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before publication that the article was obscene. It was argued that section 21 (1)(a) was inconsistent with articles 5 (1) and 11 (1) of the Bill of Rights.
Held:
1. Offences of absolute liability and strict liability are prima facie inconsistent with both the right to be presumed innocent in article 11 (1) of the Bill of Rights and the right to liberty and security of person embodied in article 5 (1) of the Bill of Rights; such offences can be upheld only if they satisfy the tests of rationality and proportionality as laid down in R v Sin Yau Ming and R v Oakes.
2. The offence created by section 21 (1)(a) was an offence of strict liability; since no mens rea was required, there was a prima facie violation of the presumption of innocence.
3. Protection of the young and frail of judgement from pornography was a legitimate social objective. It was reasonable to do away with the requirement of proving knowledge of obscenity in view of the availability of a cheap and efficient means of determining whether an article is obscene by submitting it to the Tribunal. In light of the inherent safeguards in the classification system and the available defences, albeit limited in scope, section 21(1)(a) of the Ordinance satisfied the tests of rationality and proportionality and was hence consistent with the Bill of Rights.
Counsel: S.R. Bailey for the Crown; Nicholas Pirie for the defendant.
Massage Establishments Ordinance (cap. 266), s. 4 (1); Criminal Procedure Ordinance (cap. 221), s. 94A; negative averments
Ry Wan Yin-man, S.J. Geiser, Esq, 18 November 1991
This case involved a challenge to section 4 (1) of the Massage Establishments Ordinance (cap. 266) and section 94A of Criminal Procedure Ordinance (cap. 221) on the ground that, in so far as section 94A applied to section 4 (1), the defendant's right to be presumed innocent under article 11 (1) of the Bill of Rights had been violated.
Section 4 (1) provides:
Any person who on any occasion operates, keeps, manages, assists in any capacity in the operation of, or assists in the management of, a massage establishment for the operation of which a licence is not in force commits an offence.
The defendant argued that, if section 94A applied, the requirement that he produce a licence was an impermissible reversal of the burden of proof which violated his right to be presumed innocent.
The Magistrate held that section 94A of cap. 221 did apply to section 4 (1) of cap. 266 and that therefore the defendant bore the burden of proving the existence of a licence as a matter of defence. He further held that requiring a defendant to produce a licence by way of defence to a charge did not fall within the category of reverse onus provisions held in R v Sin Yau Ming to be prina facie infringements of article 11 (1), and concluded that it was not inconsistent with article 11 (1) to require a defendant to prove that he possessed the requisite licence.
Counsel: S.R. Bailey, for the Crown; A. Sahkrani, for the defence.
Bill of Rights Bulletin
December 1991