Government appeals against court ruling on carrying of drugs
The government has begun an appeal against a court ruling it once said could see more than 100,000 drug convictions reviewed.
At issue is a finding by the Court of Appeal last year that section 47 of the Dangerous Drugs Ordinance is inconsistent with the Basic Law because it places the onus on the accused to prove they did not know they were carrying drugs.
Gerard McCoy SC, for the government, contended yesterday that there were sufficient safeguards to guard against wrongful convictions in drug cases. He argued that one of the chief protections was that no dangerous drugs prosecutions could go ahead without the express consent of the secretary for justice or one of his high-ranking subordinates.
'In deciding whether any prosecution takes place ... the initial task is to determine whether the evidence is such that a prosecution will succeed,' Mr McCoy said.
That meant the government would need to be able to prove beyond a reasonable doubt that the accused had the drugs in their possession. It was then up to the jury, in the Court of First Instance, or presiding judge or magistrate to evaluate whether the accused actually knew they had the drugs.
If someone is proved to have had in their possession a container, or keys to a container, that housed illegal drugs, it is presumed the person knew the contents were dangerous drugs.
A defendant needed only to show on the balance of probabilities that they did not. Mr McCoy argued that while the presumption of knowledge did place a burden on the defendant, there was a rational connection between proving possession and assuming knowledge.
In the cases that triggered last year's Court of Appeal case, Hung Chan-wa, 35, and Asano Atsushi, 24, were jailed for 15 and 22 years respectively. Both admitted possessing a container in which dangerous drugs were found, but contended they had no idea that it was drugs they were carrying.
It was successfully argued in the Court of Appeal last year that drawing such an inference violated the presumption of innocence contained in Article 87 of the Basic Law.
In that judgment, Mr Justice Frank Stock said: 'It is an issue that engages a balancing exercise between, on the one hand, the recognised need to ensure the conviction of those guilty of a grave offence ... and, on the other, protection of the individual against the danger of unjust conviction and incarceration.'
The appeal continues in the Court of Final appeal today.
