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Summary Offences Ordinance (cap. 228), section 17
R v Yiu Chi Fung, District Court, Case No. 397 of 1991, Judge Lugar- Mawson, 25 October 1991
In this case a challenge was made to s. 17 of the Summary Offences Ordinance (cap. 228) on the ground that it contravened the presumption of innocence in article 11 (1) of the Bill of Rights, to the extent that it required a person to give a satisfactory account of his possession of one of the types of object specified in the section. The defendant also argued that the provision infringed the right against self-incrimination guaranteed in article 11 (2)(g) of the Bill of Rights. The defendant was charged with possession of a diving knife and a saw blade.
Section 17 of the Summary Offences Ordinance provides:
Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person,
any handcuffs or thumbcuffs, any offensive weapon, or any crowbar,
picklock, skeleton or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, or being unable to give satisfactory account of his possession thereof, shall be liable to a fine of $5,000 or to imprisonment for 2 years.
Judge Lugar-Mawson held that the provision infringed neither article 11 (1) nor article 11 (2)(g) (for the latter, see p. 27 below). He held:
1. In a case involving possession of an object which could be used for a lawful as well as an unlawful purpose, section 17 required the prosecution, to prove that was possessed by the defendant with intent to use it for an unlawful purpose.
2. The requirement that a person who had been proved to be in possession of an article fit for unlawful purposes give a satisfactory account of his possession of the article was not a reverse onus clause of the type considered by the Court of Appeal in R v Sin Yau Ming. The absence of a satisfactory account of that possession was not an essential element of the offence; rather, the giving of a satisfactory account was a matter of defence. Thus, the defendant was not required to disprove an essential element of the offence.
3. Requiring a defendant to bear the burden of proof when making out a true defence was not a prima facie breach of article 11 (1) of the Bill of Rights.
4. If requiring a defendant to make out a true defence was a prima facie breach of the presumption of innocence, nonetheless it was a permissible limitation on the enjoyment of that right, as it satisfied the tests of rationality and proportionality which had been endorsed by the Court of Appeal in R v Sin You Ming. It was in no sense irrational to require a defendant who is proved to have been in possession of an article with intent to use it for an unlawful purpose to explain his possession of the article. The provision was pursuing the important social goal of combatting violent crime to the person and crimes against property and amounted to no more than minimal interference with the protected right.
Counsel: S.R. Bailey and Amy Chan, for the Crown; Philip Wong (instructed by DLA), for the defendant.
Note: This case was decided shortly before R v Lee Kwong-yut (see immediately following), although Judge Lugar-Mawson's written reasons were not available until the middle of November 1991. In that case, Magistrate Acton-Bond refused to draw a distinction in principle between a
Bill of Rights Bulletin
December 1991