THE QUEEN v. SUEN SHUN AND OTHERS

THE QUEEN v. SUEN SHUN AND OTHERS

The Court held ss.18A(2) and 35A(2) are compatible with Article 11(1) because they impose only a rebuttable evidential burden: the presumed intent reasonably and realistically follows from proved circumstances that give rise to a reasonable suspicion, the burden on the accused is minimal (only to adduce evidence...

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Citation
THE QUEEN v. SUEN SHUN AND OTHERS
Parties
Prosecution: The Queen; Defendant/appellant: Wong Hiu Chor; Defendant/appellant: Yeung Chu Tim; Defendant/respondent: Suen Shun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 December 1992
Case Number
HCMA718/1992
Procedural Posture
Magistracy Appeals and Case Stated Under the Magistrates Ordinance / Appellate Hearing and Judgment on Compatibility With the Bill of Rights (case Stated Answered)
Outcome
Sections 18A(2) and 35A(2) of the Import and Export Ordinance held compatible with Article 11(1) of the Hong Kong Bill of Rights; appeal in MA718 allowed; appeals MA227 and MA484 remitted to the High Court.
Legal Topics
Presumption of Innocence, Burden of Proof, Statutory Presumptions, Bill of Rights Article 11(1), Proportionality / Oakes Test
Source Language
en
Constitutional Law Criminal Law Customs and Excise Law International Human Rights Law Presumption of Innocence Burden of Proof Statutory Presumptions Bill of Rights Article 11(1) +1 more

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Parties

The Queen

Prosecution

Wong Hiu Chor

Defendant/appellant

Yeung Chu Tim

Defendant/appellant

Suen Shun

Defendant/respondent

Procedural Posture

Magistracy Appeals and Case Stated Under the Magistrates Ordinance / Appellate Hearing and Judgment on Compatibility With the Bill of Rights (case Stated Answered)

Legal Issues

  1. 1 Whether ss.18A(2) and 35A(2) of the Import and Export Ordinance are compatible with Article 11(1) of the Hong Kong Bill of Rights
  2. 2 Whether the statutory phrase 'in the absence of evidence to the contrary' imposes an evidential or persuasive/legal burden and thus permits conviction absent proof beyond reasonable doubt
  3. 3 Whether ss.18A(2) and 35A(2) are repealed by s.3(2) of the Bill of Rights Ordinance

Ratio Decidendi

The Court held ss.18A(2) and 35A(2) are compatible with Article 11(1) because they impose only a rebuttable evidential burden: the presumed intent reasonably and realistically follows from proved circumstances that give rise to a reasonable suspicion, the burden on the accused is minimal (only to adduce evidence capable of raising a reasonable doubt), and the presumption is proportionate and justified by the serious public interest in combating smuggling.

Court Disposition

Sections 18A(2) and 35A(2) of the Import and Export Ordinance held compatible with Article 11(1) of the Hong Kong Bill of Rights; appeal in MA718 allowed; appeals MA227 and MA484 remitted to the High Court.

Orders

  • Answer to case stated: No to both questions; sections 18A(2) and 35A(2) admit of a construction consistent with Article 11(1) of the Bill of Rights
  • Appeal MA718 of 1992 allowed