TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 38

subsection

creates

two

had

He

dishonesty affecting public funds or public

The property. offences, one under paragraph (a), the other under paragraph (b). Their Lordships will deal first with the case of a person, other

the principal suspect, who has than property seized from him by the police. commits an offence under paragraph (a) if he "fails to come forward to prove" that the property that has been seized was acquired lawfully. In the context of paragraph (b) this must mean if he fails to appear before

upon his the Special Criminal Court initiative; while if he does so, or if he is arrested and brought before the court on a charge of having committed an offence under paragraph (a), paragraph (b) places upon him the onus of proving his innocence.

to

Constitution:

own

is

a

In their Lordships' view this is a plain and flagrant infringement of section 20 (2) (a) of the

"Every

who person charged with a criminal offence (a) shall be presumed to be innocent until he is proved or has pleaded guilty;... . " While the wording of subsection (5) is inapt to cover the case of a principal suspect. who has already been brought before the court, since he can hardly be described as failing

"come forward, " it

to would apply principal suspect whose tangible movable property the police had managed to seize although they had not been able to find him inside the frontiers of The Gambia in order to

him. arrest

This would have the arbitrary and unjust consequence that by seizing the principal suspect's property but making no effort to arrest him the police could avoid the onus of proof which would otherwise lie upon them of proving that the principal

of guilty dishonesty which affected public property. Section 8 (5)

the Act contravenes the Constitution; it is ultra vires therefore void."

suspect

of

had been

and

In the case of ONG AH CHUAN V. PUBLIC PROSECUTOR [1981] AC 648, the appellant appealed against the decision of the Singapore Court of Appeal which dismissed his appeal against conviction on a charge of trafficking in heroin contrary to S.3 of the Misuse

of Drugs

1973 of Singapore. One of the grounds argued

before the Privy Council

Act

was that SS.9 (1)

and 12 (1)

of

the

Constitution of the Republic of Singapore (1980 rep.) imported

12