RESTRICTED
12.
The Deputy Judge applied Canadian case law on the equivalent provision contained in the Charter of Rights and
Freedoms which was to the effect that any reverse onus
provision which had the effect of permitting or requiring a conviction in spite of a reasonable doubt as to the
existence Of guilt of the accused violates the presumption
of innocence and could only be saved if the government
could demonstrate that the limitation had a rational basis,
caused minimal impact to the right or freedom in question
proportionate to the underlying policy objective.
He ruled that the statutory presumptions mentioned in
paragraph 11 above failed to pass the test.
and was
13.
On 28 August 1991, acting on the application of
the AG,
MI Justice Ryan reserved similar questions of law
in R.V. Sin Yau Ming to the Court of Appeal. The Court of
Appeal finished its five-day hearing on 17 September and
handed down the Judgement on 30 September. It upheld the
decisions of the Deputy District Court Judge and ruled that
the presumptions in the abovementioned provisions of the DDO were irrational and unreasonable and thereby repealed.
Kempster, J.A. summarised
Court's approach
in the
following proposition:
A
the
mandatory presumption of fact may be compatible
with S 3 Article 11(1) of the Hong Kong Bill of
Rights Ordinance if it be shown by the Crown, due
regard being paid to the enacted conclusions of
the legislature, that the fact to be presumed
rationally and realistically follows from that
proved and also if the presumption is no more than
proportionate Co what is warranted by the nature
the evil against which society requires
protection.
of