百
010521
MDHIAN 9599
CONFIDENTIAL
AKC 241/1
TOP COPY Q DIST?
CONFIDENTIAL
FM HONG KONG
TO IMMEDIATE FCO TELNO 150
OF 17095OZ JANUARY 92
INFO IMMEDIATE PEKING
INFO PRIORITY UKREP JLG HONG KONG
LEGISLATIVE AMENDMENTS CONSEQUENT TO COURT DECISIONS ON BOR
RELATED CASES
WE ARE PROPOSING TO INTRODUCE AMENDMENTS TO THE DANGEROUS DRUGS ORDINANCE (CHAPTER 134) AND ACETYLATING SUBSTANCES (CONTROL) ORDINANCE (CHAPTER 145) AS A RESULT OF AN APPEAL COURT
RULING THAT CERTAIN PRESUMPTIONS IN CHAPTER 134 HAVE BEEN REPEALED BY THE BOR ORDINANCE (DETAILS OF THE COURT CASES SENT TO COX AND RIORDAN OF HKD ON 10.10.91 AND 19.9.91 RESPECTIVELY).
2.
CHAPTER 134 PROVIDES A PRESUMPTION WHICH SHIFTS TO THE ACCUSED THE BURDEN OF PROVING THAT HE DOES NOT POSSES DRUGS FOR THE PURPOSE OF UNLAWFUL TRAFFICKING IF HE HAD BEEN FOUND IN POSSESSION OF MORE THAN PRESCRIBED MINIMUM AMOUNTS. THESE AMOUNTS HAVE HISTORICALLY BEEN SET ON THE BASIS OF THE QUANTITY OF DRUGS FORMING A SINGLE DAILY AMOUNT FOR AN ADDICT'S OWN CONSUMPTION.
THE ORDINANCE ALSO PROVIDES PRESUMPTIONS OF POSSESSION AND KNOWLEDGE OF DANGEROUS DRUGS UNDER CERTAIN SPECIFIED CONDITIONS.
3. ON 21 AND 22 AUGUST, 1991, IN THE COURT OF DISTRICT COURT TRIALS, A DEPUTY JUDGE RULED THAT SOME OF THESE PRESUMPTIONS WERE INCONSISTENT WITH THE PROVISIONS OF THE BILL OF RIGHTS ORDINANCE. SUBSEQUENTLY A QUESTION OF LAW WAS REFERRED BY A HIGH COURT JUDGE TO THE COURT OF APPEAL FOR CONSIDERATION. ON 30 SEPTEMBER, THE COURT OF APPEAL RULED THAT THE PRESUMPTIONS WERE INDEED INCONSISTENT WITH THE BILL OF RIGHTS ORDINANCE AND, IN CONSEQUENCE, HAD BEEN REPEALED AS FROM 8 JUNE 1991.
4. THE COURT'S RULING HAS INCREASED THE BURDEN OF PROOF REQUIRED FOR SUCCESSFUL PROSECUTIONS. WE HAVE, THEREFORE, REVIEWED THE LEGISLATION IN AN ATTEMPT TO LIMIT THE DAMAGE DONE TO DRUG ENFORCEMENT OPERATIONS, WHILST MEETING THE REQUIREMENTS OF THE ICCPR AS REFLECTED IN THE BOR. OUR SUGGESTED AMENDMENT S AIM TO FORMALLY REPEAL OR REINTRODUCE WITH JUSTIFICATIONS THE
PROVISIONS RULED BY THE COURT OF APPEAL TO BE INCONSISTENT WITH
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