TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 51

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Special Criminal Court Act 1979, the general proposition of law which emerged from it was that when a presumption of law gave

it violated the rise to

arbitrary and unjust consequence, presumption of innocence. This, I think, was part of Mr. Fung's

a salt of an submission when he dealt with the 0.5 gramme of ester of morphine and especially the 5 packets in S.46; a matter

which I shall deal with in due course.

The Canadian appellate courts have dealt with the presumption of innocence, which is contained in S.11(d) of their Charter and is very similar in wording to S.11(1) of the BORO, in very detailed judgments time and again in a string of cases. These judgments considered the presumption of innocence both generally and specifically in relation to particular statutory

provisions.

I find the Canadian cases of the most help in

coming to my decision on the present issue.

Leaving aside the delicate and engrossing arguments as

to whether the crown needs only to prove the essential elements of an offence or whether it needs to go further and prove the culpability of the accused; the one unanimous view of all the was that if a provision learned judges in the Canadian cases required an accused to disprove on the balance of probabilities the existence of a presumed fact, which is an important element

of the

in offence

presumption of innocence.

question,

that provision

violates

the

I am conscious of the fact that the

Canadian

courts

take

by

far

the strictest

view on

the

interpretation of the presumption of innocence.

This is SO

because by S.1 of their Charter, an infringing provision may be

saved if it was found to be justifiable.

Although there is no

the BORO, this

such or similar general saving provision in

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