5 Mar 2024
The presumption of mens rea is displaced in respect of the age element of both s.118C and s.146 of the Crimes Ordinance and, applying the reasoning in Kulemesin and HKSAR v Choi Wai Lun, the third Kulemesin alternative applies: the accused has a defence if he proves on the balance of probabilities that he honestly and reasonably believed the complainant was aged 16 or over.
9 May 2018
Sections 122(1) and (2) do not impose absolute liability as to the complainant's age; the presumption of mens rea is displaced for the age element but the appropriate construction applies the third Kulemesin alternative requiring the accused to prove on the balance of probabilities that he honestly and reasonably believed the complainant was 16 or over, thereby providing a defence and preserving the protective purpose of the statute.
30 Oct 2017
The court held there is a case to answer against each defendant: the statutory definitions in the Crimes Ordinance read with the Dangerous Goods Ordinance and established English authorities provide a sufficiently precise and broad meaning of 'explosive substance', and the prosecution evidence (surveillance, exhibits, expert opinion) if accepted by a jury could properly support convictions; the constitutional challenge and arguments about regulatory classification and reverse onus were rejected or inapplicable at this stage.
30 Mar 2012
Section 26(4) of the Trade Descriptions Ordinance expressly imposes a reverse persuasive burden and thus derogates from the presumption of innocence; however, to satisfy constitutional protections it must be read down to impose only an evidential burden on the accused while the persuasive burden remains on the prosecution; applying that read-down, the Court quashed the conviction in FACC No 5 (Lee) and dismissed the appeal in FACC No 7 (Lau).
21 Jul 2010
Section 125(2) read with s.150 as enacted imposes a persuasive reverse burden on the accused to prove on the balance of probabilities that he did not know and had no reason to suspect the woman was mentally incapacitated; that persuasive burden is not sufficiently justified and therefore incompatible with the presumption of innocence; the proper remedial interpretation is to read down the provision so it imposes only an evidential burden on the accused, after which the prosecution must prove beyond reasonable doubt that the accused knew or had reason to suspect the incapacity; appeal allowed…
15 Dec 2009
The Court upheld the conviction: although the Magistrate erred in treating the burden as evidential rather than persuasive, for a substantive corruption offence under s.9 POBO a reverse persuasive burden is justifiable; the prosecution had proved the substantive elements beyond reasonable doubt and the appellant failed to prove lawful authority, reasonable excuse or principal's permission on the balance of probabilities; inadmissible hearsay evidence was rightly excluded; accordingly the appeal was dismissed and conviction and sentence confirmed.
7 Mar 2008
Sections 14(4) and 24 read together, as drafted, impose a persuasive reverse burden on the accused to prove reasonable excuse and thereby derogate from the constitutionally protected presumption of innocence; that derogation is not justified on proportionality grounds and the proper remedy is to read down section 24 (in conjunction with section 14(4)) so that the accused bears only an evidential burden while the prosecution retains the persuasive burden of proof.
11 Jul 2007
On true construction of s.20(1) of the Airport Authority Bylaw, 'loitering in the Bylaw Area without reasonable cause' are integrated elements of the offence; therefore the prosecution must prove absence of reasonable cause beyond reasonable doubt. Because no reverse burden arises, s.20(1) is not unconstitutional on the grounds advanced. The appellant's conviction is upheld and the appeal is dismissed.
4 Apr 2007
The absence of a reasonable excuse is an element of the offence under s14(4) POBO so s94A CPO does not justify reversing the legal onus onto the accused; section 24 POBO, insofar as it might place a burden on an accused, must be read as imposing only an evidential (not persuasive) burden to avoid infringing the presumption of innocence; because the magistrate had imposed a persuasive burden on the appellants their convictions were quashed and sentences set aside.
31 Aug 2006
Section 47(1) and 47(2) of the Dangerous Drugs Ordinance, properly interpreted, each impose only an evidential burden; the persuasive reverse onus as read literally derogates from the presumption of innocence and fails proportionality. The correct remedy is to read down the statutory presumptions to evidential burdens, thereby preserving the provisions as constitutionally valid; prospective overruling limiting retrospective effect is not justified and art.160(1) does not require limiting judicial retrospective effect.