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HONG KONG LEGISLATIVE COUNCIL.
as follows: It is intended to make it quite clear that when a person is charged with unlawful possession of dutiable liquor, that is to say liquor liable to duty but on which duty has not been paid, the onus will be on that person to prove either that duty has been paid or that he had good and sufficient reason to believe it had been paid. And he will have to prove one of these two defences beyond reasonable doubt. It is obvious that it is very difficult, and may be quite impossible, for the prosecution to prove that the duty on any particular lot of liquor has not been paid. It ought generally to be quite easy for the person who has that liquor in his possession to prove, if not that duty has been paid, at least that he had good and sufficient reason for believing it had been paid. There may be occasions when the person in posses- sion of the liquor would find some difficulty in proving up to the hilt that duty had been paid. On such occasions I have no doubt the Crown would take a liberal view of the onus placed on the defendant.
THE COLONIAL SECRETARY seconded, and the Bill was read a first time.
OBJECTS AND REASONS.
1. The Ordinance is introduced because of the obscurity of a section in the principal Ordinance which is of great practical import- ance, ie., section 86. Attention has been drawn to this subject by a recent case before a magistrate. The section is open to the following doubts and criticisms, which are put very shortly:-
(a) It seems to hesitate between being a substantive section and an
evidence section.
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(b) It is arguable that possession must first be proved by the prosecution to be " contrary to the provisions of (the) Ordin- ance before the onus is thrown on the accused of proving that the duty has been paid. This reduces the section to an absurdity in the case where the only element of illegality is the non-payment of duty.
(c) The section provides that every person who, contrary to the provisions of the Ordinance, has in his possession any in- toxicating liquors which have been illegally made shall be guilty of an offence, but it is not contrary to the provisions of the Ordinance to be in possession of intoxicating liquors which have been illegally made.
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(d) On the other hand, it is unncessary for the section to declare it to be an offence to be in possession of any intoxicating liquors contrary to the provisions of the Ordinance. Even if the mere prohibition were not enough section 89 makes it clear that contravention of any prohibition is an offence.
2.
Section 5 of this Ordinance replace 86 of the principal Ordin- ance by a new section 86 which contains the following provisions:-
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