R. V. SIN YAU MING

Headnote

Hong Kong Bill of Rights:

Construction and application:

Presumptions s.46, 47 Dangerous Drugs Ordinance:

Use of s.81 Criminal Procedure Ordinance

H.C. 289/90

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JUDGMENT

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Silke, V.-P.

1. On 27th August 1991 Sin Yau Ming appeared before Ryan J. for arraignment upon an indictment containing two counts: the first was that of possession of dangerous drugs for the purpose of unlawful trafficking, the quantity concerned was 337.44 grammes of a mixture containing 75.05 grammes of salts of esters of morphine; the second was also that of possession of dangerous drugs for the purpose of unlawful trafficking and the amount concerned was 24.55 grammes of a mixture containing 20.89 grammes of salts of esters of morphine. Upon arraignment he pleaded not guilty to both counts and the Crown immediately made application to the trial judge, praying in aid section 81 of the Criminal Procedure Ordinance, Cap. 221 - "the Ordinance" - for the judge to reserve for the consideration of this court a question of law.

2. The application succeeded and the trial was adjourned.

3. On 21st and 22nd August in the course of District Court trials Mr. C.Y. Wong, sitting as an deputy judge of that court, had ruled that the sections in the formulated question were inconsistent with the provisions of Article 11(1) of the Hong Kong Bill of Rights. As both those trials continued on the general issue and as neither had concluded before the trial here had commenced "the Attorney General, with the agreement of the defence, thought a reservation of the issues to this court to be the most expeditious method of providing for their consideration.

4. At the request of this court the first issue argued was that of the jurisdiction of the trial judge to grant the application and, consequentially, the jurisdiction of this court to deal with it.

5. Section 81of the Ordinance, with its heading, reads:

6. The provisions of this section have fallen for consideration in four, and as far as we are aware only four, reported cases. The first is R. v. Leung Wing Cheung [1958] HKLR 49. There the accused was on trial for the offence of breach of a deportation order. The District Court Judge reserved, as a question of law for the consideration by the Full Court, whether certain facts amounted to the defence of lawful excuse. The Full Court consisted of Gould, Acting C.J. and Reece J. In delivering the judgment of the court Gould, Acting C.J., having recalled the fact that the District Judge did not proceed to conviction or acquittal before reserving the question for the Full Court, went on at page 57:

7. The court referred the matter back to the District Court having expressed its opinion on the reserved issue of law.

8. I would digress at this point to indicate that Ordinance No.9 of 1899 contained a section numbered 78 the opening words of which read:

9. Subsection (2) of section 78 stated that upon consideration of the question so reserved it shall be lawful for the Full Court to affirm or to quash the conviction or to direct a new trial, and to make such other orders as may be necessary to give effect to its decision: there was then a proviso.

10. The 1954 Revised Edition of the Laws relating to the Ordinance contained the heading:

11. In it section 78 became section 81 and is similar in terms and form to that contained in the earlier edition of the Laws. In the 1971 Revised Edition of the Laws, the same heading appears but the section had become numbered as section 80. Again is in the same terms as was the old section 78., The section, reverting to the number 81, with which we are concerned is, with its heading and in its redrafted form as set out above, contained in the current Edition of the Laws: Revised 1988.

12. To continue: the next case in point of time was in 1962 and is entitled "In the matter of section 81 of the Criminal Procedure Ordinance: In the matter of R. v. Chan Wing Look" [1962] HKLR 651. There the District Judge reserved for the opinion of the Full Court two questions: The headnote refers to a "case stated" under section 81 (1) of the Criminal Procedure Ordinance. This is clearly incorrect: s.81 sounds by itself. There was no argument raised there as to the propriety of the use of section 81. The court answered the two questions put before it and remitted the matter to the District Court to continue the trial.

13. In R. v. Ho Siu Fai and Others [1976] HKLR 190 the successor to the Full Court, the Court of Appeal, dealt with a question reserved under the provisions of section 81 (1). It remitted the matter to the High Court, from whence the question had emerged, with expression of their opinion Again no argument was addressed to the court as to its jurisdiction under section 81.

14. The last case was in 1978, entitled In an application by Tsang Tiny Bun for an order of Certiorari and for an order for Mandamus, High Court Miscellaneous Proceedings No.56 of 1978, [1978] HKLR 141. There the High Court, sitting as what other jurisdictions might term a Divisional Court, and consisting of Trainor and Cons, JJ., specifically considered the question of jurisdiction.

15. A District Court Judge was, in the course of a trial, asked by the defence to reserve questions of law for the consideration of the Court of Appeal. In the exercise of his discretion under section 81 of the Criminal Procedure Ordinance he refused to do so. The Crown at trial had opposed any such reference because of lack of jurisdiction. Upon the refusal the defence applied for the issue of prerogative writs and the trial was adjourned to permit this to be done. They sought an order to quash the ruling of the trial judge and for an order directing him to exercise his discretion under section 81. The issue was therefore full square before the Divisional Court.

16. The main judgment was gives by Trainor J. with Cons J. (as he then was), in his usually succinct manner, agreeing in a short judgment with the reasoning of Trainor J. and stating at page 151:

17. We are now asked by Mr. Cross who, with Mr. Dykes and Mr. Bailey, appears for the Crown - a request in which he is joined by Mr. Daniel Fung who, with Mr. Mok and Mr. Mullick, appears for the defendant - to hold that Miscellaneous Proceedings NO.56 of 1978 was wrongly decided and for this court to entertain the present reference.

18. At first blush I was strongly attracted to the finding in MP 56/1978. This court has always set its face against interlocutory appeals in criminal cases. Section 81 proceedings are analogous. Criminal trials are intended to start, continue and finish with celerity and avoiding interruptions. If every ruling by a trial judge were to be there and then called into question and reference made, by whatever method, to the Court of Appeal criminal trials would become unjustifiably protracted. The High Court lists are already crowded - not to speak of the lists of this court - and they would become clogged. It must be born in mind that applicants whose applications are listed in this court are entitled to have those applications dealt with expeditiously. They also have their civil rights. Protracted delays resulting from extended lists and indeed, as here, the necessity for relisting of applications already set down in order to permit urgent matters to. be dealt with, are to be avoided.

19. It is of passing interest that between 1982 and October 1990 there were in Canada some 10,000 cases in which the charter had been invoked with several thousand judicial decisions [Human Rights Committee: 1010th meeting: State Party Reporting: Canada]. The enormous potential cost of this legislation is obvious.

20. That having been said I am very conscious of the importance of the issues concerned in this reference and the public need for their early resolution. The urgency of this matter is indicated by the number of trials, as we were informed in the course of the hearing, pending the decision of this court - 30 in the Magistracy, 9 in the District Court and 31 in the High Court. These figures themselves underline the difficulties faced by these courts and getting matters on for hearing. The criminal listings in the High Court as at the end of August 1991 were running to the end of August 1992. The anxiety of the Attorney General - and indeed of the defence - is understandable. Existing legislation does hot provide, in relation to Human Rights matters, for a Referral or Constitutional Court. Issues arising under the Hong Kong Bill of Right Ordinance 59/1991 take their place within the court system as it now stands - and any of the hierarchy of courts which comprises that system is a court of competent jurisdiction wherein those issues can be raised.

21. In MP 56/1978 Trainor J. made reference to both Leung Wing Cheung and HO Siu Fai. He noted, as we have, that in the latter no jurisdiction submission had been made to - nor was the issue considered by - the Court of Appeal. Of Leung Wing Cheung he said this at p.144:

22. True that in Leung Wing Cheung Gould, Ag. C.J.'s reference to section 81 came at the conclusion of the single judgment of the court. What was there said was this: (p.57)

23. The matter was, as I have earlier indicated, referred back to the District Court with the opinion of the Full Court.

24. I accept the comment of Trainor J. that the report does not make reference to argument having been addressed to it. I do not however accept the finding that the passage quoted above was obiter. Cursory though it may have been, it had direct relevance to the powers of the court to make orders to give effect to its decision on the reserved question of law.

25. Trainor J. went on in his interpretation of section 81 to find it helpful to consider, as he put it at p.145:

26. The English legislation was the Crown Cases Act 1848 (11 & 12 Vict. C78) [Halsbury's Statutes of England: Vol.5: 2nd Edition p.701].

27. While, as Gould, Ag.C.J. said at page 58 in Leung Wing Cheung, section 81 otherwise bears "some resemblance" to the Crown Cases Act the schema of the latter is radically different. Its provenance was the old Court of Crown Cases Reserved and its procedure. The jurisdiction of that court was transferred, in 1873, to the judges. of the High Court. It was vested in the Court of Appeal by the Criminal Appeal Act of 1907. It is of interest that the "Notes" in Halsbury state that:

28. The second edition of Halsbury's Statutes was issued in 1948. The Act has now been repealed.

29. The radical difference, to which I have referred, is occasioned by the opening words of section 1 of the 1848 Act which read:

30. I am unclear from whence came the citation of the Act used by Trainor J., but nothing turns on this. Hong Kong has never had, to my knowledge, a court of Crown Cases Reserved, or the procedure relevant to that court whereby a trial judge reserved for the consideration of a full bench of his Brothers, including the Barons of the Exchequer, an issue of law arising in the course of a trial. It may well be that, to recognise this, the opening words in Ordinance 9 of 1899 read:

31. It seems clear from this wording that provision was being made in case where there had been a conviction so that the judge reserving the question of law was empowered to make consequential orders pending the opinion of the Full Court being made known. It is not there simply to draw a distinction between a conviction and an acquittal. When the legislature in 1979 enacted the new section 81D it did not see fit to make any alteration to the then existing section 81 of the Ordinance. This fortifies the opinion which I have formed.

32. With respect to Trainor J., while containing a provision similar to section 8l, the 1848 Act is not the fons et origo of our legislation. This despite the heading, now abandoned, preceding the section and contained in the older versions of the legislation.

33. Subsection (4) of section 81, in my judgment, requires the Court of Appeal to come to its decision on the question of law reserved and then, should it be necessary, and if a person has been convicted the court ''may''affirm or quash the conviction or order a new trial or - and I read, as did Gould, Ag.C.J., the word "and" in the context here as disjunctive

34. That latter provision, and I am constrained by the general wording of section 81 to come, with some reluctance, to this conclusion, must mean that it is the decision of the Court of Appeal which matters and it is that to which effect must be given whatever the condition of the person at trial. It must not be overlooked that the trial judge can act under the section on his own motion or on an application by either the Attorney General or the defence.

35. While the decision of any court comprising Trainor J. and Cons J. (as he then was) is properly one deserving of great weight, I respectfully disagree with the conclusions in MP 56/1978 that a conviction is a pre-requisite for any reference under its provisions to the Court of Appeal.

36. I would emphasise that the powers in a trial judge to reserve are discretionary: both as to the original reservation and as to the time at which the matter is to be placed before the Court of Appeal. If indeed such question does arise it would be open for the judge to hold back from making any reservation until a trial has concluded.

37. It is by far the better practice, while this unfortunate section still remains on our statute books, that, where such a question of law does arise, it is reserved at the conclusion of the trial when all the evidence is in, and is therefore available to this court, and the judge has come to a decision upon the matter. It can then, and it should be, become part of the appellate procedure. This in no way inhibits the Attorney General, should an accused be fortunate enough to be acquitted, for he has had, since 1979, the benefit of the provisions of section 81D of the Ordinance.

38. While it is not for this court to fetter a discretion conferred upon a judge nevertheless recourse to and reservation under section 81 should be the subject of the most careful scrutiny and orders made only in the rarest of cases.

39. It is not helpful to reserve a question of law, as was done here - though I fully understand why in this particular instance it was done and no criticism of the trial judge is intended - and to require this court to consider its decision on the question raised before any evidential background is available.

40. Because of the course taken it was necessary in the course of the hearing for Mr. Cross to have recourse to the provisions of section 83V of the Ordinance - and for a mirror application to be made by Mr. Fung. Had the evidence in statement form sought to be admitted here - and it had been the intention to lead this evidence at the trial - been controversial the statement makers or the deponents, as the case may be, would have had to attend and give oral evidence. Fortunately we did not consider that matters of controversy arose.

41. This court is not a fact finding body and should not in the ordinary course be turned into one.

The main issue

42. Having entertained the application I now turn to the main issue.

43. First, as a matter of convenience, I will set out the abbreviations which will be used in the course of this judgment and a short explanation of them. I set them out in historical order for the relevant dates have some significance.

44. "Canadian Bill": means the Canadian Bill of Rights of 1960 entitled "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms";

45. "The Covenant": means the International Covenant on Civil and Political Rights, containing articles agreed in accordance with the charter of the United Nations, created in 1966 and ratified by the United Kingdom - and for and on behalf of Hong Kong - and by Canada in 1976: the United Kingdom ratification was with Reservations which are not our direct concern here;

46. "The Canadian Charter": means the Constitution Act, 1982 entitled "Canadian Charter of Rights and Freedoms";

47. "The Hong Kong Bill": means the Hong Kong Bill of Rights Ordinance 1991, Ordinance 59 of 1991, which came into operation on 8th June 1991;

48. "The Letters Patent": means the Hong Kong Letters Patent 1991 (No.2).

49. In the course of this judgment I shall generally follow the format of the submissions attractively made and pleasingly presented by Mr. Fung. It was agreed between Mr. Fung and Mr. Cross that the former should go first, Mr. Cross should reply and individually make his own submissions and that Mr. Fung should have a right of final reply.

The first issue: the Bill of Rights Regime in Hong Kong

50. I look first to Article VII (3) of the Letters Patent. The Letters Patent amended the existing Article VII in the principal Letters Patent by adding a new paragraph which reads as follows:

51. The effect of the Hong Kong Bill was to apply, with the exceptions and savings set out in part 3 of that Bill, the covenant to Hong Kong. In this hearing we are not concerned with those exceptions, savings, or temporary savings.

52. While not directly germane to the arguments it is nevertheless of interest to note section 7 of the Ordinance which reads:

53. Sections 3 and 4 of the Ordinance are highly relevant. They read:

54. It needs to be emphasised that the only duty of this, or any other court, considering legislation is to decide whether that legislation is or is not inconsistent with the Hong Kong Bill. This, or any other court, does not repeal legislation. That is done by the Hong Kong Bill itself. This, or any other court, does not redraft legislation or for that matter make suggestions for the form of future legislation. The content of the legislation is viewed, with what will be seen to be an entirely new jurisprudential view, and the court gives its opinion whether, bearing in mind Hong Kong circumstances, that legislation is inconsistent with the Hong Kong Bill.

55. Section 8, which is contained in Part II of the Hong Kong Bill, sets out Article 11(1) against which the specific presumptive sections of the Dangerous Drugs Ordinance Cap. 134 - that is section 46 (c) and (d) and section 47(1) (c) and (d) with section 47(3) - are to be tested. It reads as follows, under the heading "Rights of persons charged with or convicted of criminal offence":

56. That provision, by virtue of tire legislative changes in Hong Kong domesticating the covenant, is part of the law of Hong Kong. Article 14 (3) (ii) of the covenant is in identical terms with that of Article (11)(1) of the Hong Kong Bill.

General principles for the interpretation of the Hong Kong Bill

57. The Hong Kong Bill itself, under the heading "Interpretation" in s.2 (3), provides assistance as to the manner by which the courts should proceed with their task. It reads as follows:

58. It further provides, and this is drawn from Article 5.2 of the covenant, in its subsection (5):

59. It is accepted by both sides before us that there exists a well established principle of common law relating to the construction of statutes which are intended by the legislature to domesticate an international treaty to which the state - here the United Kingdom in the name of Hong Kong - is a party. The words of the statute should be interpreted by the court as being intended to carry out the state's international treaty obligations and not in any manner inconsistent therewith provided the words of the statute are reasonably capable of bearing such meaning. [Garland v. British Rail [1983] 2 AC 751 (H.L.) and the words of Lord Diplock at page 771 A-C]

60. We are here concerned with a constitutional document even though brought into force by an Ordinance. It is nevertheless established as a self-contained document by virtue of the provisions of the Letters Patent and section 8 of the Hong Kong Bill.

61. In the Ministry of Home Affairs v. Fisher [1980] AC 319 (P.C.) which concerned the Constitution of Bermuda, and which has been adopted in Hong Kong, Lord Wilberforce, in delivering the judgment of the Judicial Committee stated, at page 329B, on the issue of whether such statutes as the Hong Kong Bill are to be construed in the manner and according to the rules which applied to Acts of Parliament, that there were two possible answers:

62. The Board there preferred the second answer, Lord Wilbefroce stating at D on the same page:

63. I accept, and it is not a matter of controversy, that we should view the Hong Kong Bill as being sui generis. Sections 3 and 4 which I have set out above make it clear that all existing and all new legislation is required to be consistent with the Covenant. Therefore the covenant becomes supreme. Not the legislature.

64. I now look for general guidance to the preamble which commences the Covenant. This reads:

65. In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary cannons of constructions of statutes nor with the dicta of the common law inherent in our training. We must look, in our interpretation of the Hong Kong Bill, at the aims of the Covenant and give "full recognition and effect" to the statement which commences that Covenant. From this stems the entirely new jurisprudential approach to which I have already referred.

Guidance in interpretation of the Hong Kong Bill

66. While this court is, in effect, required to make new Hong Kong law relating to the manner of interpretation of the Hong Kong Bill and consequentially the tests to be applied to those laws now existing and, when asked, those laws yet to be enacted, we are not without guidance in our task. This can be derived from decisions taken in common law jurisdictions which contain a constitutionally entrenched Bill of Rights. We can also be guided by decisions of the European Court of Human Rights - "the European Court" - and the European Human Rights Commission - "the Commission". Further, we can bear in mind the comments and decisions of the United Nations Human Rights Committee - "the Committee". I would hold none of these to be binding upon us though in so far as they reflect the interpretation of articles in the Covenant, and are directly related to Hong Kong legislation, I would consider them as of the greatest assistance and give to them considerable weight.

67. In seeking guidance from the decisions and comments of the Committee and those of the Commission, and I accept this from Mr. Fung, the Court should bear in mind that these are general comments and, in particular in respect of the Committee, that the perspective adopted is to consider the international treaty obligations of State Parties. Matters of principle are there stated in the widest and most general of terms so that all the individual State Parties, and there is a multiplicity of them with differing legal traditions and social aspirations, may interpret them more meaningfully. Further, the Committee, under the Optional Protocol, is normally concerned with individual petitions from citizens of the State Parties who are aggrieved by particular decisions of their domestic courts and who have exhausted all domestic judicial avenues of redress.

68. The same applies in part to the Commission and the European Court in Strasbourg. They operate as supra-national tribunals empowered to scrutinize the conduct of different branches of the governments of the State Parties to the European Convention on Human Rights. They look to see whether the handling of a particular case in a complaint against the State Party in its domestic jurisdiction has infringed the rights of the complainant under that Convention.

69. The approach of those bodies differs from that of a domestic court whose task is to determine the constitutionality or otherwise of domestic legislation measured, as is the case in Hong Kong, against an entrenched instrument. So they are helpful but not always apposite.

70. Greater assistance can be derived from those two common law jurisdictions, the United States of America and Canada, which have constitutionally entrenched Bills of Rights. The American Bill of Rights is, of course, of lineage far more ancient than either the Covenant or the European Covenant, predating the Covenant by some 175 years and is embodied in the constitution of the United States and its amendments.

71. In Canada there are two streams of authorities: one relating to the Canadian Bill and the second relating to the Canadian Charter which superseded the Canadian Bill. Mr. Fung has urged upon us that this court, instead of adopting what he terms the bifocal interpretation used in the Canadian Charter cases should adopt a telescope view. It is Mr. Fung's further submissions that the jurisprudence which grew up from the Canadian Bill was profoundly affected by two matters: (1) the fact that it was not entrenched and (2) the absence in the Canadian Bill of any express power to invalidate inconsistent legislation. He has urged us therefore to have recourse to the jurisprudence developed after the enactment of the Canadian Charter because that is a constitutional arrangement entrenching human rights just as is the Hong Kong Bill. Overall, it must be borne in mind that the Hong Kong Bill is not a mere collection of pious platitudes or hopeful aspirations: it is the law.

72. The "bifocal" approach to which Mr. Fung has alluded is illustrated by R. v. Oaks [1986] 26 DLR (4th) 200. There, in the main judgment of the Supreme Court of Canada, Dickson, C.J.C. looked at the provisions of s.8 of the Narcotic Control Act, found it to contain a reverse onus provision from which a mandatory presumption of law arose and found that to be inconsistent with the guarantee to the presumption of innocence contained in s.11 (d) of the Canadian Charter. The offending provision required an accused, having first been found to be in possession of narcotics, to, in a form of second trial, disprove on the balance of probabilities that he was in the possession so found for the purpose of trafficking. Dickson C.J.C. the went on in the light of the provisions of s.l of the Canadian Charter - which stated that the Canadian Charter guaranteed 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" to see if the offending provisions could be so justified.

73. While the Hong Kong Bill contains no "justification" provision, I would accept Mr. Fung's description of the phrase "free and democratic society" as "aspirational" and, in the Hong Kong context, in no way to diminish the implied justification tests which he suggests this Court should apply in the circumstances such as lie for consideration here.

74. In the American jurisdiction we have been referred to Tot v. United States (1943) 319 US 463; Leary v. United States (1969) 395 US 6; Ulster County Court v. Allen (1979) 442 US 140 - these, in turn, considered a presumption in the Federal Firearms Act where possession of a firearm by a person previously convicted of a crime of violence, or who is a fugitive from justice, is taken to have received it as the result of inter state, as differentiated from intra state, commerce: this a violation of the act; the statutory presumption of knowledge of illegal importation arising from the fact of possession; and the presumption that a person present in an automobile in which there is a handgun possess that weapon.

75. The American courts appear to differentiate as between permissive and mandatory presumptions. They adopt the bifocal approach, and by doing so may well nave influenced the Canadian jurists who have looked to the United States for much of the jurisprudential basis for the construction of the Canadian Charter. The American courts also take a restrictive view as to the validity of presumptions generally.

76. In Tot Roberts J. stated that a statutory presumption cannot be sustained if there were no rational connection between the fact proved and the ultimate fact presumed.

77. Harlan J. in Leary described a criminal statutory presumption as "irrational" or arbitrary unless it can be said "with substantial assistance that the presumed fact is more likely than not to flow from the proved fact on which it is mane to depend".

78. Allen held that the criminal statutory presumption there was entirely rational, it being merely permissive not mandatory.

79. All these are Supreme Court cases and in Allen there was a strong dissenting opinion delivered by Powell J.

80. Mr. Cross has suggested that reliance should be placed on a number of European decisions to which he has referred us. These are: Barbera, Messague and Jabardo (1988) ECHR series A No. 145, Salabiaku v. France (1988) 13 EHRR 379 - both decisions of the European Court - and X v. United Kingdom : application No. 5124/71 : Collection of Decisions ECHR 135, a Commission decision.

81. Barbera is not of great assistance. It was cited to us for whatever benefit the Crown might take from a passage at p.33 para. 77 of the judgment. This simply sets out some basic principles inherent in the Common Law.

82. Salabiaku did consider presumptions but did not, as Mr. Fung puts it, "grasp the nettle" for it found that France had not made use of presumptions in any event. It would appear from the judgment that the French courts were considered to have treated as permissive that which in our law would be considered an instance of strict liability - a possessor of prohibited goods is deemed liable for the offence of smuggling prohibited goods. The European court did however appear to take the view that presumptions are not, ex facia, prohibited. There must however be a reasonable balance between the aim of a state in the enaction of its legislation and the means that is used in that legislation to effect the aim. [Belgian Linguistic Case (No. 2) (1988) 1 EHRR 252.)

83. In considering the Canadian cases I must confess that I am persuaded to a broader view of the validity of presumptions than is apparent from the authorities in that jurisdiction - or from those in the United States of America. We have been referred to the Pre-Canadian Charter cases of Appleby (1971) 21 DLR (3rd) 325 which was itself considered in Shelley (1981) 123 DLR (3rd) 748 - to Stanger (1983) 2 DLR (4th) 121 - were the "rationality test" propounded in Shelley was considered. There the Court of Appeal of Alberta at p.139 posed itself the question "Is the demand of the Statute fair?" which that Court thought to be the reality of Shelley. Then follows Oakes (1986), Kenner (1986) 29 CCC (3rd) 138 and Whyte (1988) 51 DLR (4th) 481, the post Charter cases.

84. The Canadian courts, in particular, Oakes (1986), considered the well known passage in the D.P.P. v. Woolmington [1935] AC 462 (H.L.) where Lord Sankey at p.481 said:

85. They took the view that Lord Sankey was there viewing the common law rights of an accused within the context of a supreme Parliament and it was that which brought him to add the phrase ''and subject also to any statutory exception". If Parliament said all rabbits were green then all rabbits were green. As I have indicated earlier that is not the context in which we now view the provisions of Article 11(1) nor is this the context accepted by the Canadian courts in post Canadian Charter days. I would not derogate from their view.

86. In Oakes (1988) the difference between Canadian Bill jurisprudence and Canadian Charter jurisprudence was considered and Dickson C.J.C. went on to hold that Shelley had correctly rejected the applicability of Ong Ah Chuan v. Public Prosecutor [1981] AC 648 (P.C.)

87. On the "difference" view he said at p.216:

88. He went on to say at p.217, having quoted a passage from R. v. Big M Drug Mart Ltd (1985)  18 DLR (4th) 321:

89. In Appleby, the majority judgment had held that a reverse onus provision which goes no further than to require an accused to offer proof on a balance of probabilities does not necessarily violate the presumption of innocence under section 2(f) of the Canadian Bill.

90. In Ong Eng Chuan [1981] AC 648 (P.C.) the Judicial Committee had for consideration the provision of the Misuse of Drugs Act 1973 of Singapore and the Constitution of that Republic. In the judgment of the Judicial Committee, delivered by Lord Diplock, there was reference made to the statutory presumption, rebuttable as it was by an accused, that possession of a quantity of controlled drug was for the purpose of trafficking. It was held that this did not conflict with any fundamental rule of natural justice. The Canadian courts in both Shelley and Oakes (1986) were of the view that, there being no specific reference to the presumption of innocence contained in the Singapore Constitution, Lord Diplock in his reference to the rules of natural justice was not considering that presumption.

91. With the greatest respect, the presumption of innocence is the fount of the rules' of natural justice in relation to criminal trials. I cannot conceive that Lord Diplock was ignoring it - even though it was not spelled out in the constitutional documents that lay for the consideration of the Judicial Committee. In my judgment Canadian courts have taken too narrow a view of Ong Eng Chuan but, as this does not alter the general views to which I have come on the manner in which we should deal with the issues before us, I do not think it necessary to go further. I do note however that in Singapore in 1981 the trigger quantity was two grammes and was considered "many times greater than the daily dose taken by typical heroin addicts … " [Ong Eng Chuan p.672]

92. In briefly reviewing those general authorities in other jurisdictions which have been referred to us I have not ignored authority within this jurisdiction; R. v. Chan Siu Shing and Others [1974] HKLR 482: R. v. Law Wai Ming and Anor C.A. 981/1977 (unreported); R. v. Au Wai C.A. 296/79 (unreported); R. v. Kwan Ping Bong [1979] HKLR 1 (P.C.) and R. v. Kwok Ming C.A. 428/1984 (unreported).

93. I have in mind, in particular Char Siu Shing where, at p.498, Huggins J.,(as he then was) having set out the directions given by the trial judge on the burden of proof which commenced with the sentence "In most criminal charges, of course, the burden of proof is completely on the Crown" said:

94. However being aware of the proposition shortly to be adumbrated by Kempster J.A. in his judgment, which I have had the opportunity to read in draft, and which is wholly in accord with the views that I have formed as to the manner in which we should look at the issues here, I do not think it necessary to make further comment on the mass of authorities before us.

95. What is contended for at this hearing has harrowed down in the course of it to a direct consideration of the specific legislative provisions referred to in the question.

96. If I may be permitted to plagiarize, the proposition is -

97. The onus is on the Crown to justify. It is to be discharged on the preponderance of probability. The evidence of the Crown needs 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.

The Dangerous Drugs Ordinance Presumptive Sections

98. These courts have, over the years, reiterated their abhorrence for the evils inherent in the narcotic trade. The proposition is self-evident and needs no citation of authority to underline it. Those who involve themselves in the trafficking of dangerous drugs can expect little mercy from these Courts.

99. R. v. Lau Tak Ming [1990] 2 HKLR 370 was concerned with the sentences appropriate for drug offences. It was said at p.384H:

 We were there referring to the two separate offences contained in the Dangerous Drugs Ordinance of trafficking and of being of possession for the purposes of unlawful trafficking. As Mr. Fung has acknowledged at this hearing if there were but one offence - of trafficking - he would not be here.

100. Also in Lau Tak Ming at p.385B the court said this:

I would emphasise that we here we are concerned only with salts of esters of morphine and not with any of the other substances referred to in (i), (ii), (iii) or (iv) of either s.46 (c) or (d). Both those paragraphs mention "an ester of morphine". This is heroin base and needs chemical treatment before being rendered usable by an addict. It is a strange bed fellow for salts of esters of morphine a substance subject only to dilution by additives and needing no chemical process. Yet 0.5 of a gramme is still the trigger.

101. Perhaps unfortunately, the active consideration of s.46 has, so far, led merely to the deletion of s.46 (e), a somewhat convoluted and obscure provision, and that only. Had the rather broad hint contained in Lau Tak Ming been followed up again these proceedings might have become unnecessary.

102. I am fully aware that drug traffickers are acutely conscious of the amounts which trigger presumptions. I have no doubt that they attempt to keep their couriers, the clogs in the machine who so often appear before these courts, carrying amounts which are close to that trigger.

103. Mr Cross has emphasised to us the contents of s.8 Article 2 of the Hong Kong Bill the Right to Life; Article 19 and its provisions for the Rights of a Family; Article 20 the Rights of Children, in particular the right of a child to such measures of protection as are required by his status as a minor on the part of his family, society and the state. I accept that all of these rights are affected by the drug trade. But what this Court has to consider is not the issue that there can be no presumptions at all, but the issue do the specific presumptions under consideration infringe Article 11 (1).

Section 46 (d)

104. The Crown's justification evidence is contained in the evidence cited in Lau Tak Ming that an addict requires one-half to one gramme of salts of esters of morphine per 24 hours to sustain his addiction, with one gramme being the upper limit. We were talking there of the narcotic not the mixture which may contain it. This came from Dr. Hollinrake. In Lau Tak Ming we also had evidence from Chief Inspector Young.

105. We have before us today, as fresh evidence, statements made by Chief Inspector Young on 9th July and supplemented by another on 17th September 1991. We have also for consideration a very brief statement by Dr. Mak Ying Wai who is the senior medical officer currently attached to the Narcotic and Drug Administration, Hong Kong Region dated 20th June 1991; an affidavit of Mrs Nina Lee Po Lin a senior Legal Aid counsel of the Legal Aid Department and a further evidential statement from Dr. Hollinrake. Dr. Hollinrake is, as is well-know, working in Shek Kwu Chau Drug Addiction Treatment and Rehabilitiation Centre and is there its medical superintendent.

106. It is notorious that drug habits, and indeed drug consumption, fluctuate. They are both affected by the availability of supplies and the price demanded. Addicts may well, to avoid being in constant danger of apprehension, buy their supplies in bulk in Po Chai pill phials or a quantity of straw packets. An addict who confines himself to No.3 heroin requires a much greater bulk than the addict, and these are now the majority, who makes use of No.4 heroin and for obvious reasons. Dr. Hollinrake revised his average daily consumption, because of the significant rise in the price of drugs since January 1990, to between 0.25 and 0.5 of a gramme of pure heroin daily.

107. Dr. Mak's statement is ambiguous for he was asked an exact question as to the daily consumption of No.4 heroin and his answer was, taking an average, that a heroin abuser consumes about one gramme of No.4 heroin each day. It is unclear whether he was talking of the narcotic by itself or of the mixture in which the narcotic would be contained.

108. Mrs Lee's affidavit is, first, to the effect that between February and July 1991 those charged in the District Court with possession of dangerous drugs for the purpose of unlawful trafficking, and having the assistance of the Legal Aid Department, successfully rebutted the presumption in 14 out of 19 rebuttal cases. A more thorough check of the files of the Legal Aid Department having been made this showed that, during the period of January 1991 to July 1991, there were altogether 27 cases heard in the District Court. Of those 27, 15 were rebuttal cases and out of them nine were successful. In one the Crown accepted a plea of guilty to simple possession.

109. Chief Inspector Young in his statement of 9th July 1991 - and his evidence covers both the presumption in s.46 (d) and that in s.46 (c) - the more than five packets presumption - appended a table of the 1990 figures month. by month. As was made clear in Lau Tak Ming these figures are based upon the seizures during a given period. The table ranged from a high of 0.70 grammes in February to a low of 0.22 grammes in September 1990. Chief Inspector Young found that the average over the 12 month period to be 0.39 of a gramme of pure heroin per day consumed by the addict. Any presumption to be properly balanced has to take into consideration the general fluctuations to which I referred and the legislature cannot be expected to meet every month to amend according to current trends.

110. But, having said that, the 0.5 of a gramme in s.46 (d) fails the test of proportionality and the test of rationality. The danger in which the innocent addict, that is innocent of trafficking, is placed is obvious. The amount that triggers is clearly in no way in excess of the average consumption the' average addict needs daily. It is, on the evidence before us, below that figure. 0.5 of a gramme is neither rationally nor realistically connected with the fact presumed.

Section 46(c)

111. The more than five packet trigger has all the appearance of being an arbitrary one. As I have earlier indicated addicts tend to buy in bulk. No specific narcotic content, or indeed mixture content, is required to be contained in any one of those more than five packets. A person could face prosecution having been found in his residence holding more than five packets but with the merest trace of drugs in them. I fully appreciate the necessity for the interception and prosecution of a courier busily about his trade in the streets of Hong Kong carefully supplied by his boss with the smallest possible quantity of deliverable containers of drugs. I would nevertheless find that the Crown, on the evidence such as it is on this aspect, has failed to justify this trigger point.

Section 47(1)(c) and (d)

112. Section 47(1) reads:

113. I can find no justification on the evidence of the Crown for these presumptions. They catch, and force to rebuttal, an ordinary inhabitant of an apartment house who has the keys to the front door of that premises in one of the cubicles in which drugs are found. They catch in a manner not dissimilar to the circumstances of Warner v. The Metropolitan Police Commissioner [1969] 2 AC 256, the innocent tenant or landlord of a premises - and on this I note that the dissenting speech of Lord Reid became the lead speech in the subsequent case of Sweet v. Parsley [1970] AC 132 which greatly reduced the harshness of the Warner decision.

114. In my judgment these presumptions fail the rationality and proportionality tests. The onus upon the Crown has not been discharged.

115. On the final presumption contained in s.47 (3) which reads:

This, given the views I have expressed as to the earlier s.47 presumptions, fails as against Article 11(1). It is inconsistent. Had my views on those prior presumptive provisions been different it could well be that I would have found, an aspect more fully dealt with by Penlington J.A., s.47(3) to be consistent.

116. I would therefore answer the question posed by Ryan J by saying that the provisions of s.46 (c) and (d) and s.47 (1) (c) and (d) and (3) are inconsistent with Article 11(1) of the Hong Kong Bill which in consequence has repealed them, under the provisions of s.3, since 8th June 1991.

117. These answers I would remit to Ryan J. for his consideration.

Kempster, JA:

Introduction

118. On 21 and 22 August 1991 respectively Deputy District Court Judge C.Y. Wong ruled that sections 46(c) and (d) and 47(1)(c) and (d) and (3) of the Dangerous Drugs Ordinance (Cap 134) did not admit of a construction consistent with s 8 Article 11(1) of the Hong Kong Bill of Rights Ordinance 1991 and had been repealed pursuant to s 3 (2). R v Ng Po-lam DC Case No 101 of 1991; R v Leung Ping-lam DC Case No 235 of 1991 (Both unreported). No application had been made pursuant to s 81 of the Criminal Procedure Ordinance (Cap 221) and none has since been made pursuant to s 81D.

119. On 27 August Sin Yau-fining was being tried on an indictment containing two counts both charging him with having been in possession of dangerous drugs for the purpose of unlawful trafficking on 28 July 1990. On the application of counsel for the Attorney General, supported by counsel for the accused, Ryan J reserved certain questions of law for the consideration of this court pursuant to s 81 of the Criminal Procedure Ordinance and adjourned the hearing. Following argument from counsel for the Crown and for the accused, both of whom again supported the reservation, we ruled that we had jurisdiction to determine the questions. I now set out my reasons which closely accord with those given by My Lord the Vice-President.

The Question of Jurisdiction to entertain the Reference

120. In R v Leung Wing-cheung [1958] HKLR 49, unassisted by submissions from the Crown or from the defendant in person, the Full Court, comprising Gould Acting CJ and Reece J, held that a District Judge was entitled to reserve a question of law for the consideration of the Full Court albeit he had not first proceeded to conviction or acquittal, pursuant to s 81; applicable to the District Court by s 79 of the District Court Ordinance (Cap 336). That section of the Criminal Procedure Ordinance then read: -

The Acting Chief Justice rightly pointed out that, in contrast to s 1 of the Crown Cases Act 1848, conviction was not expressed to be a condition precedent to the exercise of the discretion to reserve a question of law under subsection (1) and no more was acquittal. As regards subsection (2), which prima facie postulates a conviction, he found that the words "and to make such other orders as may be necessary to give effect to its decision" rendered it congruous with subsection (1). He felt able to ignore the cross-heading "Proceedings Subsequent to Trial" and, implicitly, construed the section in the manner required by s 19 of the Interpretation and General Clauses Ordinance (Cap 1). Still without. argument that decision was followed by the Full Court and by the Court of Appeal: R v Chan Ming-luk [1962] HKLR 651; R v Ho Siu-fei & Ors [1976] HKLR 190. By the time of the latter decision the section in question read as it reads today: -

                 (4)     Upon consideration of a question reserved under subsection (1), the Court of Appeal may :-

Any difficulty deriving from the cross-heading had disappeared.

121. The perception of the legal community in this regard was altered by the carefully reasoned decision of the High Court, Trainor and Cons JJ, in Miscellaneous Proceedings No 56 of 1976 - In re Tsang Ting-bun [1978] HKLR 141. In a subsequent long-running fraud trial which gave rise to a number of contentious rulings no application was made on behalf of the Crown to reserve under s 81. S 81D, added to the Criminal Procedure Ordinance in 1979, was invoked after acquittals. Reference No 1 of 1987 [1988] 1 HKLR 375.

122. Trainor and Cons JJ held, this time after argument, that a District Court Judge had been right to rule that a point of law could not be reserved in the sense of being referred to this court until and unless there had been a conviction. The High Court refused an application for orders of Certiorari to quash the ruling and of Mandamus directing the judge to exercise his discretion under s 81 accordingly. The Court held, wrongly in my opinions, that the decision on the matter in R v Leung Wing-cheung was obiter and that the Act of 1848 provided an aid to the construction of subsequent Hong Kong legislation culminating in the material section of the Criminal Procedure Ordinance. On this basis the High Court, having the practical implications of their decision in mind, gave an expanded meaning to the word "reserve" namely, in my own words, "to defer until after conviction, being a condition precedent, the reference of any question of law for the consideration of the Court of Appeal". The High Court held that subsections (1) and (4) would otherwise be mutually repugnant.

123. I am satisfied that the approach of Gould Acting CJ to subsection (2] of s 81, as then enacted, is equally apt for the construction of the present subsection (4)(b) and, further, that the terms of subsection (3) are only consistent with a discretion to reserve before or after conviction. Having the practical implications of our decision in mind I would add that in the exercise of their discretion judges may well reserve questions and adjourn hearings pursuant to s 8l sparingly and bearing, among other considerations, the effect on jurors in mind. In many cases it may be desirable for a judge to defer ruling on any application or raising a point of law of his own motion until after conviction if any.

The Questions to be determined

124. The questions of law reserved were: -

The material sections of the Ordinances referred to read as follows:-

125. The Hong Kong Bill of Rights is as follows.

Enacted in compliance with Article 7 of the Letters Patent (as amended) the Ordinance took effect on 8 June 1991. The courts have a corresponding duty to recognise and protect the various rights declared without derogating from their obligations in respect of other, undeclared, fundamental rights existing as part of Hong Kong Law on 8 June 1991. S 2 (5).

126. The determination of the question posed has far ranging implications in relation, for example, to s 24 of the Firearms and Ammunition Ordinance ( Cap 238), to sections 17 and 19 of the Summary Offence Ordinance (Cap 228) and even to s 94A(2) of the Criminal Procedure Ordinance. In due course the terms of various sections in the ordinances listed in the Schedule to the Bill of Rights Ordinance may call for consideration. Presently a number of prosecutions stand adjourned pending our decision upon this Reference.

The Common Law Approach

127. The Common Law position was explained by Lord Wright in Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 at p 192: -

In the context of an appeal to the Privy Council from the courts of this Colony in a criminal matter Lord Tucker stated: -

Lord Tucker's broad statement reflects the evidential burden falling upon an accused to raise such issues as self defence, provocation, accident, duress, non-insane automatism, drunkenness and alibi albeit they may well be discharged by the evidence called on behalf of the prosecution on whom the legal burden remains. However, by ordinance an accused is entitled to be convicted of manslaughter rather than murder if, the legal burden being upon him, he establishes "diminished responsibility" or that he had been acting pursuant to a suicide pact. Homicide Ordinance (Cap 339) sections 3 and 5. In offences under the Dangerous Drugs Ordinance the legal burden has always remained on the prosecution throughout to establish guilt according to law which expression includes any statutory presumption. Woolmington v DPP [1935] AC 462 at pp 481 and 482 per Lord Sankey LC. It is only when the prosecution has satisfied the appropriate tribunal beyond reasonable doubt that the accused had in his possession certain packets or containers or quantities of drugs or of facts giving rise to the presumption of possession that it has been incumbent upon him, on the balance of probabilities, to rebut the statutory presumptions of possession, purpose and knowledge. R v Carr-Briant [1943] KB 607 at p 612; Public Prosecutor v Yuvaraj [1970] 2WLR 226 at p 232; R v McNamara [1988] 87 Cr App R246. If the accused failed so to do he would have been proved guilty according to law as enacted in that Ordinance on the footing that the legislature was supreme and, subject to the terms of the Letters Patent, could not be fettered. I now turn to the rather different jurisprudence applicable to the Bill of Rights Ordinance.

Interpretation of the Hong Kong Bill of Rights Ordinance

128. By s 2 (3) "in interpreting and applying" that ordinance which, effectively, is entrenched unless the Letters Patent are materially amended before or Article 39 of the Basic Law is amended after 30 June 1997: -

In adhering to the Covenant in 1976 the United Kingdom made certain reservations in relation to Hong Kong by reason of its dependent status. Article 14-2 of the Covenant is in like terms to Article 11(1) here enacted and the preamble recites that the States Parties thereto consider that -

and recognise

It also recites that the States Parties realise -

The latter recital acknowledges the necessary relationship between rights and duties within and the requirements of, a community such as the people of Hong Kong whatever the nature of their government for the time being. In the premises -

To like effect Lord Wilberforce, in Minister of Home Affairs v Fisher [1980] AC 319, who mentions the United Nations Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedom which, like the International Covenant on Civil and Political Rights, have been adopted since the Second World War. With reference to the Constitution of Bermuda he said, at pp 328 and 329: -

And Lord Diplock again in A-G of the Gambia v Jobe [1984] AC 689 at p 700: -

129. In Ong An Chuan v Public Prosecutor [1981] AC 648 the Privy Council considered the compatibility of the Singapore Misuse of Drugs Act with the Constitution of the Republic. By s 15 of the Act the possessor of 2 grammes of a dangerous drug, a quantity larger than is likely to be needed for his own consumption, is presumed, until the contrary is proved, to have possessed such drug for the purpose of trafficking therein which, by s 2, includes 'transporting'. But without proof, for example, of transporting the drug he cannot be found guilty of trafficking under s 3. Unlike the legislation of Hong Kong and Canada there is no separate offence of possession for the purposes of trafficking. "So", as once more Lord Diplock explained at p 668: -

Article 91 of the Constitution "founded on the Westminster model" provides: -

Applying the principles enunciated in Minister of Home Affairs v Fisher Lord Diplock went on, at pp 671 to 672: -

It is to be observed that the Constitution under consideration included no equivalent of Article 11 (1), which is not based on "the Westminster Model" and, as was pointed out by Dickson CJC in R v Oakes (1986) 26 DLR (4th) 200 at p 219: -

130. These broad declarations of high principle would seem to owe much to such classic pronouncements as the Declaration of Independence by the Second Continental Congress on July 4, 1776: -

I refrain from quoting the unhappy philippic against H.M. George III which follows and proceed to Amendment V of the 1787 Constitution of the United States which is part of the 1791 Bill of Rights: -

This obligation was imposed upon the States of the Union by Amendment XIV s 1 on July 18, 1968. It has fallen to the Supreme Court of the United States to rule on the conformity of legislation with the Constitution and to declare it invalid insofar as such legislation falls short of that requirement. This responsibility is now, in effect, conferred on the Courts of this Colony in relation to pre June 1991 legislation by s 3 of the Bill of Rights Ordinance. Accordingly that ordinance is, in my view, subject to the same canons of construction.

131. By reason of the genesis of the principles under review it would seem appropriate at this juncture to look at three United States authorities. In Tot v United States (1943) 319 US 463 at pp 467 and 468 Roberts J, delivered the opinion of the Supreme Court in relation to a presumption in the Federal Firearms Act that the possession of a firearm by any person who has been convicted of a crime of violence or is a fugitive from justice shall be presumed to have (inter alia) received it as a result of inter-state rather than intra-state commerce in violation of the Act. He said that: -

In Leary v United States (1969) 395 US 6, dealing with a statutory presumption of knowledge of illegal importation arising from possession, Harlan J, delivering the opinion of the Supreme Court, said: -

Finally, in Ulster County Court v Allen (1979) 442 US 140 the Supreme Court held, by a majority, that the presumption that an individual present in an automobile where there was a handgun possessed the weapon was entirely rational. As opposed to a mandatory presumption which requires a fact to be presumed that presumption was permissive only and could, therefore, be ignored even in the absence of evidence in rebuttal.

132. Turning now to the decisions of the European Court of Human Rights Mr Cross, for the Attorney General, relies upon Barbera Messegue and Jabrado (1988) ECHR Series A No 146 in which an application had been made for a declaration that Spain has violated Article 6 (2) of the European Covenant for the Protection of Human Rignts and Fundamental Freedoms which states: -

Article 24(2) of the Spanish Constitution provides that:-

The court held at paragraph 77 that Article 6(2) -

And at paragraph 91: -

I do not find this decision of assistance and turn to the next, relied upon also by Mr Fung for the accused, being Salabiaku v France (1988) 13 EHRR 379 where again a violation of Article 6 (2) was alleged.

133. Mr Salabiaku was a citizen of Zaire resident in Paris who collected a padlocked trunk which had arrived from his native country at Roissy Airport and took it through customs. Thereafter he was arrested and the trunk found to contain 10 kg of cannabis. In due course Mr Salabiaku was convicted of an infringement of Article 414 of the French Customs Code by smuggling prohibited goods. Article 392(1) provided that the possessor of prohibited goods should be deemed liable for this offence. The European Court held at pp 388 to 391: -

The complaint was dismissed because it was shown that, in practice, the French courts regard as merely permissive what were ostensibly mandatory presumptions if not instances of strict liability.

134. 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(l) as meaning not the domestic law of Hong Kong but a universal concept of justice.

135. In Belgian Linguistic Case (No 2) (1988) 1 EHRR 252 at p 284 in the context of Article 14 of the Convention, which provides for rights to be afforded without discrimination, the court emphasised the necessity for a reasonable balance between the means employed by a State to deal with a particular problem and the aim sought to be realised.

136. Turning more specifically to Canadian decisions the Alberta Court of Appeal concluded that, in the absence of justification under s 1 of the 1982 Charter of Rights and Freedoms, s 8 of the Narcotic Control Act was constitutionally invalid as violating the presumption of innocence. R v Stanger (1983) 2 DLR (4th) 121 (Alb CA). It was so held because the proved fact did not demonstrate a likelihood that the presumed fact existed and, therefore, there was no rational connection between the two. In 1986 virtually the same issue came before the Supreme Court of Canada in R v Oakes. The material sections of the Narcotic Control Act read: -

The Privy Council had found to like effect in Kwan Ping-bong v R [1979] HKLR 1 at pp 5 and 6; adding that -

Dickson CJC continued: -

Then, most significantly for present purposes, at p 222: -

Dickson CJC then turned to s 1 of the Charter which, he held, fell to be construed in a manner which Mr Fung, in his well documented and cogent submissions, described, correctly I believe, as "aspirational" by reason of the reference to a "free and democratic society." Dickson CJC continued at p 225: -

At p 229 he said: -

Conclusions in relation to the Aplicable Law

137. 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 CJC 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 No 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: -

Sections 46 and 47 of the Dangerous Drugs Ordinance, I suggest, fall to be subjected to this test. The need of Hong Kong society to combat and abate the evils of the drug trade with all the misery it entails is certainly not a matter in controversy.

Answers to the Questions reserved

138. Although we are asked to express an opinion in relation to s 46 (c) and (d) without further limitation the two charges with which Ryan J is seized relate only to salts. of esters of morphine and evidence available to us largely relates to the ultimate consumers of that particular dangerous drug. In the circumstances I feel able to deal with the specific question reserved for us in relation to s 46(d) only in the context of (v).

139. On 29 May 1990 in R v Lau Tak-ming & Ors [1990] HKLR 370 at p 382 this Court accepted evidence put before it from Dr Hollinarke and others that: -

at p 385 Silke V-P added: -

We have admitted further evidence in this Reservation from Dr Hollinrake, Mrs Nina Lee, Dr Mak and from Detective Chief Inspector Stewart Young. It appears that addicts often satisfy their needs by the purchase of straws and Po Chai pills phials of differing sizes and heroin content. More to the point Dr Hollinrake confirms the figures recited in R v Lau Tak-ming and Mr Young gives us a lower average daily consumption 0.39 grammes per day during 1990. Mrs Lee gave statistics showing that of 15 cases in the District Court between January and July 1990 where possession of dangerous drugs for the purpose of unlawful trafficking was charged and the presumptions involved the accused successfully rebutted them in nine cases and the Crown accepted a plea to simple possession in another. Dr Mak's evidence tended to support Dr Hollinrake's figures.

140. It is thus apparent that the factual level at which the presumption of possession for the purpose of trafficking therein arises under s 46 (d) (v), being well within the daily consumption of the average addict, is not rationally or realistically connected with the fact presumed. As for s 46(c) no minimum weight is required and no evidence or even argument was advanced by the Crown to justify triggering the presumption on proof of possession of six packets containing an admixture of any dangerous drug. In neither case does the presumption allow for purchases by an addict exceeding his daily requirement for reasons of economy or convenience or with a greater than average daily consumption.

141. Similar observations arise in relation to s 47(1)(c) and (d). While there is a logical connection between the possession of ''... the part of any place or premises in which a dangerous drug is found or of the keys thereto" such connection is frail indeed when it comes to "any place or premises" or "the keys thereto". It is only necessary to think of a large house or apartment and an extended family or of numerous key-holders and of apartments embracing separate cubicles having their own locks. When the concept of "control" of any place or premises comes into play I hesitate to find even a logical connection. S 47(3) raises presumption upon presumption and must be incompatible with Article 11 (1) if I am right as regards the other presumptions considered. However, were it dependent upon sustainable presumptions, as well as proof, it would not stand repealed since, in my view, knowledge of the nature of a dangerous drug rationally and realistically follows from its possession. Subject to this qualification the Crown has failed to satisfy me in relation to any of the presumptions under consideration that the fact to be presumed follows from or is realistically connected with the fact to be proved or is warranted by and no more than proportionate to the evil of the drug trade.

The Remedy

142. In the event I reach the same conclusions as did Deputy District Court Judge C.Y. Wong and would answer the questions posed as follows: -

Such answer I would remit to Ryan J for his consideration.

Penlington, J. A.:

Jurisdiction

143. I have had the benefit of reading the judgments of Silke, V.P. and Kempster, J.A. on the question of this Court's power to hear this application. I agree with them, and, for the reasons given, am satisfied that we do have jurisdiction and that this is clearly a case where it should be exercised. I do however also entirely agree that a reference to this Court before conclusion of the trial should be rare indeed.

The Constitutional Issue

144. The background facts of this matter and the relevant authorities have been set out fully in the judgments of Silke, V.P. and Kempster, J.A. and there is no need to repeat them.

145. Prior to 1968 there was no offence of trafficking in dangerous drugs or of being in possession for that purpose. There was simply the offence of possession and the penalties imposed varied greatly, principally in accordance with whether or not the Court took the view that the possession was for the defendant's own use or was for the purpose of re-sale. In deciding that issue the quantity of drugs found was often the major factor, in the absence of direct evidence of such re-sale. The 1968 legislation, substantially based on that passed in Singapore, created the specific offence of trafficking. It also enacted the offence of possession for that purpose. Simple possession remained as a separate offence carrying a very much lower penalty. The object was to deter those responsible for the traffic not to punish the victims of it.

146. Together with the creation of these separate offences was enacted the statutory rebuttable presumptions, also following the example of Singapore, with the aim of assisting the conviction of the major participants in this terrible trade who are the beneficiaries of its enormous profits. This made an inroad into the traditional right of silence and the requirement that the Crown prove every element of its case beyond reasonable doubt but the Legislature clearly considered it proper to do so if society was to be adequately protected against the evils of the narcotic traffic.

147. The penalties for trafficking and possession for that purpose were also fixed at high levels and, while initially the Courts showed some reluctance, severe sentences are now passed for these offences, even when the amount involved is not very great. As this Court has recently said in Lau Tak Ming possession of up to 10 grammes (less than half an ounce) of pure heroin (salts of esters of morphine) should result in a sentence in the range of two to five years. This level of sentence, while lenient in comparison with the penalties for drug trafficking in other jurisdictions in Southeast Asia, is much higher than was the case in 1968 and it is not inappropriate that the presumptions as enacted should now be looked at afresh to see if they may result in an unjust decision. As was said in Lau Tak Ming, the pattern of narcotic abuse in Hong Kong has changed greatly. In that context the Crown, in my view very properly, conceded that in the light of the wording of Section 3(2) of the Bill of Rights and the decisions of other courts in other jurisdictions which have considered very similar (sometimes identical) legislation, it could not argue that the presumptions in Sections 46 and 47 are consistent with the Bill of Rights and therefore still in force unless they were considered by this Court to be reasonable. Similarly Mr. Fung also concedes that presumptions which are reasonable (and he has presented considerable argument on what is reasonable in this context) are not on the face of them ultra vires the power of the legislature in that they must necessarily offend against Section 11 (1) of the Bill of Rights. That is so even giving it the broad and liberal interpretation it should receive, the section under consideration being identical to the International Covenant on Civil and Political Rights which is entrenched in the law of Hong Kong by the amended Letters Patent. The courts should assume that it is the intention of the legislation that international treaty obligations are to be carried out and no effort should be made to evade such an obligation even if it may seem to be contrary to the effort being made to counter a major social problem. The words in Section 11 (1) of the Bill of Rights "according to law" includes a reference to international treaty obligations as well as domestic law (Salabiaku v. France). There is strong authority for this view in the decisions of Minister for Home Affairs v. Fisher per Lord Wilberforce and in Attorney General of the Gambia v. Jobe per Lord Diplock and I have no doubt it is right.

148. Mr. Fung also argues strongly that while he does not say that the decision of the Privy Council in Ong was incorrect on the facts and law then before the Privy Council, an enactment which in any way reverses the presumption of innocence, as set out by Lord Sankey in Woolmington, must show a reasonable relationship between the means employed and the aim sought to be realised. While it is clearly very proper to seek to eradicate the illegitimate traffic in dangerous drugs, that must be done by means which are reasonable in the light of the clear wording of the Bill of Rights and the need to protect fundamental freedoms.

149. Strong reliance is placed on the decisions of the Canadian courts which have had considerable experience since the coming into force of the Canadian Charter of Human Rights in 1982. The decisions such as Stanger and Oakes should be preferred to the earlier ones which considered the Canadian Bill of Rights and I have no doubt that is correct for the reasons advanced by Mr. Fung. There are three tests suggested in order to determine if any particular piece of legislation is contrary to the Charter. It must be rational i.e. a logical connection with the facts from which the presumption arises; it must have the minimum impairment on freedoms guaranteed by the Charter and it must be proportional to the harm aimed at. "The Canadian Charter of Rights 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" per Dickson, CJC in Oakes.

150. Dealing with the presumption of trafficking contained in Section 46 Mr. Fung argued that the recent evidence, as contained in statements now before this Court by consent, coming from persons with expertise of the way in which addicts purchase narcotics and what quantity an addict may well have in his possession not to re-sell but to satisfy his craving, coupled with that set out in recent cases such as Lau Tak Ming, all point to the "trigger" level of 0.5 of a gramme in Section 46 (d) of the Ordinance as being too low. There seems to be no dispute that while, as Dr. Hollinrake says, individual addicts will vary greatly as to the amount each requires per day and even that amount will vary depending on the market price, an addict may well smoke over 0.5 of a gramme in a day. Moreover an addict may  well be able to buy his heroin cheaper if he purchases a larger quantity and while few addicts have the resources to buy substantial supplies, enough for two to three days would not be unlikely.

151. Strong reliance is placed by the Crown on the decision in Ong, this being first of all a judgment of the Privy Council and secondly the Council was considering a very similar provision, i.e. a presumption that possession and transporting of more than a certain quantity (there 2 grammes) was done for the purpose of trafficking. In giving the judgment of the Council Lord Diplock said that "Proof of the purpose for which an act was done, where such purpose is a necessary ingredient of an offence with which an accused is charged, presents a problem with which crimianl courts are very familiar. Generally in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus in the case of an accused being caught in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he was transporting them for the purpose of trafficking in them would, in the absence of any plausible alternative explanation by him, be irresistible even if there was no statutory presumption such as is contained in Section 15 of the Drugs Act" (my emphasis).

152. That decision must however be looked at in the light of the fact that the Constitution of Singapore does not contain a provision similar to Section 11(l) of the Bill of Rights and also that it refers to possession by an accused of a quantity ''much larger than is likely to be needed for his own consumption". Here it seems not in dispute that if the amount of narcotic required to raise the presumption in Section 46 (d) fell within those words, the provision would not offend the Bill of Rights.

153. In the lignt of the evidence before this Court in Lau Tak Ming and the further statements of Dr. Hollinrake, Chief Inspector Young, Mrs. Nina Lee and Dr. Mak I have no doubt that the amount of 0.5 gramme in Section 46 (d) is not such an amount as was referred to by Lord Diplock in Ong and that an addict may very well have more than that quantity in his possession for his own use. I am therefore satisfied that that presumption fails to pass the test of being reasonable.

154. Turning to the presumption in Section 46(c) which arises on it being proved that the accused was in possession of more than five packets containing the narcotic it seems to me that, while there is little evidence on this aspect, if the six or more packets contain less than 0.5 of a gramme and the presumption under Section 46 (d) is therefore not raised, it is also an unreasonable presumption. I find it difficult to envisage evidence which could raise a reasonable presumption under paragraph (c) but not under (d). I am satisfied that the presumption under both paragraphs cannot be considered as reasonable in the light of the evidence before us and as a consequence they have been repealed by Section 3 (2) of the Bill of Rights.

155. As has been pointed out by Kempster, J.A. the only evidence before us concerns salts of esters of morphine i.e. pure heroin. However I cannot imagine that if the presumption in relation to that drug in Section 46 (c) (v) and 46 (d) (v) is unlawful the same presumption in relation to the other drugs can remain. There has been no argument on this point but I would consider the whole of these paragraphs to have been repealed.

156. Turning to the provisions of Section 47(1)(c) and (d) I am also satisfied that these provisions do not pass the test of being reasonable in that they do not have a necessary connection with the offence alleged. There may well be premises of which several persons could be said to have "possession, custody or control" or have keys. It is not reasonable that all such persons shall be presumed to have possession of any dangerous drugs found therein. There will be cases where the number of key holders is small, perhaps only one, and the presumption may not then offend but I consider that, bearing in mind the canons of construction set out in Fisher and Jobe, a provision which may be contrary to constitutional provision such as the Bill of Rights cannot be considered as being consistent with it and must also be deemed to be repealed. As Martin, J.A. said in the Ontario Court of Appeal in Oakes, it is not for the Court to re-write the provision on a case-by-case basis.

157. Section 47(3) provides that if a person is in possession or is presumed to be in possession of a dangerous drug, he shall be presumed to know the nature of the drug. This has been attacked on the grounds that it is a presumption on a presumption or indeed in some cases on two other presumptions; a person may be presumed to be in possession of drugs found in a suitcase he is carrying; he is then presumed to have such drugs for trafficking; finally he is presumed to know the nature of the drugs. While at first sight this may seem draconian and inequitable, if each presumption passes the test of being reasonable i.e. there is a rational connection, it contains the minimum impairment of rights and is proportional to the harm aimed at and is therefore consistent with the Bill of Rights, it does not matter whether a person is proved to be in possession for the purpose of trafficking by direct evidence, or by the operation of a lawful presumption based on other evidence. It seems to me that the words "or presumed to have had" in Section 47(3) are superfluous. We have held that the presumption as now contained in Sections 46(c) and (d) and 47 (1) (c) and (d) are not sustainable but that does not in my view affect the validity of Section 47 (3).

158. A person's knowledge is very often the key issue in a criminal trial, particularly when the offence is one under the Dangerous Drugs Ordinance. There is only one person who can give direct evidence of knowledge and that is the person who is alleged to have had it. All other evidence can only result in the drawing of an inference of knowledge. If the evidence proves beyond reasonable doubt (whether or not such proof was assisted by a lawful presumption) I do not consider it unreasonable that the person in possession shall be presumed to know what the drugs were, a presumption which can of course be rebutted on a balance of probabilities. Such evidence may be contained in the Crown's own case, such as the defendant's initial reaction when the drugs were found, but I accept that often the effect of Section 47(3) will be to require the defendant to give evidence if the presumption is to be rebutted. Nevertheless, applying the tests suggested to us by Mr. Fung, the presumption that if person is proved to be in physical possession of dangerous drugs, he knows what they are certainly has a direct connection with the proved facts. In my view it is also proportional to the evil being aimed at and it does not go further than is necessary in infringing the right of silence. It is a presumption often rebutted as is clear from the statement of Mrs. Lee of the Legal Aid Department but knowledge or ignorance of the nature of the drugs is a matter which is peculiarly within the mind of the accused.

159. In Ong Lord Diplock said, in relation to crimes of specific intent, that if it is proved beyond doubt that a person was found transporting a substantial quantity of dangerous drugs and is charged with trafficking there was nothing unfair in requiring him to satisfy the court "that he was doing so for some less heinous purpose if such be the case". While it is true that Ong was not concerned with an identical provision to Section 11(1) of the Bill of Rights, in the previous paragraph Lord Diplock clearly had that principle in mind when he referred to "one of the fundamental rules of natural justice in the field of criminal law being that a person shall not be punished for an offence unless it has been established to an independent and unbiased tribunal that he committed it. This involves the tribunal being satisfied that all the physical and mental elements of the offence with which he is charged, conduct and state of mind as well where that be relevant, are present on the part of the accused".

160. The presumption in Section 47 (3) does not go anywhere hear as far as those considered unconstitutional in Tot, Leary , or even in Allen though there the presumption was held to be lawful (albeit by a very narrow majority). As was said in Salabiaku, Article 6 (2) of the European Convention, while not prohibiting presumptions, does require 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". There can be no doubt of the very great importance to Hong Kong of controlling, as far as possible, the illegal traffic in dangerous drugs and the enormous harm if does to this society. As Dickson, CJC said in Oakes "the objective of protecting our society from the grave ills associated with drug trafficking is, in my view, one of sufficient importance to warrant overriding a constitutionally right or freedom in certain cases". I do not consider a rebuttable presumption that a person knows the nature of dangerous drugs which have been proved to be in his physical possession is unreasonable, even if that proof was based on other lawful rebuttable presumptions.

161. In light of the vied taken by Silke, V.P. and Kempster, J.A. as to the validity of Section 47(3) I summarise my opinion as follows:

162. If a person is proved to be in physical possession of dangerous drugs by direct evidence and/or by the application of a presumption which is consistent with Section 11(1) of the Bill of Rights, the presumption of knowledge contained in Section 47(3) of the Dangerous Drugs Ordinance is itself consistent with that section of the Bill of Rights.

163. I would answer the questions put forward by Ryan, J. as follows:

Silke, V.-P.:

164. In the event the Answers of the Court, to be remitted to Ryan J for his consideration, are: