HKSAR v. LAM KWONG WAI AND ANOTHER

FACC No. 4 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO. 213 OF 2003)

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J U D G M E N T

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Chief Justice Li :

1.  I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

2.  I agree with the Chief Justice and Sir Anthony Mason NPJ in this appeal and the one heard together with it.  Striking down a law is a course of last resort.  The courts will strive to give laws a constitutional reading to save them, if possible, from being declared unconstitutional.  Each of these reverse burden provisions can and should be read to impose only an evidential burden.  So read each leaves defendants with what the presumption of innocence exists to provide.  By that I mean a measure of protection consistent with the idea that convicting the innocent is far more abhorrent than letting the guilty go free.  As for the question of limiting judicial decisions to prospective effect, I would leave it open.  On any view, these are not cases for imposing such a limitation.   

Mr Justice Chan PJ :

3.  I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Ribeiro PJ :

4.  I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

Introduction

5.  These appeals, which were heard together with the succeeding appeals, HKSAR v. Hung Chan Wa and Atsushi Asano (the Dangerous Drugs appeals), involve the interpretation and application of statutory provisions commonly described as “reverse onus” provisions.  In these appeals, we are concerned with s.20 of the Firearms and Ammunition Ordinance, Cap. 238 (“the Ordinance”).  In the succeeding appeals, which are the subject of a separate judgment, we are concerned with s.47 of the Dangerous Drugs Ordinance, Cap. 134.  It will be convenient to consider in detail in the judgment in those appeals the question of prospective overruling and the relevance to that question of art.160 of the Basic Law, as these matters have greater importance in those appeals.

These appeals

6.  Section 20(1) of the Ordinance provides that a person who is in possession of an imitation firearm commits an offence punishable with imprisonment; yet s.20(3) goes on to provide that he does not commit an offence if he satisfies the court of one or more of the matters stated in the sub-section.  Relying on s.20(3), the prosecution did not lead evidence to prove that the respondents were in possession of the imitation firearm for any of the purposes listed in s.20(3)(c).

7.  The principal issue in these appeals, as it was in the Court of Appeal, is whether s.20(3)(c), by placing an onus on the defendant, is consistent with the presumption of innocence (which is protected by art.87(2) of the Basic Law and art.11(1) of the Hong Kong Bill of Rights (“BOR”) implementing art.14(2) of the International Covenant on Civil and Political Rights (“ICCPR”), as applied by art.39 of the Basic Law) and with the right to a fair trial (which is protected by art.87(2) of the Basic Law and art.10 of the BOR (art.14.1 of the ICCPR) as applied by art.39 of the Basic Law).

8.  The Court of Appeal (Stuart-Moore VP, Stock JA and Burrell J) resolved this issue by holding that there was inconsistency with the presumption of innocence and the right to a fair trial, so that s.20(1) when read with s.20(3)(c) was invalid.  In reaching this conclusion, the Court concluded that it was not possible to read s.20 in such a way as to preserve its validity, in particular to read the section as creating an evidential, not a persuasive, burden.  The Court granted the respondents leave to appeal against their convictions – each had been convicted of the offence of having in his possession an imitation firearm, namely one imitation Beretta self-loading pistol, contrary to s.20(1) of the Ordinance – quashed the convictions and set aside the 14 months sentences of imprisonment which had been imposed.

9.  These appeals are brought pursuant to the grant of leave to appeal by the Appeal Committee for the appellant to pursue the following point of law of great and general importance certified by the Court of Appeal :

“Is Section 20(1) of the Firearms & Ammunition Ordinance, Cap. 238 as and when read with section 20(3)(c) of that Ordinance consistent with the presumption of innocence prescribed by Article 11(1) of the Hong Kong Bill of Rights Ordinance, Article 14.2 of the International Covenant of Civil and Political Rights (ICCPR) as applied by Article 39 of the Basic Law; and with the right to a fair trial, protected by Article 10 of the Hong Kong Bill of Rights Ordinance, Article 14.1 of the ICCPR as applied by Article 39 of the Basic Law and Article 87 of the Basic Law?”

The Appeal Committee granted leave to appeal on this point of law and on the ground that it is reasonably arguable that substantial and grave injustice has been done.  The point of law necessarily extends to the question whether s.20 can be read in such a way as to preserve its validity, in the event that it would otherwise be inconsistent with the Basic Law or the BOR.  Under the substantial and grave injustice ground, the appellant contends that the Court of Appeal should have applied the proviso to s.83(1) of the Criminal Procedure Ordinance, Cap. 221 and dismissed the appeals.

The facts

10.  According to the judgment of the Court of Appeal delivered by Stock JA, the facts were not in dispute.  On 5 November 2002 the 2^nd respondent was driving a vehicle through a village near Yuen Long.  The 1^st respondent was a passenger in that vehicle.  The police stopped the car and in the boot they found an imitation pistol.  When the boot was opened there was revealed a speaker box.  The speaker unit was removed and the pistol was in the bottom of the box, in a plastic bag under the soundproofing.  It is common ground that the pistol was purchased the same day from a shop in Mongkok.  It was in working order, in that it was capable of discharging projectiles in excess of two joules.  It was a heavy and substantial weapon.  It had the appearance of a genuine firearm.

11.  When the weapon was found, the 1^st respondent said that it was fake, that he bought it for someone, and that he had nothing to do with it.  The 2^nd respondent said that the pistol was not genuine and that he and his friend had purchased it that morning in Mongkok.  The 1^st respondent had said in his statement that he had purchased the pistol for an uncle and that he had assumed that the uncle had intended to commit a robbery, and had assumed also that the request had been for a real gun.  In his statement, the 2^nd respondent had said that the idea had been to present a fake pistol, even though a real one was wanted by the ultimate purchasers, the clear implication being that a profit would be made by a false representation.  The reason it was hidden in the boot, so went the story, was to enable them to persuade the buyer, since he would not be allowed to take the pistol out but merely to feel it as packaged, that it was a real gun.  He said that the buyer had examined the package shortly before the police had intercepted the respondents.

The charges

12.  The respondents were charged with two offences.  As they were acquitted of the 1^st charge, it has no relevance for these appeals.  The 2^nd charge, to which I have referred already, was that of having in their possession the imitation Beretta self-loading pistol, contrary to s.20(1).  It was the charge on which each respondent was convicted and sentenced.

The defence at trial and the judge’s findings

13.    The respondents’ testimony at trial was that they had purchased the gun that morning in order to play war games.  They denied that they had told the story to the police which the police had attributed to them.  District Judge Day disbelieved their evidence.  His Honour stated that “an innocent purchaser of an imitation gun who had a ready explanation for his possession of the weapon would not feel the need to hide the gun”.  He noted, moreover, that they had stopped at the village car park specifically in order to dispose of the box in which the pistol was housed upon purchase, conduct which was difficult for them to explain.

14.  The judge said that:

“Although both admitted possession of the weapon, section 20(3)(c) of Cap 238 affords them a defence to the second charge if they can satisfy the court (which I take to be on the balance of probabilities) that :

(c) [they were] not in possession of the imitation firearm for a purpose dangerous to the public peace, or of committing an offence, or in circumstances likely to lead to –

(i) the commission of an offence; or

(ii) the possession of the imitation firearm for a purpose dangerous to the public peace,

by [themselves] or any other person.

If I thought they probably had the gun to play war games, as they claimed in court then this would afford them a defence under [subsection 20(3)(c) of the Cap 238].  I am however satisfied that I have not heard the truth from these two men as to why they had this gun.  I do not believe their evidence and there was no other evidence to raise this defence …. I have found that the defence available under section 20(1)(c)[sic] was not made out.”  (Emphasis added)

The point of law certified by the Court of Appeal was not raised at the trial.

The Court of Appeal’s judgment

15.  The Court of Appeal rejected the interpretation which the trial judge placed upon s.20.  The Court concluded that the legislature intended to criminalize more than mere possession, namely possession plus criminal intent, and that the burden s.20(3)(c) imposes upon defendants is a burden which goes to an essential element of the offence.  In other words, the Court considered that blameworthy conduct, being possession for an unlawful purpose as identified by s.20(3)(c) was an essential element of the conduct to be penalized.  The Court held, however, that the sub-section imposed a persuasive, not an evidential, burden on the defendant in relation to the blameworthy element in the offence, namely the matters listed in s.20(3)(c).

16.  From this conclusion it followed that a person charged with an offence under s.20(1) could be convicted despite the existence of a reasonable doubt.  In turn, this led to the further conclusion that s.20(3)(c) detracted from the presumption of innocence protected by art.87(2) of the Basic Law and art.11(1) of the BOR and the right to a fair trial protected by art.87(2) of the Basic Law and art.10 of the BOR.

17.  The finding that s.20(3)(c) derogated from the presumption of innocence did not dispose of the principal question at issue.  As the Court recognized, the further question then arose: was the derogation from the presumption justifiable as a measure which (a) had a rational connection with the pursuit of a legitimate societal objective (the rationality test); and (b) was no more than was necessary to achieve that societal objective (the proportionality test).  

18.  The Court acknowledged that there was a legitimate societal objective which could justify an encroachment on the presumption of innocence, that is, the prevention of serious crime, in particular the existence of circumstances which may suggest that possession is for an illicit purpose, where it would not be unreasonable to call on the defendant to show that an inference should not be drawn.  On the other hand, the Court considered that s.20(3)(c) went further than was necessary by imposing a persuasive rather than evidential onus for the reasons that (1) it allows for the conviction of an individual where a court entertains a reasonable doubt as the moral culpability of the defendant and as to his guilt and (2) an evidential burden would be sufficient.

19.  The Court rejected arguments that it could read down the provision or sever the offending part and went on to hold that s.20(1), as and when read with s.20(3)(c), is inconsistent with the presumption of innocence and the right to a fair trial protected by the provisions in the Basic Law and the BOR to which reference has already been made.  The Court also rejected a submission that the proviso to s.83(1) of the Criminal Procedure Ordinance should be applied.

The relevant provisions

20.  Article 87(2) of the Basic Law provides :

“Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”

Article 11(1) of the BOR, which is in the same terms as art.14 of the ICCPR, provides :

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

Article 10 of the BOR (art.14.1 of the ICCPR) provides :

“In the determination of any criminal charge against him … everyone shall be entitled to a fair … hearing.”

21.  Although these rights are expressed in absolute terms and are not subject to explicit exceptions or qualifications, it has generally been accepted elsewhere that an encroachment on these rights by way of presumption or reverse onus of proof may be justified if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that legitimate aim (see, for example, Salabiaku v. France (1988) 13 EHRR 379; Reg. v. D.P.P., Ex p. Kebilene [2000] 2 AC 326 at 385, per Lord Hope of Craighead; S v. Manamela 2000 (3) SA 1 at 17).  In Hong Kong, it has been accepted that a justification provision is to be implied in the BOR.  (R v. Sin Yau-ming [1992] 1 HKCLR 127).  In principle, the same approach applies to the Basic Law.  It matters not whether the presumption of innocence is a free-standing right or an aspect of the right to a fair trial.  Either way the presumption is not an absolute right and is capable of derogation but the derogation must be justified.

22.  Section 20 of the Ordinance is in these terms :

“(1) Subject to subsections (2) and (3), any person who is in possession of an imitation firearm commits an offence and is liable to imprisonment for 2 years.

(2) Any person who, within 10 years of being convicted of an offence specified in the Schedule or of an offence under this Ordinance, commits an offence under subsection (1) is liable to imprisonment for 7 years.

(3) A person does not commit an offence under subsection (1) if he satisfies the magistrate that-

(a) at the relevant time he was under the age of 15; or

(b) he was in possession of the imitation firearm in his capacity as a person who deals in imitation firearms by way of trade or business, or as a servant of such a person carrying out his bona fide and lawful instructions; or

(c) he was not in possession of the imitation firearm for a purpose dangerous to the public peace, or of committing an offence, or in circumstances likely to lead to-

(i) the commission of an offence; or

(ii) the possession of the imitation firearm for a purpose dangerous to the public peace,

by himself or any other person.

(4) No prosecution for an offence under subsection (1) shall be instituted without the consent of the Secretary for Justice but this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for any such offence.”

The presumption of innocence at common law and proof of mens rea

23.  At common law, the presumption of innocence 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 (Woolmington v. Director of Public Prosecutions [1935] AC 462 at 481, per Viscount Sankey LC).  Proof of the defendant’s guilt of the offence charged requires proof of all the elements of the offence.

24.  The presumption of innocence is associated with another fundamental presumption, namely that in interpreting a statutory provision which creates an offence, a mental element (mens rea) is an essential ingredient of the offence, unless Parliament has manifested a contrary intention either expressly or by necessary implication (B (A Minor) v. D.P.P. [2000] 2 AC 428 at 460, per Lord Nicholls of Birkenhead; see also R v. K [2002] 1 AC 462).  There are, of course, many instances where legislatures have manifested a contrary intention by attaching criminal liability to proved facts, regardless of the defendant’s state of mind or blameworthiness.  There are other cases where a legislature has legislated, as here, to require the defendant to establish matters, even the absence of a mental element, as a defence.

25.  A reverse onus, which places an onus on the defendant to prove all or any of the elements of the offence, appears to be inconsistent with the presumption of innocence because it allows the defendant to be convicted on failing to discharge the reverse onus, even though the prosecution fails to prove all the elements of the offence beyond reasonable doubt.  In the cases on reverse onus, a distinction has been drawn between the “legal” or “persuasive” burden of proof and what has been called the “evidential” burden.  The distinction is important because an evidential burden (which is not, strictly speaking, a burden of proof) is generally regarded as consistent with the presumption of innocence (Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601 at 618J-619D, per Bokhary PJ and Lord Scott of Foscote NPJ; R v. Lambert [2002] 2 AC 545 at 563G, per Lord Slynn of Hadley; 572D per Lord Steyn and 589B, per Lord Hope of Craighead; but cf. Downey v. The Queen (1992) 90 DLR (4th) 449).  It will be necessary to return to this proposition later, as it is the subject of a submission by Mr Gerard McCoy SC for the appellant.

26.  An evidential burden, unlike a persuasive burden, does not expose the defendant to the risk of conviction because he fails to prove some matter on which he bears an evidential onus.  An evidential burden :

“… requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case.  The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue.  But if it is put in issue, the burden of proof remains with the prosecution.  The accused need only raise a reasonable doubt about his guilt.”

(Reg. v. D.P.P., Ex p. Kebilene [2000] 2 AC 326 at 378H-379A, per Lord Hope of Craighead).  See also Lambert at 588H, where his Lordship said :

“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.”

27.  A persuasive burden, on the other hand, requires a defendant to prove, on a balance of probabilities, an ultimate fact which is necessary to the determination of his guilt or innocence.  The burden relates to an essential element of the offence.  It reverses the burden of proof by transferring it from the prosecution to the defendant (Ex p. Kebilene, at 378H, per Lord Hope of Craighead).  It may be either mandatory or discretionary in its operation.  With a mandatory persuasive burden, it is possible for a conviction to be returned, even where the tribunal of fact entertains a doubt as to the defendant’s guilt (Emmerson and Ashworth, “Human Rights and Criminal Justice” (2001), para.9-03).

28.  In R v. Lambert, Lord Steyn noted that a transfer of the persuasive burden amounts to an interference with the presumption of innocence.  His Lordship observed (at 572D) :

“The former requires the accused to establish his innocence.  It necessarily involves the risk that, if the jury are faithful to the judge’s direction, they may convict where the accused has not discharged the legal burden … but left them unsure on the point.  This risk is not present if only an evidential burden is created.”

See also R v. Whyte (1989) 51 DLR (4th) 481 at 493, per Dickson CJC.

The broad questions to be addressed

29.  Our first task is to ascertain the meaning of s.20 according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions.  Our second task is to consider whether that interpretation derogates from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the BOR.  If that question is answered “Yes”, we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the Basic Law or the BOR and consequential invalidity.  If invalidity could result, then it will be necessary to decide whether the validity of 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 technique available to the Court.  Consideration of this question will require examination of the powers of the courts as established by the Basic Law.

The common law interpretation of s.20

30.  In relation to the interpretation of the section, Mr McCoy, SC for the appellant, submits that the Court of Appeal erred in holding that the legislature intended by s.20(1) to criminalize more than mere possession, namely possession plus criminal intent.  Mr McCoy SC submits that the section created an offence of being in possession (physical possession and knowledge of possession) of an imitation firearm and that it is a defence under s.20(3)(c) for the defendant to satisfy the magistrate on the balance of probabilities of one of the matters there listed.  Mr McCoy SC concedes that an alternative possible interpretation is that the prosecution must prove to the ordinary criminal standard that the possession was for a purpose dangerous to the public peace or of committing an offence or in circumstances likely to lead to one of those two eventualities (see s.20(3)(c)) and then all that the defendant has to do is to raise a doubt.

31.  In the context of offences such as s.20, possession has two elements – the physical element and the mental element.  The physical element is bare possession or, in appropriate cases, custody or control of the thing.  The mental element is the defendant’s knowledge that the thing is in his possession.  Knowledge of the existence of the thing itself is enough to satisfy this element of possession.  Knowledge of its qualities is not required (R v. Warner [1969] 2 AC 256 at 305, per Lord Pearce).  Although Mr McCoy SC acknowledges that the prosecution must prove knowledge under s.20(1), he contends that the prosecution is not required to prove the purpose of the defendant’s possession.  That element is dealt with by s.20(3)(c).

32.  In Sweet v. Parsley [1970] AC 132, a case concerning the Dangerous Drugs Act 1965 (UK), Lord Reid pointed out (at 150C) that :

“Parliament has not infrequently transferred the onus as regards mens rea to the accused, so that, once the necessary facts are proved, he must convince the jury that on balance of probabilities he is innocent of any criminal intention.”

His Lordship expressed surprise that more use had not been made of this drafting technique.

33.  The intention to transfer the onus in this way must be clearly and unambiguously expressed because the common law presumption is that mens rea is an essential ingredient of the offence, unless the legislature has exhibited a contrary intention either expressly or by necessary implication (B (A Minor) v. D.P.P. [2000] 2 AC 428 at 460C-D, per Lord Nicholls of Birkenhead). 

34.  Here there is an express imposition of the onus on the defendant to “satisfy” the magistrate that the purpose of his possession does not fall within s.20(3)(c), that is, on the balance of probabilities.  In the light of the language and the structure of the section, the onus so imposed is persuasive, not evidential.  This view is supported by the Attorney-General’s second-reading speech on the Bill.  The Attorney then referred to an increasing number of cases involving the use of firearms in the majority of which it was not possible to determine whether the firearm was genuine or not.  He then referred to cl.20 as providing that no offence is committed if the person concerned satisfies the magistrate that he was not in possession for a purpose dangerous to public peace or of committing an offence.  The Attorney was drawing attention to the imposition of the onus on the defendant to establish the defence.  Indeed, he informed the Legislative Council that the object of cl.20 was “… to penalize and deter the possession of imitation fire-arms for illegal purposes”.  (Hansard 8 July 1981, p.1025) 

35.  The Court of Appeal’s conclusion that the onus so imposed was a persuasive onus is plainly correct. 

The presumption of innocence and the right to a fair trial under the Basic Law and the BOR

36.  As the right to be presumed innocent is an essential element in the individual’s right to a fair trial and is protected expressly, along with the right to a fair trial, by art.87(2) of the Basic Law, it is convenient to examine the alleged violations of the two rights in the context of contravention of the presumption of innocence.  In this respect, it has not been and could not be, suggested that there is any difference between the presumption of innocence as it is protected by the Basic Law and the BOR.  In each case, the right to be presumed innocent, as one of the rights and freedoms which are constitutionally guaranteed and lie at the heart of Hong Kong’s separate system, is to be given a generous interpretation, one that takes account of the interpretation given to it by international and national courts and tribunals.

37.  Decisions in jurisdictions other than Hong Kong are persuasive according to both the quality of their reasoning and their relevance to circumstances and conditions in Hong Kong.  As this Court has said, it is often appropriate to refer to the jurisprudence of the European Court of Human Rights and to the decisions of other international and national tribunals on international and constitutional instruments having substantially similar provisions (Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381 at 401B-I; see also Chow Shun Yung v. Wei Pih (2003) 6 HKCFAR 299 at 314I-J, per Ribeiro PJ).  A very substantial body of illuminating jurisprudence has developed around the European Convention on Human Rights and Fundamental Freedoms (“the European Convention”) and, more recently, the Human Rights Act 1998 (UK), not least in relation to the presumption of innocence and the right to a fair trial.  It is appropriate that this Court should take due account of that jurisprudence so far as it relates to that presumption and that right.  Each enjoys protection under the Convention and the Human Rights Act which is similar to that given by the Basic Law and the BOR.

38.  The leading European authority on the presumption of innocence, dealing with the presumption in the context of art.6(2) of the Convention, is Salabiaku v. France.  In that case, the European Court of Human Rights recognised that national legislatures may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or negligence (para.27).  The Court also stated that the Convention does not prohibit “in principle” presumptions of fact or of law but it does, however, require the Contracting States :

“… to remain within certain limits in this respect as regards criminal law.”

The Court went on to say :

“Article 6(2) … requires States to confine [such presumptions] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.” (para.28)

39.  In Sheldrake v. D.P.P. [2005] 1 AC 264, Lord Bingham of Cornhill, distilling the effect of Salabiaku and of decisions of the European Commission on art.6(2), said (at 297E-G) :

          “21. From this body of authority certain principles may be derived.  The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end.  The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary.  It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea.  But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable.  Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption.  Security concerns do not absolve member states from their duty to observe basic standards of fairness…”

The significance of this statement is that it emphasizes the need to examine the operation and effect of the particular provision which is said to affect the presumption of innocence, in order to determine whether it contravenes the presumption.  In Hong Kong, the issue of contravention is to be determined by reference to the principles which have been stated by this Court.

Does s.20(3)(c) contravene the Basic Law and the BOR?

40.  In the context of contravention, the first question is whether s.20(3)(c) derogates from the presumption of innocence.  If this question is answered in the affirmative, two further questions arise.  Stated in accordance with the formulation in Leung Kwok Hung v. HKSAR (2005) 8 HKCFAR 229 at 253I, they are :

(1) is the derogation rationally connected with the pursuit of a legitimate societal aim (the rationality test); and

(2) are the means employed, the imposition of the reverse persuasive onus, no more than is necessary to achieve that legitimate aim (the proportionality test)?

Is there a derogation from the presumption of innocence?

41.  The first point to be made here, one which was emphatically made by Stock JA in the Court of Appeal judgment, is that the substance of the offence created by s.20(1) and (3)(c) is an offence of being in possession of an imitation firearm for a purpose dangerous to the public peace or for the commission of an offence.  When the offence is characterised correctly in this way, it is evident that s.20(3)(c) throws the onus of proof on to the defendant, the prosecution being required to do no more than prove bare or physical possession plus knowledge of possession.  Accordingly, there exists the real risk that a defendant, in failing to satisfy the magistrate of the s.20(3)(c) defence, might nevertheless raise a doubt as to the purpose of his possession, yet be convicted – the possibility identified by Lord Steyn in Lambert at 572D.  The second point, a matter also considered to be important by Lord Steyn in Lambert at 571C; and by Lord Bingham of Cornhill in Sheldrake at 291H, is that the substance of the offence is the element of moral blameworthiness.  In the present case that element is the unlawful purpose of the possession.  This view of the offence again leads to the conclusion that the substance of the offence is being in possession of the imitation firearm for an unlawful purpose, a reverse onus being placed on the defendant in relation to the critical element of the offence.  The third point, which supports the same way of looking at the matter, is that the mere possession of an imitation firearm does not naturally and rationally lead to an inference that the possession is prima facie for an unlawful purpose.  Accordingly, s.20(3)(c) derogates from the presumption of innocence.

Is the derogation rationally connected with the pursuit of a legitimate societal aim?

42.  As s.20(3)(c) derogates from the presumption of innocence, the next question is whether that derogation is rationally connected with a legitimate societal aim.  It is clear enough that the persuasive onus of proof provided for by s.20(3)(c) was imposed in pursuit of a legitimate aim.  The aim was the prevention, suppression and punishment of serious crime, being the use of imitation firearms for a purpose dangerous to the public peace or of committing an offence.  That this was the aim of the provision appears from the very terms of s.20(3)(c) itself and from the remarks made by the Attorney-General in his second-reading speech.  That the use of imitation firearms for these purposes is a serious problem and a matter of community concern cannot be doubted.  As Lord Bingham CJ noted in Avis and Others [1998] 1 Cr. App. R. 420 at 423, these weapons often are used to frighten and intimidate victims in order to reinforce unlawful demands.  They are weapons which are hard to distinguish, and may in the circumstances be impossible to distinguish, from the real thing.  The intimidating impact of their use is therefore very similar to the intimidating impact of the threatening use of a real firearm.  So s.20(3)(c) satisfies the rationality test.

The proportionality test

43.  The next question is whether the means employed, namely the creation of the persuasive onus, is necessary to achieve the legitimate aim.  In this respect, the means employed must be no more than is necessary to achieve that aim.  If the means employed go beyond what is necessary in that sense, the restriction or limitation on the right, in this case the persuasive onus, is disproportionate and there is an absence of the requisite proportionality between the means employed and the legitimate aim.  The Hong Kong courts and the Privy Council have held that the word “necessary” in this test should be given its ordinary meaning.  Nothing is to be gained by substituting for it an expression such as “pressing social need” (see HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 at 460G, per Li CJ), which is an expression taken from the jurisprudence on the European Convention.

44.  The burden is on the state to justify a limitation or restriction on the constitutional or protected right (R v. Sin Yau-ming [1992] 1 HKCLR 127 at 145, per Silke VP; R v. Johnstone [2003] 1 WLR 1736 at 1749G, per Lord Nicholls of Birkenhead).  The burden is a substantial one in the context of justifying the inroad which a reverse onus makes into the presumption of innocence.  The South African Constitutional Court has stated that, in such a context, the justification must be established “clearly and convincingly” (State v. Mbatha 1996 (3) BCLR 293 (CC)).  For my part, I would say that the justification must be “compelling”.  As Lord Nicholls of Birkenhead said in R v. Johnstone (at 1749H-1750A) :

“… for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.”

45.  It is, however, appropriate that the Court should give weight to the legislature’s view that the imposition of a persuasive onus on a defendant to a charge under s.20 is an appropriate response to the problem presented by the use of imitation firearms for unlawful purposes.  (HKSAR v. Ng Kung Siu at 460I-J, per Li CJ).  The weight to be accorded to the legislative judgment by the Court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramifications and the means of dealing with it.  In matters of serious crime, the courts must recognise that the legislature has the responsibility for determining policy and framing the elements of the criminal offence. (Attorney-General of Hong Kong v. Lee Kwong-kut [1993] AC 951 at 975C, per Lord Woolf).  Here, however, the issue turns on matters of proof, onus and evidence.  In this area, the Court is able to form its own judgment, without labouring under a disadvantage vis-a-vis the legislature.  It is for the Court to exercise its constitutional responsibility by determining the issue, after giving appropriate respect to the legislative judgment.  At the end of the day, to repeat the words of Lord Nicholls of Birkenhead in R v. Johnstone at 1750F-G :

“The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.”

46.  A statutory provision is not automatically open to challenge under the BOR simply because the provision creates an offence of absolute or strict liability.  There is strong authority for this proposition, including AG of Hong Kong v. Lee Kwong-kut at 975D, per Lord Woolf; Attorney-General v. Fong Chin Yue [1995] 1 HKC 21 at 28F, per Bokhary JA (as he then was); So Wai Lun v. HKSAR, FACC No. 5 of 2005, 18 July 2006.  This view, which necessarily applies with equal force to the Basic Law, is entirely consistent with the principles stated in Salabiaku and the way in which these principles have been applied.

47.  In this respect, two English decisions illustrate the point.  In the first, L v. D.P.P. [2003] QB 137, the defendant was charged with having in his possession a lock knife, contrary to s.139 of the Criminal Justice Act 1988.  He argued that the defence under s.139(4) which cast upon the defendant the burden of proving good reason or lawful authority for the possession of such an article, was only compliant with the presumption of innocence guaranteed by art.6(2) of the Convention if the section was construed to impose only an evidential and not a persuasive burden.  The Court of Appeal rejected the argument, holding that, if s.139(4) imposed a persuasive burden of proof on the defendant, it was permitted by art.6(2).  The Court reasoned to this conclusion by stating that there was a strong public interest in bladed articles not being carried in public without good reason, that the defendant was only being required to prove something within his own knowledge and that it struck a fair balance between the rights of the defendant and the interests of the public.

48.  The second decision, R v. Matthews (Mark) [2003] 2 Cr. App. R. 19, concerned the same legislation.  Police searched the appellant at a bus stop and found in his jacket pocket a knife with a blade of 2½ inches.  He was arrested and charged with an offence under s.139 of having in his possession a bladed knife in a public place without good reason or lawful authority.  The defence raised the same argument as that rejected in L v. D.P.P.  The argument was again rejected.  In this case, the Court held that, s.139(4) and (5) plainly imposed a persuasive and not an evidential burden, that the provisions made an inroad into the presumption of innocence guaranteed by art.6(2) because the offence of having a bladed weapon in a public place was one involving moral blameworthiness and the defences provided by the sub-sections directly bore on the moral blameworthiness of the accused and that, since the reason for having a bladed article in a public place was something peculiarly within the knowledge of the accused, there was an objective justification for some derogation from the presumption of innocence.  The Court concluded that the reverse burden provisions struck a fair balance between the several interests of the community in the realisation of a legitimate aim and the protection of the rights of the individual and were proportionate in that they went no further than was necessary to achieve the legitimate aim.

49.  The English decisions Matthews and L v. D.P.P. are to be distinguished from the present case.  There s.139 of the Criminal Justice Act provided for a reverse onus in relation to the offence of being in possession of a bladed knife in a public place.  Here the offence of being in possession of an imitation firearm is not restricted as to place.  It is an offence which can be committed anywhere.  And whereas it may be said that being in possession of a bladed knife in a public place is naturally and rationally connected with the commission of an offence and a potential danger to the public peace, the same comment cannot be made with the same force about possession of an imitation firearm in a public place and even less so in private premises.

50.  Lord Woolf stated in Lee Kwong-kut (at 969) that, if an exception requires certain matters to be presumed until the contrary is shown, then the presumption will be difficult to justify, unless as was pointed out in Leary v. United States (1969) 23 L Ed 2d, 57 at 82, “it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”.  Here, as I have already concluded, as the substance of the offence is being in possession for an unlawful purpose, proof of possession throws the onus on to the defendant when possession for an unlawful purpose cannot be said to be more likely than not to flow from being in possession of an imitation firearm.  In this respect, the defendant is unfairly called upon to disprove his moral blameworthiness.  His conviction may rest on conduct which is in no sense blameworthy.  Further, the offence is a serious one, punishable by 2 years’ imprisonment and, if there is a previous conviction for a scheduled offence, up to 7 years’ imprisonment.  The more serious the offence, the more important it is that there should be no interference with the presumption (Attorney-General’s Reference (No.1 of 2004) [2004] 2 Cr. App. R. 424 at 429).

51.  True it is that the defendant knows better than anyone else what the purpose of his possession is.  Indeed, it can be said that such knowledge is in a sense peculiar to him.  Mr McCoy SC points to cases where knowledge peculiar to the defendant has been held to justify the imposition of a reverse persuasive onus.  But it certainly does not follow, as Mr McCoy SC suggests, that, absent a reverse onus, the prosecution would be unable to prove the purpose of a defendant’s possession.  The existence of the relevant purpose can usually be informed from the circumstances of the defendant’s possession and conduct.  The prosecution should have no abnormal difficulty in proving the purpose of the defendant’s possession where that possession is for an unlawful purpose.

52.  Mr McCoy SC’s argument that s.20(4) with its requirement for the consent of the Secretary for Justice to the initiation of proceedings for an offence under s.20(1) is a safeguard supporting justification of the persuasive onus is without any substance.  The provision is simply designed to provide a safeguard against the initiation of proceedings which have no prospect of success or are otherwise unwarranted.  It was pointed out in Attorney-General’s Reference (No.1 of 2004) [2004] 1 WLR 2111 at 2142, affirmed in Sheldrake at 313H-314A, per Lord Bingham of Cornhill :

“The decision whether or not to prosecute is not the subject of article 6 [of the European Convention].  The appropriateness of a reverse burden, like the fairness of the trial, cannot depend on who decides whether there should be a prosecution.”

53.  Mr McCoy SC also argues that even an evidential onus can contravene the presumption of innocence.  He points to Downey v. The Queen as providing some support for his argument.  In that case, it was said that the presumption in s.212(3) of the statute then under consideration could result in the conviction of a defendant despite the existence of a reasonable doubt.  That is not so here.  Otherwise the authorities support the view that an evidential onus in the context of the offence under s.20(1) and (3)(c) would comply with the presumption.

54.  It follows that an evidential onus would have been sufficient to enable the prosecution to prove a case of being in possession of an imitation firearm for an unlawful purpose without being exposed to the degree of difficulty apprehended by the appellant.  So the Court of Appeal was right in concluding that the reverse onus is disproportionate and does not satisfy the proportionality test. 

The consequence according to the Court of Appeal: invalidity or an interpretation which preserves validity?

55.  The Court of Appeal decided that it could not read down s.20 so that it imposes only an evidential burden.  Their Lordships thought that it was not possible to read the phrase “if he satisfies the [court]” in s.20(3) as imposing a mere evidential burden.  The Court did, however, say that if the persuasive burden were expressly or by clear implication restricted to possession in a public place “reasonably defined”, then the persuasive burden would not have been inconsistent with the right to a fair trial and the presumption of innocence.

56.  The Court of Appeal, after recalling counsel for argument, rejected a variety of suggestions for re-casting s.20 in such a way as to endow it with validity.  These suggestions were put forward on the basis that the Court should assume the powers to preserve statutory provisions enjoyed by courts overseas.  The Court of Appeal declined to take up this invitation.  Central to their Lordships’ approach was the view that the courts of the Region are not armed with powers to engage in a re-moulding of the relevant provisions.  I do not agree with the conclusions reached by the Court of Appeal on this question.  Before examining the question, however, I should explain the context in which the question arises and how it is to be determined.  As will appear, a number of discrete issues arise. 

The possible sources of a power to give the statutory provisions a remedial interpretation to preserve their validity

57.  In essence, the question is whether the courts of the Region have power or, indeed, a duty to so construe s.20(1) when read with s.20(3)(c) as to preserve its validity, even if the interpretation is one which would go beyond ordinary common law interpretation because it may involve the use of judicial techniques such as reading down, reading in and striking out.  Of the two suggested sources for the existence of such a power, the first is ss 3 and 4 of the BOR Ordinance, the provisions which were declared by the NPCSC to contravene the Basic Law and were not adopted as HKSAR laws pursuant to art.160 of the Basic Law.  The second source is the Basic Law itself in that it arms the courts with such implied powers as are necessary to make effective the exercise of judicial power and jurisdiction invested in them.

58.  I find it unnecessary to base this decision on the argument resting on ss 3 and 4 of the BOR Ordinance because I consider that the Basic Law impliedly confers the necessary power on the courts to make “a remedial interpretation”, which goes beyond ordinary common law interpretation.  Before proceeding to examine the Basic Law, I need to say something of the argument based on ss 3 and 4, though, in this case, it is s.3(1) and (2) which are the relevant provisions, and to explain what is meant by a remedial interpretation.

59.  The argument based on ss 3 and 4 is that, while these provisions were not adopted as laws of the HKSAR, the effect of art.160 of the Basic Law was not to erase them as if they had never existed but simply to discontinue their application, so as to leave their previous operation untouched.  In this respect, art.160(1) speaks to the present and the future, except in so far as it refers to laws previously in force in Hong Kong; it makes no prescription as to the operation of laws in Hong Kong before 1 July 1997.  Indeed, there was no reason for art.160(1) to do so.  In the light of this understanding of the operation of art.160(1), the argument is that, in determining what was the relevant law “previously in force in Hong Kong”, the Court should have regard to ss 3 and 4 as part of the law in force before 1 July 1997 so as to ascertain whether s.20(1) and (3)(c) came through to the HKSAR in the terms in which they are expressed in the Ordinance or subject to a remedial construction, pursuant to s.3(1) and (2), which preserved their validity or whether they were invalid for contravention of the BOR.  As already stated, it is unnecessary to answer this question.  In so saying, however, I make it clear that, despite Mr McCoy SC’s argument to the contrary, there is no reason to doubt the correctness of the decision in Solicitor v. Law Society of Hong Kong and Secretary for Justice (2003) 6 HKCFAR 570 or any of the reasoning on which it is based.

60.  Before leaving art.160(1), I should refer to s.27(b) and (c) of the Interpretation and General Clauses Ordinance, Cap. 1.  These provisions are designed to preserve the past operation of previous Hong Kong Ordinances and protect acts and transactions done and entered into under such Ordinances.  In this respect, the effect of the provisions is consistent with the operation of art.160.

61.  It is convenient also at this point to record that s.2A of the same Ordinance was relied on as the source of the courts’ authority to make a remedial interpretation.  Again, it is unnecessary to consider this submission.

The relationship between remedial interpretation and common law principles of interpretation

62.  Much of the argument presented to the Court has proceeded on the footing that remedial interpretation mandates an approach to statutory construction which differs from, and is more radical than, that permitted by accepted principles of common law statutory interpretation.  Strong English authority supports this view (R v. A (No.2) [2002] 1 AC 45 at 67G-68E, per Lord Steyn; Ghaidan v. Godin-Mendoza [2004] 2 AC 557 at 570G-572C, per Lord Nicholls of Birkenhead; Sheldrake at 303G-304C, per Lord Bingham of Cornhill).  It is, however, necessary to establish precisely what that difference is. 

63.  The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise (Medical Council of Hong Kong v. Chow Siu Shek (2000) 3 HKCFAR 144 at 154B-C; K & S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J (dissenting, but not on this point); CIC Insurance Ltd v. Bankstown Football Club Ltd (1997) 187 CLR 384).  Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v. A (No.2) [2002] 1 AC 45 at 67G-68H, per Lord Steyn).  A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process.  What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.

64.  The very strong common law presumption or rule of construction in favour of constitutional validity, ut res magis valeat quam pereat (“it is better for a thing to have effect than to be made void” – see Jowitt’s Dictionary of English Law, 2nd ed 1977, p.1845) is subject to a similar limitation.  Thus, it has been said that, if the language is not so intractable as to be incapable of being consistent with the presumption, the presumption should prevail (Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153 at 180, per Isaacs J).  In Attorney-General (Vict) v. The Commonwealth (1945) 71 CLR 237, Dixon J said (at 267) :

“We should interpret the enactment, so far as its language permits, so as to bring it within the application of those ‘[legislative]’ powers and we should not, unless the intention is clear, read it as exceeding them.” (emphasis supplied)

See also Richardson v. Forestry Commission (1988) 164 CLR 261 at 293, per Mason CJ and Brennan J (“the principle of interpretation which requires a statute to be read in such a way that will preserve its validity”).

65.  Provisions such as s.3 of the Human Rights Act 1998 (UK) and s.6 of the New Zealand Bill of Rights Act 1990 go further.  They are directed to the situation which arises when a statute on its true interpretation, derogates from an entrenched or statutory human right or fundamental freedom.  They authorize or, more accurately, require the courts, in such a situation, to give the statutory provision an interpretation that is consistent with the protected rights, even an interpretation that is strained in the sense that it was not an interpretation which the statute was capable of bearing as a matter of ordinary common law interpretation.  Thus, it has been acknowledged that s.3 of the Human Rights Act may require the courts to depart from time to time from the legislative intention in order to ensure that a statutory provision is European Convention-compliant.  The operation of that section does not depend upon the particular form of words used by the legislative draftsman and inconsistency of the language with a Convention-compliant meaning does not make a Convention-compliant interpretation impossible (Ghaidan at 571G, per Lord Nicholls of Birkenhead).  Section 3 of the 1998 Act also authorizes the courts to read words into the statutory provision, to read it down and to strike out words to make it Convention-compliant. 

66.  There are, however, limitations to the interpretive process authorized by provisions such as s.3 of the Human Rights Act.  Lord Bingham of Cornhill summarized these limitations and the effect of the provision, albeit non-exhaustively, in Sheldrake at 303G-304B, in a passage which is as follows :

“… First, the interpretative obligation under section 3 is a very strong and far reaching one, and may require the court to depart from the legislative intention of Parliament.  Secondly, a Convention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course.  Thirdly, it is to be noted that during the passage of the Bill through Parliament the promoters of the Bill told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise.  Fourthly, there is a limit beyond which a Convention-compliant interpretation is not possible, such limit being illustrated by R(Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 and Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467.  In explaining why a Convention-compliant interpretation may not be possible, members of the committee used differing expressions: such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, or would call for legislative deliberation, or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation (paras 33, 49, 110-113, 116).  All of these expressions, as I respectfully think, yield valuable insights …”

I agree with Lord Bingham that they are insights but would emphasize that they are not prescriptions.

The Basic Law as it affects the powers of this Court

67.  The next question is: does the Basic Law confer on the courts a power of remedial interpretation?  The Basic Law established this Court as the Court of Final Appeal of the HKSAR and invested it, in common with the other courts of the Region, with the judicial power of the HKSAR (arts 8, 11, 18, 19, 80, 85, 158 and 160).  That judicial power is independent judicial power (arts 19 and 85).  The jurisdiction of the HKSAR courts extends to all cases in the HKSAR, except that restrictions imposed by the legal system and principles previously in force shall be maintained (art.19(2)).  The function of the courts of the Region is described by or referred to, in the expressions “adjudicate cases” and “adjudicating cases” which are to be found in the Basic Law (arts 84 and 158).

68.  The Basic Law neither sets out the powers of the courts nor the remedies which they may grant.  The absence of provisions in the Basic Law dealing with these matters is not surprising.  Article 83 of the Basic Law provides that the powers and functions of the courts “shall be prescribed by law”.  No doubt this provision enables the legislature to confer powers and functions on the courts but it does not exclude the implication of powers and functions from the Basic Law itself. 

69.  In common law systems, courts enjoy wide-ranging inherent and implied powers and there is no reason to think that the courts of the HKSAR stand as an exception to the generality of this statement.  The Basic Law recognizes that the courts of the Region (including this Court) are equipped with powers to grant appropriate remedies.  In this respect, there is a distinction between inherent jurisdiction and jurisdiction by implication.  When a statute sets up a court with a jurisdiction, it acquires by implication from the statute all powers necessary for its exercise (Grassby v. The Queen (1989) 168 CLR 1 at 16-17, per Dawson J).  As the courts are established by the Basic Law, the powers which they possess and the remedies which they may grant should be characterized primarily as implied, though some powers to be implied under the Basic Law may be ultimately traced back to the common law.

70.  The grant of judicial power and, for that matter, the investing of jurisdiction in a court, carry with them all those powers that are necessary to make effective the exercise of judicial power and jurisdiction so granted.  “Necessary”, in this context, means “reasonably required” (PCCW-HKT Telephone Ltd v. Telecommunications Authority (2005) 8 HKCFAR 337 at 357G-H, per Bokhary PJ).  These powers will include power to grant and employ such remedies as may be appropriate.  In Connelly v. D.P.P. [1964] AC 1254, Lord Morris of Borth-y-Gest said (at 1301) :

“… a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.”

His Lordship referred to these powers as “inherent”.  The generality of that statement may require qualification, though the power in question in that case may well have been inherent.

71.  For the purpose of disposing of these appeals, it is necessary only to decide whether the powers of this Court and other courts in the HKSAR include the making of a remedial interpretation of a statutory provision in order to preserve its validity, that is an interpretation of the kind discussed in paras 65 and 66 above and applied in Ghaidan, Lambert and Sheldrake.  Such an interpretation involves the well-known techniques of severance, reading in, reading down and striking out.  These judicial techniques are employed by the courts of other jurisdictions whose responsibility it is to interpret and pronounce on the validity and compatibility of legislation which is challenged on the ground that it contravenes entrenched or statute-based human rights and fundamental freedoms.

72.  In other jurisdictions, the power to employ these techniques often has its source in express powers granted either by a constitution or a statute.  That is the case in the United Kingdom and New Zealand, to mention but two examples.  The circumstance that the power is express in other jurisdictions is not a reason for concluding that the power should not be implied in cases where there is no express provision.  The existence of these express powers is a powerful indication that it is a usual and necessary power for a court whose responsibility includes the interpretation of entrenched human rights and fundamental freedoms and pronouncing on the validity or compatibility of legislation which is challenged on the ground that it contravenes entrenched or statute-based rights and freedoms.

73.  In the context of the Basic Law, which arms the HKSAR with a modern constitution including entrenched rights and freedoms, the concept of judicial power necessarily includes the making of remedial interpretations in the sense already discussed.  It is recognized as an incident of the exercise of judicial power in other jurisdictions.

74.  Even according to a strict and narrow interpretation of judicial power, namely that it is confined to the adjudication of disputes, the making of a remedial interpretation is an exercise of that power.  It necessarily results in the adjudication of a dispute between parties as to the making of the interpretation. 

75.  In England, the courts have departed from the strict and narrow view of the judiciary’s adjudicative role.  In In re Spectrum Plus Ltd [2005] 2 AC 680, Lord Nicholls of Birkenhead (at 692G-H) noted this development.  His Lordship instanced cases, where a point of law of general importance has arisen, which the House of Lords has decided, although the outcome has no practical effect.  His Lordship referred to a Privy Council example of the same kind, Attorney-General for Jersey v. Holley [2005] 2 AC 580.  There an important issue concerning the defence of provocation to a charge of murder was resolved in circumstances where the outcome had no effect on the conviction or the sentence.  Another example was Reg v. Home Secretary, Ex p. Salem [1999] 1 AC 450 where the House of Lords held that it had discretion on an appeal on an issue of public law involving a public authority to hear the appeal, even though at the time of the hearing there was no longer a lis to be determined directly affecting the parties’ rights and obligations inter se. 

76.  For the reasons already given, the function of making a remedial interpretation falls within the narrower conception of judicial power, without the need to call in aid the wider conception to which Lord Nicholls has drawn attention.  The wider conception has come into existence as a result of the ever-increasing importance of public law and the developing role of the courts in making authoritative declarations on matters of public law. 

77.  Courts have traditionally, and for very good reason, been reluctant to engage in what may be seen as legislative activity.  That is why, in earlier times the courts stopped short of engaging in remedial interpretation which involves the making of a strained interpretation.  The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down.  To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation.  In that event, they would have no option but to declare the legislation unconstitutional and invalid.  Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.

78.  Accordingly, I do not accept the arguments against implying a power in the Basic Law to enable the courts of the Region to make remedial interpretation of legislation to ensure that it is Basic Law-consistent.  The arguments which have been discussed are in essence sound arguments why a court should exercise extreme caution in the exercise of its powers rather than arguments that such a power should not be implied at all.  The Court must proceed on the footing that the courts of the Region, including this Court, possess all necessary powers to deal with all manner of questions which may legitimately arise in connection with the interpretation and enforcement of the provisions of the Basic Law, including their impact on Hong Kong legislation.  It follows that the implied powers of this Court include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent.  Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.

79.  This implied obligation extends to making a legislative provision BOR-consistent because art.39 of the Basic Law gives constitutional force to the ICCPR provisions “as applied to Hong Kong” by the BOR and provides that they “shall remain in force”.  Article 39 goes on to provide that any restrictions on BOR rights and freedoms shall not contravene art.39(1).

Can s.20(1) and (3)(c) be so interpreted as to be Basic Law and BOR compliant?

80.  The next question is whether it is possible to apply a remedial interpretation to the legislative provisions in question in this case so as to make them Basic Law and BOR-consistent.  In considering this question, we proceed on the assumption for present purposes that the Ordinance, was a law previously in force in Hong Kong and, continued to apply in the HKSAR in the form in which it is expressed; in other words, we assume that s.20(1) and (3)(c) have not previously been read down in any way.  In considering whether it will apply to these provisions a remedial interpretation, this Court is not oppressed by the difficulties of language and structure of the provisions which influenced the Court of Appeal to hold that an interpretation favouring validity was not possible.

81.  Two competing interpretations are suggested.  The first is that urged by Mr McCoy SC, one to which the Court of Appeal might have been disposed had their Lordships considered it to be within their power, namely that s.20(1) and with s.20(3)(c) be read down to cover possession of an imitation firearm in a definable public place for the purposes listed in s.20(3)(c).  The other interpretation is that s.20(1) and (3)(c) be treated as imposing a mere evidential burden.

82.  Of the two interpretations, the second has the stronger claims.  It preserves the application of the provisions over the entire geographical area which the legislature intended to be covered by the provisions, that is, possession of an imitation firearm anywhere.  This interpretation does no violence to fundamental or essential elements of the legislation.  And there is, on the view already expressed, no doubt that a mere evidential onus is consistent with the presumption of innocence and the right to a fair trial.

83.  The first interpretation, because it would drastically reduce the area of operation of the provision, gives less effect to the legislative intention.  There is also the unresolved question whether, were the provision given that interpretation, it would be Basic Law and BOR-consistent.  The final problem is: how is the expression “public place” to be defined.  A number of alternative meanings are possible, the choice being eminently a matter for the legislature. 

Conclusion on the interpretation of s.20(1) and (3)(c)

84.  Accordingly, it should be declared that s.20(1), in conjunction with s.20(3)(c), should be read and given effect as imposing on the defendant an evidential burden only.  This was the course taken in Lambert and, in particular, Sheldrake at 314D.  In Sheldrake, the House of Lords was concerned in relation to Attorney-General’s Reference (No.4 of 2002) (which was heard together with Sheldrake)with s.11(2) of the Terrorism Act 2000 (UK).  The sub-section was expressed in a form similar to s.20(1) :

“(2) It is a defence for a person charged with an offence under subsection (1) to prove – ” (emphasis supplied)

Prospective Overruling

85.  In the Dangerous Drugs case, HKSAR v. Hung Chan Wa and Atsushi Asano, FACC No. 1 of 2006, in which judgment is delivered concurrently with the judgment in this case, the Court holds that, assuming that the Court has power to make an order for prospective overruling, the circumstances in that case did not warrant the exercise of the power.  As the circumstances relied on in the present case are very much weaker, this also is not a case for the exercise of the power.

The proviso to s.83(1) of the Criminal Procedure Ordinance

86.  The final question arises on Mr McCoy SC’s brief submission that the Court of Appeal should have applied the proviso on the ground that there was no miscarriage of justice on the basis that the respondents did not discharge any burden either on an evidential or persuasive basis.  Further, the appellant submits, the trial judge did not believe the respondents and on the evidence, possession for an unlawful purpose was established.

87.  On the other hand, Mr Grossman SC for the respondents submits that we should not disturb the Court of Appeal’s judgment on this point because there is no case in which the prosecution has succeeded in an appeal on the substantial and grave injustice ground for leave to appeal and the respondents’ sentence of imprisonment has expired, so that the prosecution has suffered no injustice.

88.  As the Court of Appeal did not consider the application of the proviso in the circumstances which arise under the provisions as we have interpreted them, we consider that the question should be remitted to the Court of Appeal for consideration.

Conclusion

89.  In the result we would make the following orders :

(1) Appeals allowed.

(2) Set aside the orders made by the Court of Appeal allowing the appeals to that Court and quashing the convictions and sentences.

(3) Declare that s.20(1), in conjunction with s.20(3)(c) of the Ordinance, should be read and given effect as imposing an evidential onus only.

(4) Remit the matters to the Court of Appeal to consider whether the proviso to s.83(1) of the Criminal Procedure Ordinance should be applied and to dispose of the appeals to that Court in the light of its consideration of that question.

 

Chief Justice Li :

90.  The Court unanimously allows the appeals and makes the orders set out in the concluding paragraph of Sir Anthony Mason NPJ’s judgment.