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Bill of Rights. Section 34 (1) was a "reverse onus provision". The Magistrate accepted that the section was intended to pursue a legitimate objective, namely, the proper regulation of trade. The section dealt with matters which were generally peculiarly within the knowledge of the defendant and the requirements would generally be satisfied by the production of proper documents. Accordingly, it was held that section 34 (1) satisfied the test of rationality and proportionality and was consistent with the Bill of Rights.

The trial subsequently miscarried and there is to be a retrial before another

Magistrate.

R v Tsui Shek-law and others, SK No. 5817 of 1991, Mr de Souza, Esq.

This case involved a challenge to section 35A (2) of the Import and Export Ordinance (cap. 60) on the ground that it violated article 11 (1) of the Bill of Rights.

The Magistrate adopted a similar approach to that adopted by Mr Day in the case immediately above, R v Ma Man Ho. He also ruled against defence arguments that section 35A violated articles 5 (1) and 11 (2)(g) of the Bill of Rights.

A written ruling is awaited. The case is the subject of an appeal to the High Court.

Counsel: S.R. Bailey, for the Crown; Danny Marash, for the defence.

Import and Export Ordinance (cap. 60), section 14A

R v Wong Man-kwong, SK No 4835 of 1991 (Bill of Rights Bulletin, v. 1, n.1, p. 13)

This case, which involves a challenge to section 14A of the Import and Export Ordinance (cap. 60) on the ground that it violates article 11 (1) of the Bill of Rights, has been adjourned until 14 February 1992.

R v Lee Hing-shum, Fanling Magistracy No. 4188 of 1991 (Bill of Rights Bulletin, v. 1, n.1, p. 13)

Challenge to regulations 3 (1) and (5) of the Import and Export (Carriage of Articles) Regulations 1991 (cap. 60). The regulations were impugned on the ground that they were ultra vires the Governor, not on any Bill of Rights ground.

Control of Obscene and Indecent Articles Ordinance (cap. 390), section 21 (1)(a)

R v Cheng Pui Kit, SK No. 5333 of 1991, Ian Carlson Esq, 18 October 1991 (noted in Bill of Rights Bulletin, v. 1, n. 1, p. 13)

The defendants were charged with publishing obscene articles contrary to section 21 (1)(a) of the Control of Obscene and Indecent Articles Ordinance (cap. 390). That section provides that, subject to a number of defences, it is an offence for a person to publish, possess for the purpose of publication or import for the purpose of publication any obscene article whether or not (s)he knows it is an obscene article. Section 21 (2) provides a number of defences, all of which the defendant must establish on the balance of probabilities. Under this section, a defendant can be convicted whether or not he knew

Bill of Rights Bulletin

December 1991