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provision requiring a defendant to disprove an "essential element" of an offence and one requiring that a defendant prove a "true defence". That decision is under appeal.
The Court of Appeal may shortly be considering the compatibility of section 17 with the Bill of Rights in another case, R v Lam Kau-yee, Civ App No. 408 of 1991, listed for 5 and 6 March 1992.
Summary Offences Ordinance, section 30
R v Lee Kwong-yut, WM No. 990/91, Jonathan Acton-Bond Esq, 28 October 1991
This case involved a challenge to section 30 of the Summary Offences Ordinance on the ground that it violates the presumption of innocence in article 11(1) of the Bill of Rights. Section 30 provides that any person who has in his possession or conveys in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give a satisfactory account to the magistrate shall be liable to a fine of $1,000 and 3 months' imprisonment.
It was argued by the Crown that giving a satisfactory account was a matter of defence, so the burden on the accused was to establish a defence, and not to disprove an element of the prosecution. The Magistrate refused to draw a distinction between evidential presumptions and defences where the burden of proof was placed on the defence. In the latter case, the provision has to satisfy a modified test of proportionality and rationality (at p. 5 of his judgment):
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when a court is confronted with an onus reversing defence it may be compatible with BORO, if it is shown by the crown:
(a) that the balance between those elements of the offence that the crown has to prove and those elements of defence that the defendant has to prove is fair having regard to both the purpose of the legislation and the requirements of article 11 (1) and the extent to which the burden of proof is shifted onto the defence is no more than proportionate to the evil against which society requires protection,
(b) that it is rational and realistic for the defendant to be required to prove those elements of defence."
The Magistrate held that section 30 contained a reverse onus provision, which shifted the burden to the defence as soon as possession in transit and reasonable grounds for suspicion that the property has been stolen or unlawfully obtained had been proved (at p. 6):
"Reasonable grounds for suspicion would not necessarily amount to a prima facie case that the property was stolen or unlawfully obtained. Unless compelling public interest reasons can be shown, that is far too early a stage for the burden to shift."
The Magistrate held that there was no evidence of such compelling public interest. The effect of section 30 was that, if a defendant declined to give evidence, he could be convicted on a mere suspicion. In his view section 30 could not be construed in a manner consistent with the Bill of Rights (for example, by construing it as imposing merely an evidential burden) without doing violence to the clear language of the statute. Accordingly, it had been repealed by the Bill of Rights.
Bill of Rights Bulletin
December 1991