3
C
The circular despatch to which
Mr. Roberts-Wray refers is that of the
21st May, 1934, (31519/34 General).
The present Ordinance in Hong Kong
relates to the creation of a Government sand
monopoly. The only other monopoly in Hong
Kong is the opium monopoly, and in the opium
legislation there are similar clauses placing
the onus of proof in certain circumstances on
persons accused of offences against the
monopoly.
It seems to me that such clauses,
which are introduced for the defence of a
Government monopoly, are in a different
category to the sort of measures deprecated
in the circular despatch - see, for instance,
paragraph 3 of the despatch, "There is serious
objection to extending the principle to cover
all kinds of property"; it is not possible to
suggest that the Government of Hong Kong is
by this Ordinance extending the principle to
all kinds of property, but only to the very
particular case of a Government monopoly.
Moreover, the Ordinance leaves it
to be proved by the prosecution that the sand
alleged to be in the possession of an accused
person is, in fact, sand as defined in Section 2
of the Ordinance, and it is only after the
prosecution has stood this test that the onus
passes to the accused person to show that his
possession of the sand was covered by the
necessary permit or other authority under the
Ordinance.
But