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Judge Whaley refused to construe the provision in this way and held that it had been repealed by section 3 (2) of the Bill of Rights Ordinance. He wrote (at pp. 30-31 of his judgment):

"I agree that the provisions of section 3 (1) of the Hong Kong Bill of Rights Ordinance should be given their full weight, along with those of section 3 (2). They reflect a clear legislative intention that in interpreting pre-existing legislation the courts should in the first place, (adopting established principles of statutory construction, I would interpolate), determine whether the legislation admits of a construction consistent with the Bill of Rights Ordinance. It is only if the legislation does not, without doing violence to such established principles of statutory construction, admit of a construction consistent with the Bill of Rights Ordinance that it must be found to be, to the extent of such inconsistency, repealed under the provisions of section 3 (2).

In the instant case the outcome of such an analysis is to my mind inevitable. To construe the words 'until the contrary is proved' as imposing no more than an evidential burden on an accused to adduce evidence fit to be left to a jury, would be to depart from the plain meaning of those words. 'Proof' involves more than simply adducing evidence. The difference is very well established in the statute law of Hong Kong and other common law jurisdictions. Thus expressions such as 'until the contrary is proved' are to be contrasted with expressions such as 'in the absence of evidence to the contrary'. To construe 'until the contrary is proved' as imposing no more than an evidential burden would be not to construe but to rewrite the legislation in my view, which remains the province of the executive and not the judiciary, notwithstanding the new situation and the new jurisprudence which has been brought in to being by the Hong Kong Bill of Rights Ordinance."

R v Chan Fuk-lee, Judge Longley (Bill of Rights Bulletin, v. 1, n. 1, p. 12)

This case raised the identical challenge to section 29 (6) of the Theft Ordinance as was argued in the preceding case, R v Lau Shiu-wah. Counsel for the prosecution had conceded that the defendant had no case to answer if the prosecution were not able to rely on the presumption. After the delivery of judgment by Judge Whaley in R v Lau Shiu-wah, the Crown did not choose to argue the Bill of Rights issue and Judge Longley ruled that there was no case to answer and acquitted the defendant.

Import and Export Ordinance, sections 18A, 34 and 35A

R v Ma Man Ho, SK No. 5472 of 1991, R. Day Esq., 9 October 1991

This case (Bill of Rights Bulletin, v. 1, n. 1, p. 8) involved a challenge to sections 18A, 35A and 34 of the Import and Export Ordinance (cap 60) on the basis that the presumptions therein violated the guarantee of presumption of innocence under article 11 (1) of the Bill of Rights. Section 18A (2) (and section 35A (s)) provides, inter alia, that any person who has possession of or deals with any cargo in circumstances that give rise to a reasonable suspicion that there is an intent to export the cargo without a manifest, the person will be presumed to have such intent in the absence of evidence to the contrary.

It was held that the expression "in the absence of evidence to the contrary" created an evidential burden only. The "presumption" could be rebutted by raising a reasonable doubt and hence sections 18A (2) and 35A could be interpreted in a way consistent with the

Bill of Rights Bulletin

December 1991