XN000022-1987-03-11 — Page 28

WEDNESDAY, MARCH 11, 1987

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SECONDLY, IT IMPOSED THE BURDEN OF PROOF ON THE DEFENDANT WHICH WAS CONTRARY TO COMMON LAW PRINCIPLE THAT THE PROSECUTOR HAD TO PROVE ALL THE PHYSICAL AND MENTAL ELEMENTS OF A CRIMINAL OFFENCE, AND INSTEAD REQUIRED THE ACCUSED TO PROVE THAT HE HAD COMMITTED THE OFFENCE IN THE ABSENCE OF THE REQUISITE CRIMINAL INTENT.

THE MAIN CRITICISM AGAINST THE BILL WAS THAT IT WAS A POSSIBLE THREAT TO FREEDOM OF SPEECH AND THE PRESS, AND WOULD MAKE IT DIFFICULT FOR JOURNALISTS TO PERFORM THEIR TASK. MR TAI SAID THIS CRITICISM WAS NOT WITHOUT MERIT.

NONETHELESS, IN THIS PARTICULAR CASE, HE SAID ONE SHOULD BE CAREFUL NOT TO DEPART FROM THE FUNDAMENTAL COMMON LAW PRINCIPLE BY SWINGING THE BURDEN OF PROOF ONTO THE DEFENDANT FOR THE SAKE OF AN EASIER CONVICTION.

ON BALANCE, IT WAS THE GRAVITY OF DAMAGE TO THE SOCIETY AND THE PRACTICAL ENFORCEMENT ASPECTS OF THE LEGISLATION THAT SHOULD RECEIVE THE SUPPORT TODAY FOR PUTTING THE BURDEN OF PROOF FOR THE REQUISITE CRIMINAL INTENT ONTO THE DEFENDANT IN CONTRARY TO THE COMMON LAW PRINCIPLE.

+WE HAVE A NUMBER OF SIMILAR OFFENCES IN THE STATUTE BOOKS IN WHICH THE DEFENDANT IS REQUIRED TO SHOW THAT AT THE TIME OF COMMISSION OF THE OFFENCE, HE DOES NOT HAVE THE REQUISITE CRIMINAL INTENT.

41 AGREE THAT WE MUST BE CAREFUL NOT TO DIVERT FROM THAT COMMON LAW PRINCIPLE TOO EASILY EXCEPT ONLY FOR VERY EXCEPTIONAL CASES, HE SAID.

ON THE LACK OF CLEAR DEFINITIONS FOR TERMS SUCH AS LIKELY TO CAUSE+ WHICH APPEARED IN THE BILL, MR TAI AGREED THAT IT WAS NOT SATISFACTORY.

HE FELT THAT IF A PUBLICATION WAS MADE WITH JUSTIFICABLE CAUSE. THOUGH NOT 100 PER CENT ACCURATE, AND IT TURNED OUT TO AROUSE PUBLIC ATTENTION TO A PARTICULAR ISSUE, IT SHOULD NOT RENDER THE PUBLISHER LIABLE TO CRIMINAL PROSECUTION.

+THIS POSES A THREAT TO OUR 'FREEDOM OF SPEECH,+ HE SAID.

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