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Attorney General v Lee Kwong Kut

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date18 June 1992
Year1992
Judgement NumberHCMA90/1992
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000090/1992 ATTORNEY GENERAL v. LEE KWONG KUT

HCMA000090/1992

Magistracy Appeal No 90 of 1992

Headnote

Section 30 of the Summary Offences Ordinance Cap 228 is inconsistent with the Hong Kong Bill of Rights Ordinance and was repealed on 8 June 1991.

IN THE COURT OF APPEAL

1992, No 90

(Magistracy Appeal)

BETWEEN

THE ATTORNEY GENERAL Appellant
AND
LEE KWONG-KUT Respondent

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Coram: Hon Sir Derek Cons, Atg CJ, Kempster, JA and Bokhary, J

Date of Hearing: 9 June 1992

Date of Judgment: 18 June 1992

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J U D G M E N T

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Kempster, JA:

1. On 16 February 1991 Lee Kwong-kut was arrested and charged with having had in his possession while in transit at Apleichau, Aberdeen, $1.76m reasonably suspected of having been stolen or unlawfully obtained contrary to s 30 of the Summary Offences Ordinance (Cap 228) which provides:

"Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for 3 months."

"Suspicion", in its ordinary meaning, is "a state of conjecture or surmise where proof is lacking." per Lord Devlin in Hussien v Chong Fook-kam [1970] AC 942 at p 948.

2. Pursuant to these requirements and having been bailed meanwhile Lee was brought before Mr Acton-Bond on 2 September 1991 to give an account, to the satisfaction of that magistrate, of how he came by the monies. However, concluding that s 30 had been repealed by s 3(2) of the Hong Kong Bill of Rights Ordinance, the magistrate dismissed the charge. Section 3(2) reads:

"All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."

3. Being desirous of questioning such determination by way of appeal on the grounds of error of law the Attorney General applied to the magistrate to state and sign a case for the opinion of a judge. This, albeit the document is not accurate in all respects, he duly did and on 19 March 1992, pursuant to s 118(1)(4) of the Magistrates' Ordinance (Cap 227), Gall J reserved the appeal to this court.

4. Like similar provisions in the law of each of the states of Australia and of a number of former British colonies in Africa s 30 derives from s 24 of the Metropolitan Police Courts Act 1839 which was only repealed by the Criminal Law Act 1977. Such legislation was first enacted in Hong Kong by s 36 of the Summary Offences Ordinance 1845 under the cross-heading "Possession of Stolen Goods".

5. I understand the offence to be "Having in (his) possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained". The word "or", where it first occurs, is to be construed as "and". Hadley v Perks (1886) LR 1 QB 444; Tang Chi-kin v R Cr App No 851 of 1978 (Unreported); AG v Chiu Man-lun [1989] 1 HKLR 99. Also, despite the literal wording of the section, the prosecution must prove beyond reasonable doubt possession in the course of transit and circumstances giving rise, at the time of arrest, to reasonable suspicion that "the thing" has been stolen or unlawfully obtained (Hadley v Perks at p 459 per Blackburn J) after which the burden of proof rests upon the person charged to explain to the satisfaction of the magistrate before whom he is brought how he came by the same honestly. If, by his own evidence or that of another, he fails to discharge that burden upon the balance of probabilities (R v Hunt [1987] AC 352 at p 374) he is liable to a fine of $1,000 or to imprisonment for three months.

6. Far from being required to disprove the validity of the suspicion as to the provenance of "the thing" or any other expressed elements of the offence an accused is provided with the opportunity of establishing his own innocence and the absence of the mens rea normally required to warrant a criminal conviction. Sweet v Parsley [1970] AC 132; Gammon Ltd v AG of Hong Kong [1985] AC 1. The reason, in my view, is that implicit in the section are presumptions that "the thing" has unlawfully been come by to the knowledge of the person charged albeit, as literally enacted, the offence is based solely on "the suspicion attaching to persons having in their possession or conveying things in the public streets" per Shee J. in Headley v Perks at p 461. As Lord Goddard CJ pointed out in Flatman v Light [1946] 1 KB 414 at p 417 in relation to the Metropolitan Police Courts Act 1839 s 24 the section "is designed to cover cases where it is impossible to show at the time of the man's arrest that the property is stolen". He may well have had in mind his earlier comments on the like provision in s 507 of the Liverpool Corporation Act 1921:

"Its object is obvious, it is to confer additional power of arrest and punishment for being in unlawful possession of goods although it may not be possible to prove that the goods have actually been stolen or that the person in possession of them stole or feloniously received them so as to justify a charge of felony."

Dumbell v Roberts [1944] 1 All ER 326 at p 330. If, as I find, the section comprises presumptions it is inconsistent with the terms of s 8 and Article 11(1) of the Hong Kong Bill of Rights ordinance upon which the magistrate relied:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

As Dickson CJC said in R v Oakes (1986) 26 DLR (4th) 200 at p 222, quoted with approval in R v Sin Yau-mina [1992] 1 HKCLR 127 at p 162:

"In general one must,I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt."

Section 11(d) of the Canadian Charter of Rights and Freedom gives any person charged with an offence the right "to be presumed innocent until proven guilty according to law". It has not been suggested that the presumptions, if properly found in the section, realistically follow from facts required to be proved and "are no more than proportionate to what is warranted by the nature of the evil against which society requires protection". R v Sin Yau-ming at p 163. Further, it would not accord with normal principles of construction to "read down" the burden imposed on an accused to that of raising a reasonable doubt; as submitted by Mr Bailey on behalf of the Attorney General, relying upon the East African Court of Appeal's decision in Ismail Abdulrehman v R (1952) 20 EACA 246, thereby "saving" the section as consistent with the Hong Kong Bill of Rights Ordinance: see s 3(l).

7. I am satisfied, for reasons which will follow, that s 30 of the Summary Offences Ordinance was repealed on 8 June 1991 and not before; though the point is academic.

8. It is unnecessary, in my opinion, to express any view on the submissions made to us in relation to Article 5(1) of the Bill of Rights or to the concept of strict liability.

9. Section 23 of the Interpretation and General Clauses Ordinance (Cap 1) reads:

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not -

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of any Ordinance so repealed or anything duly done or suffered under any Ordinance so repealed;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any Ordinance so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance had not been passed."

If these words are not sufficiently explicit support may be found in an English Court of Appeal decision on s 38 of the Interpretation Act 1889, which is in virtually identical terms, where it was held that the offence of being an accessary after the fact to a felony existed at the time the defendant committed it and that the statutory provisions providing for its indictment and punishment remained in force: the substantive changes made by s 4 of the Criminal Law Act 1967, abolishing the distinction between felony and misdemeanour, not being applicable retroactively. R v Fisher [1969] 1 WLR 8. This has been the law for a long time....

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