1
辈
а presumption which is not rebutted is, therefore, to allow an inference of guilt to be drawn from facts which would not otherwise justify such an inference: the fact presumed does not have
have to be proved beyond all reasonable doubt but the guilt of the accused does.
In LAM Wai-ming & Anr v. R (Crim. App. 981/77 C.A.)
Huggins J.A. (as he then was) said (at p.2):
"
all that may be presumed is one or more of the facts necessary to be proved to establish guilt. Once presumed those facts be proved beyond all reasonable doubt until disproved, but that
are deemed to
is not the same thing as presuming guilt.'
From these two cases, it can be seen that the view of
the Court of Appeal in Hong Kong was that the facts which are
presumed do not have to be proved beyond all reasonable doubt
because they are deemed to be proved beyond all reasonable doubt
until disproved. However, with respect, differentiating between
presuming facts to prove guilt from presuming guilt is very
artificial in relation to the presumption under S.46. In order
to establish that an accused is guilty of a charge under S.7 of
the DDO, the Crown must prove beyond reasonable doubt that the
possession was "for the
of purpose
unlawful trafficking
therein".
Once that is established, the almost inevitable.
result would be а verdict of 'Guilty' unless the accused
succeeds in disproving that on the balance of probabilities.
Hence the presumption of evidence to prove guilt (under S.46)
has in reality the effect of a presumption of guilt: it shifts
the onus onto the accused to prove his innocence by requiring
him to rebut it on the balance of probabilities.
Raising a
The accused
doubt as to the fact presumed is not sufficient.
must achieve the result of rebutting the presumption on
balance of probabilities in order to escape conviction.
6
the
This