TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 95

CONFIDENTIAL

010521

MDADAN 4851

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE F C O

TELNO 150

OF 17095OZ JANUARY 92

ADVANTE COPY

INFO IMMEDIATE PEKING

INFO PRIORITY UKREP JLG HONG KONG

М. Сох

Ir Markin

么

Another BOR bounce - tho

whad linowing more about which parts we'll repeal and which

LEGISLATIVE AMENDMENTS CONSEQUENT TO COURT DECISIONS ON BOReintroduce,

RELATED CASES

I

dan't see how we can make a Proper assermed of the kisel WE ARE PROPOSING TO INTRODUCE AMENDMENTS TO THE DANGEROUS Chinese

reactie

DRUGS ORDINANCE (CHAPTER 134) AND ACETYLATING SUBSTANCES (CONTROL) ORDINANCE (CHAPTER 145) AS A RESULT OF AN APPEAL COURT

RULING THAT CERTAIN PRESUMPTIONS IN CHAPTER 134 HAVE BEEN REPEALED BY THE BOR ORDINANCE (DETAILS OF THE COURT CASES SENT TO

COX AND RIORDAN OF HKD ON 10.10.91 AND 19.9.91 RESPECTIVELY).

2. CHAPTER 134 PROVIDES A PRESUMPTION WHICH SHIFTS TO THE

ACCUSED THE BURDEN OF PROVING THAT HE DOES NOT POSSES DRUGS FOR

THE PURPOSE OF UNLAWFUL TRAFFICKING IF HE HAD BEEN FOUND IN POSSESSION OF MORE THAN PRESCRIBED MINIMUM AMOUNTS. THESE AMOUNTS HAVE HISTORICALLY BEEN SET ON THE BASIS OF THE QUANTITY OF DRUGS

FORMING A SINGLE DAILY AMOUNT FOR AN ADDICT'S OWN CONSUMPTION.

THE ORDINANCE ALSO PROVIDES PRESUMPTIONS OF POSSESSION AND

KNOWLEDGE OF DANGEROUS DRUGS UNDER CERTAIN SPECIFIED CONDITIONS.

3.

ON 21 AND 22 AUGUST, 1991, IN THE COURT OF DISTRICT COURT TRIALS, A DEPUTY JUDGE RULED THAT SOME OF THESE PRESUMPTIONS WERE INCONSISTENT WITH THE PROVISIONS OF THE BILL OF RIGHTS ORDINANCE. SUBSEQUENTLY A QUESTION OF LAW WAS REFERRED BY A HIGH COURT JUDGE TO THE COURT OF APPEAL FOR CONSIDERATION. ON 30 SEPTEMBER, THE COURT OF APPEAL RULED THAT THE PRESUMPTIONS WERE INDEED INCONSISTENT WITH THE BILL OF RIGHTS ORDINANCE AND, IN CONSEQUENCE, HAD BEEN REPEALED AS FROM 8 JUNE 1991.

4.

THE COURT'S RULING HAS INCREASED THE BURDEN OF PROOF REQUIRED FOR SUCCESSFUL PROSECUTIONS. WE HAVE, THEREFORE, REVIEWED THE LEGISLATION IN AN ATTEMPT TO LIMIT THE DAMAGE DONE TO DRUG ENFORCEMENT OPERATIONS, WHILST MEETING THE REQUIREMENTS OF THE ICCPR AS REFLECTED IN THE BOR. OUR SUGGESTED AMENDMENT S

AIM TO FORMALLY REPEAL OR REINTRODUCE WITH JUSTIFICATIONS THE PROVISIONS RULED BY THE COURT OF APPEAL TO BE INCONSISTENT WITH

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