TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 31

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would prove or give rise to the presumptions under S.47, and to

produce a Government Chemist's Certificate to establish that the

quantity of dangerous drug or the number of packets concerned

than that which is laid down by S.46 (to invoke the

presumption thereunder). Once that is done, the onus shifts to

the accused to rebut those presumptions.

was

more

Frequently, an accused charged under S.7 would plead

'Not Guilty' to the charge but at the same time admit possession

In these cases,

of the dangerous drug for his own consumption.

if the Crown

accepts the admission, the accused will be

of dangerous drug

convicted of the offence of "Possession

otherwise than for trafficking" under S.8 because S.42 empowers

the Court so to convict. If the Crown refuses to accept the

admission, then the accused has to rebut the presumption raised

by S.46; he has to prove, on the balance of probabilities, that

although he was in possession of the dangerous drug he did not

have it for the purpose of trafficking therein. The instant

case is such a case.

In CHAN Siu-shing & Others v. R [1974] HKLR 493 (Full

Court), Huggins J. (as he then was) said (at p.501):

as

"In truth the burden of proof is always on the Crown to establish the guilt of a defendant beyond all reasonable doubt. Guilt is something which has to be inferred from primary facts and the burden of proving beyond all reasonable doubt such of these primary facts

have to be proved is, equally, always upon the prosecution. Sometimes one or more of the primary facts from which quilt could be inferred do not have to be proved at all because a statute prescribes

upon the fulfillment of prescribed conditions those facts are to be presumed. In So far as those conditions consist of the proof of facts the burden of proof is, once more, upon the prosecution and the standard of proof required is proof beyond all reasonable doubt. The effect of

that

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