HONG KONG LEGISLATIVE COUNCIL.
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(a) On any charge of possession of dutiable liquors contrary to the provisions of the Ordinance it is to be presumed that the liquors were dutiable, .e., that the duty had not been paid, but the defendant can avoid liability by proving either (i) that the duty had in fact been paid or (ii) that he had good and sufficient reason to believe that it had been paid.
(b) If the defendant produces evidence in order to prove either of those defences the complainant may then produce rebutting evidence upon that issue.
(c) If any dutiable liquors are found on any licensed premises it is to be presumed that the liquors were in the possession of the licensee. This is based on section 65 of the principal Ordinance, which is being repealed by section 4 of this Ordin-
ance.
(d) Sub-section (4) simply re-enacts that part of the proviso to the old section 86 which is not embodied in sub-section (1). It makes it clear that upon a charge of possession of intoxicat- ing liquors which were imported, manufactured or prepared contrary to the provisions of the Ordinance the defendant can avoid liability by proving that he had good and sufficient reason to believe that the liquors in question were lawfully imported, manufactured or prepared.
(e) In this section proof means proof beyond a reasonable doubt. 3. With regard to the throwing of the onus on the defendant, and with regard to the nature of that burden, it may be remarked as follows:
(a) It is peculiarly difficult for the prosecution to prove in any
case that duty has not been paid.
(b) It is easy for the defendant to discharge the onus. If duty has been paid there should usually be no difficulty in proving that fact, but it is sufficient for him to prove that he had good and sufficient reason to believe that it had been paid.
(c) Proof is defined as proof beyond reason reasonable doubt in order to indicate that, e.g., a mere unsupported assertion of payment of duty will not necessarily discharge the onus. It is obviously necessary to legislate for possible dishonesty and perjury. Payment of duty is a definite fact, analogous to the possession of a definite qualification rather than to such vaguer questions as the question of lawful excuse in the case of posses- sion of implements fit for housebreaking purposes, where also the onus on a particular issue rests on the accused, or the question of guilty knowledge in the case of receiving, where the onus rests on the prosecution throughout. It is not to be anticipated that the new section 86 (5) will be applied in practice with unnecessary strictness.
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