was
so held in the case of KWAN Ping-bong & Anr v. R [1979] HKLR
1
(P.C.), where Lord Diplock L.J.
(as he then was) said (at
P.5):
is
not
uncommon
in modern
"Where, as legislation dealing with drugs and other there is dangerous objects or materials, provision that on proof by the prosecution of the existence of certain facts some other facts shall be presumed to exist unless the contrary is proved, (in the instant case guilty knowledge on the part of the accused) the effect of the provision is to convert an inference which at common law the jury would not be entitled to draw unless they were satisfied beyond all reasonable doubt that it was right, into an inference which they are bound to draw unless they are satisfied that on the balance of probabilities it is So they must draw it even though wrong. they think that it is equally likely to be right as to be wrong" (the emphasis is mine).
Indeed, that the
The last sentence of the quote makes it abundantly clear that the accused must succeed in rebutting the presumption on the balance of probabilities, and not just raise doubts as to the fact presumed, in order to avoid conviction. presumption of facts was tantamount to a presumption of guilt was stated by the Court of Appeal in the case of AU Wai v. (Crim. App. No. 296 of 1979) where it said (at p.3):
once the Crown has established these primary facts beyond reasonable doubt, the accused must then, in order to discharge the satisfy the court of his presumption, explanation on the balance of probabilities. It was suggested...that, at the end of this process, the judge should have reconsidered the whole of the evidence again and reminded on the himself of the burden which lies Crown to establish the guilt of the accused We asked (Counsel) beyond reasonable doubt. for the appellant whether he were able to us a set of circumstances in suggest to which, the
been primary facts having which
rise to the established
gave
presumption, and the defendant having failed to discharge the burden which lies upon him there could
under
that
presumption,
7
R