THE QUEEN v. SUEN SHUN AND OTHERS

Constitutional law - Hong Kong Bill of Rights - presumption of innocence, Article 11(1) - whether evidential burdens placed upon defendants by the presumptions in ss.18A(2) and s.35A(2) of the Import and Export Ordinance, Cap. 60 are compatible with Article 11(1).

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEALS NOS. 227/92, 484/92 AND 718/92

Judgment handed down: 4 December 1992

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J U D G M E N T

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Fuad, V.-P.:

1. These two appeals (MA 227 of 1992 and MA 484 of 1992) as well as the case stated (MA 718 of 1992) all arose out of separate criminal proceedings determined in the magistrates court. They were severely reserved for the consideration of this court pursuant to section 118(1) (d) of the Magistrates Ordinance, Cap. 227. With the consent of the parties we heard the three matters together for they all concern statutory provisions which are identical in terms or of precisely similar effect and the impact upon them of the Hong Kong Bill of Rights Ordinance, 1991.

2. The relevant provision of the Bill of Rights is Article 11(1):

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

3. The statutory provisions we are called upon to examine in the light of that Article are to be found in the Import and Export Ordinance, Cap. 60 ("the Ordinance") as amended by Ordinance No. 22 of 1991 which came into force on 19th April 1991. It is convenient to set out the relevant provisions here.

4. Section 18A of the Ordinance is in these terms:

"18A. Assisting, etc., in export of unmanifested cargo

(1) Any person who knowingly -

(a) has possession of any cargo;

(b) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any cargo; or

(c) otherwise deals with any cargo,

with intent to export the cargo without a manifest or with intent to assist another person to export the cargo without a manifest is guilty of an offence and liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(2) Any person who -

(a) has possession of any cargo;

(b) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any cargo; or

(c) otherwise deals with any cargo,

in circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to export the cargo without a manifest or to assist another person to export the cargo without a manifest, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary."

5. The material parts of section 35A are as follows:

"35A. Assisting, etc., in carriage of prohibited, etc., articles

(1) Any person who knowingly -

(a) has possession of any article, the carriage of which is restricted under regulations made under this Ordinance;

(b) .....

(c) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the carriage of which is restricted under regulations made under this Ordinance;

(d) - (f) .....,

with intent to evade the restriction or prohibition or to assist another person to evade the restriction or prohibition is guilty of an offence and liable on conviction to a fine of $500,000 and to imprisonment for 2 years.

(2) Any person who -

(a) has possession of any article, the carriage of which is restricted under regulations made under this Ordinance;

(b) .....

(c) assists with the carrying, removing, depositing, harbouring, keeping or concealing of any article, the carriage of which is restricted under regulations made under this ordinance;

(d) - (f) .....,

in circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to evade a restriction or prohibition or to assist another person to evade a restriction or prohibition, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary."

6. In MA No. 227 of 1992 the two appellants were charged and convicted of offences contrary to section 35A(1)(c) of the Ordinance and each sentenced to 4 months' imprisonment. The magistrate (Mr. J.M. Livesey) rejected certain arguments addressed to him by counsel for the appellants and ground 1 of the Notice of Appeal is:

"The ... magistrate erred in law in ruling that s.35A of [the Ordinance] did not violate Article 11 of the Bill of Rights and is repealed, in that such section replaces the necessity to prove mens rea beyond reasonable doubt by on 'reasonable suspicion' (sic)."

7. In MA No. 484 of 1992 the appellant was charged and convicted of an offence contrary to section 35A(1)(c) of the Ordinance and sentenced to 6 months' imprisonment. In his Statement of Findings, the magistrate (Mr. D.I. Thomas) indicated that he had been satisfied that the prosecution had proved the commission of the offence "without a consideration" of the presumption provided for in section 35A(2). He explained that he had raised the matter with counsel for the appellant but reliance on the Bill of Rights had been specifically disclaimed. The magistrate went on to say that had he been asked to rule on the matter, he would have ruled "that the presumption was reasonable, rational and proportionate to the evil against which it was directed." He would therefore have held that the prosumption had not been repealed. One of the appellant's grounds of appeal is that "the presumption ... is inconsistent with Article 11(1) of the Bill of Rights Ordinance and is therefore repealed by virtue of ... section 3(2) of the Bill of Rights Ordinance."

8. In MA No. 718 of 1992 the 1st respondent was charged with an offence contrary to section 35A(1)(a) of the Ordinance. The 2nd and 3rd respondents were each charged with offences contrary to section 18A(1)(c) of the Ordinance. In an admirably clearly stated case, the magistrate (Mr. Z.E. Li) explained why he had dismissed the informations, in this way:

    "11. I, however, being of the opinion that

(a) the correct approach to the question of whether the presumptions are compatible with Section 8, Article 11(1) of the BOR is contained in the following proposition from Kempster J.A. in the case of SIN Yau-ming (supra) at page 163 (line 18):

'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 Crown due regard being paid to the enacted conclusions of the legislature, that the fact to be presumed rationally and realistically follows from that proved and also if the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection.'

(b) That the presumptions contained in Section 18A(2) and 35A(2) are mandatory presumptions of fact in that the existence or absence of a specific purpose or specific intent is a matter of fact. The presumptions are mandatory presumptions as they 'will' (that is, must) arise as and when the conditions are fulfilled.

(c) That the issue of whether the presumptions are compatible with the BOR should not turn on what a defendant has or does not have to do to escape conviction. The enquiry should be confined to the effect of the presumptions on the manner in which the prosecution has to prove its case.

(d) That Sections 18A(1) and 35A(1) of the Import and Export Ordinance, the offences with which the Respondents were charged, consist of two essential ingredients :-

(1) That the defendant knowingly has possession of/deals with some particular goods; and,

(2) Intent to assist another person to smuggle the goods.

The Crown has to prove both ingredients beyond reasonable doubt.

(e) That Sections 18A(2) and 35A(2) of the Import and Export Ordinance give rise to a presumption as to the second ingredient of the offence if the following conditions are fulfilled :-

(1) There is proof beyond reasonable doubt of the first ingredient of the offence; and,

(2) There are circumstances giving rise to reasonable suspicion of the intent to be proved; and,

(3) There is an absence of evidence to the contrary.

(f) That in respect of the first condition for the presumption to arise, as the Crown has to prove knowing possession in any event the Crown therefore does not have to prove any additional fact to fulfill the first condition for the presumption to arise.

(g) That bearing in mind that the intent to be proved for the second ingredient of the offence is not general intent but specific intent independent of the first ingredient of the offence, one cannot say that the specific intent to be presumed follows rationally and realistically from the first condition.

(h) That in respect of the second condition for the presumption to arise, i.e. `circumstances giving rise to reasonable suspicion,' that even if the 'circumstances' are proved beyond reasonable doubt they need not amount to more than 'reasonable suspicion' and that since reasonable suspicion admits possibilities of innocence or other offences, proof of no, more than reasonable suspicion must necessarily present reasonable doubt (see Hussien v Chong Fook-kam [1970] AC 942 at p.948 CHENG Chun-wo [1989] 1 HKLR 600 at p.601. Leachinsky v Christie [1945] 2 All ER 395 at p.409.)

Furthermore, reasonable suspicion may not amount to proof of a prima facie case because one does not even need admissible evidence to establish suspicion. Proof of a specific intent cannot rationally and realistically spring from proof of a reasonable suspicion.

(i) That in respect of the third condition for the presumption to arise it cannot be rational for the Crown to rely on reasonable suspicion based on possibly inadmissible evidence to raise a presumption when to prevent the presumption from arising evidence (which must be admissible) to the contrary is needed.

(j) As the presumptions did not rationally and realistically flow from the basic facts proved it was not necessary to further consider whether they were proportionate to the harm aimed at, as was submitted by the Appellant.

(k) Sections 18A(2) and 35A(2) have not been shown by the Crown to be compatible with the BOR.

(1) Sections 18A(2) and 35A(2) do not admit of a construction consistent with the BOR; and

(m) Accordingly Sections 18A(2) and 35A(2) have been repealed by Section 3(2) of the BOR."

9. The questions of law formulated by the magistrate for the opinion of the court are:

"(a) Firstly whether I was correct in holding that Sections 18A(2) and 35A(2) of the Import and Export Ordinance Cap. 60 do not admit of a construction which is consistent with Section 8 Article 11(1) of the Hong Kong Bill of Rights Ordinance 1991 and;

(b) Secondly whether I was correct in holding that the said sections 18A(2) and 35A(2) had been repealed in their entirety by virtue of Section 3(2) of the said Bill of Rights Ordinance."

10. Turning to section 35A of the Ordinance, as we have seen, a person commits an offence contrary to section 35A(1)(a) of the Ordinance if he knowingly possesses an article the carriage of which is restricted by law with intent to evade the restriction. Were it not for subsection (2) the burden on the prosecution would, of course, be to prove every ingredient of the offence, including the specific intent, beyond reasonable doubt. However, the effect of that subsection is that if it is proved that a person possesses a restricted article "in circumstances that give rise to a reasonable suspicion that there is an intent ... to evade a restriction ..." it will be presumed that he had that intent "in the absence of evidence to the contrary". Thus the presumption imposes a rebuttable evidential (as opposed to a legal or persuasive) burden upon the accused. He does not have to prove that he did not have the necessary intent beyond reasonable doubt or even on the balance of probabilities. All that he is required to do is to introduce evidence (or point to evidence led by the prosecution) which, if believed, might create a reasonable doubt on the issue. When this happens the burden is again on the prosecution to satisfy the court or the jury on the evidence as a whole beyond reasonable doubt that the accused had the intent required by section 35A(1).

11. Mr. Bailey who appeared before us for the Crown conceded that the mandatory presumptions for which provision is made by sections 18A(2) and 35A(2) of the Ordinance would be inconsistent with the presumption of innocence guaranteed by Article 11(1) of the Bill of Rights if they could not be justified upon principles which permit a limitation upon the Bill's provisions. I have no doubt that he was right to do so. A number of cases referred to us discuss the effect and the extent of the burden placed upon the defence by the formula "in the absence of any evidence'to the contrary" which features in several provisions of the (Can adian) Criminal Code. For example, in R. v. Slavens (1991) 64 CCC (3d) 29 the British Columbia Court of Appeal had to consider the constitutionality of the mandatory presumption created by section 348 of the Criminal Code. The material parts of that section are as follows:

"348(1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,

(b) breaks and enters a place and commits an indictable offence therein, or

(c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein,

is guilty of an indictable offence and liable ...

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, withintent to commit an indictable offence therein; or

(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after

(i) committing an indictable offence therein, or

(ii) entering with intent to commit an indictable offence threin."

At pp. 33-34 Gibbs J.A. said this:

"    Before applying the principles to be found in the four judgments I have referred to, it is important to recognize that the phrase 'in the absence of any evidence to the contrary' in s.348(2)(b) relieves the Crown of the 'persuasive burden' (see p.115 of Schwartz) of proving an otherwise essential element, namely, commission of, or intent to commit, an indictable offence. The Crown has that burden under s.348(1)(c) where the elements are breaking out, and the commission of an indictable offence prior to breaking out, or prior entry with intent to commit an indictableoffence. Failure to prove either element beyond a reasonable doubt will result in acquittal. However, under s.348(2)(b) the Crown will have discharged the burden upon proof of one element only, namely, breaking out. Upon proof of that element it is open to the Crown to rely upon the presumption in place of the other element. In order to avoid conviction the accused then has the burden cast upon him to rebut the presumption by ensuring that there is before the court 'evidence to the contrary'. And the evidence to the contrary must be sufficient to raise a reasonable doubt that the accused committing an indictable offence before he broke out, or a reasonable doubt that he entered in the first instance with the intent of committing an indictable offence. It appears to me that, even if there were no authorities to rely upon, that kind of burden upon an accused is clearly in direct conflict with his right under s.11(d) of the Charter 'to be presumed innocent until proven guilty.'"

Section 11(d) of the Canadian Charter of Rights and Freedom provides that any person charged with an offence "has the right"..."to be presumed innocent until proven guilty according to law ..."

At p.37, Gibbs J.A. stated:

"    Guided by all of this jurisprudence, I now apply what I earlier deduced to be the proper test to s.348(2) and conclude that the answer is yes, an accused could be convicted despite the absence of proof beyond a reasonable doubt on an essential element of the offence, namely, the commission of an indictable offence, or the intent to commit an indictable offence. I note that the conclusion is consistent not only with Nagy, but also with both of Re Boyle and The Queen (1983), 5 C.C.C. (3d)193, 148 D.L.R. (3d) 449, 35 C.R. (3d) (Ont. C.A.), and R. v. T., supra. Each dealt with the same 'absence of evidence to the contrary' language in a Criminal Code section.

It follows from all of the above that I am satisfied that s. 348 (2) (b) of the Code must be held to be of no force or effect unless it can be justified under s. 1 of the Charter. I turn now to that consideration."

Section 1 of the Charter is in these terms:

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The court held that the presumption constituted a reasonable limitation within section 1 of the Charter.

12. The same view of broadly similar provisions was taken, after full analysis of the principles involved, by:

(a) the Ontario High Court in R. v. Hummel (1987) 36 CCC (3d) 8;

(b) the same court in R. v. Phillips (1988) 42 CCC (3d) 150 (the Crown conceded that the provision in question prima facie violated the presumption of innocence);

(c) the Newfoundland Supreme Court in R. v. Parsons (1988) 40 CCC (3d) 128 (again the Crown made a concession of prima facie violation of the guarantee);

(d) the Ontario Court of Appeal in R. v. Gosselin (1988) 45 CCC (3d) 568;

(e) the same court in R. v. Nagy (1988) 45 CCC (3d) 350; and

(f) the Prince Edward Island Supreme Court, Appeal Division in R. v. Sallem (1990) 58 CCC (3d) 46.

13. We were also referred to a recent, as yet unreported, decision of the Supreme Court of Canada: R. v. Downey (judgment 21st May 1992). In that case, the accused persons were charged with living on the avails (what, I think, we would call "earnings") of prostitution contrary to section 195(1)(j) of the Criminal Code. Section 195(2) provided that "[e] vidence that a person lives with or is habitually in the company of prostitutes ... is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution." All seven judges concluded that the presumption contained in that section infringed section 11(d) of the Charter since it could result in a conviction despite the existence of a reasonable doubt as to the guilt of the accused. The fact that someone lived with prostitutes did not lead inexorably to the conclusion that he lived on the avails. Three of the judges held that section 195(2) was not justifiable under section 1 of the Charter, while according to the decision of four of the judges, the section was justifiable under that section of the Charter.

14. I may mention here that Mr. Bailey was not able to find any English case in which the statutory formula "in the absence of any evidence to the contrary" is discussed. However I would refer to a passage in Glanville Williams Criminal Law - The General Part, 2nd ed., 1961, which shows that the notion of presumptions of fact arising from suspicions circumstances that may (but not must) be drawn is not unknown to the common law. At pp.878-879 we find:

"Many other situations occur in which a court acts upon what really is a presumption of fact, though it may not be called so. The principle underlying all of them is that if the accused 'is involved in a state of considerable suspicion, he is called upon for his own sake and for his own safety to state the circumstances which might reconcile such suspicions appearances with perfect innocence' [per Tindal C.J. in Frost (1889) 4 St.Tr. (N.S.) at 443] In other words, the evidence given for the prosecution will be increased in weight if it is 'unopposed by contrary evidence which it would be in the defendant's power to produce, if facts directly or presumptively proved were not true' [per Holroyd J. in Burdett (1820) 4 B. & Ald at 140]. It is in reality difficult or impossible to draw a firm boundary between presumptions of fact and ordinary circumstantial evidence."

15. The Hong Kong Bill of Rights has no equivalent of section 1 of the Canadian Charter. There are express Exceptions and Savings in Part III and express limitations in Article 15(3) and Article 16(3) relating respectively to freedom of thought, conscience and religion and freedom of opinion and expression. There is no express limitation of that kind on the right given by Article 11(1) of the Bill of Rights. However it is clear from the decision of this court in R. v. Sin Yau Ming [1992] 1 HKCLR 127 that the rights and freedoms guaranteed by the Bill are not to be regarded as absolute. Kempster J.A., at pp. 158-159 cited passages from the decision of the European Court in Salabiaku v. France (1988) 13 EHRR 379. I will cite merely the following passage (from p. 388):

"    Presumptions of fact or of 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 rights of the defence. The Court proposes to consider whether such limits were exceeded to the detriment of Mr. Salabiaku."

From Salabiaku Kempster J.A. concluded: "From this decision it would seem proper not only to accept that legal presumptions are not prohibited per se ... but also to construe the word 'law' appearing in Article 11(1) as meaning not the domestic law of Hong Kong but a universal concept of justice."

Later, at p.163, Kempster J.A. said this:

"In the light of the United States and European jurisprudence and since there has been no suggestion that the existence of s. 1 of the Canadian Charter involved any breach by Canada of its obligations under the International Covenant on Civil and Political Rights, a Hong Kong equivalent is not, in my opinion, a necessary precondition for the application of the principles advanced by Dickson, C.J.C. regardless of whether Hong Kong can properly be described as a 'democratic society'. This is conceded on behalf of the defendant. Indeed, by the conclusion of the argument before us and partly by reference to paragraphs 15 and 16 of Communication 44/1979 Re Pictraroia published in Selected Decisions under the Optional Protocol and published by the United Nations in 1985, a substantial identity of approach was apparent. I would venture to summarise that approach in the following proposition:

'A mandatory presumption of fact may be compatible with s.8 Article 11(l) of the Hong Kong Bill of Rights ordinance if it be shown by the Crown, due regard being paid to the enacted conclusions of the legislature, that the fact to be presumed rationally and realistically follows from the proved and also if the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection.'"

Silke V.P. expressly approved this proposition at p.45 and went on to observe:

"The onus is on the Crown to justify. It is to be discharged on the preponderance of probability. The evidence of the Crown heeds to be cogent and persuasive. The interests of the individual must be balanced against the interests of society generally but, in the light of the contents of the Covenant and its aim and objects, with a bias towards the interests of the individual. Further the aims of the legislature to secure the residents of Hong Kong free from the depredations of this trade must be respected."

In his judgment, Penlington J.A. speaks of the need for a presumption to be "reasonable" to pass the test of validity in the light of the Bill of Rights. At p.168 he expands upon what he means by "reasonable". I understand him to be saying in lines 14-16 that a presumption will pass the test of being "reasonable" and therefore consistent with the Bill of Rights if "there is a rational connection, it contains the minimum impairment of rights and is proportional to the harm aimed at ..."

16. We were shown some statistics to demonstrate how serious a problem smuggling has become. In my view we did not need to see them. Nobody who lives in Hong Kong can be unaware of the dimensions of this unlawful activity. The legislature has a legitimate concern that Hong Kong's integrity and reputation are maintained in international trade, the territory's very life-blood. It is not too much to say that Hong Kong's whole economic system very largely depends upon the proper conduct of her international trade.

17. It seems to me that there is a fully rational and realistic connection between the proved facts and the fact to be presumed. The former tends to prove the latter. In both the impugned sections the circumstances must give rise to a reasonable suspicion (objectively viewed) that there is the necessary intent and there must be an absence of evidence to the contrary before the presumption avails the prosecution. The sections do not speak of suspicions circumstances in the abstract. In my view an "inexorable connection" test is not required or appropriate. If the substituted fact was required to prove the presumed fact beyond reasonable doubt, the presumption would be otiose.

18. It must be observed that the legislature could have enacted offences of strict liability by omitting any requirement as to intent. The legislature however did require intent to evade etc to be established but recognised that often evidentiary problems arise in proving intent. The impairment is minimal. All the accused has to do is to point to evidence which is capable of raising a reasonable doubt as to his intent. He does not have to rebut the presumption "on the balance of probabilities". The legislature's response to the grave detriment to society created by smuggling seems to me to be entirely sensible and fair and confined within reasonable limits.

19. Mr. Ching Wong for the respondents in the case stated (MA 118 of 1992) sought to uphold Mr. Z.E. Li's reasoning and decision. Mr. Watson for the appellants in MA 227 of 1992 and Mr. McNamara for the appellant in MA 484 of 1992 also relied upon Mr. Li's reasoning in opposing the Crown's appeals. It will have been seen that for the reasons I have attempted to give I have been unable to agree with the magistrate's conclusions. I would answer "No" to the two questions in paragraph 12 of the case stated.

20. In my judgment sections 18A(2) and 35A(2) of the ordinance have been shown to be compatible with Article 11(1) of the Bill of Rights.

Penlington, J.A.:

21. I agree with the judgment of Fuad V.P. For the reasons given in R. v. Sin Yau Ming I am satisfied that the words "according to law" in Article 11 of the Hong Kong Bill of Rights have the same meaning as ''such reasonable limits prescribed by law as can be demonstrably justified in a free and.democratic society'' contained in s. 1 of the Canadian Charter of Rights and Freedoms. A presumption provision does not offend against the Bill of Rights if it is reasonable and that is a question to be answered using the principles set out in Oakes, i.e. there must be a logical connection with the facts relied on to raise the presumption; it must be proportional to the problem at which the legislation is aimed; there should be minimum impairment of the basic right. There is strong support for that in Salabiaku v. France where the court was construing identical words in the European Convention on Human Rights. I must admit myself to some trepidation at being asked to consider "a universal concept of justice'' as referred to by Kempster J.A. in Sin Yau Ming but I have no doubt that the words ''according to law'' must be construed in that way.

22. The trial magistrate in MA 718 of 1992 has found that the specific intent to be presumed does not follow rationally and realistically from the requirement in s. 18A of evidence showing possession or dealing in certain classes of goods in circumstances giving rise to reasonable suspicion. However he seems to reach that conclusion because the specific intent does not necessarily follow. That is of course correct but if the reasonable suspicion was based on facts which, on their own prove all elements of the charge beyond reasonable doubt there is no need for the presumption. If however the evidence does show possession or dealing in the restricted goods beyond reasonable doubt and also raises a reasonable suspicion that this was so as to evade the provisions of the Ordinance, it seems to me that the conclusion that the defendant possessed the specific intent to evade the restriction or prohibition is reasonable; it is logical and realistic. It may not always in fact be correct but if it is not I see little difficulty in the presumption being rebutted by evidence sufficient to raise a reasonable doubt. There is also therefore minimum encroachment on the basic right to be presumed innocent until proved guilty. I also have no doubt that the provisions are proportional to the very substantial problem caused in Hong Kong by the smuggling activities of which I also have no doubt the courts can and should take judicial notice.

Mortimer J.:

23. I agree with the judgment of Fuad V-P and the reasons for it. As these are important appeals I would add some comments of my own.

24. The questions of law for the opinion of this Court in these appeals are conveniently stated by the Magistrate in MA 718/92 as follows:

"(a)    Firstly whether I was correct in holding that Sections 18A(2) and 35A(2) of the import and Export Ordinance Cap. 60 do not admit of a construction which is consistent with Section 8 Article 11(1) of the Hong Kong Bill of Rights Ordinance 1991 and;

(b)    Secondly whether I was correct in holding that the said sections 18A(2) and 35A(2) had been repealed in their entirety by virtue of Section 3(2) of the said Bill of Rights Ordinance."

25. Sections 18A(2) and 35A(2) were amendments to the Ordinance enacted on 19th April 1991. They are subject to Section 3 of the Bill.

Section 8 Article 11(1) of the Bill reads:

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

26. This provision is taken ipsissima verba from the International Covenant on civil and Political Rights (The I.C.C.P.R.) Article 14 to which applies to Hong Kong Exactly the same words appear in Article 6(2) of the European Convention on Human Rights. Also a similar provision appears in the Canadian Charter of Rights in Section 11 (d) :

"Any person charged with an offence has the right to be presumed innocent until proven guilty according to law ....."

27. The sections, under consideration (Section 18A(2) & 35A(2)) are directed against those who knowingly smuggle or assist in smuggling from Hong Kong to Mainland China. Each section prohibits knowingly doing certain acts with specific intents. Subsections 18A(2) and 35A(2) provide mandatory presumptions in relation to the intents. Each subsection is expressed in similar terms and for present purposes the same principles apply. It is necessary therefore only to set out part of subsection 35A(2) which provides:

"Any person who --"

(Does certain specified acts)

"In circumstances that give rise to a reasonable suspicion that there is intent on the part of that person to evade a restriction or prohibition or assist another person to evade a restriction or prohibition, the first mentioned person will be presumed to have such intent in the absence of evidence to the contrary."

28. The effect of the section is not in dispute. It provides that if in the circumstances proved the tribunal is sure beyond reasonable doubt that those circumstances give rise to a reasonable suspicion that the accused has the necessary intent he will be presumed to have such intent, "in the absence of evidence to the contrary". Such evidence need not emanate from the accused or be called as part of his case. It is sufficient if it arises in the course of the prosecution case. The result is that there is no legal burden upon the accused but there is an evidential burden upon him to raise the issue. Once the evidential burden is discharged and the issue is raised, the presumption does not arise and the burden of proving the intent beyond reasonable doubt rests on the prosecution.

29. Any consideration of the questions for this Court begins with an examination of the meaning of Section 8 Article 11(1). It is abundantly clear from the words of the section that the legislature intended to introduce into Hong Kong domestic legislation the provisions of the International Covenant on Civil and Political Rights (the I.C.C.P.R.) to which Hong Kong already adhered. The Hong Kong Legislation was introduced without relevant qualification, limitation or derogation from the I.C.C.P.R. and was clearly intended to bear the same meaning. A reading of the whole Ordinance and many provisions of the I.C.C.P.R.enacted therein supports this view.

30. All signatories undertake to abide by the covenant and decided cases in common law jurisdictions of signatories which have domestic legislation to give effect to the covenant are cited in our Courts. As Hong Kong developes its own jurisprudence, these will become gradually less persuasive.

31. Mandatory presumptions were considered by this Court in R. v. Sin Yau-ming [1992] 1 HCLCR 127. Having considered decisions upon the I.C.C.P.R. and the European Convention on Human Rights, together with Canadian decisions on the Charter and United States decisions on the "due process" provision in their constitution, the Court found a substantial identity of approach where the provisions under consideration were similar to Section 8 Article 11(2) of the Bill and where they contained the limiting words "according to law" which do not appear in the United States Constitution. Adopting this identity of approach with particular reference to a United Nation's decision on the I.C.C.P.R., Kempster, J.A. formulated the following proposition at p.163 line 17:

"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 Crown, due regard being paid to the enacted conclusions of the legislature, that the fact to be presumed rationally and realistically follows from that proved and also if the presumption is no more than proportionate to what is warranted by the nature of the evil against which society requires protection."

32. This gives effect to the words "according to law" in Section 8 Article 11(2) and is binding on this Court. The meaning ascribed to the words is consistent with the meaning ascribed to the same words in the I.C.C.P.R. "According to law" does not mean according to the domestic law of the subscribing state. Were it otherwise the words of the International Covenant could be deprived of all practical effect.

33. In Article 6(2) of the European Convention on Human Rights a similar meaning is ascribed to the same words. See Salabiaku v. France (1988) 13 EHRR 379. When considering this decision in R. v. Sin Yau-ming, Kempster, J.A. at p.159, line 36 said:

"From this decision it would seem proper not only to accept that legal presumptions are not prohibited per se, as the United States decisions suggest, but also to construe the word ''law'' appearing in Article 11(1) as meaning not the domestic law of Hong Kong but a universal concept of justice.''

34. The Siracusa Principles on the Limitation and Derogation Provisions in the International covenant on Civil and Political Rights are to the same effect. These authoritive principles define the words ''prescribed by law'' as limiting any derogation from the provisions of the I.C.C.P.R. to that which is "not arbitrary or unreasonable". Similar limiting words appear in different parts of the I.C.C.P.R. and of the Hong Kong Bill. They are expressed as ''established by law'', ''prescribed by law" and ''according to law''.

35. By parity of reasoning the words ''according to law" permit limitations to the otherwise strict provision in Article 11(1) but only such limitation as is in all the circumstances not "arbitrary or unreasonable''. In practical application, these words achieve the same result in relation to mandatory presumptions as the proposition at p.163, line 17 of R. v. Sin Yau-ming. Relevant national and international decisions were the subject of careful scrutiny in that case. In the present context, it is unnecessary and inappropriate to consider them further.

The Principles to be applied

36. Following R. v. Sin Yau-ming in deciding whether a mandatory presumption admits of a construction consistent with Section 8 Article 11(1) it seems to me that a court should consider the following:

(i)    Does the provision under consideration (mandatory presumption in this case) allow of the possibility that an accused person may be convicted of an offence without each essential ingredient of that offence being proved against him beyond reasonable doubt?

If so, the provision falls to be considered as to whether or not it admits of a construction consistent with Section 8 Article 11(1) of the Bill.

(ii)    To what extent does the provision under consideration derogate from the right given in Article 11(1)? In other words, what is the likelihood of an accused being convicted in the absence of an ingredient of the offence being proved against him beyond reasonable doubt?

The Court may put into the balance along with the other considerations the nature and likely effect of the presumption. For example, such a conviction would be.more likely where the presumption throws a legal burden upon the accused than when it involves an evidential burden.

(iii)    Does the fact to be presumed rationally and realistically follow from those required to be proved?

As every presumption is intended to ease the proof of the fact to be presumed, it will be necessary for the Court to consider the degree to which the fact presumed rationally and realistically follows from those to be proved.

(iv)    Having regard to the foregoing, is the presumption proportionate? Is it no more than a reasonable provision giving due weight to the need of society to protect itself balanced with the interests of the individual accused.

37. In reaching its conclusion, the Court will balance these considerations and give such weight as it thinks proper to the scheme of the legislation, the fact that the legislature after due consideration has enacted the provision as necessary and the relevant evidence, if any.

Answers to the case stated

38. The application of these principles to the present case presents little difficulty. The presumption clearly involves a risk that an accused person could be convicted without the necessary intent being proved beyond reasonable doubt if he remains silent and the issue on intent is not raised incidentally in the prosecution case. If the circumstances proved give rise beyond reasonable doubt to a ''reasonable suspicion'' of the necessary intent, he would be convicted. However, as the burden on the accused is simply to raise the issue and the burden is evidential only the risk of a wrongful conviction is more theoretical than real.

39. The intent is to be presumed from circumstances which give rise to a ''reasonable suspicion'' of it. Obviously there is a rational and realistic connection between the fact presumed and those proved but not sufficient to establish the case beyond reasonable doubt. Therein lies the gap which the presumption is intended to fill.

40. In order to demonstrate the proportionality of the provision; that is to establish that the presumption is no more than reasonable having regard to the need of Hong Kong Society to deter and punish smuggling and those who assist in it, we have been invited to consider a number of statistics. For my part also, I do not consider it necessary to consider or analyse these statistics. The problem created by this smuggling is universally known. The great difficulties facing those who seek to prevent it are notorious. The provisions under consideration were enacted in April 1991 to assist in controlling this criminal activity and in bringing those responsible to justice. In applying the Bill of Rights to a particular presumption, the conclusion of the legislature in providing the presumption must be considered. As Kempster, J.A. said in Sin Yau-ming "due regard'' should be ''paid to the enacted conclusions of the legislature.'' I have no doubt that the presumptions are reasonable and proportional.

41. There is a long history of presumptions of law and the fact in our system and in the English system upon which it is based. There are such presumptions in every legal system. The Bill of Rights does not prohibit them in principle. They are frequently a reasonable and even necessary feature of the criminal law if it is to fulfil its function of balancing the needs of society with the protection of the individual accused. See Salabiaku v. France (supra) and note the requirement for the issue of provocation to be raised in a murder case.

42. In summary, the presumptions in the instant case provide minimal limitation of the rights provided in Article 11(2) with small risk to an accused person. The presumption is rationally related to the facts to be proved (with the limitation described) and having regard to the notorious problems created by smuggling in Hong Kong I have no doubt that the provision is no more than is reasonably required to satisfy the interest of society to combat smuggling when balanced with the rights of an accused.

43. In my judgment, Sections 18A(2) & 35A(2) of the Ordinance admit of a construction consistent with the Bill of Rights, Section 8 Article 11(2).

Fuad, V.-P.:

44. The appeal in MA 718 of 1992 is allowed, but Mr. Bailey, for the Crown, was content for this court merely to answer the questions posed in the case stated and did not seek an order that proceedings should continue against the respondents.

45. In relation to appeals MA 227 and 484 of 1992, we remit them to the High Court under section 118(1)(d) of the Magistrates Ordinance together with our decision on the issues arising out of the Bill of Rights.