.”

28.  He went on to state:

“ Where a reverse-onus provision goes so far as to presume the very gravamen of the offence, its construction and constitutionality will come under very close scrutiny.

In Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601 we cited the decision of the House of Lords in R v Lambert [2002] 1 AC 545 and that of the Supreme Court of Canada in Downey v R & Others (1992) 72 CCC (3D) 1.  We said (at pp. 618 J – 619 A) that ‘[a] shifting of the evidential burden only may be safe from a constitutional challenge even where a shifting of the legal burden itself would be vulnerable to such a challenge.’ ”

29.  We are satisfied that the concessions made by Mr Man, in face of the submissions of Mr Yuen as to the proper approach to the construction of section 24(2) of the Ordinance and as to the conclusions to be reached, are properly made.

30.  Article 87 of the Basic Law and Article 11(1) of the Bill of Rights provide constitutional protection of the presumption of innocence [17], which presumption at common law is the basis of the central rule of the criminal law which requires the prosecution to prove the defendant’s guilt of the offence charged beyond reasonable doubt [18].

31.  Clearly, section 24(2) of the Ordinance operates to impose a persuasive burden upon a defendant.  Accordingly, section 24(2) of the Ordinance derogates from the presumption of innocence.

32.  Whilst the imposition of that burden satisfies the rationality test, given the societal interest in preventing, suppressing and punishing serious crime arising from the possession and use of arms and ammunition, we are satisfied that it does not satisfy the proportionality test.  The imposition of an evidential onus on the defendant would be sufficient to satisfy societal interests.  Accordingly, there is no justification for the derogation from the presumption of innocence by the operation of section 24(2) of the Ordinance.

33.  As noted earlier, the court has the power and obligation to adopt a “remedial interpretation of a legislative provision which will, so far as it is possible make it Basic Law-consistent.” We are satisfied that can be done by construing section 24(2) of the Ordinance as imposing an evidential burden only on a defendant.

The effect on the appellant

34.  As stated earlier, it is clear that section 24(2) imposes a persuasive burden on the appellant.  Although the judge did not state specifically that to be the case, we are satisfied that it is that burden, rather than the evidential burden, that was imposed on the appellant.  Clearly, that was a material irregularity.

Proviso

35.  In those circumstances, it is necessary to consider, having regard to all the evidence, whether or not it is appropriate to apply the proviso.  The fact that the judge erred in imposing a persuasive burden on the appellant in respect of section 24(2) does not of itself require that the conviction be quashed.  The issue to be addressed is whether or not the appellant would inevitably have been convicted if the appropriate burden, namely the evidential burden, had been imposed on the appellant.  That much is readily apparent from the speeches of their Lordships in the House of Lords in R v Lambert [19]. There, the court was concerned with the operation of section 28 of the Misuse of Drugs Act, 1971, which provided a defence for an accused to prove that he neither knew of nor suspected nor had reason to suspect, on the facts of the particular case, that the nature of the contents of a bag that he was carrying, namely dangerous drugs.  The judge directed the jury that the section operation to impose a persuasive burden on the defendant, whereas their Lordships decided that it operated to impose an evidential burden only.  Nevertheless, on the facts of the particular case their Lordships were satisfied that the conviction was safe.  Of the appropriate approach, Lord Clyde said [20] :

“ In particular in the present context a direction that there is a persuasive burden on the accused to establish a defence under section 28 will not necessarily lead to an unsafe conviction. If there is doubt about guilt then the conviction must be held to be unsafe. But if there is no doubt about guilt it is not every case where unfairness can be identified that will necessarily and inevitably lead to quashing of the conviction.”

Evidential burden

36.  The effect of imposing an evidential burden on a defendant was described succinctly in the judgment of Lord Steyn [21] :

“ The matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution had the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way.”

37.  Of the sufficiency of evidence, Lord Hope said [22] :

“ But 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.”

38.  Stock JA, as he was then, noted in the judgment of this Court, differently constituted, in HKSAR v Hung Cha Wa & Another [23] that

“ ...the evidence upon which the accused may rely in this regard might emanate from the prosecution or in the testimony adduced by the accused.”

39.  It is clear that the defence advanced by the appellant at trial was that he was not in possession of the stun gun.  Rather, it was found by police officers outside the window of his premises.  So, it had nothing to do with him: he was framed.  He knew nothing of it.  However, in his record of interview, adduced into evidence by the prosecution, the appellant had said that he had found, what was now identified as the stun gun, in a drawer in a table that he had retrieved from a rubbish bin on the ground floor outside his premises.  He thought it was a battery charger.  That happened two years earlier.  He put the stun gun into a plastic bag and put it aside, ignoring it thereafter.

40.  Clearly, the appellant’s account in his record of interview was evidence which, if believed, could be taken by a jury to support his defence as articulated in the record of interview, namely that, although he was in physical possession of the implement, he did not know its nature.  By his testimony the issue was raised by a different route: he was not in physical possession of the implement and knew nothing of it.  In those circumstances, the evidential burden was satisfied, so that it was an issue fit to be left to the jury, or judge, as decider of facts.

41.  The issue of the appellant’s knowledge of the nature of the implement having been joined between defence and prosecution it was for the prosecution to prove that he did know its nature, not for the appellant to prove that he did not.  If the jury was satisfied that what the appellant had asserted in his out-of-court statement, or in his testimony, was true or may be true the appellant was entitled to be acquitted.

42.  As noted earlier, the judge rejected the appellant’s testimony that he had been framed by the police and found as a fact that the stun gun had been found inside the appellant’s premises as testified to by the police officers.

43.  Similarly, the judge stated that he did not accept the appellant’s answers, to questions put to him regarding the stun gun, as being truthful.  In particular, he stated that he found that to be the case in respect of the appellant’s answer that he had picked it up in a dustbin thinking it was a battery charger.  Of that, he said, “This flies in the face of common sense.”

44.  Relevant to the appellant’s assertion in the record of interview that he had put the stun gun aside, in effect abandoning it, after he had brought it to his premises in the table, was the admitted fact that those premises were “approximately 100 square feet” in area.  Clearly, the judge’s finding, that the room was “extremely small”, resonates with that admission.  More particularly, it was undisputed that the stun gun had been found beneath the air conditioner unit and next to the bed in the premises.  It was contained in an open plastic bag, itself in an open plastic box on top of other items.  It was in that context, that the judge found the appellant to be in possession of the stun gun.

45.  The photographs of the stun gun show that it is about 4 inches in length and 2 inches in width.  In the middle of its casing, it carries prominently the legend in English :

“ 3800 K VOLT

JSJ-800 TYPE

Direct-current

ultrahigh voltage”

46.  In response to questions posed in the record of interview as to the reference on the stun gun to “3800 K VOLT”, the appellant merely said that he was not an educated man.  However, in his testimony on the special issue, in the context of his evidence that he had been coached by Chief Inspector Coweison in English to provide some of the answers that he had given in the record of interview, the appellant conceded, “I do understand a little bit of English.  Not so much, but I do understand”.

47.  Also, it is to be noted from the photographs that the stun gun has two electrodes that protrude prominently and very obviously from one end of the casing.

48.  It was in the context of all the evidence, that the judge stated in terms that he rejected as untrue the appellant’s assertion in the record of interview that he thought the implement to be a battery charger.  Clearly, on a consideration of all the evidence, that finding was open to the judge.  Indeed, the evidence that led to a rejection of the appellant’s assertion was overwhelming.

Conclusion

49.  We were satisfied that, if the judge had directed himself correctly that the presumption in section 24(2) operated to place an evidential burden only upon the appellant, nevertheless, inevitably he would have convicted the appellant of the offence.  Accordingly, we dismissed the appeal against conviction.

[1] Reasons for Verdict, paragraph 32.

[2] Reasons for Verdict, paragraph 33.

[3] Reasons for Verdict, paragraph 34.

[4] Reasons for Verdict, paragraph 35.

[5] Reasons for Verdict, paragraph 36.

[6] Reasons for Verdict, paragraph 37.

[7] (2006) 9 HKCFAR 574

[8] (2006) 9 HKCFAR 614.

[9] HKSAR v Hung Chan Wa, paragraph 74.

[10] Lam Kwong Wai & Another v HKSAR, paragraph 41.

[11] Lam Kwong Wai & Another v HKSAR, paragraph 40.

[12] Lam Kwong Wai & Another v HKSAR, paragraph 42.

[13] Lam Kwong Wai & Another v HKSAR, paragraph 54.

[14] Lam Kwong Wai & Another v HKSAR, paragraph 78.

[15] (2008) 8 HKCFAR 70.

[16] paragraph 11.

[17] HKSAR v Ng Po On [2008] 11 HKCFAR 574, paragraph 20.

[18] Lam Kwong Wai & Another v HKSAR, paragraph 23.

[19] [2002] 2 AC 545

[20] R v Lambert, paragraph 159.

[21] R v Lambert, paragraph 37.

[22] R v Lambert, paragraph 90.

[23] [2005] 3HKLRD 291 at page 355, paragraph 144.