Hong Kong Case Law: Decisions & Judgments

Topic

Reverse burden of proof

Legal area

Court

12 Jun 2024

HKSAR v. TSIM SUM KIT, ADA

Citation

[2024] HKCFA 14
Court

Court of Final Appeal
Case number

FACC1/2024

Section 3(2) of the Homicide Ordinance does not engage or derogate from the presumption of innocence because diminished responsibility is a partial defence that only arises after the prosecution has proved the actus reus and mens rea of murder beyond reasonable doubt; alternatively, even if the presumption were engaged, the imposition of a legal burden on the accused is a proportionate and justified limitation given the practical impossibility for the prosecution to disprove the accused's mental state beyond reasonable doubt, therefore s.3(2) stands and the appeal is dismissed.
30 Aug 2023

HKSAR v. TSIM SUM-KIT, ADA

Citation

[2023] HKCA 927
Court

Court of Appeal
Case number

CACC153/2021

The legal burden imposed by section 3(2) to prove diminished responsibility does not engage the presumption of innocence in a way that invalidates the provision, and even if it did it is justified and proportionate in light of the legitimate aim; existing authorities properly govern when lies directions are required and no certificate on either point of law is warranted.
24 Jun 2022

香港特別行政區訴黃超群及另四人

Citation

[2022] HKCFI 1887
Court

Court of First Instance
Case number

HCMA274/2021

The court held that s.19(3) imposes only an evidential burden on the licence holder (not a persuasive burden); the trial judge erred by relying on inadmissible hearsay to discredit D10; on re‑examination D10 had discharged the evidential burden and the prosecution failed to prove beyond reasonable doubt that the statutory defence did not apply, so D10's conviction was quashed.
16 Nov 2021

香港特別行政區訴張慶儂

Citation

[2021] HKCFI 3420
Court

Court of First Instance
Case number

HCMA155/2020

The correct evidential standard for the s.23(9)(b) defence is a persuasive burden on the defendant; the trial judge properly accepted aerial photographic and expert evidence showing agricultural use on the critical date, properly rejected inconsistent defence witness testimony and misinterpretation of D3 was immaterial; appeal dismissed.
22 Apr 2020

香港特別行政區訴黃光明

Citation

[2020] HKCFI 607
Court

Court of First Instance
Case number

HCMA396/2019

Section 129(1)(f) of the Bankruptcy Ordinance reverses the evidential/burden onus to the accused to prove he had no intention to defraud; the accused must discharge that burden to the standard of 'relative probability' (balance of probabilities). The statutory defence in s129(1)(f) replaces the common law honest and reasonable belief defence. Applying these principles to the evidence, the trial judge was entitled to reject the appellant's explanations and the conviction is safe.
5 Jun 2018

香港特別行政區訴鄭保瑜

Citation

[2018] HKCFI 1185
Court

Court of First Instance
Case number

HCMA495/2017

Section 17I(1A) of the Immigration Ordinance must be read as imposing only an evidential (production) burden on the accused: once the accused adduces sufficient evidence to raise the statutory defence, the prosecution must disprove beyond reasonable doubt that the accused did take all reasonably practicable steps and reasonably concluded the employee could be lawfully employed. Imposing a persuasive burden on the accused fails the proportionality requirement and is not justified on the facts and legislative context of s17I(1A).
30 Mar 2012

LAU HOK TUNG AND OTHERS v. HKSAR

Citation

LAU HOK TUNG AND OTHERS v. HKSAR
Court

Court of Final Appeal
Case number

FACC7/2011

Section 26(4) of the Trade Descriptions Ordinance, as worded, reverses the burden by requiring the accused to prove on the balance of probabilities the absence of knowledge, reason to suspect and the ability to discover falsity by reasonable diligence; that reversal derogates from the constitutional presumption of innocence; but because the third limb (could not with reasonable diligence have ascertained) is an objective test materially different from the English defence, there is no compelling justification for a persuasive burden in Hong Kong; accordingly section 26(4) must be read down to…
26 Nov 2010

HKSAR v. LEE TO NEI

Citation

HKSAR v. LEE TO NEI
Court

Court of First Instance
Case number

HCMA403/2010

Given the regulatory and consumer‑protection context of counterfeiting, section 26(4) properly imposes on a trader a persuasive burden to prove on the balance of probabilities that he did not know, had no reason to suspect and could not with reasonable diligence have ascertained the forged trade mark; the appellant, who was a frontline salesman and part‑owner, failed to prove reasonable diligence and accordingly the conviction is upheld; the original six‑month sentence was excessive and reduced to eight weeks imprisonment.
18 Dec 2008

HKSAR v. YAN PAK CHEUNG

Citation

HKSAR v. YAN PAK CHEUNG
Court

Court of First Instance
Case number

HCMA647/2008

Lack of lawful authority or reasonable excuse is not an element the prosecution must prove to establish the substantive offence under s.9(1) POBO; it is a defence and the burden to prove it lies on the accused under s.24 POBO. Once prosecution proves soliciting/accepting an advantage for doing or forbearing to do an act in relation to the principal, the conspiracy charged necessarily amounts to conspiracy to commit that offence. Section 24 is not struck down in this context. The appellant's claim of blackmail did not amount to a reasonable excuse and did not negate intent; appeal dismissed an…
13 Feb 2007

HKSAR v. LO KOK LEONG

Citation

HKSAR v. LO KOK LEONG
Court

Court of First Instance
Case number

HCMA167/2006

Section 33(1) construed does not impose a reverse onus; where the article is not offensive per se the prosecution must prove intent beyond reasonable doubt; the trial court properly found the appellant's cautioned statement voluntary and that no reasonable excuse of self-defence existed because no imminent threat was shown, therefore conviction and sentence were upheld.