R. v. CHONG AH CHOI AND OTHERS

R. v. CHONG AH CHOI AND OTHERS

The second limb of section 17 ('being unable to give satisfactory account of his possession thereof') imposes an unjustified reverse onus that breaches the presumption of innocence in article 11(1) and fails the Lee Kwong-kut/Leary tests; therefore that phrase is inconsistent with the Bill of Rights and must be read...

Source-derived case information.

Citation
R. v. CHONG AH CHOI AND OTHERS
Parties
1st Appellant: CHONG AH CHOI; 2nd Appellant: CHAN TUNG HON; 3rd Appellant: WONG TUNG KWOK; Respondent: THE QUEEN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
4 October 1994
Case Number
HCMA281/1994
Procedural Posture
Magistracy Appeal / Court of Appeal Judgment on Appeal From Magistrate's Court
Outcome
Appeals allowed; convictions quashed; sentences set aside; so much of section 17 as reads 'or being unable to give satisfactory account of his possession thereof' declared inconsistent with the Bill of Rights and repealed
Legal Topics
Possession of Offensive Weapon, Reverse Onus, Presumption of Innocence, Statutory Construction, Definition of Offensive Weapon
Source Language
en
Criminal Law Constitutional Law Human Rights Public Order Possession of Offensive Weapon Reverse Onus Presumption of Innocence Statutory Construction +1 more

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Summary, issues, holding and outcome

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Parties

CHONG AH CHOI

1st Appellant

CHAN TUNG HON

2nd Appellant

WONG TUNG KWOK

3rd Appellant

THE QUEEN

Respondent

Procedural Posture

Magistracy Appeal / Court of Appeal Judgment on Appeal From Magistrate's Court

Legal Issues

  1. 1 Whether the second limb of section 17 (reverse onus: 'being unable to give satisfactory account') is inconsistent with the Bill of Rights (presumption of innocence)
  2. 2 Whether the prosecution must prove beyond reasonable doubt that possession was with intent to use the implement for an unlawful purpose
  3. 3 Whether section 33 Public Order Ordinance is compatible with the Bill of Rights and distinguishable from section 17

Ratio Decidendi

The second limb of section 17 ('being unable to give satisfactory account of his possession thereof') imposes an unjustified reverse onus that breaches the presumption of innocence in article 11(1) and fails the Lee Kwong-kut/Leary tests; therefore that phrase is inconsistent with the Bill of Rights and must be read out, leaving liability only where prosecution proves beyond reasonable doubt possession with intent to use for an unlawful purpose.

Court Disposition

Appeals allowed; convictions quashed; sentences set aside; so much of section 17 as reads 'or being unable to give satisfactory account of his possession thereof' declared inconsistent with the Bill of Rights and repealed

Orders

  • Convictions of the appellants quashed
  • Sentences of detention in a training centre set aside