The Queen v. TRAN VIET VAN

The Queen v. TRAN VIET VAN

Although s.47(2) is procedurally framed and prospective to trials, it imposes a new and prejudicial evidential burden on facts predating its enactment; absent an express legislative statement that it applies to pre-enactment events the presumption cannot be relied on by the Crown in prosecutions for offences committed before the amendment.

Citation
The Queen v. TRAN VIET VAN
Parties
Prosecution: The Queen; Defendant: TRAN VIET VAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 August 1992
Case Number
HCCC12/1992
Procedural Posture
Criminal — Trafficking in a Dangerous Drug / Pre Trial / Preliminary Ruling on Retrospective Application of Statutory Presumption
Outcome
Held: s.47(2) presumption does not apply to offences alleged to have occurred before its enactment; Crown cannot rely on it in this prosecution.
Legal Topics
Presumption of Knowledge, Retrospectivity, Reverse Onus, Evidential Burdens, Bill of Rights Compatibility
Source Language
EN
Criminal Law Evidence Statutory Interpretation Constitutional Law Presumption of Knowledge Retrospectivity Reverse Onus Evidential Burdens +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

The Queen

Prosecution

TRAN VIET VAN

Defendant

Procedural Posture

Criminal — Trafficking in a Dangerous Drug / Pre Trial / Preliminary Ruling on Retrospective Application of Statutory Presumption

Legal Issues

  1. 1 Whether s.47(2) Dangerous Drugs Ordinance applies to offences committed before its enactment
  2. 2 Whether the amendment is procedural or substantive for purposes of the presumption against retrospectivity
  3. 3 Whether application of the presumption to pre-enactment facts would unfairly penalise the accused

Ratio Decidendi

Although s.47(2) is procedurally framed and prospective to trials, it imposes a new and prejudicial evidential burden on facts predating its enactment; absent an express legislative statement that it applies to pre-enactment events the presumption cannot be relied on by the Crown in prosecutions for offences committed before the amendment.

Court Disposition

Held: s.47(2) presumption does not apply to offences alleged to have occurred before its enactment; Crown cannot rely on it in this prosecution.

Orders

  • Crown barred from relying on s.47(2) Dangerous Drugs Ordinance presumption in respect of the charged offence which occurred prior to enactment