TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 28

I

Detailed and

were in violation of the Bill of Rights Ordinance.

comprehensive submissions were made both by Mr. Dykes for the

Crown and Mr. Fung for the defence with many cases drawn to my

attention. I am most grateful for their assistance. I have

considered all the points raised and the cases cited. .I shall

refer to

of them together with cases which I have come

across myself in giving this ruling.

some

THE ISSUE

!

The issue in this case concerns whether the provisions

in S.46 (c) and (d) of the Dangerous Drugs Ordinance Cap.134

("DDO") are in violation of S.8 A.11 (1) of Hong Kong Bill of

Rights Ordinance ("BORO").

APPLICABILITY

Before embarking upon the analysis of the issue, it is

necessary to decide how, if at all, the BORO affects the offence

presently before this Court.

The general rule is that a piece of legislation is not

retrospective in effect unless it

it specifically so provides.

There is no such provision in the BORO. Therefore, it does not

affect substantive offences committed before its commencement

date. However, the present issue is not concerned with the

effects of the BORO upon the substantive offence under S.7 of

to be It concerns how that substantive offence is

proved. S.46 of the DDO is

the DDO.

in aid in proving its case.

section which the Crown can pray

It relieves the Crown from the

burden of adducing evidence to prove that the possession of the