TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 39

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Constitution.

of the

• into the Constitution the fundamental right of presumption of

innocence and that therefore the presumption in S.15

Misuse of Drugs Act was in conflict with those sections of the

S.15 of the Misuse of Drugs Act provides:

"Any person who is proved or presumed to have had in his possession more than... (c) 2 grammes of diamorphine (heroin) contained in any controlled drug...shall, until the contrary is proved, be presumed to have had such controlled drug in his possession for the purpose of trafficking therein."

Lord Diplock in giving judgment for the Judicial Committee said

(at p.667):

as

an

"Proof of the purpose for which an act is done, where such purpose is a necessary

of the offence with which ingredient of accused is charged, presents a problem with which criminal courts

courts are very familiar. Generally, in the absence of an express admission by the accused, the purpose with which he did an act is a matter of inference from what he did. Thus, in the case of an accused caught. in the act of conveying from one place to another controlled drugs in a quantity much larger than is likely to be needed for his own consumption the inference that he

transporting was

them for the purpose of trafficking in them would, in the absence of any plausible alternative explanation by him, be irresistible -- even if there were no statutory presumption such

is

Š.15 contained in

of the Drugs Act.. ..All that S.15 does is to lay down the minimum quantity of each of the five drugs with which it deals at which the inference arises from the quantity involved that they were being transported for the purpose of transferring possession of them to another person and solely for the transporter's own consumption. There may be other facts which justify

inference even where the quantity of drugs involved is lower than the minimum which attracts the statutory

under presumption

S.15...Whether quantities involved be large or small...the inference is always rebuttable. The accused himself best knows why he was conveying the drugs from one place to another and, if he can satisfy the court, upon the balance of probabilities only, that they were destined for his own consumption he is entitled to be

the

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the