841

A HKSAR Appellant
and
Hung Chan Wa & Another Respondents

B
(Court of Final Appeal)
(Final Appeal No 1 of 2006 (Criminal))

C Li CJ, Bokhary, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ
13–14, 17, 19–20 July and 31 August 2006

Criminal law and procedure — dangerous drugs — presumption of legal

possession under s.47(1) — presumption of knowledge under s.47(2) —
D s.47(1) and (2) read down as imposing evidential burdens — Dangerous Drugs
Ordinance (Cap.134) s.47(1), 47(2)
Human rights — presumption of innocence — Basic Law arts.39, 87 — Hong
Kong Bill of Rights Ordinance (Cap.383) s.8 art.11(1)
E Criminal law and procedure — appeal — apart from in exceptional circumstances,
extension of time would not be granted only on ground judgment held previous
understanding of law to be incorrect
Constitutional law — Basic law — art.160 recognised there might be pre-1 July
1997 laws discovered, after 1 July 1997, to contravene Basic Law — art.160
F
stated such laws “shall be amended or cease to have force in accordance with the
procedure prescribed by law” — “procedure” meant legislation not judgments
— Basic Law art.160
Courts and judicial system — prospective overruling — whether power to engage
G in prospective overruling
Words and phrases — “possession” — “prospective overruling”
[Dangerous Drugs Ordinance (Cap.134); Basic Law art.160]

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R9_p.841-868_I23 841 11/22/06, 5:54 PM

 842 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

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Ds, who were tried separately, were convicted of trafficking in B

dangerous drugs. They admitted possession of a container and that
they knew the container housed a substance which turned out to be
a dangerous drug. Ds said they thought the substance was not a
dangerous drug. Section 47 of the Dangerous Drugs Ordinance
(Cap.134) provided “(1) Any person who is proved to have had in C
his physical possession — (a) anything containing or supporting a
dangerous drug; (b) the keys of any baggage, briefcase, box, case,
cupboard, drawer, safe-deposit box, safe or other similar container
containing a dangerous drug, shall, until the contrary is proved, be
presumed to have had such a drug in his possession. (2) Any person who D
is proved or presumed to have had a dangerous drug in his possession
shall, unless the contrary is proved, be presumed to have known the
nature of such drug.” At issue in the prosecution’s appeal to the Court
of Final Appeal was first, the interpretation and constitutionality of
s.47(1) and (2). Second, if, on a remedial interpretation, s.47(1) and E
(2) were to be read as imposing evidential burdens, the prosecution
argued: (a) under art.160, which provided that pre-1 July 1997 laws
determined to be in contravention of the Basic Law “shall cease to have
effect”, this judgment only had prospective effect; and (b) there was
judicial power to engage in a “prospective overruling” and such power F
should be exercised here to avoid a flood of applications for extensions
of time to appeal against conviction that would otherwise result.

Held, dismissing the appeals, that:

First issue (Per Sir Anthony Mason NPJ) G
(1) On a true construction of s.47, s.47(1) was directed at legal
“possession”. Once physical possession was established, a double
presumption arose under s.47(1), that of legal possession, and
as a constituent element of legal possession, that of knowledge
of presence of the thing possessed, not knowledge of its nature H
or qualities. Section 47(2) was directed at an additional element
of the offences of trafficking and possession, outside the concept
of legal possession dealt with by s.47(1), namely knowledge of
presence of a dangerous drug. So after proof or presumption
of legal possession, by s.47(2) there was introduced another I
presumption, namely knowledge of the nature of the drug
(R v Tam Chun Fai [1994] 2 HKC 397, R v Ng Chiu Leung
[1996] 1 HKC 181, HKSAR v Chan Ming Fai [2001] 4 HKC
511 overruled; HKSAR v Chui Chi Wai [1999] 3 HKLRD 841
followed; Warner v Metropolitan Police Commissioner [1969] 2 AC J
256, R v Boyesen [1982] AC 768, He Kaw Teh v The Queen (1985)
157 CLR 523 applied). (See pp.861F–863J.)

R9_p.841-868_I23 842 11/22/06, 5:54 PM

 HKSAR v Hung Chan Wa & Another
CFA HKSAR v HungLiChan
CJ Wa & Another 843

A (2) The reverse onus in s.47(1) and s.47(2) were persuasive burdens.
(See p.864A.)
Constitutionality of s.47(1) and (2)
(3) First, the persuasive burdens in s.47(1) and (2) derogated from
the presumption of innocence and consequently from the right
B to a fair trial, as protected by the Basic Law and the Hong Kong
Bill of Rights (the BOR). With the presumptions, a defendant
might be convicted of possession or trafficking even though, on
the evidence, there was a reasonable doubt that he had legal
possession or that he had knowledge that what he possessed
C was a dangerous drug. Further, the reverse onus under s.47(2)
related to a critical aspect of the offence, involving blameworthy
conduct, namely the defendant’s knowledge that he was in
possession of a dangerous drug (HKSAR v Lam Kwong Wai &
Another [2006] 3 HKLRD 808 applied). (See p.864B–F.)
D (4) Second, the presumptions were rationally connected with the
legitimate objective of preventing and suppressing the trade and
use of dangerous drugs and punishing those who participated
in them. Proof of the elements of possession offences relating
to dangerous drugs was notoriously difficult. (See p.865A–C.)
E (5) Third, however, the persuasive burdens imposed by s.47(1) and
(2) were disproportionate. First a defendant might be convicted
even though the evidence raised a reasonable doubt as to his
legal possession or knowledge of the nature of a dangerous.
Second, the persuasive onus under s.47(2) was imposed in
F relation to the critical element in the offence, the defendant’s
knowledge which was both the mens rea or mental element and
the core element of blameworthiness. Third, by merely proving
physical possession of a container, the prosecution brought into
existence the presumptions of legal possession and knowledge
G of nature of its contents. This derogation was so severe it was
not sustainable unless the legitimate objective could not be
achieved by other means. But, it had not been shown that an
evidential onus of proof would be inadequate to achieve that
objective (R v Lambert [2002] 2 AC 545 considered). (See
H pp.865D–867I.)
(6) A remedial interpretation would be applied to s.47(1) and (2)
by treating the burdens of proof as creating an evidential onus
only. This remedial approach was based on implied powers
conferred upon the courts by the Basic Law (HKSAR v Lam
I Kwong Wai & Another [2006] 3 HKLRD 808 applied). (See
pp.867J–868B.)
Second issue (Per Li CJ)
(7) Under the common law, it was well established a judgment
determining a legal question operated retrospectively as well as
J prospectively (Re Spectrum Plus Ltd [2005] 2 AC 680 followed).
(See p.848I.)

R9_p.841-868_I23 843 11/22/06, 5:54 PM

 844 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

(8) Article 160 recognised there might be pre-1 July 1997 laws A
which were discovered after 1 July 1997 to be in contravention
with the Basic Law. In relation to them, art.160(1) provided that
“they shall be amended or cease to have force in accordance with
the procedure as prescribed by law”. The phrase “the procedure
as prescribed by law” covered only the enactment of legislation, B
which was prospective. Article 160(1) did not apply to judicial
procedure. If it were to apply, judgments determining pre-1 July
1997 laws to be in contravention of the Basic Law would only
have prospective effect. Such a result would be extraordinary
as this would represent a radical departure from the established C
common law position. (See pp.848A–850A.)
(9) The term “prospective overruling” was imprecise. A court
might be invited to engage in a prospective overruling where
a judgment held a previous view on a legal question to be
incorrect, whether or not the previous view had been the subject D
of judicial determination. In essence, the court was asked to limit
the retrospective effect of its judgment (Re Spectrum Plus Ltd
[2005] 2 AC 680 considered). (See p.847E–H.)
(10) It was not necessary to determine whether the courts had the
power to engage in a prospective overruling; even if there E
was such power, its exercise was plainly not justified here. This
was because, apart from in exceptional circumstances, time
would not be extended for appeal against conviction on the
ground only that a subsequent judgment had held the previous
understanding of the law to be incorrect. The circumstances F
must be so exceptional that the occasions when they would
be held to exist would be very rare. So the magnitude of the
problem of a flood of applications appeared much less than that
apprehended by the prosecution (Ha & Others v State of New
South Wales & Others (1997) 189 CLR 465 considered; R v G
Ramsden [1972] Crim LR 547, R v Mitchell [1977] 1 WLR 753,
R v Hawkins [1997] 1 Cr App R 234, R v Ballinger [2005] 2 Cr
App R 433, R v Unger [1977] 2 NSWLR 990, R v Knight [1998]
1 NZLR 583, R v Thomas [1990] 1 SCR 713 applied). (See
pp.850B–852G.) H

Final appeal
This was the prosecution’s appeal against a judgment of the Court
of Appeal (see [2005] 3 HKLRD 291). The facts are set out in the
judgment. I

Mr Gerard McCoy SC, Mr Josiah Chan, Mr Gavin Shiu, Senior Assistant

Director of Public Prosecutions and Ms Sally Yam, Government
Counsel, for the appellant.
Mr Clive Grossman SC and Mr Hanif Mughal, instructed by ML Tam J
& Co, assigned by the Director of Legal Aid, for the respondents.
Mr Benjamin Yu SC, Amicus Curiae.

R9_p.841-868_I23 844 11/22/06, 5:54 PM

 HKSAR v Hung Chan Wa & Another
CFA HKSAR v HungLiChan
CJ Wa & Another 845

A Legislation mentioned in the judgment

Basic Law of the Hong Kong Special Administrative Region arts.8,
18, 39, 73(1), 160, 160(1), 160(2)
Criminal Justice Act 1994 [England] s.34
Criminal Procedure Ordinance (Cap.221) ss.54(1)(b), 82, 83Q, 83S
B Dangerous Drugs Ordinance (Cap.134) ss.2, 2(2), 4, 8, 47, 47(1),
47(1)(b), 47(2), 47(3)
Decision of the Standing Committee of the National People’s Congress
on Treatment of the Laws Previously in force in Hong Kong in
Accordance with Article 160 of the Basic Law of the Hong Kong
C Special Administrative Region of the People’s Republic of China
(Adopted at the Twenty Fourth Session of the Standing Committee
of the Eighth National People’s Congress on 23 February 1997)
(Cap.2206)
District Court Ordinance (Cap.336) s.83
D Firearms and Ammunition Ordinance (Cap.238) s.24
Hong Kong Bill of Rights Ordinance (Cap.383) s.3
Hong Kong Court of Final Appeal Ordinance (Cap.484) ss.31, 32,
33
Hong Kong Court of Final Appeal Rules (Cap.484, Sub,Leg.) r.7
E Hong Kong Letters Patent 1917 to 1995 Article VII(3)
Magistrates Ordinance (Cap.227) ss.113, 114, 114A
Misuse of Drugs Act 1971 [England] s.5(3)

Cases cited in the judgment

F Arthur JS Hall & Co & Others v Simons & Others [2002] 1 AC 615,
[2000] 3 WLR 543, [2000] 3 All ER 673, [2000] BLR 407
Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198, [1999] 2 HKLRD
203, [1999] 1 HKC 707
Donoghue v Stevenson [1932] AC 562
G Ha & Others v State of New South Wales & Others (1997) 189 CLR
465
He Kaw Teh v The Queen (1985) 157 CLR 523
HKSAR v Chan Ming Fai [2001] 4 HKC 511
HKSAR v Chui Chi Wai [1999] 3 HKLRD 841, [1999] 3 HKC 225
H HKSAR v Lam Kwong Wai & Another [2006] 3 HKLRD 808
Koo Sze Yiu & Another v Chief Executive of HKSAR [2006] 3
HKLRD 455
L v DPP [2001] EWHC Admin 882, [2003] QB 137, [2002] 3 WLR
863, [2002] 2 All ER 854, [2002] 1 Cr App R 32
I Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, [2005] 1 HKLRD
349
R v Ballinger (Paul) [2005] EWCA Crim 1060, [2005] 2 Cr App R
433
R v Boyesen (Peregrine) [1982] AC 768, [1982] 2 WLR 882, [1982]
J 2 All ER 161, (1982) 75 Cr App R 51
R v Hawkins (Paul Nigel) [1997] 1 Cr App R 234
R v Knight [1998] 1 NZLR 583

R9_p.841-868_I23 845 11/22/06, 5:54 PM

 846 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

R v Kwok Hing Man [1994] 2 HKCLR 160 A

R v Lambert (Steven) [2001] UKHL 37, [2002] 2 AC 545, [2001] 3
WLR 206, [2001] 3 All ER 577
R v Matthews (Mark) [2003] EWCA Crim 813, [2004] QB 690,
[2003] 3 WLR 693, [2003] 2 Cr App R 19
R v Mitchell (Alvin Lorenzo) [1977] 1 WLR 753, [1977] 2 All ER B
168, (1977) 65 Cr App R 185
R v Ng Chiu Leung [1996] 1 HKC 181
R v Ramsden [1972] Crim LR 547
R v Tam Chun Fai [1994] 2 HKC 397
R v Thomas (1990) 75 CR (3d) 352, [1990] 1 SCR 713 C
R v Tsang Kwok Wing [1989] 1 HKLR 270
R v Unger [1977] 2 NSWLR 990
Rondel v Worsley [1969] 1 AC 191, [1967] 3 WLR 1666, [1967] 1
WLR 142, [1967] 3 All ER 993
Spectrum Plus Ltd, Re [2005] UKHL 41, [2005] 2 AC 680, [2005] 3 D
WLR 58, [2005] 4 All ER 209, [2005] 2 Lloyd’s Rep 275
Warner v Metropolitan Police Commissioner [1969] 2 AC 256,
[1968] 2 WLR 1303, [1968] 2 All ER 356, (1968) 52 Cr App R
373
E
Other material mentioned in the judgment
European Convention on Human Rights art.6(2)

Li CJ
1. I agree with the judgment of Sir Anthony Mason NPJ and I note F
that the other members of the Court also agree with his judgment. For
reasons given in his judgment, the Court holds that s.47(1) and 47(2)
(the relevant provisions) properly interpreted by a process of remedial
interpretation impose only evidential burdens on the defendant. That
being so, the relevant provisions are constitutionally valid. G
2. In its judgment delivered on 23 June 2005, the Court of Appeal
had reached the same conclusion. After that date, all trials and appeals
have to be conducted on the basis that the relevant provisions impose
only evidential burdens.
H

Previous view
3. Before the Court of Appeal’s judgment on 23 June 2005, the
widely held view was that the relevant provisions validly imposed legal I
or persuasive burdens on the defendant who had to discharge the
burden engaged in the particular case on the balance of probabilities.
It will be convenient to refer to it as “the previous view”. The previous
view was shared by prosecutors, defence lawyers and the courts. See
for example, Chan Chuen Ho v HKSAR (1999) 2 HKCFAR 198 at J
p.201A–B where the Court assumed the previous view to be correct.
Although the previous view could have been questioned earlier, it was

R9_p.841-868_I23 846 11/22/06, 5:54 PM

 HKSAR v Hung Chan Wa & Another
CFA Li CJ 847

A only challenged for the first time in the present case. That view was
held to be incorrect by the Court of Appeal and now by the Court.

The proposed order

B 4. Mr McCoy SC for the appellant, the HKSAR, submits that the
Court should make an order limiting the retrospective effect of its
judgment so that only the following persons may benefit from it:

(1) The two defendants in the present appeals.

C (2) In addition the following persons:

(i) defendants who had already appealed within time by 23 June

2005 when the Court of Appeal delivered its judgment and
those who appeal within time after that date; and
D (ii) defendants who are able to obtain extension of time for appeal
after 23 June 2005 on grounds apart from the ground that the
relevant provisions only impose evidential burdens.

Mr McCoy SC suggests that the persons in (1) and (2) should be

E treated as, to use his expression, “within the judicial system”. It will
be convenient to refer to the above as “the proposed order”.
5. The Court is invited to engage in what is generally known as
“prospective overruling”. As was pointed out by Stock JA delivering
the judgment of the Court of Appeal on prospective overruling on
F 26 January 2006 (at para.10), this term is an imprecise one. A court
may be invited to engage in prospective overruling where a judgment
holds a previous view on a legal question to be incorrect, whether or
not the previous view had been the subject of judicial determination.
See Re Spectrum Plus Ltd [2005] 2 AC 680 at para.6. If it had been,
G the previous authority would have been overruled by the subsequent
judgment. In essence, the court is asked to impose a temporal limitation
on its judgment so that its retrospective effect would be limited to the
extent specified. The proposed order represents a modified form of
prospective overruling since it accepts that the judgment would have
H retrospective effect to the extent of covering the persons referred to
therein.
6. In seeking the proposed order, Mr McCoy SC for the appellant
submits that:

I (1) Article 160(1) of the Basic Law applies to a court judgment holding
a law previously in force to be in contravention of the Basic Law
and establishes the norm that such a judgment only has prospective
effect. The norm is a variable one and the courts may vary it and
specify the extent of the retrospective effect of a judgment.
J (2) In any event, judicial power includes the power to engage in
prospective overruling and the circumstances justify its exercise
in the present case.

R9_p.841-868_I23 847 11/22/06, 5:54 PM

 848 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

Article 160 A

7. Article 160 of the Basic Law provides:

Upon the establishment of the Hong Kong Special Administrative

Region, the laws previously in force in Hong Kong shall be adopted B
as laws of the Region except for those which the Standing Committee
of the National People’s Congress declares to be in contravention of
this Law. If any laws are later discovered to be in contravention of
this Law, they shall be amended or cease to have force in accordance
with the procedure as prescribed by this Law. C
Documents, certificates, contracts, and rights and obligations valid
under the laws previously in force in Hong Kong shall continue to
be valid and be recognized and protected by the Hong Kong Special
Administrative Region, provided that they do not contravene this
Law. D

8. On 23 February 1997, the Standing Committee adopted its Decision

on treatment of the laws previously in force in Hong Kong in accordance
with art.160 (the Decision). This declared that the statutes and statutory
provisions set out therein are in contravention of the Basic Law and are E
not adopted as the laws of the HKSAR.
9. Article 160 is the last article of the Basic Law. It is the only article
in Chapter IX, the last Chapter, which is headed “Supplementary
Provisions”. It has two parts. Article 160(1) deals with the continuation
of laws whilst art.160(2) relates to the continuation of documents, F
certificates, contracts, and rights and obligations. The latter provides that
the specified matters valid under the laws previously in force in Hong
Kong shall continue to be valid and be recognised and protected by the
HKSAR provided that they do not contravene the Basic Law. Article
160(1) supplements articles such as arts.8 and 18 in making it clear that G
laws previously in force shall be adopted except for those which the
Standing Committee declares to be in contravention of the Basic Law.
Apart from the laws so declared to be in contravention, the article
recognises that there may be laws which are discovered after 1 July
1997 to be in contravention. In relation to them, art.160(1) provides H
that “they shall be amended or cease to have force in accordance with
the procedure as prescribed by this Law”.
10. The context of art.160 of course includes the continuation
of a common law system in Hong Kong as provided by the Basic
Law. Under the common law, the well-established position is that a I
judgment determining a legal question operates retrospectively as well
as prospectively. See Re Spectrum Plus Ltd [2005] 2 AC 680 at paras.4–7.
11. The crucial question is whether on its proper interpretation,
the phrase “the procedure as prescribed by this Law” at the end of
art.160(1) covers judicial procedure. If it does, judgments of the courts J
determining pre-1 July 1997 laws to be in contravention of the Basic
Law would only have prospective effect, since the article provides

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 HKSAR v Hung Chan Wa & Another
CFA Li CJ 849

A that the law in question “shall cease to have effect” in accordance

with the procedure prescribed. Such a result would be extraordinary.
Article 160 would be according to such judgments a treatment which
represents a radical departure from the established common law
position. Further, a sharp distinction would have to be drawn between
B pre-1 July 1997 laws and post-1 July 1997 laws. Whereas a court
judgment determining a post-1 July 1997 law to be in contravention
of the Basic Law would operate retrospectively as well as prospectively
in accordance with the common law position, a wholly different rule
would prevail in relation to a judicial declaration of contravention in
C relation to a pre-1 July 1997 law. Article 160 should not be interpreted
to lead to such an extraordinary result in the absence of clear words.
12. An examination of the language of art.160(1) lends no support
to the appellant’s argument that judicial procedure is included within
its purview. On the contrary, its language indicates that the judicial
D process is not included and that it is only the legislative procedure
which is contemplated by the article. The article refers to the situation
where a pre-1 July 1997 law is discovered after that date to be in
contravention of the Basic Law. Discovery marks the commencement
of the process. It is by the operation of the procedure as prescribed
E by the Basic Law that the relevant law “shall be amended or cease to
have force” in accordance with that procedure.
13. As to the first limb, “shall be amended”, this phrase connotes
a legislative procedure. A law is amended by the enactment by the
legislature of a subsequent statute to amend it. The courts do not
F amend laws. That “amend” should be interpreted in this way is
supported by the use of the word in other articles of the Basic Law
where it is plain that the reference is to a legislative act. For example,
art.8 refers to laws being subject to amendment by the legislature of
the HKSAR. And art.73(1) provides that the legislature’s powers and
G functions include the amendment of laws. As to the second limb, “shall
cease to have force”, the phrase also suggests a legislative procedure.
It is when the legislature repeals a law that it ceases to have effect so
that the phrase “shall cease to have effect” connotes the legislative
context.
H 14. Thus, both limbs in “shall be amended or cease to have force”
indicate that the procedure giving rise to these consequences is the
enactment of legislation through the legislative procedure. Legislation
enacted is prospective, at any rate in the absence of express provision
to the contrary. The enactment of legislation with retrospective effect
I is of course most exceptional, assuming such a course is constitutionally
valid, having regard to its subject matter.
15. Accordingly, it should be concluded that art.160 does not
apply to judicial procedure. It therefore does not prescribe or support
the making of the proposed order. In view of this conclusion, it is
J unnecessary to deal with other points relating to art.160 which have
been addressed in argument, including the point that it is not engaged

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 850 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

since the relevant provisions, interpreted to impose only evidential A

burdens, are consistent with the Basic Law.

Whether the power exists

16. The questions: (a) whether judicial power includes the power to B
engage in prospective overruling; and (b) if it does, whether it should
be exercised in this case will now be discussed. As has been noted, the
proposed order represents a modified form of prospective overruling.
17. Whether the courts in a common law jurisdiction have the
power to engage in prospective overruling has been much debated in C
recent years. The Court’s attention was drawn to numerous authorities
around the globe, including the jurisprudence of the European supra-
national courts, namely the Court of Justice of the European Communities
and the European Court of Human Rights. As far as domestic courts are
concerned, recent decisions include on one side the English decision of D
Re Spectrum Plus Ltd [2005] 2 AC 680 holding in favour of its existence
in all situations. And on the other side stands the decision of the High
Court of Australia in Ha & Others v State of New South Wales & Others
(1997) 189 CLR 465 at pp.503–504 and 515 rejecting the notion that
judicial power in Australia includes such a power. E
18. On any view, the power to engage in prospective overruling,
if it exists, is an extraordinary power. In view of the conclusion below
that the present circumstances do not justify the exercise of the power
even if it exists, it is not necessary to decide the fundamental question
whether and to what extent the courts in Hong Kong have the power. F
Nor is it necessary to consider the appropriateness of the terms of
the proposed order. However, some observations will be made on
prospective overruling later on in this judgment.

G
Exercise of the power
19. Assuming that judicial power in Hong Kong includes the power
to engage in prospective overruling and to make an order such as the
proposed order, is the present case a proper one for its exercise?
H
The Government’s submission
20. In contending that the proposed order should be made,
Mr McCoy SC for the appellant relies on its apprehension of a flood
of applications to the courts for extension of time to appeal against I
conviction resulting in gravely disruptive consequences for the
criminal justice system. He submits that the principle of certainty is
an important one and that making the proposed order would prevent
these applications from being made and achieve certainty. Whether the
situation apprehended is as serious as that suggested by Mr McCoy SC J
depends upon the principle governing the Court’s discretion to extend

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 HKSAR v Hung Chan Wa & Another
CFA Li CJ 851

A time to appeal against conviction in this situation. It is therefore necessary

first, to identify the applicable principle in order to ascertain the
magnitude of the problem which might arise before deciding whether
the proposed order should be made. If, for example, applications for
extension of time, dealt with in accordance with the applicable principle,
B are likely to succeed only in exceptional circumstances, it would not
be necessary to consider the appropriateness of resorting to the power
of prospective overruling.

C Extension of time
21. The avenue of appeal is provided for by statute for persons
convicted of criminal offences. Various statutory provisions provide
for appeals through the hierarchy of the court system. (See ss.113,
114 and 114A of the Magistrates Ordinance (Cap.227), ss.82 and 83Q
D of the Criminal Procedure Ordinance (Cap.221), s.83 of the District
Court Ordinance (Cap.336) and ss.31, 32 and 33 of the Hong Kong
Court of Final Appeal Ordinance (Cap.484). These provisions lay
down time limits for appeals and confer on the courts the discretion
to extend time. (In this judgment, the term “appeal” is used to include
E leave to appeal.) This arrangement is an important feature of any
criminal justice system. It is in the interests of society for there to be
finality in the criminal process. But the time limits for the purpose of
achieving finality are not absolute. The courts have the discretion to
relax the time limit where this is considered to be justified in the
F circumstances of an individual case.
22. While the question, whether time should be extended for an
appeal against conviction is essentially a matter of discretion for the
courts, it is of course not an unfettered discretion. The burden is on
the defendant to justify exercise of that discretion in his favour.
G

Applicable principle
23. Whatever be the level of court, in dealing with applications for
H extension of time to appeal against conviction on the ground that the
previous view that the relevant provisions imposed legal or persuasive
burdens has now been authoritatively held to be incorrect and that
the relevant provisions only impose evidential burdens, the principle
to apply is that this ground by itself would not justify an extension of
I time.
24. Such a principle is well-established by overseas jurisprudence.
In overseas jurisdictions, the courts in dealing with applications for
extension of time for appeal against conviction have consistently
applied the principle that time should not be extended for appeal
J only on the ground that an authoritative judgment subsequent to the
conviction has held the previous understanding of the law to be

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 852 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

incorrect. See R v Ramsden [1972] Crim LR 547, R v Mitchell [1977] A

1 WLR 753, R v Hawkins [1997] 1 Cr App R 234, R v Ballinger [2005]
2 Cr App R 433, R v Unger [1977] 2 NSWLR 990, R v Knight [1998]
1 NZLR 583 and R v Thomas [1990] 1 SCR 713. In adopting this
principle, the courts recognize the practical necessity for finality in the
criminal process. B
25. However, overseas jurisprudence does not exclude the
possibility that there could be exceptional circumstances in a particular
case which would justify the court in extending time for appeal against
conviction on the ground that a subsequent judgment has held the
previous understanding of the law to be incorrect. Especially as the C
Court does not have before it an appeal raising a question relating to
extension of time, it is not feasible for the Court on this occasion to
attempt to define what constitute exceptional circumstances except
to say that the circumstances must be so exceptional that the occasions
when they would be held to exist would be very rare. Cases where D
the defendant had pleaded guilty would not fall within this exception.
No opinion is expressed about the correctness of the decision in R v
Kwok Hing Man [1994] 2 HKCLR 160 in relation to the extension of
time for an appeal against conviction for a non-existent offence.
26. In deciding whether to apply for extension of time for appeal E
against conviction, defendants must take account of the principle
referred to above that will be applied by the courts. Having regard
to this principle, the magnitude of the problem would appear to be
much less than that apprehended by Mr McCoy SC. Assuming that
the courts have the power to engage in prospective overruling, its F
exercise is plainly not justified in this case.
27. It should be noted that in dealing with applications for
extension of time for appeals against conviction which may be made,
the courts may have to adopt such summary procedure as may be
appropriate for the court concerned. See for example s.83S of the G
Criminal Procedure Ordinance (Cap.221) and r.7 of the Rules of the
Hong Kong Court of Final Appeal (Cap.484, Sub.Leg.).

Prospective overruling H
28. First, whether judicial power includes a power to engage in
prospective overruling in a particular jurisdiction is a most intricate
question concerning the proper role of the courts in the jurisdiction
concerned. It would necessarily involve a consideration of the courts’
function in the light of the separation of powers and the relationship I
between the executive, the legislature and the judiciary. Ultimately,
it is a question which has to be decided in the light of the constitutional
framework of the jurisdiction concerned. It is a problem which by
its nature may not be susceptible to a common approach across the
common law world. It may be inevitable that different jurisdictions J
would come to divergent answers to this difficult problem.

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 HKSAR v Hung Chan Wa & Another
CFA Li CJ 853

A 29. Secondly, the question whether the power to engage in

prospective overruling exists may arise in a wide variety of situations.
It may arise in the context of private law, criminal law or public
law. It may have to be considered where the judgment relates to the
common law, statutory interpretation or constitutional interpretation
B or a combination of these areas. It might be that the same considerations
do not apply to all these situations in relation to both whether the
power exists and if so, its width and the circumstances that may justify
its exercise. In relation to statutory interpretation, it should be noted
that in Re Spectrum Plus Ltd [2005] 2 AC 680, Lord Scott and Lord Steyn
C were of the view that the power does not extend to a decision on
statutory interpretation and dissented on that matter.
30. Thirdly, in relation to a judgment determining a constitutional
issue, the question whether the power exists will have to be considered
in the context of the range of remedies that may be available in this
D situation. In Koo Sze Yiu & Another v Chief Executive of HKSAR [2006]
3 HKLRD 455, the Court left open the question whether the courts
have the power to grant a declaration of temporary validity of a law
or executive action which has been declared unconstitutional. See
paras.32, 60 and 61. It should be noted that such a remedy is even
E more far reaching than prospective overruling. With prospective
overruling, the court’s judgment would take effect from the date of
the judgment. But where a declaration of temporary validity is made,
the judgment would not even take effect at that time. It would only
take effect after the expiry of the period as specified in the declaration
F sometime after the judgment.
31. Fourthly, it is of the essence of the common law that it evolves
to meet the changing needs of the society in which it functions. Judges
have the responsibility and indeed the duty to develop the common
law to respond to changing needs. Thus, when the House of Lords
G developed the tort of negligence on the neighbour principle in the
seminal case of Donoghue v Stevenson [1932] AC 562, it did not mean
that this has been the position under the common law since time
immemorial. Similarly when the House of Lords decided in Arthur JS
Hall & Co & Others v Simons & Others [2002] 1 AC 615 not to follow
H its previous decision in Rondel v Worsley [1969] 1 AC 191 on the question
of the advocate’s immunity, it did not mean that Rondel v Worsley was
wrongly decided. Rather, the question was reconsidered over three
decades later in the light of changes in the law of negligence, the
functioning of the legal profession, the administration of justice and
I public perceptions. Where the common law has developed in this way,
it is usually unnecessary to decide on the precise point of time when
the change occurred. Conceivably, such an issue may arise in a particular
case. Lest there be any misunderstanding, it should be added that no
view is expressed on the question whether the common law in Hong
J Kong on the question of advocate’s immunity should be developed
along the same lines as in England.

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 854 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

32. Its capability of being developed by judges to meet changing A

needs is at the heart of the common law. Developing the common law
in this way cannot properly be regarded as an application of the power
to prospectively overrule. In relation to a common law question, that
power would only be engaged, where contrary to a previous view, a
judgment is given that the previous view was incorrect at the time it B
was held, overruling a previous authority on the point, if there was
one. And the court considers whether and if so the extent to which it
should confine the retrospective effect of its judgment.
33. Fifthly, it must be emphasised again that even if the power
to engage in prospective overruling is held to exist in any situation, C
it is an extraordinary power. And the courts must approach its exercise
with the greatest circumspection.

Bokhary PJ
34. I agree with the Chief Justice and Sir Anthony Mason NPJ in D
this appeal and the one heard together with it. Striking down a
law is a course of last resort. The courts will strive to give laws a
constitutional reading to save them, if possible, from being declared
unconstitutional. Each of these reverse burden provisions can and
should be read to impose only an evidential burden. So read each E
leaves defendants with what the presumption of innocence exists to
provide. By that I mean a measure of protection consistent with the
idea that convicting the innocent is far more abhorrent than letting
the guilty go free. As for the question of limiting judicial decisions to
prospective effect, I would leave it open. On any view, these are not F
cases for imposing such a limitation.

Chan PJ
35. I agree with the judgment of the Chief Justice and the judgment
G
of Sir Anthony Mason NPJ.

Ribeiro PJ
36. I agree with the judgment of the Chief Justice and the judgment
of Sir Anthony Mason NPJ. H

Sir Anthony Mason NPJ

Introduction
37. These appeals raise a series of questions similar to those raised I
and dealt with in this Court’s judgment in HKSAR v Lam Kwong Wai
& Another [2006] 3 HKLRD 808 which is delivered concurrently with
the Court’s judgment in this case. These appeals, however, concern
s.47 of the Dangerous Drugs Ordinance (Cap.134) (the Ordinance).
They also raise the question of prospective overruling which is an issue J
having more practical consequence in this case than in HKSAR v
Lam Kwong Wai & Another. Related to this question is the interpretation

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 855

A of art.160 of the Basic Law and the proper approach to be adopted by

the courts in dealing with applications for extension of time to appeal
against conviction. These questions have great importance for the
appellant because it apprehends that there are many persons who were
convicted of an offence under ss.4 and 8 of the Ordinance and will seek
B an extension of time to appeal against their convictions on the ground
that, in light of the Court of Appeal’s judgment, they were wrongly
convicted. Chief Justice Li deals with these questions in his judgment
with which I agree.
38. The appeals come to this Court pursuant to leave to appeal
C granted by the Appeal Committee for the appellant to pursue the
following points which the Court of Appeal certified as points of law
of great and general importance involved in its decision:

(1) Once an accused is proven or presumed to have in his possession

D a dangerous drug, is the statutory presumption, until the contrary
is proven, that the accused knew that what was in his possession
was indeed a dangerous drug, provided for by s.47(1) of the
Dangerous Drugs Ordinance (Cap.134) or by s.47(2) of the
Dangerous Drugs Ordinance?
E (2) Are s.47(1) and 47(2) of the Dangerous Drugs Ordinance,
consistent with the presumption of innocence prescribed by
art.11(1) of the Hong Kong Bill of Rights Ordinance, art.14.2
of the International Covenant of Civil and Political Rights
(ICCPR) as applied by art.39 of the Basic Law; and with the
F right to a fair trial, protected by art.10 of the Hong Kong Bill
of Rights Ordinance, art.14.1 of the ICCPR as applied by art.39
of the Basic Law and art.87 of the Basic Law?
(3) Whether the statutory presumptions under s.47(1) and (2) of the
Dangerous Drugs Ordinance, are capable of an interpretation
G and construction permitting the court to “read down” the
sections as imposing an evidential burden upon the accused?
(4) If the statutory presumptions under s.47(1) and (2) of the
Dangerous Drugs Ordinance, do permit a court to “read down”
the provisions as imposing an evidential burden upon the
H accused, whether this is still unconstitutional as the presumptions
under s.47 do not provide a specific defence to the accused but
cast a burden of proof on a necessary ingredient of the offence.

39. The issues which arise in relation to s.47 are:

I
(1) is the reverse onus of proof in relation to knowledge of the nature
of the contents of a container imposed by s.47(1) or s.47(2);
(2) is the onus of proof imposed by each sub-section a persuasive onus
of proof;
J (3) if so, does it derogate from the presumption of innocence and
the right to a fair trial as protected by the Basic Law and the Hong
Kong Bill of Rights (the BOR);

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 856 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

(4) if so, can it be justified as having: A

(a) a rational connection with a legitimate societal aim (the

rationality test); and
(b) is it no more than is necessary to achieve that legitimate aim
(the proportionality test); B

(5) if not, can a remedial interpretation be applied to s.47(1) and (2),

as was applied by the Court of Appeal, in order to preserve their
constitutionality; and
(6) if so, what interpretation do they bear? C

The legislative provisions

40. Section 4 of the Ordinance makes it an offence to traffic in
dangerous drugs. A person convicted of that offence upon indictment D
is liable to imprisonment for life.
41. By virtue of s.2, trafficking includes “possessing a dangerous
drug for the purpose of trafficking”. That was the form of trafficking
alleged in these two cases. So, as Stock JA said in the Court of Appeal,
the concept of possession was central to the appeals. E
42. Section 8 of the Ordinance provides:

(1) Save under and in accordance with this Ordinance or a licence

granted by the Director thereunder, no person shall:
F
(a) have in his possession …
…

a dangerous drug.
G
43. Section 47 provides:

(1) Any person who is proved to have had in his physical possession:

(a) anything containing or supporting a dangerous drug; H

(b) the keys of any baggage, briefcase, box, case, cupboard,
drawer, safe-deposit box, safe or other similar container
containing a dangerous drug,

shall, until the contrary is proved, be presumed to have had such I

drug in his possession.
(2) Any person who is proved or presumed to have had a dangerous
drug in his possession shall, until the contrary is proved, be
presumed to have known the nature of such drug.
(3) The presumptions provided for in this section shall not be rebutted J
by proof that the defendant never had physical possession of the
dangerous drug.

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 857

A In this judgment, the word “container”, wherever appearing, is used

so as to mean anything which contains or supports a dangerous drug,
including the various things mentioned in s.47(1)(b).
44. Sections 8 and 47 need to be read in the light of s.2(2) which
provides:
B
(2) For the purposes of this Ordinance, a person shall be deemed
to be in possession of a dangerous drug or a pipe, equipment
or apparatus, as the case may be, if it is in his actual custody or
is held by some other person subject to his control or for him
C and on his behalf.

It is not suggested, however, that s.2(2) qualifies or affects the

presumptions or the reverse onus provisions in s.47.
D
The facts
45. In both appeals it was accepted before the Court of Appeal
that the defendant had possession of a container and knew that the
container housed the substance which turned out to be a dangerous
E
drug. The first presumption imposed by s.47(1) that the defendant was
in possession of the drug was not an issue. A different presumption
that the person in possession of a dangerous drug knew that it was
a dangerous drug was in issue because each respondent said that he
thought that the material in the container was not a dangerous drug.
F

Hung
46. Hung was charged on an indictment containing one count which
G alleged that, on 26 October 2002, in Tak Hing Street, Kowloon, he
unlawfully trafficked in a dangerous drug, namely 500 g of a mixture
containing 410 g of heroin hydrochloride. He was tried before Deputy
High Court Judge Barnes and a jury and was convicted by a 5-2
majority. He was sentenced to 15 years’ imprisonment.
H 47. According to the admitted facts, the defendant was stopped
by police on 26 October 2002 and searched when a block of dangerous
drugs was found in a plastic bag. The plastic bag was in a shoulder
bag carried by the defendant. The plastic bag contained another plastic
bag in which was some paper which wrapped the block of dangerous
I drugs. There was oral testimony that the defendant was seen outside
the Regal Riverside Hotel at about 8:00 pm on that day and that he
was then approached by another man who was not carrying anything.
They both entered the hotel where they sat down and talked. After
about 10 minutes conversation, the other man left. Shortly thereafter
J he returned carrying something which he passed to Hung. The two
then parted. Hung took a taxi. When he was about to alight at the
end of his journey, the police intercepted and arrested him.

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 858 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

48. When interviewed, Hung said that a person called Ah Shui A

had asked him to go to the hotel to pick up a videotape and that is
what he thought the bag contained. At the trial Hung said in evidence
that he had known Ah Shui for many years since the age of 16 but
that they had lost contact until the summer of 2002, when Ah Shui
proposed that they might engage in off-course betting. Although Hung B
was offered a 10% commission for each customer introduced, none
was introduced. All that happened was that Hung placed football bets
with Ah Shui and they sometimes met to eat and drink, when Ah Shui
paid the bill. On the day in question, Ah Shui asked Hung to collect
a videotape for him and told him the tape was about English football C
matches. Hung agreed and went to the Riverside Hotel. Hung said
that he did not look into the bag and did not know that it contained
dangerous drugs.
49. In her summing-up the judge informed the jury of the two
s.47 presumptions and said of the first: D

Of course, there was never any dispute that he also had the block in
his possession. So he is presumed to have the drug in his possession
as well.
E
The judge left as the live issue the second presumption and said:

If, after considering all the evidence, you are satisfied on a balance
of probabilities that it is more likely than not that the accused did not
know that dangerous drugs was inside the bag handed to him, then F
you must find him not guilty … If, however, you are satisfied that
the accused failed to rebut the presumption that he was in possession
of the dangerous drug and he knew that it was dangerous drug, then
you have to decide whether the prosecution has satisfied you beyond
a reasonable doubt that the accused possessed the drugs for the G
purpose of trafficking.

50. Five and one half hours after they retired, the jury sent a note
to the judge stating three questions. The second question was:
H
(2) Part of the jury, 3 out of 7, did not accept that the testimony
given by the accused is the believable truth. But they cannot
find solid evidence to draw the conclusion that the accused
knew that the item that was being carried inside his bag was I
really a dangerous drugs [sic] — they somehow got stuck there.
Please advise how to proceed.

51. Lengthy discussion followed between the judge and counsel. The
judge reminded the jury of the presumption, its nature and effect and J
that the defendant had to rebut the presumption on the balance of
probabilities:

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 859

A … he had to show, on all the evidence before you, that it is more

likely than not that he did not know. So this is not a question of
finding conclusive or concrete evidence that the accused knew of
the nature of the dangerous drug. The law already presumes that he
knew. So it is a question of whether you are satisfied he has rebutted
B the presumption on the balance of probabilities.

52. After the jury retired again, they sent a further note to the judge
in these terms:

C Now, the job of the jury is to see if the evidence provided can let
the accused to argue that he did not know that the item that was
being carried in his bag is, in fact, dangerous drugs [sic].
In the process of evaluating whether the accused knew he was
actually carrying DD, are those doubts that arise during the jury
D discussion be [sic] considered beneficial to the accused? ie Does the
“benefit of doubt” still apply to judge whether he knew he was
carrying DD, on the balance of probability?

After a further direction from the judge, the jury retired and returned
E with their majority verdict.

Asano
53. Asano was born in Japan in January 1981. He was aged 22 at
F the time of his alleged offence. He had never previously been outside
Japan. He was arraigned before Jackson J and a jury on an indictment
that alleged that on 25 March 2003 at the departure hall of the Hong
Kong International Airport, he unlawfully trafficked in a dangerous
drug, namely 6.85 kg of a crystalline solid containing 6.83 kg of
G methamphetamine hydrochloride. He pleaded not guilty but was
convicted by the unanimous verdict and sentenced to 20 years’
imprisonment.
54. Although the prosecution adduced oral evidence, the case for
the prosecution largely rested on admitted facts. According to the
H admitted facts, Asano presented himself at the Dragonair check-in
counter on the morning of 25 March, checked in a suitcase and a
rucksack. The police then intercepted him and took from him some
keys. They opened the suitcase in which nothing incriminating was
found. Drugs, however, were found in the rucksack. It contained a
I grey plastic bag and a plastic box in which was a document holder.
In the holder was a blue paper box. Within the box, were three
transparent zipper bags each of which contained a white substance
which was found to be methamphetamine hydrochloride. In the
transparent plastic box was another box-like object wrapped in blue
J paper. In the blue paper were four more transparent zipper bags each
containing drugs. The retail price of the dangerous drugs seized was
in the region of HK$2.55 million.

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 860 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

55. When interviewed, Asano denied that he knew that he was A

carrying dangerous drugs. At the interview and at the trial, he
maintained that, on leaving school, he came to know a man named
Takashi who offered him a free trip to Hong Kong to bring back a
quantity of legal drugs because Takashi’s passport had expired and he
could not bring them back. After arriving in Hong Kong he was given B
an air ticket to Japan by a man who also gave him a rucksack. Asano
went to the airport and checked in the rucksack. He thought that the
rucksack contained drugs that were not illicit. The defence was that
Asano was young and very naïve, it being suggested that no-one
having knowledge that the drugs were illicit would have checked in C
a relatively flimsy rucksack containing such drugs.
56. The judge identified as the sole issue in the case the question
whether the defendant knew that the package in the rucksack contained
dangerous drugs and further, that the presumption which was engaged
was that created by s.47(2) of the Ordinance. D

The Court of Appeal’s judgment

57. The judgment of the Court of Appeal, delivered by Stock JA,
proceeded first to deal with the interpretation of s.47(1) and (2). It E
has been the subject of conflicting authorities in Hong Kong. The
Court’s conclusion on this point is stated succinctly in these terms:

[s.47(1)] presupposes that it has been established that the accused was
in physical possession of an item that transpired to be a dangerous F
drug and raises a presumption that he intended to possess that item
and that [s.47(2)] raises the subsequent presumption that the accused
was aware that the item was a dangerous drug.

58. The consequence of this interpretation was that the reverse onus G
of proof imposed by s.47(2) was engaged by the issue of fact which
arose in both cases.
59. The Court, having concluded that s.47(2) derogated from
the presumption of innocence, went on to consider whether the
derogation could be justified as having a rational connection with a H
legitimate societal objective and as amounting to no more than is
necessary to achieve that objective. As the objective was the need
to address the serious problem of overcoming the major difficulty of
proof of possession of dangerous drugs when a defendant maintains,
as he frequently does, that he is unaware of the contents of a container I
which is in his possession, the Court had no difficulty in finding that
s.47(2) had a rational connection with a legitimate objective.
60. The critical question then was whether s.47(2) was
disproportionate. The Court found that it was and reached the same
conclusion on s.47(1). J
61. The Court then, applied a remedial interpretation to s.47(1)
and (2) in order to make them consistent with the Basic Law and the

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 861

A BOR, basing that remedial interpretation on s.3 of the BOR Ordinance

and Article VII(3) of the Letters Patent which, although ceasing to
operate in the HKSAR at midnight on 30 June 1997, had an impact
on the Ordinance when it came into operation in 1992. The remedial
interpretation took the form of reading the persuasive onus imposed
B by s.47(1) and (2) down to an evidential onus.

The appellant’s case

62. The main thrust of the appellant’s case on s.47 is that it does
C impose a persuasive onus of proof and that the persuasive onus satisfies
both the rationality and the proportionality tests; in other words, the
persuasive onus not only has a rational connection with the legitimate
objective, as the Court of Appeal found, but also it derogates from
the presumption of innocence no more than is necessary to achieve
D that legitimate objective. The appellant also submits that the Court
of Appeal erred in the interpretation which it placed on s.47(1) and
(2). The answer to this submission has no material bearing on the
main thrust of the appellant’s case. It is, however, convenient to deal
with the submission at the outset.
E

The interpretation of s.47(1) and (2)

63. According to Mr McCoy SC for the appellant, s.47(1) incorporates
F a double presumption: first, a presumption that a person who has in
his physical possession anything containing a dangerous drug or the
keys to any container containing a dangerous drug, has legal possession
of that dangerous drug; and, secondly, a presumption that the person
has knowledge of the presence of the drug in the container. On this
G argument, s.47(2) is not directed to creating a presumption of knowledge
of the presence of the drug in the container for that is the subject of
the second presumption created by s.47(1). Instead, s.47(2) is directed
to the case where a defendant is shown to have legal possession of a
dangerous drug but contends that he thought that it was a drug other
H than that identified by the Government chemist and described in the
particulars of the charge.
64. This interpretation of s.47(1) and (2) has the support of three
decisions of the Court of Appeal, R v Tam Chun Fai [1994] 2 HKC 397
at p.401F–G; R v Ng Chiu Leung [1996] 1 HKC 181 at p.187F–I; and
I HKSAR v Chan Ming Fai [2001] 4 HKC 511 at pp.516D–517F; see
also R v Tsang Kwok Wing [1989] 1 HKLR 270 (which was concerned
with s.24 of the Firearms and Ammunition Ordinance (Cap.238)).
Apart from the decision now under appeal, there is one Court of
Appeal decision, HKSAR v Chui Chi Wai [1999] 3 HKLRD 841 which
J takes the contrary view and supports the Court of Appeal’s view. The
authority of HKSAR v Chui Chi Wai is weak because in that case the
Court of Appeal was not referred to its earlier decisions.

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 862 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

65. Although the question of interpretation has been the subject A

of disagreement, the arguments which support the Court of Appeal’s
interpretation of s.47(1) and (2) are, with respect, the stronger. As a
matter of language and analysis, sub-s.(1) does appear to create two
presumptions, even if the second presumption arises only by reason
of the knowledge imputed to the defendant by presuming that he has B
legal possession of the contents of the container. The operation of
the sub-section is to be understood in the light of the principle of the
common law, that:

… the term “possession” is satisfied by a knowledge only of the C

existence of the thing itself and not its qualities, and that ignorance
or mistake as to its qualities is not an excuse.

(Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at p.305F,

per Lord Pearce). See also R v Boyesen [1982] AC 768 where Lord D
Scarman (at pp.773H–774A) said:

Possession is a deceptively simple concept. It denotes a physical

control or custody of a thing plus knowledge that you have it in your
custody or control. You may possess a thing without knowing or E
comprehending its nature: but you do not possess it unless you know
you have it.

66. When sub-s.(1) is so understood, its evident purpose is to enable

the prosecution to establish a case by proving that the defendant had F
physical possession of a container or keys to a container which housed
a dangerous drug. Once physical possession is established, the double
presumption arises, that of legal possession of the drug and that of
knowledge. But knowledge of what? As a constituent element of the
concept of legal possession, it is knowledge of the presence of the thing G
possessed that is required, not knowledge of its nature or its qualities,
as the statements quoted from Warner v Metropolitan Police Commissioner
[1969] 2 AC 256 and R v Boyesen [1982] AC 768 so clearly demonstrate.
67. There was, accordingly, no necessity for the implied
presumption of knowledge in s.47(1) to extend to knowledge of the H
nature of the drug or knowledge that it was a dangerous drug, in order
to constitute legal possession at common law. And, in that context,
in the absence of some indication of legislative intention (of which
there is none), there is no reason at all why the presumption as to
knowledge of the presence of the thing itself should be extended I
to knowledge of its nature or qualities. On this view of s.47(1), the
presumption of legal possession of a substance would not be displaced
by the defendant showing that, although he was aware that there
was a substance housed in the container, he did not know that it was
a dangerous drug. Under s.47(1), he would need to show, on the J
probabilities, that he was unaware of the presence of a substance in the
container.

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 863

A 68. Not only is there no indication of legislative intention that

s.47(1) contains an unexpressed presumption extending to knowledge
of the presence of a dangerous drug, s.47(2), by providing expressly for
a presumption on that matter, negates the basis for such an implication
in sub-s.(1). In so providing, s.47(2) also enables the defendant to prove
B that he was unaware of the presence of a dangerous drug, a course not
available under s.47(1).
69. As a matter of first impression, there are difficulties with s.47(2).
The opening words of sub-s.(2) suggest that it operates outside the
ambit of sub-s.(1), after the defendant’s legal possession of the dangerous
C drug has been established by proof or presumption. In combination with
the reference to “the nature of the drug”, the opening words excite the
reader to speculation about an array of improbable explanations of the
purpose of sub-s.(2). But one thing is very clear and that is that s.47(1),
(2) and (3) are all related in various ways to proof of offences relating
D to the possession of a dangerous drug, whether by way of proof or
presumption. This circumstance suggests that the presumption under
s.47(2) of knowledge of the presence of a dangerous drug in a container
is relevantly linked to the possession-based offences created by ss.4 and 8
of the Ordinance.
E 70. The explanation of the relationship between s.47(1) and (2)
and the seemingly infelicitous language of sub-s.(2) is to be found, as
the Court of Appeal held, in attributing to it the purpose of responding
to the expectation that the courts would, in accordance with established
principle, read into the offence provisions, a requirement of knowledge
F of the presence of a dangerous drug (see Warner v Metropolitan Police
Commissioner [1969] 2 AC 256 at p.307, per Lord Pearce; He Kaw Teh
v The Queen (1985) 157 CLR 523 at p.589, per Brennan J). The case
for adopting this approach is a very strong one. The offences created
by ss.4 and 8 are serious offences, the former (trafficking) very serious,
G being punishable by a sentence of life imprisonment.
71. So understood, s.47(2) sheds most of the difficulties which
have been thought to surround it. It is directed at an additional element
of the offences which stands outside the common law concept of
legal possession dealt with by s.47(1). In the expectation that the two
H presumptions carrying the prosecution case based on physical possession
forward to legal possession will not be enough to establish the mental
element — knowledge of the nature of the drug — on which the
courts would insist, a further presumption is provided by s.47(2). Once
this is acknowledged, the relationship between s.47(1) and (2) is
I comprehensible and the opening words of sub-s.(2) serve the purpose
of indicating that, after proof or presumption of legal possession, there
is introduced another presumption, namely of knowledge of the nature
of the drug. The explanation provides an important role for s.47(2),
whereas, on the appellant’s submission, the suggested purposes which
J the sub-section serves are unconvincing.
72. So I agree with the Court of Appeal and reject Mr McCoy SC’s
submission on this question.

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 864 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

A persuasive onus A

73. Clearly the reverse onus imposed by s.47(2) is a persuasive onus

and so is the onus imposed by s.47(1).

B
Derogation from the presumption of the innocence
74. It is equally clear, applying the approach adopted by this Court
in HKSAR v Lam Kwong Wai & Another [2006] 3 HKLRD 808, para.41,
that the reverse onus under s.47(2), as well as that under s.47(1),
derogates from the presumption of innocence and consequently from C
the right to a fair trial. The prosecution is required to do no more than
prove physical possession of a container, or of keys to a container,
containing a dangerous drug. Presumptions then arise which throw on
to the defendant the onus of proving that he did not have possession
of such a drug or that he was unaware of the presence of such a drug. D
It is clear enough that the defendant may be convicted under s.4 and
s.8 because he fails to prove on the balance of probabilities that he
did not have legal possession of the drug or that he was unaware that
he had such a drug in his possession, yet the evidence may be such as
to generate a reasonable doubt that he had possession or that he had E
knowledge that what he possessed was a dangerous drug. What is more
the reverse onus under s.47(2) relates to a critical aspect of the offence,
involving what is blameworthy conduct on the part of the defendant,
namely his knowledge that he is in possession of a dangerous drug.
F

Justification
75. In this situation, it is for the appellant to justify the derogation
from the presumption of innocence by showing that the derogation:
G

(a) is rationally connected with the pursuit of a legitimate societal

objective (the rationality test); and
(b) that the means employed — the imposition of the reverse onus —
are no more than is necessary to achieve that legitimate objective H
(the proportionality test).

As this Court discusses the relevant principles governing these matters

in HKSAR v Lam Kwong Wai & Another [2006] 3 HKLRD 808, there
is no occasion to repeat what is said there. Likewise, I refrain from setting I
out the relevant provisions of the Basic Law and the BOR as they are
set out in my judgment in that case. As noted in that judgment it will
be sufficient to examine the issues as they relate to the presumption of
innocence in the context of the Basic Law and the BOR (as applied
through art.39 of the Basic Law) as any impact on the right to a fair J
trial flows from the impact on the presumption of innocence.

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 865

A The rationality test

76. The rationality test can be dealt with shortly. The Court of
Appeal was correct in holding that it was satisfied. Proof of the
elements of possession offences relating to dangerous drugs is
B notoriously difficult, particularly in cases where the drugs are in a
container and the defendant maintains that he did not know that
what was in the container was a dangerous drug. The imposition of
presumptions as to legal possession and the defendant’s knowledge
of the nature of the drug possessed is rationally connected with the
C legitimate objective of preventing and suppressing the trade and use
of dangerous drugs and punishing those who participate in them.

The proportionality test

D 77. The application of the proportionality test is the critical issue in
this case. At the outset, it is appropriate to say that the Court of Appeal
was right in concluding that the persuasive burdens imposed by s.47(1)
and (2) failed the proportionality test and then to explain briefly the
reasons why that conclusion was correct.
E 78. As noted in HKSAR v Lam Kwong Wai & Another [2006] 3
HKLRD 808, it is accepted that, in some situations, a reverse onus
provision may satisfy the proportionality test; see, for example, L v
DPP [2003] QB 137; R v Matthews [2003] 2 Cr App R 19. But, the
burden of justification rests with the State and the reasons supporting
F the justification must be compelling. Granted that weight must be
given to the legislative judgment, particularly where, as here, the
State is grappling with the acute problem of dangerous drugs and
the sophisticated techniques employed by criminals engaged in drug
trafficking, it is the responsibility of the courts to ensure that the
G constitutional rights of the individual are adequately protected so that
the interference with those rights is no more than is necessary to
achieve the legitimate societal objective. In this context, the courts are
well-equipped to discharge that responsibility because the issue is one
that relates to matters of proof, onus and evidence. In discharging this
H responsibility, the courts, as the Court of Appeal noted, recognize that
the more serious the crime, the more important is the protection of
the constitutional rights of the individual.
79. Various considerations are relied upon to support the imposition
of a persuasive onus. First, there is the gravity of the social problem
I generated by the trafficking and use of dangerous drugs and the difficulty
of solving that social problem, a difficulty which has been experienced
throughout the world. Secondly, there is the particular problem, already
referred to, of proving possession and knowledge on the part of a
defendant of the identity of the contents of a container which is in his
J possession. Thirdly, proof of the absence of such awareness is a matter
peculiarly within the defendant’s own knowledge.

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 866 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

80. On the other hand, there are very strong countervailing A

considerations. First, there is the very real possibility, mentioned
earlier, that a defendant may be convicted because he fails to discharge
the burden of proof imposed upon him, even though the evidence
raises a reasonable doubt as to his possession or knowledge of the
presence of a dangerous drug in the container. That this possibility is B
open is a very serious interference with the right to the presumption
of innocence. That the possibility is not simply a theoretical possibility
is strikingly demonstrated by the exchanges between the jury and the
trial judge at Hung’s trial. Secondly, the persuasive onus is imposed
on the defendant in relation to the critical element in the offence, the C
defendant’s knowledge which is both the mens rea or mental element
and the core element of blameworthiness in the offence. Thirdly, the
s.47(2) presumption operates in addition to the presumption of legal
possession created by s.47(1). So the prosecution, by merely, proving
the defendant’s physical possession of a container, brings into existence D
presumptions of legal possession of the contents of the container and
knowledge of the nature of its contents. The very purpose of s.47(1)
and (2) is to throw on to the defendant the burden of disproving legal
possession and knowledge of the nature of the contents, these elements
being the substratum of a possession-based offence under s.4 or s.8. E
81. This derogation from the presumption of innocence is so
severe that it is not sustainable unless it can be shown at least that
the legitimate objective cannot be achieved otherwise than by the
imposition of these reverse burdens of proof. This has not been shown.
The appellant has not demonstrated that an evidential onus of proof F
would be inadequate to achieve that objective. Indeed, it does not
appear that the legislative endorsement of s.47(1) and (2) was based
on a considered judgment that an evidential onus would not have
achieved the legitimate objective.
82. The House of Lords majority decision in R v Lambert [2002] G
2 AC 545 confirms this view. In that case, the majority concluded that
the imposition of a persuasive burden on the defendant to prove absence
of knowledge by way of a defence to a charge of being in possession
of cocaine with intent to supply, contrary to s.5(3) of the Misuse of
Drugs Act 1971 (UK), was a derogation from the presumption of H
innocence under art.6(2) of the European Convention on Human
Rights and Fundamental Freedoms, that it could not be justified as being
no more than necessary for the achievement of the legitimate objective
and that it should be treated as an evidential onus. Mr McCoy SC seeks
to distinguish and to curtail the significance that R v Lambert might I
otherwise have for Hong Kong by pointing out that Lord Steyn in
R v Lambert (at p.573A–B) relied on the statutory erosion in England
of the traditional right of silence as a basis for saying that the persuasive
onus was disproportionate and an evidential onus was sufficient. His
Lordship specifically referred to s.34 of the Criminal Justice Act 1994 J
which enables an English judge to comment on an accused’s failure

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 HKSAR v Hung Chan Wa & Another
CFA Sir Anthony
Li CJ
Mason NPJ 867

A to mention facts when questioned or charged. This provision has

no counterpart in Hong Kong. In Hong Kong, the failure of a person
charged with an offence to give evidence cannot be made the subject
of any comment by the prosecution (Criminal Procedure Ordinance
(Cap.221) s.54(1)(b)). And, in Hong Kong, the trial judge should
B make no comment on a defendant’s exercise of his right of silence
(Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at p.622D–G, per
Mortimer NPJ).
83. Granted the difference in this respect between England and
Hong Kong, the difference affects only one of the matters on which
C Lord Steyn relied for his statement (at p.572H) that a:

… new realism in regard to the problems faced by the prosecution

in drugs cases have significantly reduced their scope.

D Other points made by Lord Steyn are applicable in Hong Kong. It is

simple common sense that possession of a container housing drugs
will generally demand a full and adequate explanation, while the
introduction of a statement by the defendant containing a self-serving
explanation that he did not know what was in the container can be
E dealt with by an appropriate direction (R v Lambert [2002] 2 AC 545
at p.573B–E, per Lord Steyn). It would be a serious mistake to think
that a jury will not evaluate for itself the decision of a defendant to prefer
silence, when offered an opportunity to make a statement or explanation
on being questioned or charged. The difference in permissible judicial
F comment between England and Hong Kong is not of such significance
as to undermine the value that the decision in R v Lambert has for Hong
Kong in considering the issues in this case. It is open to a trial judge to
invite the jury to consider the common sense point (made by Lord Steyn
at p.575C) that it must be comparatively rare for a drug dealer to entrust
G a valuable parcel of drugs to an innocent.
84. Mr McCoy SC relies heavily on the dissenting speech of Lord
Hutton in R v Lambert [2002] 2 AC 545 (at pp.622H–623A), where
his Lordship said that “the threat of drugs to the well-being of the
community and the peculiar difficulty of proving knowledge in such
H cases” justify the persuasive burden. In my view, neither that threat
nor the difficulty of proof nor the need to deter justifies such a burden.
With respect, I do not agree with Mr McCoy SC’s submission when
it has not been demonstrated that less intrusive means have been
considered and discarded.
I 85. It follows that the persuasive burdens imposed by s.47(1) and
(2) are disproportionate and that, in each sub-section, an evidential
onus would be a sufficient means of achieving the legitimate objective.

J
Remedial interpretation
86. The Court of Appeal was right to apply a remedial interpretation

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 868 HONG KONG LAW REPORTS & DIGEST [2006] 3 HKLRD

to s.47(1) and (2) by treating the burdens of proof as creating an A

evidential onus only. But in accordance with the approach adopted
by the Court in HKSAR v Lam Kwong Wai & Another [2006] 3 HKLRD
808, that remedial approach is to be based on implied powers conferred
upon the courts of the Region by the Basic Law itself. There is no
occasion to express an opinion on the case for remedial interpretation B
based on s.3 of the BOR Ordinance which ceased to have effect before
1 July 1997.

Conclusion C
87. In the result the following orders should be made:

(1) Declare that s.47(1) and (2) each should be read and given effect
as imposing an evidential onus only.
(2) Appeals dismissed. D

Li CJ
88. The Court unanimously dismisses the appeals and makes the
declaration set out in the concluding paragraph of Sir Anthony Mason’s
judgment. E
89. In concluding, the Court wishes to pay tribute to the two
helpful and comprehensive judgments of the Court of Appeal given
by Stock JA on the appeal against conviction and prospective overruling
respectively which have been of considerable assistance to the Court.
F

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