TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 49

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differing views of what the presumption of innocence meant and

when it was or was not violated. Mr. Fung, very ably, has

I shall not

WHYTE and ONG.

the other

Fung.

The

It was

submitted that the cases of X v. UNITED KINGDOM, ONG AH CHUAN

and SALABIAKU ought not to be followed and are distinguishable

from the present case. He further submitted that the Canadian

cases, especially that of OAKES should be followed.

repeat his arguments here because they are very neatly set out

in his written skeleton submission. Mr. Dykes on

hand, attractively sought to uphold the presumption by relying

heavily on the various passages to which he has directed my

attention in the cases of SALABIAKU,

Having

given much thought to the arguments presented by both learned

counsel, I find favour with the submissions of Mr.

case of X v. UNITED KINGDOM is a case which was decided nearly

20 years ago in 1972 and the report in the Digest is much too sparse to be of any great assistance and reliability. decided mainly on the basis that the presumption in question was restrictively worded, not unreasonable and was rebuttable; and

that the presumption

circumstances of that case. It did not take into account the

important tests of 'rational connection' nor 'proportionality'.

Indeed the Canadian Supreme Court had declined to follow it in OAKES. ONG AH CHUAN's case, though dealing specifically with

drugs, and might appear therefore at first sight to be very relevant, (especially since the presumption provision therein was very similar in wording to S.46 of the DDO), nonetheless dealt with a situation which was quite different to that which

case the Privy is under consideration in this

Council dealt with the act of 'transporting' whilst in this case

necessary was

case.

in the

In that

particular

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