Hong Kong Case Law: Decisions & Judgments

Topic

Rebuttal on balance of probabilities

Legal area

Court

6 Sept 2013

THE DIRECTOR OF SOCIAL WELFARE v. HSP

Citation

THE DIRECTOR OF SOCIAL WELFARE v. HSP
Court

Court of First Instance
Case number

HCMP598/2013

On the evidence before the court, notably the mother's sworn declarations and the absence of contradicting evidence from Mr Huang, the presumption that Mr Huang was the biological father of HY, YY and M is rebutted on a balance of probabilities; consequently Mr Huang is not a person whose consent is required under s5(5)(a) of the Adoption Ordinance and no dispensation order is necessary in respect of those children.
14 Feb 1992

R. v. SO CHI-CHUEN

Citation

R. v. SO CHI-CHUEN
Court

Court of Appeal
Case number

CACC69/1991

The judge properly accepted the police evidence that the applicant produced and was in possession of the black bag containing the drugs, the statutory/common‑law presumption of trafficking arose from that possession, the onus then shifted to the applicant to rebut the presumption on the balance of probabilities, he failed to do so, and accordingly his conviction for possession for the purpose of unlawful trafficking was properly upheld.
22 Jan 1991

THE QUEEN v. CHOW WAI KONG

Citation

THE QUEEN v. CHOW WAI KONG
Court

Court of Appeal
Case number

CACC64/1990

After receiving and hearing D1, the court concluded D1's affirmation and viva voce evidence were not credible and the record of D1's trial did not materially assist; the statutory presumptions against applicant remained unrebutted on the balance of probabilities; having assessed the weight of the fresh evidence the court was left in no reasonable doubt as to applicant's guilt; therefore the application for leave to appeal against conviction was refused and the conviction was upheld.
28 Dec 1990

THE QUEEN v. LEE WAI KEUNG, DICKIE AND ANOTHER

Citation

THE QUEEN v. LEE WAI KEUNG, DICKIE AND ANOTHER
Court

Court of Appeal
Case number

CACC317/1989

The judge misdirected the jury by explaining 'balance of probabilities' as requiring proof only by 'credible belief' of witnesses and by implying the jury had to believe the defendants personally before finding the presumption rebutted; that explanation risked raising the accuseds burden above 'more likely than not' and rendered the convictions unsafe. Consequently the appeals were allowed, convictions quashed and sentences set aside. The separate challenge to chain of custody failed because the officer's uncontradicted evidence that the drugs remained in his custody was sufficient to maintai…
5 Sept 1984

THE QUEEN v. WONG SIK-HUNG

Citation

THE QUEEN v. WONG SIK-HUNG
Court

Court of Appeal
Case number

CACC309/1984

On the prosecution evidence the 2nd defendant could not properly be inferred to have knowledge or possession of the drugs and his appeal was allowed; conversely, the 3rd defendant, being the person who alone had control of the vehicle, fell within the statutory presumption under s.47 and failed to rebut it as to the drugs found in the car (including those concealed on a passenger), so his applications were dismissed.
1 Dec 1981

CHAN YUET-LING v. TO SUM-FAI AND ANOTHER

Citation

CHAN YUET-LING v. TO SUM-FAI AND ANOTHER
Court

Court of First Instance
Case number

HCA3545/1981

The magistrates' court conviction, proved under s62 Evidence Ordinance, was admissible and the 1st defendant failed to rebut the presumption that he drove without due care and attention; the 1st defendant breached his duty of care and was 90% liable while the plaintiff was 10% contributorily negligent; damages were assessed accordingly with specified interest rates.
26 Feb 1980

CHAN KING-MAN AND OTHERS v. THE QUEEN

Citation

CHAN KING-MAN AND OTHERS v. THE QUEEN
Court

Court of Appeal
Case number

CACC131/1979

The Court held that the statutory presumptions under ss.46 and 47 were properly engaged by the proved facts (keys, tenancy, drugs and paraphernalia); the burden then lay on each defendant to rebut those presumptions on the balance of probabilities. On the evidence the judge was entitled to find that D3 (CHAN King-man) and D4 (CHOW Ka-suen) failed to rebut and their appeals were dismissed, while in the particular circumstances of D5 (SHUM Yee-ling) — her age, limited access/use of the premises, separate room and surrounding facts — the conviction was unsafe and was quashed. The District Judge'…
25 Jul 1978

LAM WAI-MING AND ANOHTER v. THE QUEEN

Citation

LAM WAI-MING AND ANOHTER v. THE QUEEN
Court

Court of Appeal
Case number

CACC981/1977

The court held that s.45 creates an automatic statutory presumption of manufacture upon proof of specified facts which must be rebutted by the accused on the balance of probabilities; the trial judge's novel instruction (saying the jury should draw an inference 'unless' they thought it 'probably wrong') was erroneous and potentially confusing but in key respects favoured the 1st Appellant; on balance the convictions for manufacture and related possession were sustained for the 1st Appellant by the majority view (with counts 2 and 3 addressed by the proviso), whereas the 2nd Appellant's convic…
TONG CHING v. THE QUEEN

Citation

TONG CHING v. THE QUEEN
Court

Court of Appeal
Case number

CACC496/1972

Because each appellant was found in possession of quantities exceeding 0.5g while returning to prison custody and did not adduce credible evidence to rebut the statutory presumption under s.46 on the balance of probabilities, the magistrate rightly found possession for trafficking; given the heightened harm of trafficking inside prison and absence of manifest excess or legal error, the three-year consecutive sentences are lawful and the appeals are dismissed.